Related cases:

• CAS 2005_A_1585 Yücel Kop vs IAAF
  November 10, 200
• CAS 2008_A_1586 Süreyya Ayhan Kop vs IAAF & TAF
  November10, 2009
  
  

In June 2005, due to an anti-doping rule violation, the Athlete Süreyya Ayhan Kop was sanctioned with a 2 year period of ineligibility which expired in August 2006.

In October 2007 the IAAF reported an anti-doping rule violation against the Athlete after her out-of-competion sample tested positive for the prohibited substances stanozolol and methandienone.

Therefore on 25 January 2008 - and again confirmed on 2 April 2008 - the Turkish Athletics Federation (TAF) Disciplinary Commission decided - as second violation - to impose a lifetime ban on the Athlete. The Athlete appealed the TAF decision and on 30 May 2008 the Turkish Youth and Sport Tribunal decided to reduce the sanction to a four year period of ineligibility.

In June 2008 the Athlete appealed the Turkish Tribunal decision of 30 May 2008 with the Court of Arbitration for Sport (CAS). On 10 November 2009 the CAS Panel decided to set aside the previous Turkish Tribunal decisions and imposed a lifetime ban on the Athlete (CAS 2008/A/1585&1586), starting on the date of the decision.

Hereafter on 10 December 2009 the Athlete appealed the CAS decision of 10 Novemer 2009 with the Swiss Federal Court. The Athlete argued that CAS would have issued a decision inconsistent with public policy and claimed that her right to be heard was violated.

The Swiss Federal Court dismissed the Athlete’s arguments and therefore decides on 12 April 2010:

1.) The appeal is rejected.

2.) The judicial costs, set at CHF 3’975.-, shall be borne by the Appellant.

3.) This decision shall be notified to the Parties and to the Court of Arbitration for Sports (CAS).

On 7 December 2008 a Romanian Appeal Commission confirmed the decision of 3 October 2008 of a Romanian Disciplinary Commission to impose a 2 year period of ineligibility on the Romanian Athlete for committing an anti-doping rule violation. The Athlete appealed with het Swiss Federal Court in November 2009 after the Court of Arbitration for Sport (CAS) dismissed the Athlete’s appeal on 9 October 2009.

The Swiss Federal Court also dismissed the Athlete’s appeal on 17 February 2010 due it was filed late and insufficiently argued in any event.

Related cases:

• CAS 2010_A_2268 Igor Walilko vs FIA
  September 15, 2011
• FIA 2010 FIA vs Igor Walilko
  October 11, 2010
• FIA 2011 FIA vs Igor Walilko – CAS decision
  September 15, 2011
  
  

The International Automobile Federation (FIA) has reported an anti-doping rule violation against the minor Polish Karting Driver Igor Walilko (12) after his A and B samples tested positive for the prohibited substance Nikethamide.
On 11 October 2010 the FIA Anti-Doping Committee decided to impose a 2 year period of ineligibility on the Driver starting on 18 July 2010.

In November 2010 the Driver appealed the FIA decision of 11 October 2010 with the Court of Arbitration for Sport.
The CAS Panel finds that it must apply the principle of proportionality in order to assess a sanction which could be appropriate to the case at stake. As a result, the Panel finds the suspension of two years decided by the FIA to be excessive and disproportionate.

Therefore the Court of Arbitration for Sport ruled on 15 September 2011:

1.) The Appeal filed by the Athlete is partially upheld.

2.) The decision of 11 October 2010 by the Anti-Doping Committee-FIA Medical Commission of the Fédération Internationale de l’Automobile (FIA) is set aside.

3.) The Athlete is declared ineligible for a period of 18, starting from 18 July 2010.

4.) The Athlete is disqualified from the individual results obtained in the karting event held in Ampfing, Germany on 18 July 2010, as well as from any competitive results obtained thereafter, with all resulting consequences including forfeiture of any trophies, points and prizes.

5.) This award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellant and to be retained by the CAS.

6.) Each party shall bear its own costs.

7.) All other requests, motions or prayers for relief are dismissed.

Hereafter the Athlete made a Civil law appeal to the Swiss Federal Court, which was dismissed on 18 June 2012, due to the appeal became moot.

