Related case:
CAS 2011/A/2612 Liao Hui vs IWF
July 23, 2012

In September 2010 the International Weightlifting Federation (IWF) has reported an anti-doping rule violation against the Chinese Athlete Liao Hui after his A and B samples tested positive for the prohibited substance Boldenone. On 3 October 2011 the IWF Anti-Doping Commission decided to impose a 4 year period of ineligibility on the Athlete.

The Athlete appealed the IWF decision of 3 October 2011 with the Court of Arbitration for Sport (CAS).
On 23 July 2012 the CAS Panel decided to reduce the imposed ban to two years instead of four.

The Athlete made an appeal to the Swiss Federal Court, which hereafter dismissed the appeal on 28 February 2013.
The Swiss Federal Court’s opinion in this case:
1.) It is doubtful that the requirement of an appropriate external chain of custody with regard to samples taken from an athlete would be part of public policy as understood in the Swiss law of international arbitration.
2.) Evidence proposed late in the proceedings can be ruled inadmissible without violating the right to be heard (due process).

An athlete was banned for life by the Hearing Commission of her country for refusing to provide a sample, failing to appear for such a test or attempting to counterfeit the results. As she had been previously sanctioned, the ban was for life.

An appeal was made to the Court of Arbitration for Sport (CAS). The International Council of Arbitration for Sport ICAS granted legal aid and appointed counsel for the athlete. The Panel consisted of a sole arbitrator.
After a hearing in Lausanne, the CAS Arbitrator rejected the appeal and confirmed the decision of the national federation in an award on 26 July 2011.

An appeal was made to the Swiss Federal Tribunal and hereafter rejected on 3 October 2011.

The Swiss Federal Court’s opinion in this case:

1.) The Court emphasizes again that any alleged violation of the right to be heard must be raised immediately and that failure to do so will cure the violation and make it incapable of appeal to the Federal Tribunal.
2.) Whether or not an arbitral tribunal is independent and impartial is not an issue of public policy within the meaning of Art. 190 (2) (e) PILA but it falls within the provisions of Art. 190 (2) (a) PILA as a particular case of “irregular composition” of the Arbitral tribunal. This affords broader judicial review then would otherwise be the case under the very narrow construction of “public policy” before the Swiss Federal Court.
3.) If whatever body of a national federation adjudicating a dispute is – allegedly – …, the possibility of a subsequent appeal to the CAS is sufficient as the requirement that there should be a double degree of jurisdiction is not part of procedural public policy. The counsel was appointed by the ICAS because the athlete could not afford one. Lausanne lawyer Pascal de Preux represented the athlete and then filed an appeal to the Swiss Federal Court, which refused to grant legal aid allegedly because the appeal was hopeless.

Related case:
CAS 2012_A_2759 Oleksandr Rybka vs UEFA
July 11, 2012

In January 2012 the Union of European Football Association (UEFA) has reported an anti-doping rule violation against the Player Oleksandr Rybka after his sample tested positive for the prohibited substance furosemide.

A two years ban was issued against the player by the UEFA on 27 January 2012 and appealed and rejected on 16 March 2012 by the UEFA Appeals Body. Hereafte the Court of Arbitration for Sport (CAS) Panel confirmed the UEFA pronouncement in an award of 18 May 2012 and again the Athlete’s appeal was dismissed by by the Swiss Federal Court on 21 March 2013.

The Swiss Federal Court’s opinion in this case:
1.) The Federal Court repeated that the “right to be heard” (due process) does not encompass the right to an award that is accurate as to the merits of the case. In other words, arbitrators can get it wrong - they did not get it wrong in this case – without violating the right to be heard.
2.) The presumption generally used in such matters, namely that once the presence of a prohibited substance has been found, it behooves the athlete to explain why this should not be a doping violation, is consistent with public policy as understood in Swiss international arbitration case law.

The Romanian Football Player Adrian Mutu joined Chelsea in 2003 under a five years contract governed by English law. A year later he tested positive to cocaine and Chelsea terminated his employment without notice. Various disciplinary proceedings followed and ultimately Mutu was ordered to pay compensation to Chelsea by the FIFA Dispute Resolution Chamber (DRC). The award was very substantial as Mutu had to pay an amount in excess of EUR 17 million.

Mute made an appeal to the Court of Arbitration for Sport (CAS). On 31 July 2009 the CAS Panel issued its award (CAS 2008/A/1644) in which it upheld the DRC decision of 7 May 2008.

Mutu appealed the CAS decision of 31 July 2009 with the Swiss Federal Court. The Court considered and ruled about the Athlete’s arguments:
1.) Since CAS arbitrator Dirk-Reiner Martens had chaired another CAS panel between the same parties, counsel acting for Mutu argued that the arbitral tribunal was “irregularly composed” (in counsel’s view, one of the arbitrators was biased). The Federal Tribunal rejected that argument and referred again to the IBA guidelines in this respect.
2.) It was also claimed that Chairman Fumagalli would be part of a law firm that had represented the interests of the Russian businessman who owns Chelsea. Chairman Fumagalli denied this vehemently and the Appellant did not react, leading the Federal Tribunal to reject the challenge.
3.) The Appellant argued that the CAS award was inconsistent with public policy. The Court engages into an interesting obiter dictum as to whether its list of what constitutes public policy is exhaustive or not and points out, rightly again, that it is not.
4.) The rest of the opinion is devoted to the arguments raised with regard to public policy.

