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The Standard of Proof in the Court of Arbitration for Sport

by Dr Carlos Bugeja – Senior Associate

In the realm of the judicial process facts reign. A legal right sought to be obtained or enforced in a contentious forum necessary requires a level of factual consideration. Sometimes, the very contestation of a claim is the competing versions of the facts themselves. Legal measures are logically connected to factual quandaries which need regulation, and which thus become subject to contentious suits.

The person adjudicating a dispute will rarely ever have the comfort of absolute certainty. Evidence is often contradictory, unclear and heavily disputed. Standards of proof fulfil the role of going around the impossibility of proving facts to a level of certainty, and at the same time avoid the adverse consequences of such a practice. Thus, the term refers to the extent to which the burden of proof must be discharged.

In ordinary courts of civil and criminal jurisdictions with common law traditions, the standards of proof required in many jurisdictions are common knowledge: that of ‘balance of probabilities’ in the civil forum, and that of ‘beyond reasonable doubt’ in the criminal forum, despite there being some past attempts to vary these standards (especially in the UK – see Bater v Bater [1950] 2 All ER 458). One cannot say that there is one uniform continental law model, but it suffices to state that its approach towards the evaluation of fact-finding has not only a substantial practical importance, but reflects a large-scale divergence in the attitude taken.

Sports Law operates an innovative standard of proof, particularly visible in the decisions by the Tribunal Arbitral du Sport / Court of Arbitration for Sport (CAS) for matters involving match-fixing and doping allegations.

The CAS is an international quasi-judicial body established to settle disputes related to sport through arbitration. Its headquarters are in Lausanne (Switzerland) and its courts are located in New York City, Sydney and Lausanne. It is known by many as the highest court in Sport, having jurisdiction of disputes such as those involving UEFA, FIFA and the Olympic Games.

Prevalent CAS jurisprudence affirms (CAS 2005/A/908 para. 6.2) that facts before it should be established: “[…] to the comfortable satisfaction of the court, having in mind the seriousness of allegation which is made.” This was further confirmed in CAS 2009/A/1920 (FK Pobeda et vs. UEFA).

The same approach was taken by CAS in the award in the names of Mohammed Bin Hamman vs. FIFA (CAS 2011/A/2625) where in para. 155 the panel concludes: “[…] that the standard of proof to be applied in this arbitration is that of comfortable satisfaction.”

In the Oriekhov case (CAS 2010/A/2172), the panel endorsed the position articulated in FK Pobeda that: “[…] cases of match fixing should be dealt in line with CAS constant jurisprudence on disciplinary doping cases. Therefore, the UEFA must establish the relevant facts to the comfortable satisfaction of the Court having in mind the seriousness of allegation which is made.”

The standard is therefore a sliding one, whereby the level required oscillates according to the seriousness of the allegation; the more serious the allegation, the higher the degree of comfort is needed to consider an allegation as proven. In an analogy of the standard ordinarly required by Maltese courts, this means in effect that the sliding point could thus in practice shift anywhere between the traditional civil standard of proof, in non-serious cases, to a high standard just short of the criminal standard of proof in very serious cases.

This approach is interested, to say the least, and seeks to protect the party facing serious allegations, who after all, would effectively be facing quasi-criminal accusations. It is an efficient measure to ensure that only the guilty are found to be so, and that an athlete’s career is not ruined through evidence which in the circumstances, would be insufficient.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@abalegal.eu.