This case involves a complex dispute between two tennis players and both the Flemish Tennis Federation and the World Anti-Doping Agency. The two tennis players had been banned for a year for alleged violations of anti-doping rules (whereabouts and missed test) and an appeal was made to the Court of Arbitration for Sport (CAS) in November 2009 by the players and by WADA in December (CAS 2009/A/1994 & 2009/A/1995).
The CAS Panel issued a partial jurisdictional award on 10 June 2011, in which it also rejected various other requests, particularly as to a stay of the CAS cases in view of other litigation pending in Belgium. The awards were identical in both cases and they were appealed to the Swiss Federal Court.
On 13 February 2012 The Swiss Federal Court decided to reject the appeals of the Athletes:
1.) The argument was raised that the CAS would not be independent. That argument was not admissible on procedural grounds but it would have been rejected.
2.) An jurisdictional argument was raised because a July 2007 Decree of the Belgium Flemish community provided for exclusive CAS jurisdiction as to doping matters, thus removing the consensual aspect of arbitration. The argument was rejected.
3.) The appeal also raised the issue of a stay pursuant to Art. 186 (1) bis PILA, namely when another action on the same subject is pending in front of a state court, which was seized before the arbitral tribunal. The Court referred to the criticism by legal writers that the decision to stay the proceedings or not may be appealed but it chose to conclude that the argument was procedurally inadmissible, although one may have wished that the issue were actually decided.
