CAS 2008/A/1564 World Anti-doping Agency (WADA) v. International Ice Hockey Federation (IIHF) & Florian Busch
Related cases:
- CAS 2008/A/1738 WADA vs DEB & Florian Busch
June 23, 2009 - Swiss Federal Court 4A_358/2009 Florian Busch vs WADA
November 6, 2009
- Ice hockey
- Doping (refusal to submit to a sample collection)
- Interpretation of the rules of an IF in conformity with the WADC
- Interpretation of unclear or contradictory arbitration agreements according to the principle of confidence
- Basic requirements for a valid arbitration clause or arbitration agreement
1. International Federations (IFs) that have signed the World Anti-doping Code (WADC) are required, inter alia, to adopt and implement anti-doping policies and rules which conform with the WADC and to require as a condition of membership that the policies, rules and programs of National Federations are in compliance with the WADC; in this respect, International Federations have to adjust their legal order in accordance with the above commitments towards WADA. Where no such adjustments have taken place, the rules of an International Federation must be interpreted in such a manner that their application finds the Federation in conformity with the WADC.
2. Pursuant to Swiss law, arbitration agreements which contain provisions with regard to the essential elements of an arbitration agreement which are unclear or contradictory (so called “pathological clauses”) are to be interpreted in an objective manner which provides for neutrality with regard to the results of the interpretation. If a party argues having understood a clause in a different manner, the principle of confidence is to be applied. This means that the respective will of the parties is to be established as it could be and must have been understood bona fide by the respective addressee of a declaration.
3. The players sign to abide and observe the IF’s Statutes, By-laws and Regulations, and, in particular, decisions by the IF including disciplinary measures in general. They subject themselves to exclusive jurisdiction of IF appeal procedures and, after their exhaustion, to the jurisdiction of the CAS.
4. For an arbitration clause or arbitration agreement to be valid, it has to make clear the parties’ consent to arbitration, to define the scope and limit of that consent, to cover precisely the subject matter the parties intend be submitted to arbitration and to provide for the designated dispute resolution method and for exclusivity. Moreover, by reference to the Code of Sports-related Arbitration, the recommended elements of an international arbitration clause are fulfilled: this is the place of arbitration, the method of selection and number of arbitrators and the language of the arbitration.
In March 2008 the German National Anti-Doping Agency (NADA) has reported to the German Ice Hockey Federation (DEB) an anti-doping rule violation against the ice hockey player Florian Busch for his refusal to provide a sample for doping control.
Thereupon the DEB informed NADA that the proposed sanction would be excessive and that a public warning would be sufficient, considering the circumstances of the actual case. Accordingly on 15 April 2008 the DEB imposed a fine and a reprimand on the Athlete including 56 hours community service.
Through the media NADA was informed about the DEB decision and it was informed that the International Ice Hockey Federation (IIHF) supported this decision and allowed the Athlete to play in the next Ice Hockey World Championship in Canada in May 2008. NADA notified WADA in April 2008 to consider launching proceedings.
After deliberations between WADA the DEB and the IIHF about sanctioning the Athlete WADA appealed in May 2008 the DEB decision with the DEB Ad-hoc Arbitral Tribunal of the German Olympic Sports Association.
Also in May 2008 WADA filed an appeal with the Court of Arbitration for Sport (CAS) against the IIHF and requested for the imposition of a two-year suspension (Proceedings CAS 2008/A/1564).
WADA filed the request for arbitration with CAS to ensure its right to appeal in the situation that the appeal with the German ad-hoc Arbitral Tribunal is rejected. Subsequently, the proceedings before CAS were suspended pending a decision from the German Arbitral Tribunal about the WADA appeal.
On 3 December 2008 the DEB Ad-hoc Arbitral Tribunal decided to dismiss the WADA appeal because the requested sanction was unfounded. Hereafter WADA appealed this Decision with CAS (Proceedings CAS 2008/A/1738). However on 23 June 2008 CAS rejected this appeal because it lacked jurisdiction.
The CAS Panel determines in this case (CAS 2008/A/1564) that the Athlete has not served any period of ineligibility in accordance with the WADC. The Panel determines, however, that the Athlete has served two sanctions of different kind (fine and community work) and was de facto sanctioned for 1 year ineligibility from international competitions.
The Panel, taking into consideration the preparatory and evaluating hours needed in addition to the 56 hours community work, served by the Athlete, holds justified to equalize fine and community work served altogether to one month of ineligibility in the understanding of art. 10.9 of the 2003 WADC.
The de facto sanction of 1 year for international ineligibility, given the loss of market value, income and reputation attached thereto is held equal by the Panel to 1 further month. Thus, the Panel holds that 2 months from altogether two years of ineligibility have already been served.
Therefore the Court of Arbitration for Sport decides on 23 June 2009:
1.) The appeal of WADA against the IIHF decision of 7 May 2008 is declared admissible and upheld.
2.) The decision of IIHF rendered on 7 May 2008 in the matter of Mr Florian Busch is set aside.
3.) Mr Florian Busch is sanctioned with a two-year period of ineligibility starting on 22 April 2009, two months of which are considered as having already been served and shall be credited against the total period of ineligibility to be served.
4. (…)
5. (…)
6. All other motions or prayers for relief are dismissed.
