Related case:
CAS 2017_A_5038 Yassine Bensghir vs FRMA & IAAF
May 29, 2017
The case involved an international-level middle-distance runner (the Athlete) whose antidoping controls showed the highly likely use of a prohibited substance or method. Following a provisional suspension in April 2016, the Athlete was suspended for four years.
The decision with grounds was part of the minutes of the meeting of the Federation’s Disciplinary Commission in June 2016. On June 30, 2016, the Medical & Antidoping Officer of the Athlete’s Federation sent a letter to the Athlete informing him of the decision.
The Athlete sent two emails to his national federation, to the IAAF, to WADA and to the CAS “contesting” the decision (in August 2016 and in January 2017). Finally, on March 21, 2017, the Athlete filed a statement of appeal to the CAS along with a request for provisional measures, following which the CAS initiated the arbitration procedure.
All other parties involved requested the termination of the procedure since the appeal was clearly filed late, in accordance with Art. R49 of the CAS Code (which provides for the time limits to file an appeal with the CAS).
As was expected, the President of the Appeals Division of the CAS, based on its power to decide of Art. R49, issued a termination order holding that the appeal was inadmissible. In summary, the President concluded that, under Rule 42.15 of the IAAF Rules, the deadline for appeal to the CAS was 45 days from the day after the reception of the decision under appeal.
In the present case, the time limit to appeal had started to run on July 1, 2016, which made the appeal filed on March 21, 2017 more than seven months late and therefore inadmissible.
The Athlete subsequently filed an appeal to the Swiss Federal Tribunal, requesting the annulment of the termination order and the granting of legal aid for the setting aside proceedings.
This is not a revolutionary judgment but a good review of the conditions to appeal to the Federal Tribunal against a decision that does not fall within the strict definition of an “award” within the meaning of Art. 77 (1) LTF.
In this respect, a termination order – to the extent that it cannot be modified at a later stage, qualifies as an award for the purposes of the setting aside proceedings. It is also irrelevant that the drafter of the termination order was not an arbitral tribunal but the President of an arbitral division (or even the Secretary General of an arbitral institution).
Another point to retain is that the good faith of a person filing an appeal late (pursuant to the applicable procedural rules) is not sufficient to remedy the non-respect of the time limit to appeal the decision, whose respect is essential in order to establish legal certainty and protect the equality of the parties.
Finally, this judgment clarified that it is possible to grant legal aid for setting aside proceedings in international arbitration, so long as the cumulative conditions (including that the appeal does not lack chances of success) are met.