Therefore, the Swiss Federal Court decides:
1.) The Athlete’s appeal is rejected.
2.) The judicial costs, set at CHF 65’000.- shall be borne by the Appellant.
3.) The Appellant shall pay to the Respondent an amount of CHF 80’000.- for the federal proceedings.
4.) This judgment shall be notified to the representatives of the Parties and to the Court of Arbitration for Sport (CAS).

Related cases:

• CAS 2009/A/1767 Gert Thys vs Athletics South Africa
  July 24, 2009
• CAS 2011/A/2435 WADA vs Gert Thys, Athletics South Africa & SAIDS
  November 30, 2011
  
  

In March 2006 the IAAF has reported an anti-doping rule violation against the South-African Athlete Gert Thys after his A and B samples tested positive for the prohibited substance 19-norandrosterone.

After notification by Athletics South Africa (ASA) a provisional suspension was ordered and after several adjourments the ASA Tribunal decided to impose a period of ineligibility of 2 years and 7½ months on the Athlete, starting on 25 april 2006 (date of the provisional suspension) until 11 December 2008 (date of the Tribunal decision).

The Athlete appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport (CAS).

On 24 July 2009 the CAS Panel ruled (CAS 2009/A/1767):

1.) It has jurisdiction to hear the appeal filed by Gert Thys on 7 January 2009.

2.) The appeal of Gert Thys is upheld.

3.) The decision of Athletics South Africa of 11 December 2008 is set aside.

4.) Gert Thys is exonerated of any doping infraction and is eligible to compete without any prior reinstatement testing.

5.) The prize money, income and benefits derived from the participation of Gert Thys in the Seoul Marathon in March 2006 shall not be forfeited.

6.) The award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Gert Thys, which is retained by the CAS.

7.) Athletics South Africa shall pay Gert Thys a contribution towards his legal fees in the amount of CHF13,000 (thirteen thousand Swiss Francs), within 30 (thirty) days of notification of this award”.

Thereupond the ASA appealed the CAS decision of 24 July 2009 with the Swiss Federal Court. The opinion of the Court ruled in this case:

1.) The Court held that a National Federation has a legally protected interest to appeal to the Federal Tribunal when the CAS revokes a sanction previously ordered.

2.) The CAS had essentially found that when the National Federation made reference to appeal proceedings before the CAS, that was an admission by the Federation that it would submit to the jurisdiction of the CAS. The Court restated that arbitration clauses are to be interpreted as any contractual clause and that the so called Vertrauensprinzip applies in this respect. Translated loosely as the “principle of trust,” the concept means that the receiving party is entitled to interpret the other party’s statements in accordance with the meaning such a statement could be given in good faith under normal circumstances. The Court found that this did not apply in this case as the letter on which the CAS had relied could not be given that interpretation.

3.) The Athlete made an attempt to requalify as an international level athlete, which may have justified CAS jurisdiction, but the Court rejected that argument as well.

Therefore, the Federal Swiss Court decides on 3 May 2009:

1.) The ASA appeal is admitted and the CAS award of 24 July 24 2009 is annulled.

2.) The CAS shall have no jurisdiction to decide the Athlete’s appeal.

3.) The court costs set at CHF 5’000.- shall be paid by the Athlete.

4.) The Athlete shall pay to the ASA an amount of CHF 6’000.- for the federal judicial proceedings.

5.) This judgment shall be notified in writing to the parties and to the Court of Arbitration for Sport (CAS).

As a result of the judgment of the Swiss Federal Court, holding in substance that an appeal against the ASA Decision had to be directed to SAIDS, and not to CAS, Mr Thys filed with SAIDS, on 4 June 2010, an appeal against the ASA Decision.

After numerous requests made by the Athlete, SAIDS failed to convene a hearing panel. Therefore in May 2011, WADA appealed the ASA decision of 11 December 2008 with the Court of Arbitration for Sport. (CAS 2011/A/2435)

Related cases:
CAS 2008/O/1643 Vladimir Gusev vs Olympus Sarl
June 15, 2009
Swiss Federal Court 4A_368/2009 Olympus Sarl vs Vladimir Gusev
October 13, 2009

The case involved a Russian racing cyclist, Vladimir Gusev and a Belgian Company Olympus Sarl. Olympus hired Gusev for two years on November 15, 2007 and the contract was governed by Swiss law. On July 23rd, 2008, Olympus Sarl terminated the contract, alleging that a medical report seriously suggested that the cyclist had taken exogenous EPO.
The Athlete Gusev started arbitration proceedings in front of the Court of Arbitration for Sport (CAS) and on 15 June 2009 the CAS Panel found for Gusev and ordered Olympus to pay damages.

