When Is an Internal Remedy “Available”? Why Article R47 CAS Needs Reform

One of the most frequently contested issues before the Court of Arbitration for Sport (“CAS”) is jurisdiction. This question becomes even more consequential when CAS acts as an appellate body, as it may overturn a federation’s final decision. Article R47 of the CAS Code governs this appellate jurisdiction. It requires two elements: a valid arbitration agreement and exhaustion of internal remedies before approaching CAS.

This piece focuses on the second requirement and argues that CAS, in practice, does not require appellants to exhaust all remedies that exist on paper. Instead, CAS consistently applies an “effectively available remedies” standard. It accepts jurisdiction when the appellant has exhausted the remedies that were realistically usable, even if additional remedies existed in theory but could not meaningfully be pursued. As the discussion below demonstrates, this applied standard has evolved well beyond the wording of Article R47, creating a gap between the text of the provision and the manner in which it is enforced. Bridging this gap requires a simple reform in Article R47, so that the Code reflects the effectiveness-based approach that CAS panels already apply.

What Is the “Effectively Available Remedies” Test?

The text of Article R47 states that an appeal may be filed only if “the Appellant has exhausted the legal remedies available to it prior to the appeal.” Read literally, this would oblige an appellant to pursue every conceivable internal mechanism before turning to CAS. But such a strict interpretation quickly becomes redundant in practice. Sporting bodies often impose strict timelines, and an aggrieved party may not be in a position to appeal within those limits for several reasons. For example, key evidence was not available at the time, the violation was only discovered later (for example, in cases involving bias or corruption), or the internal process itself was unclear or non-existent.

The effective remedies test is a response to these practical realities. Rather than asking whether an internal remedy formally existed, the test shifts the focus to whether the appellant had a real opportunity to invoke that remedy at the relevant time. Where an internal mechanism cannot be activated because the appellant lacked the necessary information, was excluded from the process, or faced procedural uncertainty, the remedy ceases to function as a genuine opportunity of review. In such circumstances, treating the remedy as “available” would elevate form over substance. Denying CAS jurisdiction on that basis would leave the appellant without any effective forum in which to challenge the decision, undermining the procedural guarantees that Article R47 is meant to preserve. This is the crux of the test.

Two Elements of the Test

The CAS jurisprudence reveals two components of this test. First, a remedy must be readily accessible at the time of the dispute. A remedy that is already time-barred, or whose procedural steps were never communicated, cannot meet this threshold. Second, the remedy must be capable of addressing the grievance. A theoretical procedure that does not permit a genuine review of the decision is not an effective remedy.

CAS Precedents

One of the earliest formulations appears in CAS 2003/O/466, where the panel held that an internal remedy must be “readily and effectively available” and must provide access to a “definite procedure.” This remains the foundation of the doctrine. The importance of the decision lies in its articulation of a functional standard for exhaustion. Rather than treating the existence of an internal remedy as sufficient in itself, the panel required that such a remedy be accessible in practice and capable of leading to a concrete procedural pathway. This formulation marked an early departure from a purely formal understanding of exhaustion and introduced an effectiveness-based inquiry into CAS jurisdictional analysis. Its significance is underscored by the fact that later CAS panels have repeatedly relied on this language when assessing admissibility under Article R47, treating it as a foundational statement. In this sense, CAS 2003/O/466 laid the conceptual groundwork for the modern approach to exhaustion in sports arbitration, anchoring the requirement in practical accessibility and procedural reality rather than textual abstraction.

A more developed application appears in FINA v. CBDA & G. (CAS 2007/A/1373). The dispute concerned a delayed doping case involving a Brazilian swimmer. Under FINA’s rules, CBDA was required to hold the first hearing; however, once that process stalled for more than three months, FINA had an internal remedy (DC Rule 8.2.2) that allowed it to take the case directly to its own FINA Doping Panel. Instead of using this remedy, FINA went straight to CAS and appealed. CAS applied the “effectively available remedies” test to assess whether FINA had failed to use an internal mechanism that was genuinely available to it. Since the option to bring the case before its own panel was a clear and workable remedy that FINA simply ignored, the Panel held that FINA had not exhausted its internal remedies, and therefore CAS lacked jurisdiction to hear the appeal at that stage. This case also serves as an example where a remedy was both effective and readily available.

