Free Consultant
1984 CAS Redux? TCAS and the Question of Structural Independence
Article by NICKY BALANI.
Thailand’s first central institution for the administration of sports disputes was inaugurated on 2 March 2022. The Thailand Center of ADR for Sports (“TCAS”) is a joint initiative between the Sports of Authority of Thailand (“SAT”) and Thailand Arbitration Center (“THAC”). The SAT is a state enterprise with the mandate which includes the supervision of sporting activities in Thailand. The SAT’s role as a supervisory authority alongside its position as a joint partner in and possible party to TCAS proceedings raises a question over the structural independence of the TCAS. Such circumstances hark back to the concerns which were raised in connection with the independence of the Court of Arbitration for Sport (“CAS”) from the International Olympic Committee (“IOC”). As the structural independence in this context is the separation between the arbitral institute and the governing body for sports, it provides a measure of the prospect for a fair trial before an independent and impartial tribunal.
Background to the TCAS
The TCAS has been established to provide dispute resolution services in relation to sporting disputes. The institution has been registered at the same address as the THAC. The THAC also drafted its arbitration rules. The TCAS’ objectives include providing expedient and efficient dispute resolution procedures in accordance with internationally accepted standards. The expectation is that the availability of arbitration services should place parties, including players, coaches and associations on an equal footing in the access and administration of justice.
The TCAS joins a growing list of independent sports dispute resolution institutions. These institutions include, the CAS, Sport Dispute Resolution Centre of Canada, German Court of Arbitration for Sport, Australia National Sports Tribunal, Sports Tribunal of New Zealand and Saudi Sports Arbitration Center. The independence of these institutions is also made clear. For instance, the German Court of Arbitration for Sport states that it “acts independently of sports associations and clubs, athletes, the NADA or other sports organizations and players. Therefore, it is a proper arbitration court […].” The Saudi Sports Arbitration Center describes itself as “[…] an independent and impartial body, and enjoys legal personality and financial and administrative independence.”
Furthermore, where the arbitral institute receives public support, the separation between the two has been apparent. The Sports Arbitration Centre of India (“SACI”) while backed by the Ministry of Law and Justice has made clear its separation from the Ministry. The SACI went further and identified its independent promoter, TransStadia. In other situations, independence may be inferred. For example, in Mainland China efforts are under way to establish the Sports Arbitration Commission. The Sports Arbitration Commission which is responsible for the arbitration of sporting disputes is being set up by the General Administration of Sport of China. The General Administration of Sport is an administrative department under the State Council. The independence of the Sports Arbitration Commission can thereby be inferred from the requirement under the sports law in China for the arbitration of sporting disputes to be conducted independently, and without interference from any administrative organ.
Drawing on the experience of the CAS
The experience of the CAS has nevertheless brought to the fore questions of independence in connection with sports-related dispute resolution institutions. In this respect, an early challenge against a CAS award was made in the case of Gundel v Fédération Équestre Internationale. One of the issues on appeal was whether the CAS had the required degree of independence from the International Equestrian Federation (“FEI”). The Swiss Federal Tribunal (“SFT”) held that the CAS was not an organ of and did not receive instructions from the FEI. But the SFT went on to make observations on the administrative and financial links between the CAS and IOC which could call into question the independence of the CAS where the IOC was a party to proceedings. These links concerned the financing of the CAS which was at the time almost exclusively from the IOC, and the IOC’s competence to modify the statute and appoint members of the CAS.
The observations made by the SFT concerning the independence of the CAS from the Gundel case are relevant by analogy to the circumstances of the SAT’s involvement in TCAS. This includes whether the TCAS offers guarantees of independence where the SAT is a party to proceedings. In this respect, a Thai government agency or state enterprise may enter into an arbitration agreement, albeit with certain procedures in place to be complied with. To this end, the SAT itself has previously appeared as a party in Thai arbitration proceedings.
The dispositive question on the TCAS’ independence from the SAT turns on the nature of the underlying substantive relationship. The SAT explained that as a partner in TCAS it will seek to jointly promote the use of alternative dispute resolution or persons involved in the work operations of the SAT. The SAT’s focus thus appears to be primarily on supporting the use of alternative dispute resolution. As such, the SAT’s role does not reflect the same relationship as between the IOC and CAS prior to the 1994 reforms. There is no indication either that the SAT will be involved in the empanelment process for arbitrators from where the TCAS secretariat will consider appointments under its default procedure.
The SAT suggested as an alternative it may encourage its resource persons. It is difficult to discern from the aforementioned statement the involvement of these resource persons. The context of this statement may provide an indication as it refers to efficiency and a reduction in disputes referred to the SAT from opting for alternative dispute resolution. This appears to point to a role for these resource persons other than in an adjudicative capacity. For instance, if these resource persons were available only to be appointed as arbitrators, this could be antithetical to the desired outcome for efficiency, as the independence and/or impartiality of the concerned arbitrator may be challenged.
Conclusion
The SAT’s involvement invariably raises a question concerning the independence of the TCAS as a court of arbitration. However, the role of the SAT in promoting the TCAS is by comparison substantively different to that between the IOC and CAS in the period prior to the 1994 reforms. Moreover, the TCAS’ objective to follow international standards reduces concern over its institutional independence being compromised. For example, it would undermine the foregoing objective if a TCAS award was successfully challenged on the grounds of being denied a fair hearing from the lack of institutional independence. The adoption of international standards alongside only a promotional role for the SAT offers assurance of the TCAS’ independence from the SAT.
This article does not constitute and should not be relied upon as legal advice. The views expressed in this article are of the author alone.
