The CAS Panel's Right to Exclude Evidence Based on Article R57 Para. 3 CAS Code: A Limit to CAS Full Power of Review?

Abstract

The CAS Panels’ power of review of a decision appealed against is a well-known feature and fundamental principle of the appeals against decisions issued by the jurisdictional instances of federations and sports-governing bodies to the Court of Arbitration for Sport (CAS). In essence, it means that the CAS Panels will hear all arguments of the case anew, and will not be limited by the argumentation contained in the decision of the previous instance. Notwithstanding the Panel’s full power of review, a newly inserted paragraph in Article R57 gives the possibility to the Panel to refuse evidence submitted by the parties “if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”. This paper examines the rationale and the conditions for the application of this new provision as well as the implications with other legal provisions with a view to avoiding problems and inconsistencies in the future.

Keywords: Court of Arbitration for Sport (CAS), full power of review, de novo review, limits to the full power of review, article R57 CAS Code