The Swiss Federal Court’s deemed in this case:

1.) The Court repeated that, with few exceptions, a ban that has already expired by the time the matter is adjudicated by the Federal Court renders the case incapable of appeal as to the expired ban.

2.) The Court also emphasized that should arguments be brought forward in the appeal brief only as to an issue where the appellant no longer has standing to appeal, but not as to other issues for which he retains an interest in obtaining a decision from the Swiss Federal Court, the matter becomes incapable of appeal for lack of submission of proper arguments.

Related case:
CAS 2009/A/1817 & CAS 2009/A/1844 WADA & FIFA vs Cyprus Football Association (CFA), Carlos Marques, Leonel Medeiros, Angelos Efthymiou, Yiannis Sfakianakis, Dmytro Mykhailenko, Samir Bengeloun, Bernardo Vasconcelos & Edward Eranosian
October 26, 2010

In November 2008 the Cyprus Football Association (CFA) has reported two separate anti-doping rule violations against two football players of the Cyprian APOP Kinyras football team after their A and B samples, provided in October and November 2008, tested positive for the prohibited substance oxymesterone.

After an investigation the CFA Judicial Committee decided on 2 April 2009 to impose a 1 year period of ineligibility on the two Cyprian football players.
The CFA investigation showed that the Bulgarian football trainer Mr. Edward Eranosian of APOP Kinyras provided the pills to the football players. Due to his substantial assistance in the investigation a 2 year period of ineligibility was imposed on him instead of a 4 year period.

WADA appealed the CFA decision of 2 April 2009 with the Court of Arbitration for Sport (CAS).
On 26 October 2010, the CAS Panel decided to uphold the WADA appeal and to impose a 4 year period of ineligibility on the trainer Mr. Edward Eranosian (CAS 2009/A/1817 & CAS 2009/A/1844) .

Hereafter the Mr. Eranosian appealed the CAS decision of 26 October 2010 to the Swiss Federal Court.
The Swiss Federal Court decides to reject the appeal on 18 April 2011 to the extent that matter is capable of appeal.

The Swiss Federal Court’s opinion in this case:

The issue was that, as a professional trainer registered with the Cyprus Football Association, the trainer had undertaken to comply with the anti-doping provisions of the Cyprus Football Association as well as with the FIFA Statutes because the Cyprus federation statutes contained an undertaking to ensure that the members comply with FIFA regulations and statutes, which require compliance with anti-doping rules. It thus created the basis for CAS’ exercise of jurisdiction pursuant to articles 62 and 63 of the FIFA Statutes.

Despite a well-reasoned argument that the reference to the Cyprus federation statutes was merely with regard to the substantive anti-doping rules of FIFA and was not intended to create CAS jurisdiction by reference to articles 62 and 63 of the FIFA Statutes, the Court rejected it. Instead, it emphasized the importance of CAS jurisdiction, albeit by what were at times somewhat thin references, because of the importance of ensuring that doping is not tolerated.

As will be clear from the foregoing, the opinion will be of interest to readers who practice sports arbitration. The decision also shows that the Swiss Supreme Court is ready to broadly interpret CAS jurisdiction when there are public interest issues involved.

Related cases:
CAS 2007/A/1396 WADA & UCI vs Alejandro Valverde & RFEC
May 31, 2010
CAS 2007/O/1381 RFEC & Alejandro Valverde vs UCI
September 26, 2007
CAS 2009/A/1879 Alejandro Valverde vs CONI, WADA & UCI
March 16, 2010
Swiss Federal Court 4A_234_2010 Alejandro Valverde vs CONI, WADA & UCI
October 29, 2010
Swiss Federal Court 4A_386_2010 Alejandro Valverde vs WADA, UCI & RFEC
January 3, 2011
Swiss Federal Court 4A_420_2010 Alejandro Valverde vs WADA, UCI & RFEC
January 3, 2011
Swiss Federal Court 4A_644_2009 Alejandro Valverde vs CONI, WADA & UCI
April 13, 2010

On 11 May 2009 Comitato Olimpico Nazionale Italiano (CONI), the Italian National Olympic Committee, decided to impose a 2 year period of ineligibility on the Athlete Alejandro Valverde for committing an anti-doping rule violation.
The Athlete appealed this CONI decision with the Court of Arbitration for Sport (CAS) and on 16 March 2010 the Panel decided in this case (CAS 2009/A/1879) to uphold the CONI decision of 11 May 2009.
On 29 October 2009 the Athlete requested the International Council of Arbitration for Sport (ICAS) to challenge the CAS arbitrator Ulrich Haas. On 23 November 2009 ICAS decided to dismiss the Athlete’s request.

