Related cases:
- CAS 2009/A/1767 Gert Thys vs Athletics South Africa
July 24, 2009 - CAS 2011/A/2435 WADA vs Gert Thys, Athletics South Africa & SAIDS
November 30, 2011
In March 2006 the IAAF has reported an anti-doping rule violation against the South-African Athlete Gert Thys after his A and B samples tested positive for the prohibited substance 19-norandrosterone.
After notification by Athletics South Africa (ASA) a provisional suspension was ordered and after several adjourments the ASA Tribunal decided to impose a period of ineligibility of 2 years and 7½ months on the Athlete, starting on 25 april 2006 (date of the provisional suspension) until 11 December 2008 (date of the Tribunal decision).
The Athlete appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport (CAS).
On 24 July 2009 the CAS Panel ruled (CAS 2009/A/1767):
1.) It has jurisdiction to hear the appeal filed by Gert Thys on 7 January 2009.
2.) The appeal of Gert Thys is upheld.
3.) The decision of Athletics South Africa of 11 December 2008 is set aside.
4.) Gert Thys is exonerated of any doping infraction and is eligible to compete without any prior reinstatement testing.
5.) The prize money, income and benefits derived from the participation of Gert Thys in the Seoul Marathon in March 2006 shall not be forfeited.
6.) The award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Gert Thys, which is retained by the CAS.
7.) Athletics South Africa shall pay Gert Thys a contribution towards his legal fees in the amount of CHF13,000 (thirteen thousand Swiss Francs), within 30 (thirty) days of notification of this award”.
Thereupond the ASA appealed the CAS decision of 24 July 2009 with the Swiss Federal Court. The opinion of the Court ruled in this case:
1.) The Court held that a National Federation has a legally protected interest to appeal to the Federal Tribunal when the CAS revokes a sanction previously ordered.
2.) The CAS had essentially found that when the National Federation made reference to appeal proceedings before the CAS, that was an admission by the Federation that it would submit to the jurisdiction of the CAS. The Court restated that arbitration clauses are to be interpreted as any contractual clause and that the so called Vertrauensprinzip applies in this respect. Translated loosely as the “principle of trust,” the concept means that the receiving party is entitled to interpret the other party’s statements in accordance with the meaning such a statement could be given in good faith under normal circumstances. The Court found that this did not apply in this case as the letter on which the CAS had relied could not be given that interpretation.
3.) The Athlete made an attempt to requalify as an international level athlete, which may have justified CAS jurisdiction, but the Court rejected that argument as well.
Therefore, the Federal Swiss Court decides on 3 May 2009:
1.) The ASA appeal is admitted and the CAS award of 24 July 24 2009 is annulled.
2.) The CAS shall have no jurisdiction to decide the Athlete’s appeal.
3.) The court costs set at CHF 5’000.- shall be paid by the Athlete.
4.) The Athlete shall pay to the ASA an amount of CHF 6’000.- for the federal judicial proceedings.
5.) This judgment shall be notified in writing to the parties and to the Court of Arbitration for Sport (CAS).
As a result of the judgment of the Swiss Federal Court, holding in substance that an appeal against the ASA Decision had to be directed to SAIDS, and not to CAS, Mr Thys filed with SAIDS, on 4 June 2010, an appeal against the ASA Decision.
After numerous requests made by the Athlete, SAIDS failed to convene a hearing panel. Therefore in May 2011, WADA appealed the ASA decision of 11 December 2008 with the Court of Arbitration for Sport. (CAS 2011/A/2435)
