Related case:
CAS 2011_A_2325 UCI vs Roel Paulissen & Royale Ligue Vélocipédique Belge (RLVB)
In June 2010 the Ministry of the French Community of Belgium (Ministère de la Communauté française de Belgique) reported an anti-doping rule violation against the Belgian professional mountain biker Roel Paulissen after his sample tested positive for the prohibited substance clomiphene.
On 22 November 2010 the Royale Ligue Vélocipédique Belge (RLVB) Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete and a 7,500 Euro fine.
The International Cycling Union (ICU) appealed to the Court of Arbitration for Sport (CAS) and sought a higher fine. The athlete also appealed.
The CAS Panel upheld the ICU appeal and decided on 23 December 2010 to impose a 2 year period of ineligibility on the Athelete and a 20,800 Euro fine instead of the previous 7,500 Euro fine.
At the hearing in front of the CAS in July 2011, counsel for the athlete had asked arbitrator Carrard if he felt in a position to issue an objective decision considering that he had been appointed by the ICU in two cases dealing with a similar financial penalty. The arbitrator answered in the affirmative and counsel put on the record that he had no problem with the arbitral tribunal as constituted. Also, both parties confirmed at the outset of the hearing that they had no objection to the proceedings followed so far and that they considered that their right to be heard (due process) had been duly respected.
In subsequent exchanges of correspondence after the post-hearing briefs, counsel for the athlete asked the ICU and the CAS to indicate if the validity of the financial penalty imposed in this case had been the object of other proceedings and in the affirmative, what was the composition of the panels involved. The ICU demurred and the operative part of the award was sent to the parties in December 2011, followed by an advanced copy of the reasons a little later.
The reasons contained a reference to two unpublished CAS awards and further exchanges of correspondence followed, essentially raising the issue of the alleged lack of independence and impartiality of arbitrator Carrard due to several appointments by the ICU.
The Athlete’s appeal with the Swiss Federal Court was rejected essentially by reference to the case law of the Federal Tribunal, according to which a ground for challenge must be raised immediately after one becomes aware of it and there is a duty to investigate actively, so that uninvestigated grounds for challenge may be deemed to have been known by a litigant failing to investigate properly.
The Swiss Federal Court opinion about this case:
1.) The fairness and good faith requirement according to which a party should make its challenge immediately (as opposed to waiting to see if the outcome of the case is favorable) has been confirmed in the strict constructionist view repeatedly expressed by the Federal Tribunal in the past. Not only does counsel have to raise the challenge immediately but the grounds for challenge must be investigated and those that could reasonably be expected to be discovered shall be deemed to have been known by the party trying to challenge an arbitrator in a subsequent appeal to the Federal Tribunal. One may agree or not with this strict approach but it certainly has the merit of clarity.
2.) Repeated appointments within the meaning of the IBA guidelines may constitute ground for challenge but do not necessarily lead to the disqualification of an arbitrator.
3.) There is no duty to disclose a possible conflict of interest concerning facts for which an arbitrator may in good faith assume that the parties are aware of.
4.) Arbitral awards, even emanating from the same institutional arbitration system, do not in all likelihood constitute a source of arbitration law.