Hereafter the Athlete appealed the ICAS decision of 29 October 2009 with the Swiss Federal Court.
On 13 April 2010 the Swiss Federal Court concludes it has no jurisdiction and therefore decides to dismiss the Athlete’s appeal.

The case involved a request for revision of an arbitral award issued on 25 July 2011. The dispute was about a sponsorship contract between the Italian company TMC Italia and the Spanish company managing the cycling team Geox-TMC. The arbitral tribunal ordered the Italian company to keep paying the amounts in the contract. But it then turned out that the athlete Denis Menchov of the Geox-TMC cycling team was banned for two years for doping.

The Italian company TMC Italia sought revision of the arbitral award and the Swiss Federal Court rejected the petition on 21 August 2012.

A second attempt was filed on 10 November 2014, again unsuccessfully and the Swiss Federal Court confirmed on 20 February 2015 that, in order to obtain revision, the petitioner must show not only that he was unaware of some essential facts that took place prior to the award but also that they would have been pertinent had the arbitrators become aware of them.

Swiss Federal Court 4A_692_2016 WADA vs Kristen Shaldybin & USADA

In June 2016 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the gymnastics Athlete Kristen Shaldybin after her sample tested positive for the prohibited substance hydrochlorothiazide. However on 14 July 2016 USADA announced that the Athlete accepted the finding of No Fault for the reported ADRV.
USADA concluded on a balance of probabilities that the Athlete unknowingly ingested the substance through tapwater obtained from the municipal water supply. Therefore no sanction was imposed on the Athlete.

In August 2016 the World Anti-Doping Agency (WADA) filed an appeal with the Court of Arbitration for Sport (CAS) against this USADA award.

However USADA and the Athlete indicated in September 2016 that they refused to pay for the costs in advance and CAS requested WADA to pay for full costs. After deliberations with WADA the President of the CAS Appeals Arbitration Division decided on 11 November 2016 to terminate the CAS appeal because WADA had failed to settle full payment of the costs in advance before the deadline of 20 September 2016. The case CAS 2016/A/4743 WADA vs Kristen Shaldybin & USADA was closed and deleted from the CAS roll.

Hereafter WADA appealed the CAS award decision of 11 November 2016 with the Swiss Federal Court.
WADA contended that CAS acted excessively formalistic in following the CAS Code and in terminating the appeal proceedings. As a result WADA asserted that their right to be heard was violated including infringement of the Swiss Ordre Public. WADA did not dispute the late payment of the costs in advance.

CAS submitted that WADA each year filed about a dosen appeals with CAS and it occurred frequently that requests were made to WADA to fulfil full costs in advance. WADA can not claim any surprise or confusion in this case.

The Swiss Federal Court concludes that CAS didn’t acted excessively and was entitled to cease the proceeding due to WADA’s failure for payment within the time limit.
Therefore the Swiss Federal Court decides on 20 April 2017 to dismiss the WADA appeal.

The case involved an athlete who ran away from an anti-doping test by refusing to meet the Doping Control Officer. His federation failed to sanction him and an appeal was made to the Court of Arbitration for Sport (CAS) by the International Association of Athletics Federations (IAAF).

In order to be able to issue a decision before the Olympic Games in London and with the agreement of the parties, the CAS resorted to expedited proceedings. The CAS Panel held a hearing and issued its decision on 25 July 2012.

That decision contained only the operative part of the award, which upheld the appeal and banned the athlete for two years.
On 18 October 2012, the reasoned award was notified to the parties, and the operative part mentioned that credit should be given to the athlete for any period of suspension served prior to the notification of the award.

An appeal was made by the Athlete to the Swiss Federal Court and rejected on 29 April 2012.

