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Navigating the Latest ICAS December 2023 Guidelines of Vulnerable Witnesses in Sports Arbitration.

Written by Mani Balaji S



Introduction

 

The realm of sports arbitration is undergoing a metamorphosis, recognizing the crucial need for robust processes that safeguard the rights and well-being of all participants, particularly vulnerable witnesses. These individuals, due to factors like age, disability, or potential threats to their safety, might encounter unique challenges when providing testimony. In December 2023, the International Council of Arbitration for Sport (ICAS) issued Guidelines for hearing vulnerable witnesses and testifying parties within CAS procedures to tackle this critical issue. This article delves into the intricacies of these Guidelines, analyzes their potential impact on CAS proceedings, and explores avenues for further development.

 

Defining Vulnerability and Scope of the Guidelines

 

While the ICAS Guidelines for Hearing Vulnerable Witnesses offer broad protections encompassing minors, those with disabilities, and others facing threats to their safety, reputation, or potential retraumatization, the definition itself walks a tightrope between inclusivity and clarity. Lacking specific criteria, it risks inconsistent interpretations. Expanding the scope requires granular criteria based on expert input and context-sensitive assessments, acknowledging factors like power dynamics and intersectionality's like gender and race.


Moreover, the definition shouldn't be static, necessitating regular updates based on evolving trends and stakeholder feedback. This nuanced approach ensures consistent application, tailors protections to specific needs, and balances witness protection with fair and transparent hearings. Ultimately, a more precise and expansive understanding of vulnerability paves the way for a more inclusive and protective environment in sports arbitration, safeguarding the most vulnerable voices while ensuring justice prevails.

 

Pre-Hearing Measures and Procedural Accommodations

 

Recognizing the importance of pre-hearing preparation and tailoring procedures to individual needs, the ICAS Guidelines emphasize proactive communication. CAS Panels must inform parties and witnesses beforehand about available accommodations, empowering them to shape the hearing environment. These measures, ranging from remote testimony and anonymity to pre-approved cross-examination questions and controlled questioning methods, offer a flexible toolkit to address diverse concerns. Case management conferences are crucial platforms for discussing these options, fostering transparency, and ensuring all parties have a voice.


This proactive approach goes beyond simply informing; it encourages collaboration and empowers vulnerable witnesses to participate meaningfully, potentially reducing anxiety and promoting a fairer hearing process. However, questions remain about the effectiveness of these measures in addressing complex trauma or navigating potential power imbalances. Exploring the integration of specialized support personnel, like trauma-informed advisors, could enhance this pre-hearing support system and ensure vulnerable individuals feel safe and empowered.

 

Hearing Protection and Balancing Interests

 

Striking a delicate balance between protecting vulnerable witnesses and upholding fair trial rights lies at the heart of the ICAS Guidelines. They advocate for private hearings, aligning with human rights principles, and empower CAS Panels to order diverse protective measures like remote testimony, anonymity (with justification and verification), and controlled questioning. However, navigating this tightrope walk requires careful consideration. While ensuring witness safety through measures like anonymity is crucial, potential threats to personal safety and the effectiveness of anonymity in safeguarding them without hindering the adversarial process must be meticulously weighed. Open and transparent deliberations during case management conferences, considering input from experts and parties involved, can assist Panels in this balancing act. Yet, concerns remain about the subjective nature of the "serious potential threat" for anonymity and the lack of clear procedures for verifying witness identity when anonymity is granted. Addressing these concerns could involve:

 

● Establishing more transparent criteria for anonymity.

● Exploring different levels with varying degrees of strictness.

● Implementing robust identity verification procedures with independent third parties.

 

Ultimately, achieving a just and fair hearing requires prioritizing witness safety while upholding the adversarial principles that ensure all parties have their voices heard and rights protected. By fostering open communication, employing diverse protective measures judiciously, and addressing potential pitfalls, the ICAS Guidelines offer a starting point for creating a more balanced and sensitive hearing environment for vulnerable witnesses in sports arbitration.

 

Balancing the Scales: The Challenge of Fairness

 

Navigating the tightrope between safeguarding vulnerable witnesses and upholding fair trial rights for all parties is a central challenge in the ICAS Guidelines. While the Guidelines prioritize witness protection through measures like private hearings, remote testimony, and even anonymity, they must not infringe upon the fundamental right of parties to a fair trial. This right encompasses hearing witness testimony directly, asking relevant questions, and challenging potentially inaccurate evidence. Striking this balance necessitates a nuanced approach. CAS Panels must carefully assess each case on its merits, considering the specific vulnerabilities of the witness, potential threats to their safety, and the effectiveness of protective measures in ensuring their well-being.

Open and transparent communication during case management conferences involving all parties and expert advisors can foster understanding and collaboration in shaping fair and appropriate procedures. However, concerns remain regarding the subjective nature of the "serious potential threat" of anonymity and the lack of clear criteria for balancing witness protection with the right to cross-examination. Addressing these concerns could involve:

 

● Establishing more precise criteria for anonymity based on expert input.

● Exploring different levels of anonymity with varying degrees of transparency.

● Implementing robust procedures for verifying witness identity while maintaining confidentiality.

