Evidence Management and Expert Reports: Best Practices in CAS Procedure
1. Introduction
In sports arbitration, the management of evidence is a fundamental element in resolving disputes fairly, swiftly, and effectively.
the Court of Arbitration for Sport (CAS)examines both private law and disciplinary disputes, unlike classical arbitration, its evidence regime is highly flexible but adheres to high standards.
This article will examine in detail the issues of evidence gathering, expert opinions, and the management of party statements in light of the provisions of the CAS Code R44.1–R57 and the case law of the Swiss Federal Court (SFT) and the CAS
2. The Principle of Freedom of Evidence in CAS Procedure
CAS Code R44.1:
“The arbitration panel shall allow the parties to present evidence and shall decide which evidence is admissible.”
This provision reflects the **"principle of freedom of evidence"**, which forms the basis of CAS adjudication. The arbitration panel freely evaluates the evidence presented by the parties, but only considers that which contributes to the resolution of the dispute
CAS 2018/A/5546 – Athlete v. WADA:
“When assessing the probative value of evidence, CAS pays particular attention to the reliability and methodology of the reports submitted by the parties.”
3. Timing and Limitations for Presenting Evidence
3.1. Deadline for Submitting Evidence
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Appeals Arbitration cases: evidence the Appeal Brief (R51) phase.
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In Ordinary Arbitration cases: evidence is submitted within the timeframe specified after the Request for Arbitration (R38)
New evidence is only accepted later if there is a " just cause "
CAS 2019/A/6210 – Club v. Player:
"Evidence submitted late will be rejected if it prolongs the case; however, it may be considered if there is a justifiable reason."
3.2. Types of Evidence
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Written documents (contracts, decisions, emails),
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Witness statements,
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Expert reports,
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Electronic evidence (WhatsApp, GPS data, doping test records),
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Visual or video recordings.
4. Expert Reports and Expert Witness Testimony
4.1. The Importance of Expert Reports
Due to the abundance of technical issues in sports arbitration, expert reports are a frequently used tool.
For example:
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Laboratory analyses in doping cases ,
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in Financial Fair Play cases .
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Media measurement reports in sponsorship disputes ,
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in disability compensation cases .
4.2. Expert Appointment Methods
CAS Code R44.3 authorizes the arbitration panel to appoint experts, either on its own initiative or at the request of a party.
"The arbitration board may appoint its own expert if it deems it necessary."
This provision is parallel to Article 183 of the Swiss Code of Civil Procedure (CPC).
If there is a conflict between the reports submitted by the parties and the expert report appointed by the Panel, the Panel generally gives precedence to the impartially appointed expert.
CAS 2016/A/4642 – Cyclist v. UCI:
“The panel recognized that the laboratory’s independent expert report carried higher probative weight than the private reports submitted by the parties.”
5. Witness Statements and Reliability Criteria
Witness testimony is accepted as secondary evidence before CAS. The arbitration panel shall consider the witness's:
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Degree of witnessing the events,
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Relationship with the parties,
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Consistency of statements
It takes into account factors such as these.
CAS 2017/A/5052 – Club v. Player:
"The witness statement submitted by the party's agent was not taken into consideration due to its limited credibility stemming from a conflict of interest."
6. CAS's Discretionary Jurisdiction and Standards Regarding Evidence
The arbitration board "comfortable satisfaction .
" This is an intermediate standard between the "beyond reasonable doubt" standard in criminal proceedings and the "balance of probabilities" standard in civil proceedings.
CAS 2010/A/2268 – WADA v. To the athlete:
"Comfortable satisfaction is a criterion based on the referee's conscientious judgment but with an objective basis."
7. The Principle of Equality of Arms in the Examination of Evidence
CAS Code R44.1(2):
“Equal opportunities must be provided to the parties.”
According to this principle, if one party has access to a confidential document, the other party should also be granted access. CAS refers to ECHR Art. 6 standards in this regard
CAS 2018/A/6021 – Player v. FIFA:
"The withholding of confidential documents by one of the parties constitutes a violation of the right to a fair trial."
8. Standard of Evidence in Doping Cases
Doping cases have the most advanced evidentiary assessment in CAS case law. CAS assigns high evidentiary weight to WADA International Standard for Laboratories (ISL) and Athlete Biological Passport (ABP) reports
However, the report becomes invalid if the athlete proves an error in the testing procedure.
CAS 2015/A/4059 – Athlete v. IAAF:
"If there is a break in the chain of custody, the test result is not considered valid evidence."
9. Acceptance of Electronic and Digital Evidence
In modern sports, evidence has become digitized. Emails, WhatsApp messages, GPS records, and social media posts are accepted as conditional evidence by CAS
"Digital evidence is admissible as long as its accuracy can be technically proven."
CAS requests metadata, screenshots, or third-party confirmation from the parties to verify these documents.
CAS 2021/A/7411 – Club v. Coach:
"WhatsApp conversations have been accepted as evidence with metadata verification."
10. Rejection of Evidence and Procedural Violation
CAS, the evidence:
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Unrelated to the dispute,
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Submitted late,
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Secret or illegally obtained
If so, it decides to reject the request.
The Swiss Federal Court, the "illegal evidence doctrine ," places importance on how evidence is obtained.
SFT 4A_362/2019:
“CAS has discretion in rejecting evidence; however, the complete exclusion of evidence should not violate the right to a fair trial.”
11. Comparison with Freedom of Evidence in Turkish Law
The Turkish arbitration system (Articles 431-439 of the Turkish Code of Civil Procedure) also has a similar principle of freedom. However, the CAS practice grants broader authority to have evidence evaluated by international and impartial experts
The Court of Cassation considers the evaluation of evidence in CAS decisions to be "based on arbitrator's discretion."
Supreme Court 15th Civil Chamber, Case No. 2020/1224, Decision No. 2021/1843:
"The evaluation of evidence is at the discretion of the arbitrators; this matter cannot be examined within the scope of enforcement review."
12. Best Practices in CAS Procedure
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Presenting evidence at the earliest possible stage,
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Specify methodology and data sources in expert reports
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Supporting witness statements with documentation,
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Adding a verification report (metadata) to digital evidence,
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Requesting the appointment of an impartial expert under CAS Code R44.3,
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Submit documents with English or French translations
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Ensuring privacy by requesting a "Confidentiality Order".
13. Conclusion and Evaluation
Evidence management is not only a technical but also a strategic matter in CAS proceedings.
Evidence presented at the right time, with the right content, and in accordance with procedure directly influences the outcome in favor of the athlete or club.
The quality of expert reports is the most effective way to meet CAS's "comfortable satisfaction" standard.
The best strategy for sports law practitioners the presentation of evidence in a transparent, systematic, and technically sound manner.
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