Together, these decisions established the baseline expectation that CAS will defer to internal remedies only when they operate as ready and effective mechanisms of review. CAS panels have relied on them numerous times (for instance, see here and here) to affirm their position.

CAS refined the rationale in General Taweep Jantararoj & ABAT v. AIBA (CAS 2010/A/2243, 2358, 2385 & 2411) by explaining the rationale behind Article 47. As the panel found, Article R47’s exhaustion requirement and the “effectively available remedies” test work together to ensure that disputes are first resolved within the sports body’s own legal system before reaching CAS. The rationale is that federations should have the first chance to apply their own rules, correct mistakes, and reach a proper final decision, respecting their autonomy and internal processes. However, as the panel went to note further, the rationale behind exhaustion requirement is justified only when the internal remedy is “not illusory”. A remedy is not illusory when it is accessible, functional, and leads to a clear, structured procedure. The effectiveness test thus ensures deference to sports autonomy only where the federation’s internal system actually operates as designed.

The decision in FC Slovacko v. FC Banik Ostrava (CAS 2008/A/1468) shows when a remedy is not effectively available. Slovacko invoked Article 22 of the Czech FA Statutes, which promised a two-instance review process. In practice, the appellate body that was supposed to hear second-instance appeals refused jurisdiction, asserting that Article 22 had never been implemented. The internal remedy, therefore, existed in writing but not in reality. CAS focused on whether Slovacko had a workable path to review, not whether it had filed every theoretical appeal. Because the federation’s own system prevented access to the appellate mechanism, the remedy was deemed ineffective. Slovacko’s later attempt to seek a new trial was treated as reasonable evidence that it had attempted all realistically available channels. CAS thus held that exhaustion of all available internal remedies must be measured by practical accessibility, not formal availability.

The Swiss Federal Tribunal has endorsed this understanding. In its decision of 10 June 2013 (4A_682/2012), it held that the exhaustion requirement applies only to procedures the federation “mandates” and that it is “hardly conceivable” to require exhaustion of optional, extraordinary, or incomplete remedies.

A Reform of Article R47

There is an urgent need to reform Article R47 for two reasons. First, as established, it is a well-versed position in CAS jurisprudence that a remedy should be readily available and effectively allow the aggrieved person to challenge the decision before it is exhausted within the meaning of Article R47 of the code. The position is also acknowledged in the official CAS Bulletin of 2016. Yet, it is not accurately reflected in R47, which still refers only to prior available remedies. It will only be apt to bring the jurisprudence and the code in sync by inserting the words ‘readily available and effective remedies’ in R 47 of the code. This change will also bring the statute of CAS into line with broader arbitration jurisprudence in areas such as investment and commercial arbitration.

Second, Article R47 is applied strictly in practice. CAS panels have repeatedly emphasised that exhaustion of internal remedies is a jurisdictional gateway, not a flexible guideline. The only recognised statutory exception to this requirement is a situation of extreme urgency, as outlined in R47. Because CAS is not bound by stare decisis, its prior awards do not have binding force, even if they are consistent. A future panel could adopt a literal reading of R47 and decline jurisdiction on the ground that a remedy existed in theory, even if the appellant could not make use of it in practice. Without textual guidance, the effectiveness test remains dependent on the discretion of each panel. This creates an entirely avoidable risk that an aggrieved party may be denied relief even when the internal remedy was never practically usable at the relevant time. Such an outcome undermines the purpose of appellate review and contravenes the principles of natural justice.

This simple addition will go a long way in bringing clarity to decisions and reflecting the practical approach of CAS in its statute. It would ensure that access to justice does not depend on interpretive generosity and that the Code itself embodies the procedural fairness that CAS panels already strive to deliver.