The Swiss Federal Court’s opinion in this case:

1.) While there is no right to a reasoned award flowing directly from Art. 190(2)(d) PILA, there is a minimal duty for the arbitrators to review and handle the pertinent issues. This is a bit of a contradiction in terms because, by definition, if there are no reasons it will be quite difficult to determine whether or not the pertinent issues were addressed at all but this view has been consistently expressed by the Court.

2.) An argument not specifically addressed by the arbitrators does not necessarily create a violation of the right to be heard if it can be shown that the argument was rejected implicitly.

3.) Slightly amending the dispositive part of the award between its notification in expedited proceedings and the notification of a fully reasoned award does not violate public procedural policy, at least when the slight change made is in the Appellant’s favor.

The Italian Company A signed in September 2010 a sponsorship contract with Company B, which managed cycling team C.
On 25 July 2011 the Ad Hoc Court of Arbitration for Sport Panel rejected the request of Company A to cancel their sponsorship of B and cyclingteam C. The Panel ruled that Company A had to continue their sponsorship payments from November 2010 to June 2013.

After the CAS Decision of 25 July 2011, newspaper articles and new releases on websites reported in September 2011 about doping violations committed by Athlete D, cyclist in Team C, and also mentioned criminal proceedings for doping and a confidentional list of suspected Athletes.
Reason for Company A to request the Swiss Federal Court for revision of the CAS decision of 25 July 2011: Company A argued that the doping violation showed that Company B failed to fulfill proper supervision on the team members and therefore, the sponsorship contract could be terminated immediately due to default.

The Swiss Federal Court decided on 21 August 2012 to dismiss the appeal of Company B. The Court ruled that the news about alleged doping violations in team C are no ground and are irrelevant to request a revision of the CAS decision.

Swiss Federal Court 4P.148_2006 Danilo Hondo vs WADA, UCI, Swiss Cycling & Swiss Olympic
January 10, 2007

Related cases:
CAS 2005/A/922 Danilo Hondo vs Swiss Cycling & Swiss Olympics
CAS 2005/A/923 WADA vs Danilo Hondo & Swiss Olympics
CAS 2005/A/926 UCI vs Danilo Hondo & Swiss Olympics
January 10, 2006

In March 2005 the International Cycling Federation (UCI) has reported an anti-doping rule violation against the Athlete Danilo Hondo after his A and B samples tested positive for the prohibited substance carphedon. After notification by Swiss Cycling the Athlete was heard for the Disciplinary Chamber for Dopingcases of Swiss Olympic. On 2 June 2005 the Disciplinary Chamber decided to impose 2 year period of ineligibility on the Athlete, with 1 year suspended for a 5 year period. Also the Disciplinary Chamber sanctioned the Athlete with a CHF 50,000 fine and ordered to pay CHF 5,000 for the procedural costs.

Hereafter in July 2005 the Athlete, UCI and WADA appealed the Swiss Olympic Decision of 2 June 2005 with the Court of Arbitration for Sport (CAS).
Considering the Athlete’s arguments the CAS finds that no departure from the ISL occurred in this case; the Athlete failed to establish how the substance entered his system and without grounds for reduction of the sanction.
Considering the arguments of UCI and WADA, the CAS Panel concludes that the UCI Anti-Doping Rules doesn’t allow the imposition by Swiss Olympics of a suspended period of ineligibility, nor the possibility to fine an Athlete guilty of an anti-doping rule violation.

Therefore the Court of Arbitration for Sport Panel decides:
1.) to allow the WADA appeal;
2.) to allow the UCI appeal;
3.) to dismiss the appeal of the Athlete Danilo Hondo;
4.) to set aside the decision of the Disciplinary Chamber for Dopingcase of Swiss Olympic of 2 June 2005;
5.) to impose a 2 year period of ineligibility on the Athlete, starting on 1 April 2005 until 31 March 2007.

In July 2006 the Athlete appealed the CAS Decision of 10 January 2006 with the Swiss Federal Court after his previous appeal was dismissed by the Tribunal Cantonal de Vaud on 16 May 2006.
The Swiss Federal Court considers the Athlete’s arguments and decides on 10 January 2007 to dismiss his appeal.