Related cases:
- DIS 2011 NADA vs Patrick Sinkewitz
June 19, 2012 - CAS 2011/A/2479 Patrik Sinkewitz vs UCI
July 8, 2011 - CAS 2011/A/2479 Patrik Sinkewitz vs UCI
September 13, 2011 - CAS 2012/A/2857 NADA vs Patrik Sinkewitz
February 21, 2014
The case involved the professional cyclist Patrik Sinkewitz who tested positive for testosterone in June 2007 and again in February 2011. The German anti-doping agency referred the case to the German Arbitral Institution (DIS) and in June 2012 the sole arbitrator appointed by the DIS held that the Decision Limits had not been properly established in the case as there were significant differences between the results of the A and B Samples taken from the athlete.
An appeal to the Court of Arbitration for Sport (CAS) was made by the German national anti-doping agency and a three-member Panel was constituted (with arbitrators Dirk-Reiner Martens and Martin Schimke and Christoph Weder as chairman).
In the arbitral award CAS 2012/A/2857 of 21 February 2014 the DIS decision was overturned. The athlete was banned for eight years, his results disqualified and a fine of EUR 38,500 was imposed.
An appeal was made to the Swis Federal Court and noted by the Court as yet another example of a hopeless appeal that should not have been made, although it is understandable that in view of the rather severe sanction imposed, the athlete would want to exhaust every possible legal remedy available.
The opinion confirms that the Swiss Federal Court will not review, let alone correct or rectify, the manner in which an arbitral tribunal assesses the evidence at hand. It is only if relevant and properly submitted evidence is rejected or disregarded that a violation of the right to be heard can be argued successfully.
The Swiss Federal Court also reaffirmed that the right to be heard does not encompass a right to reasons in international arbitral proceedings (as opposed to domestic matters) or that an allegedly inaccurate decision on the merits cannot be challenged under the cloak of an violation of the right to be heard.
