Revisiting the independence of the Court of Arbitration for Sport: separating powers in transnational sports governance
摘要
This paper aims to revisit the question of the independence of the Court of Arbitration for Sport (CAS). Its main argument is that the CAS plays a key accountability function in the context of transnational sports governance which requires that it be strictly separated from the executive and legislative powers of the Sports Governing Bodies (SGBs) of the Olympic Movement. Yet, when assessing the independence of the CAS, European courts (the Swiss Federal Supreme Court, the German Bundesgerichtshof and the European Court of Human Rights) have failed to seriously consider the implications of this accountability function in their assessment. They have adopted an arbitral lens instead of a judicial one. The article advocates for shifting the lens used to assess the independence of the CAS and suggests building instead on the existing case law of the European Court of Human Rights and the Court of Justice of the European Union on the independence of national courts. This leads to the conclusion that the current institutional structure of the CAS is characterised by a relation of dependence vis-à-vis the SGBs of the Olympic Movement, which jeopardises its ability to act as an independent check on the transnational governance of international sports. The paper concludes by offering some concrete reform proposals aimed at cutting this Gordian knot and at ensuring that the CAS can trustfully discharge its responsibility as the independent global judiciary of the lex sportiva.