CAS 2010/A/2311
CAS 2010/A/2312
CAS 2010/A/2311 & 2312 Stichting Anti-Doping Autoriteit Nederland (NADO) & the Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) v. W.
Related cases:
- Dutch District Court 2009 Athlete 2009005 vs KNSB and Dopingautoriteit
June 9, 2009 - KNSB 2009 KNSB Preliminary Decision Disciplinary Committee 2009005 TU1
September 8, 2009 - Dutch District Court 2010 Athlete 2009005 vs KNSB
September 30, 2009 - KNSB 2009 KNSB Preliminary Decision Disciplinary Committee 2009005 TU2
October 15, 2009 - KNSB 2009 KNSB Preliminary Decision Disciplinary Committee 2009005 TU3
December 2, 2009 - KNSB 2010 KNSB Decision Disciplinary Committee 2009005 T
March 12, 2010 - KNSB 2010 KNSB Preliminary Decision Appeal Committee 2009005 TU4
July 6, 2010 - KNSB 2010 KNSB Decision Appeal Committee 2009005 B
November 26, 2010
- Skating
- Doping (norandrosterone)
- Arbitration agreement and waiver of access to public courts
- Unequal bargaining power and renouncement of the right of access to public court
- Specific advantages of arbitration in the field of sports
- Arbitration under Dutch Law
- Non-applicability of Art. 6.3 ECHR to sport-related disciplinary proceedings
- No need for explanation for the analysis of the B sample
- Application of doping rules to minors
1. Switzerland is a contracting party to the European Convention on Human Rights (ECHR), but whether or not the ECHR is applicable to arbitration in general or to arbitration agreements specifically, is open to questions. The case law of the Swiss Federal Tribunal insofar lacks a clear line. The jurisprudence of the European Court of Human Rights (ECtHR) as to articles 6.1 and 7 ECHR holds that by concluding an arbitration agreement the parties validly renounce their right of access to public courts in the sense of article 6.1 ECHR.
2. The fact that one party may have more bargaining power than the other does not invalidate the fact that by concluding an arbitration agreement, the parties renounce their right of access to public court. If – according to the jurisprudence of the ECtHR – the right of access to the courts enshrined in Art. 6.1 ECHR can be subject to a weighing up in the event that arbitral jurisdiction is prescribed by statute, then the same must apply also in a case of unequal bargaining power. Therefore, only if there were no reasons in terms of “good administration of justice” in favour of arbitration a violation of article 6.1 ECHR could be acknowledged.
3. In addition to the general advantages which arbitration is said to have, there are specific advantages of arbitration in the field of sports. The principle of uniformity in sport is a defining characteristic of organised sport – particularly at an international level. For, in order to be able to compare sports performance internationally, competitive sport must be performed in accordance with the same and uniform rules. The consistency of rules and decisions is therefore an essential feature of international sport. However, the risk to consistency increases with the number of fora before state courts and – as a consequence thereof – of national legal standards that apply. This is not only contrary to the interests of sports organisations, but also to the interests of an individual athlete. For, the latter has only submitted to a sports federation's sovereignty because he believed his competitors to be bound in the same way. If therefore sport wishes to preserve its global character and the principle of uniformity this is only possible by concentrating jurisdiction at a single forum in the form of arbitration.
4. With regard to arbitration, Dutch law follows general European legal standards. The relevant provisions of the Dutch Code of Civil Procedure do neither restrict the parties’ autonomy to submit a dispute to arbitration in the case of a child or minor, in case of a Dutch or other European citizen, nor do they limit arbitration to the obligatory use of the Dutch language by the arbitration bodies.
5. Art. 6.3 ECHR applies to criminal proceedings only. According to Swiss Law, sport-related disciplinary proceedings conducted by a sport federation against an athlete are qualified as civil law disputes and not as criminal law proceedings. This finding is also in line with constant CAS jurisprudence.
