CAS 2018 - Statement on the decision made by the ECHR in the case between Claudia Pechstein / Adrian Mutu and Switzerland

2 Oct 2018

The ECHR Recognizes That CAS Fulfils The Requirements Of Independence And Impartiality : Statement of the Court of Arbitration for Sport (CAS) on the decision made by the European Court of Human Rights (ECHR) in the case between Claudia Pechstein / Adrian Mutu and Switzerland / Court of Arbitration for Sport (CAS). - Lausanne : CAS, 2018 _________________________________________________ The Court of Arbitration for Sport (CAS) has noted the ruling of the European Court of Human Rights (ECHR) in relation to the cases between Claudia Pechstein (speed skating / Germany), Adrian Mutu (football / Romania) and Switzerland. Both athletes filed appeals at the ECHR in 2010 against judgments of the Swiss Federal Tribunal (SFT) which confirmed the decisions rendered by CAS in these matters. The ECHR has dismissed all claims, except one concerning the right to a public hearing. The ECHR judgment, published on its website, determines that: - The ECHR considers that there is an interest in allowing the disputes arising in professional sport, in particular those with an international dimension, to be submitted to a specialized jurisdiction, able to rule on such cases in a quick and inexpensive manner. (…) The recourse to an international arbitral tribunal, unique and specialized, facilitates a certain procedural uniformity and strengthens the legal certainty. That is all the more true when the awards of that arbitral tribunal may be appealed before the supreme court of a single country, i.e. the Swiss Federal Tribunal, which renders final judgments. - The ECHR recognizes that a non-State dispute resolution mechanism of first and/or second instance, with a possible appeal, even limited, before a State court, as a last instance, is appropriate in this area (of international sport). - Considering the particular nature of the CAS arbitration system, with mandatory arbitration clauses inserted in the regulations of sports federations, such arbitration shall offer the guarantees provided by Article 6 § 1 of the European Convention on Human Rights. - As far as the funding of CAS by sports entities is concerned, the ECHR emphasizes that State courts are always financed by governments and considers that this aspect is not sufficient to establish a lack of independence or impartiality of these jurisdictions in disputes between citizens and the State. By analogy, it is not possible to establish a lack of independence or impartiality of the CAS based on its funding system. - The ECHR does not see any relevant grounds to overturn the consistent jurisprudence of the Swiss Federal Tribunal stating that the system of a mandatory list of arbitrators complies with the constitutional requirements of independence and impartiality applicable to arbitral tribunals and that the CAS, when it acts as an appeals authority external to international federations, is similar to a judicial authority independent from the parties. - The public nature of the judicial procedures is a fundamental principle of Article 6 § 1 of the European Convention on Human Rights; such principle is also applicable to non-State courts ruling on disciplinary and/or ethics matters. In the case of Claudia Pechstein, the CAS should have allowed a public hearing considering that the athlete had requested one and that there was no particular reason to deny it. The ECHR judgment is another confirmation, this time at a continental level, that CAS is a genuine arbitration tribunal and that such sports jurisdiction is necessary for uniformity in sport. The SFT already came to the same conclusion in 1993 and 2003; the German Federal Tribunal as well in 2016. While these procedures were pending before the ECHR (8 years), ICAS, the governing body of CAS, has regularly reviewed its own structures and rules in order to strengthen the independence and the efficiency of the CAS year after year. ICAS is now composed of a large majority of legal experts coming from outside the membership of sports organizations and has achieved an equal representation of men and women. The list of arbitrators has been increased and the privilege reserved to sports organizations to propose the nomination of arbitrators on the CAS list has been abolished. Furthermore, ICAS has already envisaged the possibility of having public hearings at its newer and much larger future premises at the Palais de Beaulieu in Lausanne.

