CAS 2017/A/5280 Danis Zaripov v. International Ice Hockey Federation (IIHF), consent award of 21 November 2017
Ice hockey
Doping (pseudoephedrine)
Ratification and incorporation of a settlement agreement in a consent award
Verification of the bona fide nature of the settlement agreement
1. Under Swiss law, an arbitration tribunal sitting in Switzerland has authority to issue an award embodying the terms of the parties’ settlement, if the contesting parties agree to a termination of their dispute in this manner. The arbitration tribunal’s ratification of their settlement and its incorporation into a consent award serves the purpose of vesting the settlement with a res judicata effect and of enabling the enforcement of their agreement.
2. It is the task of the arbitration tribunal to verify the bona fide nature of the settlement agreement to ensure that the will of the parties has not been manipulated by them to commit fraud and to confirm that the terms of the agreement are not contrary to public policy principles or mandatory rules of the law applicable to the dispute.
In March 2017 the International Ice Hockey Federation (IIHF) has reported an anti-doping rule violation against the Russian ice hockey player Danis Zaripov after his A and B samples tested positive for the prohibited substances hydrochlorothiazide and pseudoephedrine.
On 21 July 2017 the IIHF Disciplinary Board decided to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 23 May 2017)
Hereafter in August 2017 the Athlete appealed the IIHF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul or alternatively to reduce the imposed sanction.
After deliberations between the Parties a settlement was reached and the Parties signed copies of the settlement agreement. The Parties submitted signed copies to CAS and requested the Panel to ratify the Settlement Agreement into a Consent Award.
The Parties agree on the following on 7 November 2017:
1.) The IIHF Decision of 21 July 2017 is hereby set aside.
2.) Mr Zaripov did not engage in intentional doping and had no intention to cheat.
3.) The presence of pseudoephedrine during Mr Zaripov’s 29 January 2017 doping control test was the result of Mr Zaripov’s intake of pseudoephedrine below the prohibited threshold in the form of RhinoPRONT, as prescribed by his team doctor.
4.) Following the Appeal, Mr Zaripov provided extensive documentary and expert evidence to the IIHF demonstrating that
(a) the amounts of HCTZ present in his samples were roughly 1,000 times lower than a small therapeutic dose of HCTZ and totally insufficient to express any therapeutic or masking effect; and
(b) the source of HCTZ in his 29 January 2017 doping control test was the result of ingesting contaminated Vitamin C.
5.) Based on the new evidence provided by Mr Zaripov, which was not available to the IIHF Disciplinary Board when it rendered its Decision, the IIHF determined that Mr Zaripov bears No Significant Fault or Negligence (as this term is defined in the WADA Code) in relation to the anti-doping rule violation
referred to in the Decision, and therefore that he has satisfied the requirements for a reduced ineligibility period pursuant to Article 10.5.1 of the WADA Code.
6.) In application of Article 10.5.1 of the WADA Code, the suspension imposed by the IIHF Disciplinary Board in its Decision shall be reduced to 6 months, running from 23 May 2017, the date of Mr Zaripov’s provisional suspension, and shall end on 23 November 2017. Accordingly, Mr Zaripov shall be eligible to participate in all competitions or activities authorized by the IIHF or any IIHF Member National Association at any time on or after 23 November 2017.
7.) Pursuant to Article 10.12.2 of the WADA Code, upon the Panel entering a Consent Award confirming this Settlement Agreement, Mr Zaripov shall be immediately entitled to return to training for competitions or activities authorized by the IIHF or any IIHF Member National Association.
[…].
After reviewing the terms of the Settlement Agreement, the pleadings of the respective Parties and the evidence submitted by them, the Sole Arbitrator finds no grounds to object or to disapprove of the terms of the Settlement Agreement and is satisfied that the Settlement Agreement constitutes a bona fide settlement of the dispute brought to its attention.
Therefore the Court of Arbitration for Sport decides 21 November 2017 that:
1.) The Panel, with the consent of Mr Danis Zaripov and the International Ice Hochey Federation (IIHF), hereby ratifies the Settlement Agreement executed by Mr Danis Zaripon and the International Ice Hockey Federation (IIHF) on 7 November 2017 and incorporates its terms into this consent award.
2.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Mr Danis Zaripov, which is retained by the CAS.
3.) Each party shall bear his/its own legal costs and expenses incurred in connection with the present proceedings.
4.) All other motions or prayers for relief are dismissed.
