The Making of a Lex Sportiva by the Court of Arbitration for Sport

The purpose of this paper is to examine the structure and functions of the Court of Arbitration for Sport (CAS), in order to highlight a number of problems concerning judicial activities at the global level more generally. Section 1 will outline CAS’ organization and functions, from its inception to the present date. In particular, this section will show how the history of the CAS is reminiscent of a famous German novel based on a biblical saga, “Joseph and his brothers” by Thomas Mann. Put briefly, the CAS was originally the “favourite son” of the Olympic movement’s founding fathers; it subsequently became the target of its envious “brothers” - i.e. the International Federations and other sporting arbitration institutions - which viewed the CAS as a dangerous enemy; ultimately, the CAS defeated its opponents, gained independence and brought normative harmonization, thereby becoming “the Nourisher” (Der Ernährer) of global sports law. Section 2 will focus on the role of CAS in making a lex sportiva, and it will take into account three different functions: the development of common legal principles; the interpretation of global norms and the influence on sports law-making; and the harmonization of global sports law. Section 3 will consider the relationships between the CAS and public authorities (both public administrations and domestic courts), in order to verify the extent to which the CAS and its judicial system are self-contained and autonomous from States. Lastly, section 4 will address the importance of creating bodies like CAS in the global arena, and it will identify the main challenges raised by this form of transnational judicial activity. The analysis of CAS and its role as law-maker, in fact, allows us to shed light on broader global governance trends affecting areas such as the institutional design of global regimes, with specific regard to the separation of powers and the emergence of judicial activities