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ECHR 40575/10 & 67474/10 Adrian Mutu and Claudia Pechstein vs Switzerland

2 Oct 2018

Affaire Mutu et Pechstein C. Suisse (Requêtes Nos 40575/10 et 67474/10) : Arrêt / European Court Of Human Rights (ECHR). – Strasbourg : Council of Europe (CoE), 2018. - (Requêtes Nos 40575/10 et 67474/10) ___________________________________________________ In the case of Mutu and Pechstein v. Switzerland (applications no. 40575/10 and no. 67474/10) the European Court of Human Rights Chamber held, by a majority, that there had been: 1. no violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights with regard to the alleged lack of independence of the Court of Arbitration for Sport (CAS), and 2. a violation of Article 6 § 1 of the European Convention in the case of the second applicant (Ms Pechstein), with regard to the lack of a public hearing before the CAS. The case concerned the lawfulness of proceedings brought by professional athletes before the CAS. The Court found that the CAS arbitration proceedings to which the applicants had been parties were required to offer all the safeguards of a fair hearing, and that the second applicant’s allegations concerning a structural absence of independence and impartiality in the CAS, like the first applicant’s criticisms concerning the impartiality of certain arbitrators, had to be rejected. In contrast, the Court held that the questions concerning the merits of the sanction imposed on the second applicant for doping, discussed before the CAS, required a hearing that was subject to public scrutiny. ___________________________________________________ In August 2003 Adrian Mutu, a professional Romanian footballer, was transferred from the Italian club AC Parma to Chelsea. In October 2004 the English Football Association conducted anti-doping checks which showed cocaine traces in the sample provided by Adrian Mutu. Chelsea consequently terminated their contract with him. Between november 2004 and June 2010 a number of proceedings and appeals followed in the dispute between the Chelsea Football Club and Adrian Muti about the Player's breach of contract and Chelsea's claim for compensation filed by both parties with FIFA, CAS and the Swiss Federal Court. Claudia Pechstein is a professional speed skater. On 1 July 2009 the International Skating Union (ISU) imposed a 2 year period of ineligibility on Pechstein for blood doping. Between July 2009 and June 2016 a number of proceedings and appeals followed in the dispute between Claudia Pechstein the ISU and the DESG filed with CAS, the Swiss Federal Court and the German Civil Court. The Athletes filed their applications with the European Court of Human Rights on 13 July 2010 and 11 November 2010. Relying on Article 6 § 1 of the Convention, the Athletes submitted that the CAS could not be regarded as an independent and impartial tribunal. Pechstein complained that she had not had a public hearing before the ISU disciplinary board, the CAS or the Swiss Federal Supreme Court, despite her explicit requests to that end. Relying on Article 4 § 1 (prohibition of slavery and forced labour) and Article 8 (right to respect for private and family life) of the Convention and Article 1 of Protocol No. 1 (protection of property), Mutu complained about the sum he had been ordered to pay to Chelsea Football Club. (Source: ECHR Press Release ECHR 324 (2018), 2 October 2018)

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CAS A1_2008 ASADA vs Nathan O'Neill

