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Surf’s Up for Stand-Up Paddleboarding after CAS decision

In August this year, the Court of Arbitration for Sport (CAS) handed down its decision in the dispute between the International Surfing Association (ISA) and the International Canoe Federation (ICF) regarding the governance of Stand-Up Paddleboarding (SUP). Both international sports federations sought control over the increasingly popular sport at the world and Olympic level.

In the sport of SUP, one of the fastest growing sports in the world, an individual stands on a board and uses the paddle to direct themselves through the water. SUP can be practised in several environments, such as surf and open water as well as flat water.

Both the ISA and the ICF are recognised by the International Olympic Committee (IOC) as the international sports federations governing surfing and canoeing respectively. The ISA and ICF had previously been unsuccessful in attempts to resolve the dispute through a conciliation meeting with the President of the IOC (reported here) as well as mediation before the CAS. As a result, the parties were forced to resolve the deadlock via arbitration proceedings before the CAS in October 2019, the request being lodged by the ISA.

Arguments Presented to the CAS

The ISA relied upon its historic involvement with SUP in order to establish the right to govern the sport. The ISA stated that it had promoted SUP at the worldwide level for over a decade, first recognising the sport as an ISA discipline in 2008. It also argued that it had organised SUP World Championships on an annual basis since 2012, whereas the ICF had only recognised SUP as one of its disciplines since 2016. Prior to this date, the ICF had never raised any objections to the ISA’s governance of the sport.

The ISA also referred to criteria contained in the IOC guidelines on the recognition of international federations and maintained that it was the organisation that satisfied those criteria. For example, the ISA asserted that:

  • SUP originated from surfing, not canoeing;

  • it had spent significant time and money (over US$5m) in developing the surfing discipline of SUP;

  • technically, SUP and canoeing have little in common, except the use of a paddle; and

  • the world’s best SUP athletes compete in ISA competitions.

In contrast, the ICF contended that it had taken steps to develop the sport years before 2016, that it was heavily involved in SUP and had arranged an ICF World Championships in China in 2019. The ICF also highlighted that SUP takes many forms, and claimed that the sport was developing in the direction of canoeing, rather than surfing. The ICF argued that 80% of SUP races around the world take place on flat water, which is traditionally a canoeing environment.

Judgment

Since there was no express choice of law between the parties, the CAS panel applied Article R45 of the CAS Code and found that the dispute was to be determined according to Swiss law, without prejudice to the consideration to be given to the regulations of the IOC. Article R45 provides that:

“The Panel shall decide the dispute according to the rules of law chosen by the Parties or, in the absence of such a choice, according to Swiss law.”

The panel ruled that Swiss law did not provide for the adjudication of the governance of SUP at world level. On this point, the panel found that:

“there is no legal basis in the applicable Swiss law or otherwise on which a putative governing body or organiser can bring proceedings against another to secure any declaration of legal entitlement to govern or organise alone.”

With regards to the organisation of the sport at the Olympic level, the panel considered that there was a legal and contractual basis for adjudication (specifically Article 3.3 of the Olympic Charter), and considered the criteria of the IOC Recognition Rules to determine the dispute.

The panel decided that the party which met the greatest number of these criteria was the ISA, and therefore, it should be the international federation to govern SUP at Olympic level.

In reaching this conclusion, the panel stated that only the ISA had “shown a real and genuine interest in SUP”. In reaching this conclusion, the panel referred to the fact that the ISA had promoted the sport since 2008, had established technical rules for the sport in 2009 and had held World Championships on an annual basis since 2012. By way of comparison, the panel highlighted that the first ICF World Championships had only taken place in 2019 and ICF statistics published regarding 2017 and 2018 did not mention any SUP events.

The panel also attributed importance to the steps taken by each federation to develop the sport. While the ICF had not yet allocated a complete budget to the sport’s development, the ISA had put in place SUP development programmes since 2011, and had taken steps to increase the sport’s popularity, including streaming events and distributing highlight programs to broadcasters.

It is important to note that the panel stressed that the IOC is not bound by this decision, as it was not a party to the arbitration proceedings.

Moving Forward

The decision clears the path for both the ISA and ICF to continue to host international SUP events, given that the decision only referred to organisation at the Olympic level. However, in the event that SUP achieves Olympic status in the future, the award suggests that the ISA should govern the sport, albeit that the IOC is not bound to make that decision.

Whilst the ISA welcomed the decision, with ISA Vice President Casper Steinfath labelling it as a “historic moment”, the ICF described the decision to award governing rights at the Olympic level without the involvement of the IOC as “surprising”.

With no decision on the sport’s organisation at world level and no binding decision on organisation at the Olympic level, this dispute does not appear to have reached a resolution. Both federations will almost certainly continue to fight for the right to govern the sport.

This article was written by Simon Watts-Morgan. 

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 275
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