 

Ultimately, achieving a just and fair hearing requires a holistic approach that prioritizes witness safety and the adversarial principles that ensure all parties have their voices heard and rights protected. By fostering open communication, employing diverse protective measures judiciously, and addressing potential pitfalls, the ICAS Guidelines offer a starting point for creating a more balanced and sensitive hearing environment for vulnerable witnesses while safeguarding the fair trial rights of all parties involved in sports arbitration.

 

Publication and Anonymization: Striking a Delicate Balance

 

Striking a delicate balance between transparency and witness protection, the ICAS Guidelines empower the CAS Court Office to safeguard sensitive information like witness identities in public records. Awards can be redacted, and parties can request witness anonymity, with the Court Office having the final say after considering objections. This framework aims to ensure both parties' rights are respected. Transparency is upheld through public access to redacted awards, allowing scrutiny and accountability. Simultaneously, witness protection is prioritized, acknowledging the potential harm of public disclosure in specific cases, like threats to reputation or safety. However, concerns remain. The lack of clear criteria for the Court Office's decision-making raises uncertainties. Establishing a transparent appeals process with independent reviewers could address this, ensuring fairness and consistency.


Additionally, the potential for abuse of anonymity exists, highlighting the need for robust identity verification procedures in collaboration with independent third parties. Ultimately, achieving a just and balanced outcome necessitates a nuanced approach that weighs the legitimate interests of all parties – the need for transparency in upholding justice against the fundamental right of witnesses to be protected from harm. By fostering transparent communication, implementing robust safeguards, and continuously refining the framework, the ICAS Guidelines can pave the way for a more balanced approach to publication and anonymization in sports arbitration.

 

Strengths and Limitations: A Measured Assessment

 

While the ICAS Guidelines mark a commendable step towards protecting vulnerable witnesses in CAS proceedings, limitations remain. They raise awareness of best practices and empower Panels to tailor protections, prioritizing witness safety and privacy. However, their non-mandatory nature risks inconsistencies, and Panel discretion might lead to uneven application. Addressing this could involve mandatory implementation or standardized training for Panels. Furthermore, areas like panel selection, currently needing more expertise in handling vulnerable witnesses, and the de novo appeal scope, requiring witnesses to repeat traumatic testimony potentially, require attention. Including specialized panel expertise and exploring alternative appeal mechanisms could significantly improve protections.

 

Additionally, looking beyond CAS, collaboration with other sports dispute resolution bodies to adopt similar standards could create a more unified approach. A measured assessment acknowledges the Guidelines' strengths but calls for further progress. Mandatory implementation, specialized panel composition, broader systemic reforms, and cross-organizational collaboration are all crucial steps toward ensuring the adequate protection of vulnerable voices in sports arbitration and fostering a culture of safety, respect, and fairness for all.

 

Charting the Course Forward: Towards Enhanced Safeguards

 

While the ICAS Guidelines mark a positive step towards safeguarding vulnerable witnesses in sports arbitration, further development can significantly amplify their impact. Making these protections mandatory through procedural rules would ensure consistent application across cases, eliminating potential disparities. Additionally, reforming panel composition to include expertise in handling vulnerable witnesses could drastically improve the sensitivity and effectiveness of proceedings. Addressing the de novo appeal scope forces witnesses to potentially relive the trauma through repeated testimony, which is equally crucial. Exploring alternative appeal mechanisms that prioritize witness well-being is vital.


Looking beyond CAS, collaboration with other sports dispute resolution bodies to adopt similar standards could create a unified front for protecting vulnerable voices across the entire sporting ecosystem. Ultimately, this requires a multi-pronged approach: mandatory implementation, specialized panel composition, addressing the de novo appeal scope, and cross-organizational collaboration. By taking these steps, we can move beyond a positive development and chart a course towards truly enhanced safeguards for vulnerable witnesses, fostering a culture of safety, respect, and fairness within the sports world.

 

Conclusion

 

The ICAS Guidelines for Hearing Vulnerable Witnesses offer a framework for safeguarding vulnerable parties in CAS proceedings. While limitations exist, they are critical to fairer and more inclusive dispute resolution. Continued efforts, including mandatory implementation, specialized panel composition, and broader systemic reforms, are necessary to protect vulnerable voices adequately in sports arbitration. This will ensure justice is served and foster a culture of safety and respect within the sporting world.




*The Author is a legal Scholar from India




(The Image used here is for representative purposes only)



References

1) Home - Tribunal Arbitral du Sport / Court of Arbitration for Sport. (2024, February 9). https://www.tas-cas.org/en/general-information/index/ 

2) Lereesa Easterbrook, M. W. (n.d.). An analysis of the new CAS guidelines on examining vulnerable witnesses and testifying parties. LawInSport. https://www.lawinsport.com/topics/item/an-analysis-of-the-new-cas-guidelines-on-examining-vulnerable-witnesses-and-testifying-parties 

3) ICAS unveils vulnerable witness protection in Cas Hearings. Football legal. (n.d.). https://fl.droitdusport01.syntis.net/content/icas-unveils-vulnerable-witness-protection-in-cas-hearings 

4)  Mavromati, D. (2024, January 6). International Sports Dispute Resolution in 2022 - A compilation. Dr. Despina Mavromati - Sports Law and Arbitration. https://www.sportlegis.com/2023/12/25/international-sports-dispute-resolution-in-2023/ 


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