13 Jun 2008

CAS A1/2008 Australian Sports Anti-Doping Authority vs Nathan O'Neill In March 2008 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the cyclist Nathan O’Neill after his A and B samples – collected in the United States in August 2007 – tested positive for the prohibited substance Phentermine. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Court of Arbitration for Sport (CAS) Oceania Registry. The Athlete admitted the use of the substance, accepted the test results and argued that there were grounds for No Significant Fault or Negligence. He stated that he knew that the substance was prohibited in competition and he understood that 5 days would be more than enough time to clear this substance from his system. Because of the positive test he was surprised that the substance could remain in his system for some 7 days. Through research the Athlete demonstrated, sustained with evidence, that his use of phosphate tablets and bicarbonate capsules while using Phentermine effected the clearance time and consequently the Phentermine could be detected within a period of 10 days producing a positive test. The Panel accepted the Athlete’s explanation and evidence and concludes that he established No Significant Fault or Negligence in this case for a reduced sanction. Therefore the The Court of Arbitration for Sport decides on 13 June 2018 that: 1.) Nathan O'Neill has breached Article 5.1 of the Anti-Doping Policy of Cycling Australia and has thereby committed an Anti-Doping Rule Violation. 2.) Pursuant to Article 13.1 of the Anti-Doping Policy of Cycllng Australia, Nathan O’Neill is disqualified from his individual results obtained in the Tour of Elk Grove Event on 11 and 12 August 2007 with all consequences, incluqing forfeiture of all medals, points and prizes. 3.) Nathan O'Neill has established that he bears No Significant Fault or Negligence, within the meaning of Article 13.6.2 of the Anti-Doping Policy of Cycling Australla, in respect of the Violation referred to in 1 above. 4.) The period of ineligibility in respect of that Violation is reduced to a period of 15 months, commencing on 12 August 2007 and expiring at midnight on 11 November 2008. 5.) Pursuant to Article 11.10 of1he Anti-Doping Policy of Cycling Australla and clause 16 of the signed Order of Procedure herein, there be no order as to costs.

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CAS 2000_A_272 UCI vs Sergiy Outchakov

30 Aug 2000

TAS 2000/A/272 UCI v/ Outchakov CAS 2000/A/272 UCI vs Outchakov In September 1999 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Ukranian cyclist Sergiy Oukchakov after his A and B samples tested positive for the prohibited substances Human chorionic gonadotrophin (hCG) and Testosterone with with at a T/E ratio above the UCI threshold. The UCI notified the Cycling Federation of Ukraine (FVSU) about the Athlete’s violation but the FVSU deemed in November 1999 that the there was no doping and the Athlete was not subject to sanction. After deliberations between the UCI and the FVSU about implementing disciplinary proceedings the FVSU decided on 22 March 2000 to acquit the Athlete. Hereafter in April 2000 the UCI appealed the FVSU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the FVSU decision of 22 March 2000 and to sanction the Athlete. The FVSU requested the Panel to dismiss the UCI appeal and argued that in this case decisions were already rendered in November and December 1999. Here the UCI failed to appeal these decisions within the time limit and there were more delays attributed to the UCI. Further the FVSU contended that the Athlete only had used homeopathic products, and not pharmaceutical. These products were not prohibited and when ingested could have produced an increased hCG reading and a positive test. The Panel deems that a FVSU decision was made on or about 22 March 2000 which was appealed by the UCI within the time limit. The Panel establish that there was the admission of the positive test and that an anti-doping rule has been committed. The Panel concludes that the Athlete failed to explain the concentration levels of hCG found in his system nor did he explain with evidence how and when he had used the homeopathic products. The Panel also considers that the UCI could have responded in a more timely fashion, particularly between 23 December and 6 March and may have resolved this dispute earlier if it had been more specific between November 1999 and March 2000 on exactly what the FVSU was required to do. Therefore the Court of Arbitration for Sport decides on 30 August 2000 and directs as follows: 1.) That the appeal of the Union Cycliste Intemationale (UCI), the Appellant, against the decision of the Ukrainian Cycling Federation (UCF), the Respondent, is granted and therefore the decision of UCF dated 22nd March, 2000 is hereby cancelled. 2.) That Mr. Outchakov is found guilty of a doping offence under UCI Regulations. 3.) That Mr. Outchakov is hereby disqualified from the "Vuelta a Espana 1999". 4.) That Mr. Outchakov is suspended under the UCI Regulations with effect from the 22nd March 2000 for a period of six (6) months ending on the 22nd September 2000 with the consequence that all results and points are cancelled and other penalties or sanctions, if any, under the aforesaid Regulations shall apply during this period. 5.) That Mr. Outchakov shall pay a fine under the UCI Regulations of CHF 4'000.--. 6.) That Mr. Outchakov shall pay the UCI costs of this appeal limited to the amount of CHF 3'000.-- inclusive of the UCI Court Office fee of CHF 500.--. 7.) That all financial amounts referred to above shall be payable within seven (7) days of the date of this award and any sums paid later shall attract interest at the rate of 6% per annum calculated on a daily basis.

