CAS 2020_A_6781 Andrus Veerpalu vs FIS

CAS 2020/A/6781 Andrus Veerpalu v. Fédération Internationale de Ski (FIS)

Related cases:

• CAS 2011_A_2566 Andrus Veerpalu vs International Ski Federation
  March 25, 2013
• CAS 2020_ADD_7 ISF vs Andrus Veerpalu
  March 17, 2021
• FIS 2011 FIS vs Andrus Veerpalu
  August 21, 2011

• Skiing (cross-country skiing)
• Doping (suspected anti-doping rules violation)
• CAS Jurisdiction
• Consequences of a provisional suspension
• Taking into account of irreparable harm in favour of a provisonally suspended athlete

1. The FIS Anti-Doping Rules (ADR) provides for an appeal to the CAS against decisions to impose a provisional suspension. Pursuant to Article R27 of the CAS Code, the parties’ agreement to refer a sports-related dispute to CAS may arise out of an arbitration clause contained in a contract or regulations. Similarly, pursuant to Article R47 of the Code, an appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide. Accordingly, the arbitral clause contained in the FIS ADR is sufficient to confer jurisdiction to the CAS to rule on an appeal. It would run counter to the fundamental aim of avoiding the fragmentation of international sports which aspire to, and indeed require, uniform application of the law, if statutory references to CAS would be binding, but the same would not be the case if CAS is referred to in a “mere” regulation – no matter how clearly spelled out, no matter how well notified to participants in the internationally regulated sport. In any case, a statutory basis for CAS jurisdiction is present as well, in the form of Article 57.4 of the FIS Statutes, which provides that: “Decisions of the Council and the Doping Panel which concern violations of the doping rules may be appealed to the Court of Arbitration for Sport (CAS) within twenty one (21) days”. The jurisdictional foundation of CAS is therefore fully supported by both regulatory and statutory references.

2. Provisional suspensions have the consequence of ineligibility to compete, with the result that the suspended individual is excluded from competitions which will not be repeated. This rule fulfills the goal of protecting participants who are not under the cloud of a “reasonable possibility” of having committed a doping violation. True enough, such is also the effect of definite suspensions. But the latter are established for a fixed period of time, and that makes all the difference; a provisional suspension may be overturned as soon as a CAS panel can reach a decision to that effect. It therefore makes sense that the hurdle to overturning provisional suspensions is higher than that of definite suspensions.

3. The factor of irreparable harm may be taken into account in favor of a provisionally suspended athlete, but the appellant must then demonstrate that the requested measures are necessary in order to protect him from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage. The mere allegations of irreparable harm, without corroborating proof, fail to satisfy the appellant’s burden of proof to show substantial damage if the appealed decision is not set aside and if the provisional suspension thus remains.

On 27 February 2019, at the 2019 Nordic World Ski Championships in Seefeld, the Austrian police raided several cross-country athletes on suspicion of violation of the Austrian anti-doping laws. Among them were several members of the privately sponsored “Team Haanja”, a group of athletes and coaches mainly from Estonia, including the Appellant’s son Andreas Veerpalu, Karel Tammjärv and Alexey Poltoranin from Kazakhstan.

“Team Haanja” was completed by further athletes, who later voluntarily confessed blood doping, and Mati Alaver and Andrus Veerpalu as their coaches. The athletes admitted that they had blood taken from their circulatory system and later, immediately before certain competitions, re-injected into their system. Coach Mati Alaver also admitted having been part of the systematic blood doping scheme, which was actually performed by Dr. Mark Schmidt from Erfurt, Germany, and his assistants.

The discovery of the illegal blood doping scheme led to several decisions by Anti-Doping Organizations (ADO), which sanctioned athletes and athlete support personnel from various sports and countries with periods of ineligibility. The FIS Independent Anti-Doping Delegate (IADD) sanctioned four cross-country skiers and coach Mati Alaver with periods of ineligibility of four years.

In addition, the responsible Public Prosecutor in Innsbruck, Austria, has initiated criminal proceedings against a number of Austrian and Estonian cross-country skiers and coaches, including Andrus Veerpalu.

The Appellant was a coach of meanwhile banned Alexey Poltoranin and his son Andreas Veerpalu. On 28 September 2019, the FIS opened a disciplinary case also against the Appellant and imposed a provisional suspension.

In December 2019 Coach Veepalu sought to lift the provisional suspension which FIS rejected on 31 January 2020.

Hereafter in February 2020 the Athlete appealed the FIS decision of 31 January 2020 with the Court of Arbitration for Sport. The CAS Panel rendered a decision without a hearing based on the written submissions of the Parties.

Coach Veepalu disputed the validity of the provisional suspension since the evidence filed by FIS does not demonstrate sufficiently that there is a reasonable possibility that he had committed an anti-doping rule violation.

The Panel concludes that the evidence submitted by FIS demonstrate that the Appellant was aware of the organized blood doping scheme being carried out by persons with whom he was so actively involved. The Panel also dismissed the Appellant’s alternative prayer for relief that impugned measures should be set aside specifically insofar as they affect his three minor children are concerned

Accordingly the Appellant's request to set aside the FIS Decision of 31 January 2020 and to lift the provisional suspension is denied. The alternative prayer for partially lifting the provisional suspension is dismissed as well.

Therefore the Court of Arbitration for Sport rules that:

1. The Court of Arbitration for Sport has jurisdiction to decide the appeal filed by Mr Andrus Veerpalu on 21 February 2020.
2. The appeal filed by Mr Andrus Veerpalu on 21 February 2020 is dismissed.
3. The Resolution issued by the FIS Independent Anti-Doping Delegate on 31 January 2020 is confirmed and the provisional suspension imposed on Andrus Veerpalu on 28 September 2019 is upheld.
4. (…).
5. (…).
6. All other and further motions or prayers for relief are dismissed.