The 1994 reform

In February 1992, a horse rider named Elmar Gundel lodged an appeal for arbitration with the CAS on the basis of the arbitration clause in the FEI statutes, challenging a decision pronounced by the federation. This decision, which followed a horse doping case, disqualified the rider, and imposed a suspension and fine upon him. The award rendered by the CAS on 15 October 1992 found partly in favour of the rider (the suspension was reduced from three months to one month: see arbitration CAS 92/63 G. v/ FEI in Digest of CAS Awards 1986-1998). Unhappy with the CAS decision, Elmar Gundel filed a public law appeal with the Swiss Federal Tribunal. The appellant primarily disputed the validity of the award, which he claimed was rendered by a court which did not meet the conditions of impartiality and independence needed to be considered as a proper arbitration court.

In its judgement of 15 March 1993 (published in the Recueil Officiel des Arrêts du Tribunal Fédéral [Official Digest of Federal Tribunal Judgements] 119 II 271), the Federal Tribunal (FT) recognised the CAS as a true court of arbitration. The supreme court noted, inter alia, that the CAS was not an organ of the FEI, that it did not receive instructions from this federation and retained sufficient personal autonomy with regard to it, in that it placed at the disposal of the CAS only three arbitrators out of the maximum of 60 members of which the CAS was composed. However, in its judgement the FT drew attention to the numerous links which existed between the CAS and the IOC: the fact that the CAS was financed almost exclusively by the IOC; the fact that the IOC was competent to modify the CAS Statute; and the considerable power given to the IOC and its President to appoint the members of the CAS. In the view of the FT, such links would have been sufficient seriously to call into question the independence of the CAS in the event of the IOC’s being a party to proceedings before it. The FT’s message was thus perfectly clear: the CAS had to be made more independent of the IOC both organisationally and financially.

This Gundel judgement led to a major reform of the Court of Arbitration for Sport. First of all, the CAS Statute and Regulations were completely revised to make them more efficient and to modify the structure of the institution, to make it definitively independent of the IOC which had sponsored it since its creation. The biggest change resulting from this reform was the creation of an “International Council of Arbitration for Sport” (ICAS) to look after the running and financing of the CAS, thereby taking the place of the IOC.

Other major changes included the creation of two arbitration divisions (Ordinary Arbitration Division and Appeals Arbitration Division) in order to make a clear distinction between disputes of sole instance and those arising from a decision taken by a sports body. Finally, the CAS reforms were definitively enshrined in a "Code of Sports-related Arbitration", which came into force on 22 November 1994 and was revised on 1 January 2004.

The new structure of the ICAS might have been put to the test in 2000, when a Romanian gymnast, Andreea Raducan, who had been stripped of one of the gold medals she had won at the Sydney Olympic Games a few weeks earlier, appealed to the Swiss Federal Tribunal against a CAS award. However, the Federal Tribunal decided to dismiss the appeal without tackling the question of the independence of the restructured CAS. It was not until 27 May 2003 that the Federal Tribunal assessed the Court's independence in detail, having heard an appeal by two Russian cross-country skiers, Larissa Lazutina and Olga Danilova, against a CAS award disqualifying them from an event at the Olympic Winter Games in Salt Lake City. In a remarkably detailed and exhaustive judgement, the Federal Tribunal dissected the current organisation and structure of the ICAS and CAS, concluding that the CAS was not "the vassal of the IOC" and was sufficiently independent of it, as it was of all other parties that called upon its services, for decisions it made in cases involving the IOC to be considered as true awards, comparable to the judgements of a State tribunal.

The Federal Tribunal also noted the widespread recognition of the CAS amongst the international sporting community, showing that the CAS was meeting a real need. On this subject, the Federal Tribunal added: "There appears to be no viable alternative to this institution, which can resolve international sports-related disputes quickly and inexpensively. (…) The CAS, with its current structure, can undoubtedly be improved. (…) Having gradually built up the trust of the sporting world, this institution which is now widely recognised and which will soon celebrate its twentieth birthday, remains one of the principal mainstays of organised sport". ­

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