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CAS A9_1998 Australian Olympic Committee vs Sarah Rockell

22 Dec 1998

CAS A9/98 Australian Olympic Committee (AOC) vs. Sarah Rockell In May 1998 the Australian Olympic Committee (AOC) has reported an anti-doping rule violation against the minor cyclist (14) Sarah Rockell after her A and B samples tested positive for the prohibited substance pseudoephedrine in a concentration above the threshold. After notification the Athlete filed a statement in her defence and she was heard for the Court of Arbitration (CAS) Oceania Division. The Athlete accepted the test results and denied the intentional use of the substance. She explained that she suffered from exercise induced asthma and that she used Demazin recommended by the family doctor. Also when the minor Athlete was selected for Doping Control her father as her coach was not notified while he was on site and could have been notified at any time. She and her father testified that at the time of the test Demazin was used and that they were not aware that Demazin was prohibited. They had never received the banned substance list from the Australian Sports Drug Agency (ASDA) or from their Cycling Federations, nor did they receive any anti-doping advice. The Sole Arbitrator accepts the Athlete’s explanation and establishes that extenuating circumstances exist for a reduced sanction. The Arbitrator concludes that the Athlete clearly didn’t know that she had used a prohibited substance and that she acted reasonably in all the circumstances. Further the Arbitrator establishes that the Doping Control was not conducted in accordance with the Rules as the minor Athlete’s father was not notified about the sample collection while on site. Considering the circumstances in this case the Arbitrator decides on 22 December 1998 that the Athlete should not be sanctioned for the reported anti-doping rule violation. In addition recommendations were made to sporting organisations to ensure that they have anti-doping policies and anti-doping education programmes provided to athletes.

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CAS OG_1996_03 Andrei Korneev vs IOC

4 Aug 1996

CAS OG_1996_03 Andrei Korneev vs IOC CAS OG_1996_04 Zakhar Gouliev vs IOC Arbitration No 003-4 Andrei Korneev is a Russian Athlete competing in the Men’s Swimming Events at the Atlanta 1996 Olympic Games and Zakar Gouliev is a Russian Athlete competing in the Men’s Greco-Roman Wrestling Events. In July 1996 the International Olympic Committee (IOC) has reported anti-doping rule violations against the two Russian Athletes after their samples tested positive for the prohibited substance Bromantan. As a result the IOC Executive Board decided on 28 July 1996 to disqualify and to exclude both Athletes from the Olympic Games including withdrawal and return of medals and diplomas. Hereafter on 29 July 1996 both Russian Athletes appealed the IOC decisions with the Court of Arbitration for Sport Ad hoc Division Atlanta. Here case scientific literature was filed and expert witnesses heard. In this case the substance Bromantan has apparently been used by Russian athletes for a considerable number of years. It appeared that it was used by athletes competing in the 1988 and 1992 Olympic Games. The use of Bromantan was unknown to the IOC Medical Commission and its use was not detected by the testing methods then available. The Russian Olympic Committee did not inform the Commission of the existence and use of Bromantan and no athlete disclosed its use during drug testing. The Medical Commission became aware of the existence and use of Bromantan in June 1996 and in July 1996 it was proposed to regard Bromantan as a related substance to the forbidden class 1A (Stimulants). The CAS AD hoc Panel notes that in these cases the IOC Medical Commission acted with the following circumstances: 1. It was at about the beginning of the Olympic Games made aware of the covert use of an unknown substance substantially by Russian athletes over a number of years. 2. The existence of that substance only became known because of the disclosure by one Russian athlete in Canada in March 1996 of its use. 3. The substance was a product for the Russian military and was not available generally although it could apparently "be obtained in Moscow". 4. The scientific literature available relating to this substance was extremely limited and only in Russian. 5. That literature would reasonably lead a scientific reader to the conclusion that the substance possessed stimulant qualities. 6. The appellants did not declare their now undisputed use of the substance when tested for drugs although the use of vitamins was disclosed. 7. The denial of use was persisted in after testing disclosed the presence of the substance in samples which had been tested. These circumstances would quite naturally and reasonably give rise to a suspicion that the substance possessed the qualities of a stimulant. The Panel finds that the surrounding circumstances while suspicious do not form a basis for concluding, in the light of the scientific evidence, that Bromantan is a stimulant. The surrounding circumstances, of themselves, are not evidence of the objective fact of the actual chemical composition and qualities of Bromantan. They could be evidence of the belief of those using the substance but not of the correctness of that belief. While it may be that further study may establish that Bromantan is a prohibited substance the totality of the materiel before the Panel does not allow it to reach that conclusion. Further in this case the Russian Olympic Committee offered to: 1. Cooperate fully in a study to determine whether Bromantan should be classed as a prohibited substance. 2. To make records relating to Bromantan available for that purpose. 3. To disclose to the Medical Commission all drugs which the Russian Olympic Committee recommend to Russian athletes for use on a general basis. The Russian Olympic Committee urged that consideration should be given to creating a rule that other national bodies should be required to make similar disclosures. 4. To discontinue the use of Bromantan pending further investigations. The CAS Panel strongly urge the Russian National Olympic Committee to implement its offers. In particular the Panel believes that, in view of the probability that Bromantan can be indeed classified as a stimulant, its use should be discontinued forthwith. The Court of Arbitration for Sport Ad hoc Division Atlanta Panel decides on 4 August 1996 that the appeals of the Athletes Andrei Korneev and Zakhar Gouliev are allowed and to set aside the IOC decisions of 28 July 1996.

