CAS 2020/A/7247 Guillermo Bertola v. Fédération Internationale de Natation (FINA)
Related case:
FINA 2020 FINA vs Guillermo Bertola
June 17, 2020
- Aquatics (swimming)
- Doping (blood doping)
- Right of a CAS panel to issue a consent award and purpose of it
- Duty of the CAS panel to verify the bona fide of the settlement agreemen
1. In accordance with Article R56 para. 2, second sentence, of the CAS Code, a CAS panel is expressly allowed to issue an award embodying the terms of a settlement if all parties to the dispute agree. The panel’s endorsement of the settlement agreement and incorporation in an award serves the obvious purpose of rendering it easier for the parties to enforce the settlement agreement.
2. As any settlement “may” be embodied in an award, it is up to the CAS panel to verify the bona fide of the settlement agreement, so that the consent award mechanism is not manipulated by the parties as an instrument of fraud, and to acknowledge that the settlement terms are not contrary to public policy principles or mandatory rules.
In December 2019 FINA reported an anti-doping rule violation against the Argentine swimmer Guillermo Bertola after an ITA Expert Panel concluded that the Athlete’s hematological profile “highly likely” showed that he had used a prohibited substance or a prohibited method.
Consequently the FINA Doping Panel decided on 17 June 2020 to impose a 4 year period of ineligibility on the Athlete. The FINA Panel concluded that the Athlete failed to demonstrate that he had acted not intentionally when he accepted a blood transfusion from his mother. He also failed to establish grounds for a reduced sanction.
Hereafter in July 2020 the Athlete appealed the FINA Decision with the Court of Arbitration for Sport (CAS) and thereupon in September 2020 the Parties in this case reached a Settlement Agreement. They requested the Panel to endorse this Settlement Agreement and to render a Consent Award.
The Parties agreed that the sanction of 4 years stands, yet the commencement of the period of ineligibility is backdated by 15 months based on the Athlete's timely admission. Following assessment the Panel deemed that this is a bona fide settlement of the dispute brought to its attention.
Therefore the Court of Arbitration for Sport decides on 25 January 2021 that:
1.) The Settlement Agreement submitted to the CAS Court Office by the Parties on 30 October 2020 is hereby ratified by the CAS with the consent of the Parties and its relevant terms are incorporated into this arbitral award.
2.) The terms of the Settlement Agreement modify Items 6.2 and 6.3 of the decision of the Anti-Doping Panel of the Fédération Internationale de Natation of 17 June 2020.
3.) Each Party is hereby ordered to perform the obligations and duties as per the Settlement Agreement referred to above.
(…)
6.) All other motions or prayers for relief are dismissed.
