CAS 2013/A/3437 International Shooting Sport Federation (ISSF) v. World Anti-Doping Agency (WADA)
CAS 2013/A/3437 International Shooting Sport Federation (ISSF) v. World Anti-Doping Agency (WADA), award of 18 December 2014 (operative part of 4 August 2014)
- Shooting sport
- Doping (atenolol)
- Non-participation in the proceedings and procedural fairness
- Standing to be sued under Swiss law
- Consequence of not identifying all proper respondents in an appeal to the CAS
- Criteria for granting a TUE according to the WADA Code.
- Defence based on materially similar cases
- Right to sport
1. If, as a matter of form, a person is not a respondent but has been given proper notice of the appeal and a proper opportunity to participate in the appeal, such a person (or anyone else) cannot complain of any lack of procedural fairness if a deliberate choice is made not to participate.
2. Under Swiss law, the defending party has standing to be sued (“légitimation passive”) if it is personally obliged by the “disputed rights” at stake. In other words, a party has standing to be sued and thus may be summoned before CAS only if it has some stake in the dispute because something is sought against it.
3. As a general rule, the appellant is obliged to identify the proper respondent at the outset of the procedure. The consequence of not identifying all proper respondents is not that the appeal is wholly inadmissible but only that the CAS panel may decline to make any orders against a person who is a proper respondent but has not been joined or may limit
the scope of its review to the orders sought against the party properly joined as a respondent.
4. All the four criteria enumerated in the WADA Code have to be fulfilled for the grant of a TUE. That is the impact of the words “in strict accordance”. Furthermore, the burden of establishing satisfaction of the four criteria rests on the athlete.
5. In CAS cases on appropriate sanctions for doping violations where the athlete prays in aid a defence of no fault or no significant fault she/he not infrequently invokes earlier cases as setting as benchmark. But in those cases CAS has constantly emphasised that the invocation is of no utility before it, unless the defendant and the alleged comparator are materially similar. The same philosophy is exemplified in the area of antidiscrimination law in all its modern variety.
6. While all human rights instruments recognize that there is a right to life, none recognize that there is an equivalent right to sport.
On 12 September 2013 the ISSF Therapeutic Use Exemption Committee (ISSF TUEC) denied the Athlete's TUE request for the use of the medication Atenolol. Thereupon in October 2013 the Athlete requested WADA to review this TUE application.
On 29 November 2013, the WADA Therapeutic Use Exemption Committee (WADA TUEC) decided to set aside the ISSF TUEC Decision and to allow the use of the medication for a period of 4 years.
Hereafter in December 2013 the ISSF appealed the WADA decision with the Court of Arbitration for Sport (CAS). The ISSF requested the Panel to set aside the Appealed Decision and to reject the Athlete's TUE application.
The CAS Panel finds that this is a case which juxtaposes in an unusual fashion two conflicting interests, on the one hand the desire of a young athlete of apparent early promise but adventitiously diagnosed with a potentially fatal heart condition to participate, at the highest level, in her chosen sport, on the other hand the entitlement of her potential competitors to be confident they are not asked to challenge an athlete with an unfair advantage induced by prohibited substances.
The issue for the Panel is not whether the Athlete has done all that she could do to provide evidence but whether the evidence which she has actually provided is sufficient to establish that the criterion in 4.1(b) is satisfied. The Panel concludes that it is not.
Therefore the Court of Arbitration for Sport decides on 18 December 2014 that:
1.) The appeal filed on 18 December 2013 by the International Shooting Sport Federation is upheld and the decision adopted by the Therapeutic Use Exemption Committee of the World Anti-Doping Agency on 29 November 2013 set aside.
2.) The decision adopted by the Therapeutic Use Exemption Committee of the International Shooting Sport Federation on 12 September 2013 is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