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FINA 2004 FINA vs Mette Jacobsen

20 Jul 2004

In June 2004 the the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Danish swimmer Mette Jacobsen after her sample tested positive for the prohibited substances Salbutamol, Prednisolone and Prednisone. The Athlete had a valid TUE for the use of Salbutamol but no TUE for the use of Prednisolone and Prednisone. After notification the Athlete was heard for the FINA doping Panel. The Athlete accepted the test result and denied the intentional use of the substances. The Athlete suffered from Asthma since 1993 and she explained that in February 2004 she had used prescribed antibiotics for the pneumonia she suffered. As she became ill in April her doctor prescribed antibiotics again. Here the Athlete’s doctor recognized that in April 2004 he provided the wrong tablets to the Athlete. In June 2004 the Athlete’s doctor made TUE applications with FINA and the IOC for the medication he prescribed. The Panel concludes that the Athlete committed an anti-doping rule violation as her sample tested positive for prednisolone and prednisone. The Panel finds that the Athlete failed to establish without any doubt that the violation was the Athlete’s doctor fault because he provided wrong tablets to her. This is only a possibility. The Panel considers that the Athlete was tested before without issues, that the IOC already granted the Athlete a TUE for the use of glucocorticosteroids and most probably that the FINA also would have been granted a TUE for the use of glucocortcosteroids. Therefore the FINA Doping Panel decides on 20 July 2004 only to impose a warning and reprimand on the Athlete without a period of ineligibility.

