Islj 2009 3-4 - TMC Asser Instituut

CAS Publishes the Decisions Rendered at The 2008 Beijing
Olympic Games
The Court of Arbitration for Sport (CAS), based in Lausanne,
Switzerland, has just published (July, 2009) a Digest of the Awards
made by its Ad Hoc Division (AHD) - a kind of circuit tribunal of
the CAS - during the Beijing Olympic Games held from 8 - 24
August, 2008; and, as usual, they make very interesting reading. They
are published in the two official languages of the CAS: English and
French.
Writing in the Foreword, the President of the CAS AHD, Dr
Robert Briner, had this to say:
“The caseload of the ad hoc Division was comparable to those of
the last Games. The most important aspect of the role of the ad hoc
Division of CAS in the Olympic Games ….. is, however, not the
number of cases decided but the fact that there exists an independent
body which in a very short time is able to render and independent and
fair judgment in the interests of the athletes and all other participants
and thereby uphold the integrity of the Olympic Games. This was the
seventh time CAS set up an ad hoc Division at Olympic Games. The
presence and activity of CAS has therefore become a mature, traditional
element of the Games. It has established and refined its working
methods and is universally accepted throughout the Olympic
Movement.”
The CAS AHD has operated at all the Summer and Winter Games
since and including those held in Atlanta in 1996 (the so-called
‘COKE Games’); and will again be in session at the Winter and
Summer Games in Vancouver and London in 2010 and 2012 respectively.
Under the CAS AHD rules, the proceedings are free of charge
and awards must rendered within twenty-four hours of a case being
brought before the CAS AHD. Of course, if the services of a lawyer
or a translator are engaged in the proceedings, their fees must be paid
by the party concerned.
The jurisdiction of the CAS AHD is derived from the provisions of
article 59 of the Olympic Charter, the latest version of which dates
from 7 July, 2007, as follows:
“Any dispute arising on the occasion of, or in connection with, the
Olympic Games shall be submitted exclusively to the Court of
Arbitration for Sport, in accordance with the Code of Sports-related
Arbitration.”
To give effect to these mandatory and exclusive provisions, the
Supreme People’s Court of the People’s Republic of China issued on
10 June, 2008 to the relevant People’s Court in Beijing and also to the
co-host cities, with the exception of Hong Kong (SAR), the following
directive:
“The period of the Beijing 2008 Olympic Games, pursuant to the
stipulations under the Host City Contract for the Games of the XXIX
Olympiad in the Year 2008 executed by and between us and the IOC,
and provisions under the Olympic Charter, the Court of Arbitration
for Sport will set up an ad hoc division in Beijing to conduct arbitration
of three types of sports-related disputes concerning the events of
the Beijing 2008 Olympic Games.”
The types of disputes concerned are as follows:
• eligibility disputes;
• doping test results; and
• event results or referee penalties.
To guarantee the exclusive jurisdiction of the CAS AHD, the above
directive also included the following provision:
“The People’s Court will not accept any legal proceeding instituted
in regard to the aforesaid disputes; provided that a party is dissatisfied
with the arbitration award made by the Court of Arbitration for Sport
in regard to the aforesaid disputes and thus requests that the People’s
Court withdraw such award or applies to the People’s Court for
enforcement, the People’s Court shall not accept.”
As far as the athletes and other participants in the Olympic Games
are concerned, they are required, in their entry form, to submit all disputes
to the CAS AHD whether they wish to do so or not; otherwise
they will not be allowed to participate. Quaere: is this a valid consent
to arbitration? An interesting subject and one for another occasion!
Eleven cases were filed with the CAS AHD in Beijing; and, surprisingly,
there were no doping cases. About half the cases raised eligibility
issues and the other half concerned decisions taken by officials
during the competitions. The sports concerned included field hockey;
swimming; tennis; wrestling; and sailing.
The cases were handled by a team of 12 CAS arbitrators drawn
from the five continents of the world and they were supported administratively
by members of the CAS Office.
Two of the Awards made by the CAS AHD in Beijing were
appealed - unsuccessfully - to the Swiss Federal Tribunal and the text
of the Judgement of the Tribunal delivered on 22 January, 2009 is
included in the CAS Digest. The Digest also usefully contains the
AHD Rules for the Beijing Games and the CAS Application for AHD
Arbitration Form.
A copy of the Digest of the Beijing CAS AHD Awards and further
information on the CAS generally may be obtained from:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: + 44 21 613 50 00
Fax: + 44 21 613 50 01
E-Mail: info@tas-cas.org
Website: www.tas-cas.org
English Premier League Clubs Win Important ‘Cyber
Squatting’ Case
Introductory Remarks
The Arbitration and Mediation Centre of the World Intellectual
Property Organization (WIPO), a specialized agency of the UN based
in Geneva, Switzerland, has recently delivered an important ruling in
a ‘cyber squatting’ sports-related case brought by five leading English
Premier League Football Clubs, including Manchester United, all of
whom successfully claimed that their trademarks had been misused
through the registration and commercial use of domain names incorporating
them by an unassociated and unauthorized third party offering
for sale so-called ‘official’ tickets to their matches.
To succeed in a ‘cyber squatting’ case, a Complainant is required to
prove each of the following three conditions specified in paragraph
4(a) of the Uniform Domain Name Dispute Resolution Policy (the
“Policy” or “UDRP”) of 1999, namely that:
i the Disputed Domain Names are identical or confusingly similar to
trade marks in which the Complainants have rights; and
O P I N I O N
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