Swiss Federal Court 4A_692_2016 WADA vs Kristen Shaldybin & USADA
In June 2016 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the gymnastics Athlete Kristen Shaldybin after her sample tested positive for the prohibited substance hydrochlorothiazide. However on 14 July 2016 USADA announced that the Athlete accepted the finding of No Fault for the reported ADRV.
USADA concluded on a balance of probabilities that the Athlete unknowingly ingested the substance through tapwater obtained from the municipal water supply. Therefore no sanction was imposed on the Athlete.
In August 2016 the World Anti-Doping Agency (WADA) filed an appeal with the Court of Arbitration for Sport (CAS) against this USADA award.
However USADA and the Athlete indicated in September 2016 that they refused to pay for the costs in advance and CAS requested WADA to pay for full costs. After deliberations with WADA the President of the CAS Appeals Arbitration Division decided on 11 November 2016 to terminate the CAS appeal because WADA had failed to settle full payment of the costs in advance before the deadline of 20 September 2016. The case CAS 2016/A/4743 WADA vs Kristen Shaldybin & USADA was closed and deleted from the CAS roll.
Hereafter WADA appealed the CAS award decision of 11 November 2016 with the Swiss Federal Court.
WADA contended that CAS acted excessively formalistic in following the CAS Code and in terminating the appeal proceedings. As a result WADA asserted that their right to be heard was violated including infringement of the Swiss Ordre Public. WADA did not dispute the late payment of the costs in advance.
CAS submitted that WADA each year filed about a dosen appeals with CAS and it occurred frequently that requests were made to WADA to fulfil full costs in advance. WADA can not claim any surprise or confusion in this case.
The Swiss Federal Court concludes that CAS didn’t acted excessively and was entitled to cease the proceeding due to WADA’s failure for payment within the time limit.
Therefore the Swiss Federal Court decides on 20 April 2017 to dismiss the WADA appeal.
