Related cases:
CAS 2008/A/1564 WADA vs IIHF & Florian Busch
June 23, 2009
CAS 2008/A/1738 WADA vs DEB & Florian Busch
June 23, 2009
On 7 March 2008, Nationale Anti Doping Agentur Deutschland (NADA), the German National Anti-Doping Agency, has reported to Deutscher Eishockey-Bund (DEB), the German Ice Hockey Federation, an anti-doping rule violation against the Athlete Florian Busch after he refused to provide a sample for doping control.
The DEB informed NADA that the sanction as proposed by the National Anti-Doping Code would be excessive and a public warning would be sufficient, considering the circumstances of the actual case. Accordingly, it pronounced a public reprimand of the player on 15 April 2008 and fined him EUR 5,000.00 and 56 hours community service.
NADA learned of the decision by the DEB through the media and also learned that the International Ice Hockey Federation (IIHF) supported this and would permit the player to play in the Ice Hockey World Championship in Canada during 2 - 11 May 2008. NADA then informed WADA on 21 April 2008 for the WADA to be able to instigate measures.
In a letter dated 6 May 2008, WADA appealed to the directory of the IIHF World Championships, on the basis of Article 3.1 of the IIHF Disciplinary Regulations 2004, to temporarily suspend the Athlete as of 6 May 2008 and for the IIHF to decide within 48 hours on a provisional suspension. In addition, WADA requested that the IIHF Disciplinary Committee to instigate disciplinary proceedings against the Athlete and to impose a two-year suspension.
On 7 May 2008, the IIHF Board informed WADA via e-mail that it would be unable to act as per the request. Amongst other things, the IIHF noted that the Internal Disciplinary Commission established by the German Ice Hockey Federation had decided on this matter on 15 April 2008 and that the period for an appeal had not yet lapsed.
On the same day, WADA wrote to the IIHF that she would assume that the letter of 7 May 2008 would be a decision according to the meaning of the IIHF disciplinary regulations which would be subject to the Court of Arbitration for Sport (CAS).
On 9 May 2008, WADA appealed against the decision of 15 April 2008 of the DEB at the Ad-hoc Arbitral Tribunal of the German Olympic Sports Association and applied for the decision to be reversed and for the imposition of a two-year suspension on the Athlete. The DEB ad-hoc Arbitral Tribunal dismissed the WADA appeal with its decision of 3 December 2008, citing the reason that the sanction applied for by WADA would lack legal foundation.
On 27 May 2008, WADA appealed with CAS the letter of the IIHF of 7 May 2008 and applied for the imposition of a two-year suspension (Proceedings CAS 2008/A/1564). It noted that the request for arbitration was made to ensure its rights, in particular for the case that the request submitted to the German ad-hoc Arbitral Tribunal would not be allowed. Subsequently, the proceedings were suspended pending a decision by the German Arbitral Tribunal.
Following this, WADA also appealed the decision made by the ad-hoc Arbitral Tribunal of the German Olympic Sports Association (CAS 2008/A/1738). With the decision of 23 June 2008, CAS refused the case on the grounds of lack of jurisdiction. The IIHF waived participation in the arbitration proceedings. Amongst others, the Athlete objected on the grounds of want of jurisdiction, because an arbitration agreement was lacking.
In respect to the first appeal (Proceedings CAS 2008/A/1564), based on the "Player Entry Form" signed by the Athlete for the World Championship, CAS declared itself to be competent and took the e-mail sent by the IIHV on 7 May 2008 as an appealable decision. It revoked the decision by the IIHF with an arbitration ruling of 23 June 2008 and pronounced a two-year suspension of the Athlete.
Hereafter the Athlete applied to the Swiss Federal Court as a civil complaint to revoke the arbitration ruling by CAS of 23 June 2009 (CAS 2008/A/1564).
The Swiss Federal Court concludes that the complaint in civil matters against the CAS decision is purely of a cassatory nature, apart from exceptions where the present prerequisites are not given. Hence, the decision of CAS of 23 June 2008 must be set aside following the approval of the Athlete’s appeal. Corresponding with the outcome of the proceedings, WADA becomes liable for costs and damages.
Therefore the Swiss Federal Court decides:
1.) The appeal of the Athlete Florian Busch is approved and the CAS decision (CAS 2008/A/1564) of 23 June 2008 is set aside.
2.) The court fees of SFR. 5,000.00 are imposed on WADA.
3.) WADA has to compensate the Athlete for the Federal Court proceedings with SFR 6,000.00.
4.) This judgment is provided in writing to the parties and the Court of Arbitration for Sport (CAS).