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FINA 2002 FINA vs Marko Strahija

15 Jul 2003

Related case: CAS 2003_A_507 Marko Strahija vs FINA May 23, 2003 In November 2002 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Croatian swimmer Marko Strahija after his A and B samples tested positive for the prohibited substance Human chorionic gonadotrophin (hCG). The Athlete already tested positive in March 2002 and to establish a doping offence or a physiological or pathological condition the Athlete underwent two further out-of-competition tests in July 2002. The first sample tested negative however the second A and B samples tested positive for hCG. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the FINA Doping Panel. The Athlete denied the violation, denied the intentional use of any prohibited substance and rejected the test results. With scientific evidence and an expert witness, the Athlete argued that the analysis of his samples did not lead to reliable test results. FINA and its expert witness contended that the concentration hCG found in the Athlete’s samples was abnormal high and could not be explained by a physiological or pathological condition. Further FINA asserted that the analysis of the Athlete’s samples was conducted in accordance with the IOC guidelines and the Athlete failed to establish that invalidity of the test results. Considering the evidence in this case the Panel rejected the Athlete’s arguments and accepts the FINA contentions. Accordingly the FINA Doping Panel decides on 15 July 2003 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 27 November 2002. Hereafter under new FINA Rules due to the principle of lex mitior the Athlete’s sanction was reduced in September 2003 to a 2 year period of ineligibility with disqualification of his results achieved between November 2002 and 22 January 2002.

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FINA 2002 FINA vs Claudia Poll

3 Jun 2002

Related case: CAS 2002_A_399 Claudia Poll vs FINA January 31, 2003 In March 2002 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Athlete Claudia Poll after her A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone). After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the FINA Doping Panel. The Athlete denied the intentional use of any prohibited substance and argued that she was many times tested before without issues. The Athlete alleged that a number of irregularities occurred in regard to the sample collection procedure, storage and transportation, which accordingly effected the validity of the test results. The Panel considers the number of irregularities that occurred, as reported by the Athlete, and finds that these errors are not sufficient to call into question the entire doping control process. Based on the test result the Panel concludes that the Athlete committed the anti-doping rule violation and she failed to establish with evidence that the test results were unreliable. Therefore the FINA Doping Panel decides on 3 June 2002 to impose a 4 year period of inelibility on the Athlete starting on the date of the provisional suspension, i.e. on 26 March 2002.

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FINA 1998 FINA vs Michelle Smith de Bruin

6 Aug 1998

Related case: CAS 1998_211 Michelle Smith de Bruin vs FINA June 7, 1999 In April 1998 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Irish swimmer Michelle Smith de Bruin. The Athlete's sample was taken for a out-of-competition doping test at the her home in January 1998 and analysis of the A and B urine samples showed the presence of alcohol. The concentration of alcohol (whiskey odor) was too high to be produced naturally and indicated physical manipulation. After notification the Athlete filed a statement in her defence and she was heard for the FINA Doping Panel. The Athlete denied the allegation of manipulation and argued that no prohibited substances were found in her sample. Futher she contested the competence of FINA to perform un-announced anti-doping testing, including testing on swimmers when not competing and anti-doping testing in a members federations jurisdiction. The Athlete asserted that departures occurred during the sample collection procedure and claimed that the Doping Control Officers (DCOs) have manipulated her sample. Considering the FINA Rules the Panel establish that FINA is entitled to conduct un-announced anti-doping testing contrary to the Athlete’s contestations. The Panel finds that the Athlete committed an anti-doping rule violation due to manipulation of the sample based on the test results from the Barcelona Lab. Here the Panel establish that the Athlete’s sample was not manipulated in the Barcelona Lab, neither during transport, or by the DCOs. Considering the evidence the Panel deems that even if the sample collection procedure was not conducted with the necessary diligence it does not lead to the conclusion that the DCOs are to be suspected of having manipulated the Athlete’s sample. The Panel concludes that the manipulation has been done by the Athlete herself. The Panel did not find out how the manipulation was made, however to the conviction of the Panel, the Athlete herself has added alcohol to the urine, before it was decanted into the sample jars which then were sealed. The Athlete has altered the integrity of the urine, delivered in doping control. The Panel agrees with the Barcelona Lab conclusion that the reason to manipulate the sample can only be intended to make sure that something contained in the sample is not detected. Therefore the FINA Doping Panel decides on 6 August 1998 to impose a 4 year period of ineligibility on the Athlete starting on the date of the decision.

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