6. According to the World Anti-Doping Code (WADC), the Anti-Doping Organization has the discretion to have the B sample analysed even if the athlete does not request its analysis. No explanation is needed and no violation of the WADC takes place.
7. There is no special anti-doping regime for minors. However, the young age of an athlete can be taken into account inasmuch as it has an impact on the athlete’s fault.
In February 2009 the Royal Netherlands Skating Association (KNSB) reported an anti-doping rule violation against the minor Athlete after his A and B samples tested positive for the prohibited substance Norandrosterone (Nandrolone). After notification a provisional suspension was ordered by the KNSB.
The Athlete seeked annulment of the disciplinary proceedings and sanctions. As a result between 2009 and 2011 a number of proceedings and appeals followed in the dispute between the Athlete, the KNSB and the Dopingautoriteit.
- On 9 June 2009 the Dutch District Court dismissed the Athlete’s objections about the validity of the sample collection and violation of his rights.
- On 8 September 2009 the KNSB ruled in the 1# Preliminary Decision about the validity of the sample collection and the validity of the test results for which a independent expert is appointed and the Dopingautoreit is ordered to provide additional information about the laboratory procedures and protocols.
- On 30 September 2009 the Dutch District Court dismissed the Athlete’s request to lift the provisional suspension.
- On 15 October 2010 the KNSB Disciplinary Committee ruled in the 2# Preliminary Decision about the possibility for lifting the provisional suspension for which a new hearing is ordered.
- On 2 December 2009 the KNSB Disciplinary Committee ruled in the 3# Preliminary Decision that the imposed provisional suspension will expire in February 2010 when the KNSB has not rendered a final decision against the Athlete.
- On 12 March 2010 the KNSB Disciplinary Committee dismissed the Athlete’s arguments about the validity of the test results and decided to impose a 1 year period of ineligibility on the Athlete and 1 year probationary period until November 2011.
- On 6 July 2010 the KNSB Appeal Committee ruled in the 4# Preliminary Decision that under the Rules the costs for an expert investigation shall be borne by the KNSB.
- On 26 November 2010 the KNSB Appeal Committee decided to annul the KNSB Disciplinary Committee decision of 12 March 2010 because of the KNSB’s refusal to provide additional documentation to verify the validity of the laboratory testing method as violation of the Athlete’s right of defence.
Hereafter in December 2010 the Dopingautoriteit and the KNSB appealed the KNSB Appeal Committee Decision of 26 November 2010 with the Court of Arbitration for Sport (CAS). The Dopingautoriteit and the KNSB requested the Panel to set aside the decision of the KNSB Appeal Committee and to impose a 2 year period of ineligibility on the Athlete.
They argued that the Athlete’s samples tested positive for the prohibited substance; that no departure occurred of the ISL in the accredited laboratory; and that the Athlete’s right of defence was not violated.
The Panel determines that the Athlete was non-cooperative during the proceedings before the CAS. Instead he submitted numerous letters in Dutch or English language, which did not relate to the facts of the case.
Furher the Panel assessed the facts of the case at hand not only on the submissions of the Dopingautoriteit and KNSB as well as in the decisions rendered by the KNSB Disciplinary Committee, the KNSB Appeal Committee and the two Dutch District Courts.
Considering the evidence in this case the Panel concludes that the Athlete’s samples tested positive for the prohibited substance Norandrosterone (Nandrolone) and that no departure from the ISL occurred in this case.
Therefore the Court of Arbitration for Sport decides on 22 August 2011:
1.) The appeals filed by the Stichting Anti-Doping Autoriteit Nederland (NADO) on 15 December 2010 and by the Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) on 16 December 2010 against the decision of the KNSB’s Appeals Committee dated 26 November 2010 are upheld.
2.) The decision of the KNSB’s Appeals Committee of 26 November 2010 is set aside.
3.) W. is guilty of an anti-doping rule violation committed on 31 January 2009.
4.) The decision of the KNSB Disciplinary Committee of 12 March 2010 is reinstated.
5.) (...)
