Introduction
The Court of Arbitration for Sport (CAS), established in 1984 and operating from its headquarters in Lausanne, Switzerland, occupies a position in the global sports governance ecosystem that is without parallel in any other domain of international dispute resolution. It is simultaneously a mandatory arbitral forum imposed on athletes as a condition of participation in international sport, an appeals body from the decisions of international sports federations, and a first-instance tribunal for certain categories of disputes. Its awards are recognised as final and binding by the Swiss Federal Tribunal and by courts in most major sporting nations. Its jurisdiction over Olympic athletes in particular is so comprehensive that practitioners sometimes describe it as a private legal system governing the lives and careers of elite sportspersons worldwide.
This concentration of adjudicative authority in a single private institution — one whose structural independence from the bodies it regulates has been persistently questioned — has attracted sustained criticism from athletes, human rights advocates, and legal scholars. The concerns centre on whether the CAS, particularly in anti-doping enforcement, provides the procedural guarantees that due process requires when decisions are made that can effectively end a professional career, devastate an athlete’s livelihood, and attach the stigma of cheating.
Legal Framework
The CAS derives its authority from a combination of the statutes of international sports federations, the Olympic Charter, the World Anti-Doping Code (WADC), and the arbitration agreements that athletes are required to sign as a condition of competition eligibility. The WADC, administered by the World Anti-Doping Agency (WADA), establishes the substantive anti-doping regime applicable across all Olympic sports: prohibited substances and methods, testing procedures, sample collection, results management, and the sanctioning framework.
The CAS Code of Sports-related Arbitration governs procedure. CAS maintains its own arbitrator roster, from which panels of three arbitrators (or a sole arbitrator in simpler matters) are drawn. WADA, the international federation, and the National Anti-Doping Organisation each have roles in the prosecution and appeals process.
Under Swiss private international law, CAS awards are subject to challenge before the Swiss Federal Tribunal (Bundesgericht) on limited grounds, including lack of proper constitution of the tribunal, wrong decision on jurisdiction, and violation of public policy. The Swiss Federal Tribunal has consistently applied a narrow conception of public policy review, deferring substantially to CAS panels on both procedural and substantive determinations.
India’s National Anti-Doping Agency (NADA) operates within the WADC framework, and Indian athletes who contest anti-doping sanctions must ultimately go to CAS if they seek review beyond the domestic sports arbitration panel. The Sports Code applicable in India provides for an internal appeals structure, but for international competitions, CAS jurisdiction is effectively mandatory.
Judicial Developments
The Swiss Federal Tribunal’s decision in Mutu and Pechstein v. Switzerland (subsequently decided by the European Court of Human Rights) is the landmark judicial engagement with CAS’s due process compliance. Claudia Pechstein, a German speed skater, challenged her two-year doping ban and argued before the ECtHR that her compelled arbitration before CAS violated Article 6 ECHR (the right to a fair trial). The ECtHR held in 2018 that the waiver of the right to a court was involuntary because athletes have no genuine choice about accepting CAS jurisdiction — it is a condition of participation. However, the court found no violation because CAS proceedings satisfied Article 6’s requirements of an independent and impartial tribunal. The court’s independence finding has been criticised by commentators who note that WADA plays a significant role in the governance and financing of CAS.
The Spanish footballer Jakub Blaszczykowski’s case and, more prominently, the Semenya v. Switzerland decision (2023) at the ECtHR, represent the most significant recent challenges to CAS’s legitimacy. In Semenya, South African runner Caster Semenya challenged World Athletics’ Difference of Sex Development (DSD) Regulations, which required her to medically suppress her naturally occurring testosterone to compete in the female category of middle-distance events. The ECtHR held that Switzerland had violated Semenya’s rights under Articles 8 and 14 ECHR by allowing CAS to hear her case without adequate procedural safeguards. The court was particularly critical of the limited scope of Swiss judicial review, which prevented substantive examination of whether the DSD Regulations were discriminatory and proportionate.
Contemporary Issues and Analysis
The due process deficit in CAS anti-doping proceedings operates at multiple levels.
