An athlete was banned for life by the Hearing Commission of her country for refusing to provide a sample, failing to appear for such a test or attempting to counterfeit the results. As she had been previously sanctioned, the ban was for life.
An appeal was made to the Court of Arbitration for Sport (CAS). The International Council of Arbitration for Sport ICAS granted legal aid and appointed counsel for the athlete. The Panel consisted of a sole arbitrator.
After a hearing in Lausanne, the CAS Arbitrator rejected the appeal and confirmed the decision of the national federation in an award on 26 July 2011.
An appeal was made to the Swiss Federal Tribunal and hereafter rejected on 3 October 2011.
The Swiss Federal Court’s opinion in this case:
1.) The Court emphasizes again that any alleged violation of the right to be heard must be raised immediately and that failure to do so will cure the violation and make it incapable of appeal to the Federal Tribunal.
2.) Whether or not an arbitral tribunal is independent and impartial is not an issue of public policy within the meaning of Art. 190 (2) (e) PILA but it falls within the provisions of Art. 190 (2) (a) PILA as a particular case of “irregular composition” of the Arbitral tribunal. This affords broader judicial review then would otherwise be the case under the very narrow construction of “public policy” before the Swiss Federal Court.
3.) If whatever body of a national federation adjudicating a dispute is – allegedly – …, the possibility of a subsequent appeal to the CAS is sufficient as the requirement that there should be a double degree of jurisdiction is not part of procedural public policy. The counsel was appointed by the ICAS because the athlete could not afford one. Lausanne lawyer Pascal de Preux represented the athlete and then filed an appeal to the Swiss Federal Court, which refused to grant legal aid allegedly because the appeal was hopeless.
