Related case:
CAS 2016_A_4919 WADA vs World Squash Federation & Nasir Iqbal
November 6, 2017
In an appeal filed by the World Anti-Doping Agency (WADA) to the Court of Arbitration for Sport (CAS) against an “Agreement” concluded between the professional squash Player X.
and the World Squash Federation (WSF). According to the Agreement, the Player X.
admitted having violated the anti-doping rules, accepting, among other penalties, a one-year suspension. The CAS Panel upheld WADA’s appeal and imposed a four-year suspension on the Player X.
, who subsequently appealed against the CAS Award to the Swiss Federal Tribunal requesting its annulment for violation of his right to be heard and of the principle of ne infra petita.
The Appellant alleged that the Panel failed to examine whether the conditions for a reduction of the suspension to a minimum of two years for “prompt admission” were met in the case at hand. The Federal Tribunal dismissed this argument. The application of Art. 10.6.2 of the applicable anti-doping rules required the discretionary consent of both WADA and the WSF. The Panel also found that one of the cumulative conditions was not met in the case at hand and dismissed the Appellant’s claim. Therefore, the fact that the Panel left unanswered whether the Appellant had promptly admitted the violation (one of the two other cumulative conditions) was not sufficient to establish a violation of the Appellant’s right to be heard.
In a second plea, based on Art. 190(2)(c) PILA, the Appellant alleged that the Panel omitted to address one of the claims, which resulted in a formal denial of justice. However, this plea does not include a failure to address questions important for the outcome of the case. This is the main difference between the plea of the violation of the parties’ right to be heard and a plea of denial of justice/ne infra petita: the former includes the failure to examine some submissions and legal arguments that were regularly raised and that could have influenced the outcome of the case. The latter refers to the Panel’s failure to address one of the claims (all requests and submissions) but not the Panel’s failure to address a question important for the outcome of the case. As found in a previous judgment, there is a distinction between claims/requests (“Rechtsbegehren”) and pleas in defence of one’s claims (“Verteidigungsmittel”: 4A_173/2016 of June 20, 2016, at 3.2).
The Appellant referred to one of his own claims, under which he requested the reduction of the suspension period based on the applicable rules and argued that, by not examining the question of his prompt admission (and by not explicitly rejecting it in its operative part), the Panel had allegedly violated Art. 190(2)(c) PILA. In his view, it was not sufficient that the Panel rejected all the other requests and submissions in the n. 8 of the operative part of the award. Again, the Federal Tribunal dismissed this argument after it compared nn. 8 and 3 of the operative part of the award to the reasons of the award and found that the CAS Panel had sufficiently addressed the Appellant’s claim. It is worth adding that in a previous judgment related to a CAS Award, the Federal Tribunal had held that similar clauses cannot simply protect the arbitral tribunal, but there is a minimum duty to examine all claims raised by the parties (4A_730/2012 of April 29, 2013, at 3.3.2).
Despina Mavromati
http://www.swissarbitrationdecisions.com
