The International Council of Arbitration for Sport (ICAS) introduced new guidelines in December 2023 for the hearing of vulnerable witnesses in Court of Arbitration for Sport (CAS) procedures. These guidelines aim to provide best practices for the protection of individuals identified as vulnerable due to risks of (re)traumatization, threats to personal safety, reputation, or retribution, including minors and those with mental disabilities.

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New guidelines from the International Council of Arbitration for Sport (ICAS)

The ICAS issued new guidelines in December 2023, aimed specifically at the protection of vulnerable witnesses involved in CAS proceedings. The development of these guidelines stems from an identified need to ensure that vulnerable witnesses can participate in the arbitration process in a manner that safeguards their privacy, confidentiality, and both physical and mental well-being throughout the arbitral procedure. The motivation behind these guidelines emerges from an acknowledgment that, although a minority, some cases before CAS panels involve the participation of witnesses whose circumstances render them vulnerable. The guidelines aim to facilitate the interaction of such witnesses, addressing potential risks of (re)traumatization, threats to personal safety, reputation damage, or fear of retribution. By doing so and by providing special procedural safeguards, ICAS seeks to ensure that vulnerable witnesses can deliver testimony safely and incentivize reluctant vulnerable witnesses to testify.

The guidelines issued by ICAS are comprehensive in nature and relevant across all CAS Divisions. They are designed to supplement the existing Code of Sports-related Arbitration (Code), specifically articles R44.2 and R57 pertaining to hearings and R46 and R59 concerning the publication of awards. While the guidelines serve as recommendations for best practices, they do not prevail over the Code. Instead, they serve as a supplementary resource intended to guide CAS Panels in instances involving vulnerable witnesses. As such, they cannot be used by parties as a basis to challenge the application or non-application of the guidelines by any CAS Panel. This approach ensures flexibility, allowing CAS Panels to exercise discretion in tailoring procedural safeguards to meet the specific needs of vulnerable witnesses while upholding the principles of fairness and equal treatment enshrined in the parties’ right to a fair trial.

The guidelines define vulnerable witnesses as those who, when testifying, may be at risk of (re)traumatization, personal safety threats, reputation damage, or retribution. This generally includes minors and individuals with mental disabilities.

In addressing the needs of vulnerable witnesses, the guidelines establish specific procedural accommodations for vulnerable witnesses to ensure their safety and comfort during CAS proceedings. A primary focus is placed on ensuring that, when appropriate, parties and witnesses are informed about the available procedural options. Accommodations can be sought by a party on behalf of their witness or may be implemented at the discretion of the CAS panel to address any identified needs or risks.

One of these possibilities that are expressly offered by the guidelines is the allowance for remote testimony, which allows witnesses to participate without direct confrontation with opposing parties. Moreover, the guidelines also provide the possibility of witnesses testifying anonymously. When allowing the examination of an anonymous testimony, CAS Panels are tasked with balancing the need to protect the witness against the rights of the parties involved in the arbitration, including the right to a fair trial. To facilitate anonymous testimony, the CAS Court Office is tasked with arranging specific measures. These include verifying the identity of the witness in a manner that keeps their anonymity intact, by making sure that the witness is located in a safe place together with CAS counsel and away from the hearing room, and implementing technical solutions to prevent the recognition of the witness’ voice or face during testimony.

In terms of the examination process, the guidelines entrust CAS panels with the authority to review and approve questions in advance, ensuring that the questioning does not lead to (re)traumatization or reveal the identity of the witness. Moreover, the guidelines stipulate that CAS Panels can exercise a degree of control over the manner of questioning during cross-examination. This is intended to prevent the (re)traumatization of alleged victims of abuse, particularly in relation to highly sensitive and traumatic questions during cross-examination. Finally, in certain circumstances, CAS Panels are empowered to ask questions directly to the witness, bypassing the traditional adversarial questioning model. This approach is intended to accommodate the vulnerabilities of the witnesses.

These procedural accommodations, as laid out in the ICAS guidelines, reflect a thoughtful and comprehensive approach to addressing the needs of vulnerable witnesses. By distinguishing between these specific measures, the guidelines offer CAS Panels a clear and actionable framework to enhance the safety, comfort, and dignity of witnesses during the arbitration process.

Following the discussion on procedural accommodations, the guidelines also detail measures for protecting vulnerable witnesses when it comes to the publication of proceedings and awards. First, the guidelines grant the CAS Court Office the authority to prevent disclosure of sensitive information, such as the identity of vulnerable witnesses, in public records. Additionally, they introduce the so-called Anonymization Requests. If a party, on its own initiative or following a request from a vulnerable witness, asks for the identity of such a witness to be anonymized in the award, this request must be considered. Should there be any objection from other parties involved, the CAS Court Office has the final say on whether to grant the Anonymization Request. This process balances the need to protect vulnerable witnesses with the procedural rights of all parties involved.

Conclusion

The December 2023 guidelines issued by the ICAS for the protection of vulnerable witnesses in CAS proceedings represent a crucial advancement in the arbitration process. By recognizing the distinct challenges faced by vulnerable witnesses, including minors and individuals with mental disabilities, and by creating a framework for their protection, ICAS guarantees that the arbitration environment is conducive to the fair and safe participation of all witnesses. Notably, the guidelines are broad and general in their definitions and recommendations, intentionally leaving room for interpretation and application to suit the specifics of each case. This approach allows for a broad range of procedural accommodations, including but not limited to remote testimony and anonymous participation. These examples are non-exhaustive, providing CAS panels with considerable discretion to tailor accommodations on a case-by-case basis, which underlines a deep commitment to the mental well-being of witnesses.

Moreover, the guidelines call for proactive engagement from the parties involved. While CAS panels may adopt procedural accommodations at their discretion, parties can also request them on behalf of their witnesses.

Ultimately, by fostering a safer and more adaptable environment, this initiative not only improves the experience for vulnerable witnesses but also encourages their participation, thereby enriching the arbitration process as a whole.