The strict liability principle, foundational to the WADC, provides that a doping violation is established when a prohibited substance is found in an athlete’s sample — regardless of intent, negligence, or fault. The athlete bears the burden of proving how the substance entered their body to obtain a reduction in the standard two-year sanction. This reversal of the ordinary presumption of innocence is unique in adjudicative systems that claim to be applying sanctions of a penal character. The strict liability approach is justified by the WADA on anti-circumvention grounds — requiring proof of intent would make it too easy for sophisticated dopers to avoid sanctions. But its human cost, in terms of sanctions imposed on athletes who ingested prohibited substances through contaminated supplements or medical error, is real.
The contaminated supplement problem is chronic and illustrates the strict liability regime’s harshest consequences. Athletes who take legally sold supplements containing substances not listed on the label face two-year bans for what are effectively manufacturer errors. The 2024 WADC amendments have introduced some nuance in the contaminated product defence, but the burden of proof on the athlete remains heavy, and the cost of analytical testing to establish contamination can be prohibitive.
The provisional suspension problem — the practice of suspending an athlete from competition immediately upon an adverse analytical finding, before any hearing on the merits — creates a practical irreversibility: the athlete loses the competition period regardless of the outcome. For an Olympic athlete, a provisional suspension imposed six months before the Games may deprive them of their one realistic opportunity at a career-defining performance, even if the subsequent CAS hearing results in an acquittal.
Comparative and International Perspective
Germany’s national courts have been the most willing among major sporting nations to scrutinise CAS jurisdiction. The Munich Court of Appeal’s engagement with the Pechstein case, holding that her compelled arbitration raised competition law concerns (CAS as a monopoly service provider), was overturned by the German Federal Court of Justice on procedural grounds, but the competition law framing opened a new line of attack on mandatory CAS arbitration that has not been fully closed.
In the United States, athletes participating in Olympic trials operate under a different legal framework. The Ted Stevens Olympic and Amateur Sports Act governs the relationship between athletes and the US Olympic and Paralympic Committee, and US courts have intervened in sports arbitration proceedings in circumstances where courts in most other jurisdictions would have deferred. The US approach is more protective of athletes’ procedural rights — and more interventionist — than the European standard.
Practical and Policy Implications
For Indian athletes, the CAS regime means that a doping sanction imposed by NADA or an international federation can only be finally challenged through an expensive, Lausanne-based arbitral process conducted in English, with Swiss law governing the procedure. The practical barriers — cost, distance, language, legal representation — mean that many Indian athletes accept sanctions without pursuing all available remedies, even where a legitimate defence exists. Sports federations and NADA should consider establishing a domestically accessible athlete representation fund specifically for CAS proceedings.
Suggestions and Reforms
The WADC review process, which occurs on a four-year cycle with the next comprehensive review due in 2027, should address the following structural reforms. The provisional suspension regime should be modified to allow athletes to continue competing during the first instance hearing in cases where the adverse analytical finding involves a specified class of low-risk substances or where the athlete presents prima facie evidence of contamination. The strict liability standard should be accompanied by a mandatory independent supplement testing programme funded by WADA, reducing the burden on individual athletes to finance their own contamination analysis.
CAS should introduce publicly elected athlete representatives to its governance board, reducing the perception — and arguably the reality — that it is an instrument of federation interests rather than an independent adjudicative body.
Conclusion
The Court of Arbitration for Sport is structurally essential to the management of global sport but doctrinally troubled as an adjudicative forum for the most consequential professional decisions in an athlete’s life. Its anti-doping jurisdiction, in particular, combines a strict liability standard, a reversed burden of proof, provisional suspension, and limited judicial review in a procedural package that no ordinary court would recognise as due process. Reform is not merely desirable but, in light of the ECtHR’s Semenya decision, increasingly legally mandated. The question is whether international sports governance has the institutional will to reform a system whose design advantages the federations and anti-doping authorities that control it — or whether reform will come, as it often does, through external judicial pressure on a system that has long assumed its own immunity from accountability.