Olympus Sarl appealed to the CAS decision of 15 June 2009 with the Federal Court and hereafter also sought the revision of the award.
The Swiss Federal Court rejected the appeal of Olympus Sarl (4A_352/2009) and the petition seeking revision (4A_368/2009) on 13 October 2009.

The court’s opinion in this case:
1.) In the appeal (4A_352/2009), Olympus Sarl claimed a violation of the “right to be heard” (due process). The Federal Court recalled what it has already said many times as to the Arbitral Tribunal’s duty to ensure that each party be heard on all essential facts and enabled to present its arguments. Yet the allegedly aggrieved party must prove that the Arbitral Tribunal failed to do so and this was clearly not the case here.
2.) As to revision (4A_368/2009), the Federal Court recalled that new facts or evidence may justify revision only to the extent that they existed at the time, were unknown to the petitioner although he acted with due diligence and would have been likely to have an influence on the outcome of the proceedings. The requirements established by case law in this respect were not met in this case.

On 25 November 2009 the Court of Arbitration for Sport (CAS) upheld the sanction of a 2 year period of ineligibility on the German speed skater Claudia Pechstein, imposed by the International Skating Union on 1 July 2009.

Thereupon the Athlete appealed the CAS decision of 25 November with the Swiss Federal Court. However the Court decided on 10 February 2010 to reject the Athlete's appeal (4A_612/2009). Hereafter the Athlete requested for revision of the same case with the Swiss Federal Court.

The request for revision was essentially based on newly discovered scientific methods which were not available at the time of the arbitration proceedings, according to the Athlete.

1.) The Federal Tribunal confirmed its position as to the revision of an international arbitral award. Revision is possible when significant facts or decisive evidence is discovered, which postdates the award and could not have been introduced in the previous proceedings. Facts are significant when they would probably have led to another decision and the new evidence must serve to prove them or to prove some facts which remained unproved in the proceedings to the Athlete’s detriment.

2.) The Court confirms that it takes a very narrow view as to what may constitute newly discovered facts or evidence and the burden on the petitioner is quite high. It will be very difficult indeed to convince the Federal Tribunal that the petitioner is not simply seeking a reassessment of the evidence.

Therefore the Swiss Federal Court decides on 28 September 2010:

1.) The request for revision is rejected to the extent that the matter is capable of revision.

2.) The judicial costs set at CHF 5’000.- shall be borne by the Petitioner.

3.) The Athlete shall pay to the Respondent CHF 6’000.- for the federal judicial proceedings.

4.) This judgment shall be notified in writing to the parties and to the Court of Arbitration for Sport (CAS).

Related case:
CAS 2011_A_2325 UCI vs Roel Paulissen & Royale Ligue Vélocipédique Belge (RLVB)

In June 2010 the Ministry of the French Community of Belgium (Ministère de la Communauté française de Belgique) reported an anti-doping rule violation against the Belgian professional mountain biker Roel Paulissen after his sample tested positive for the prohibited substance clomiphene.
On 22 November 2010 the Royale Ligue Vélocipédique Belge (RLVB) Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete and a 7,500 Euro fine.

The International Cycling Union (ICU) appealed to the Court of Arbitration for Sport (CAS) and sought a higher fine. The athlete also appealed.
The CAS Panel upheld the ICU appeal and decided on 23 December 2010 to impose a 2 year period of ineligibility on the Athelete and a 20,800 Euro fine instead of the previous 7,500 Euro fine.

At the hearing in front of the CAS in July 2011, counsel for the athlete had asked arbitrator Carrard if he felt in a position to issue an objective decision considering that he had been appointed by the ICU in two cases dealing with a similar financial penalty. The arbitrator answered in the affirmative and counsel put on the record that he had no problem with the arbitral tribunal as constituted. Also, both parties confirmed at the outset of the hearing that they had no objection to the proceedings followed so far and that they considered that their right to be heard (due process) had been duly respected.

In subsequent exchanges of correspondence after the post-hearing briefs, counsel for the athlete asked the ICU and the CAS to indicate if the validity of the financial penalty imposed in this case had been the object of other proceedings and in the affirmative, what was the composition of the panels involved. The ICU demurred and the operative part of the award was sent to the parties in December 2011, followed by an advanced copy of the reasons a little later.

The reasons contained a reference to two unpublished CAS awards and further exchanges of correspondence followed, essentially raising the issue of the alleged lack of independence and impartiality of arbitrator Carrard due to several appointments by the ICU.

The Athlete’s appeal with the Swiss Federal Court was rejected essentially by reference to the case law of the Federal Tribunal, according to which a ground for challenge must be raised immediately after one becomes aware of it and there is a duty to investigate actively, so that uninvestigated grounds for challenge may be deemed to have been known by a litigant failing to investigate properly.

The Swiss Federal Court opinion about this case:
1.) The fairness and good faith requirement according to which a party should make its challenge immediately (as opposed to waiting to see if the outcome of the case is favorable) has been confirmed in the strict constructionist view repeatedly expressed by the Federal Tribunal in the past. Not only does counsel have to raise the challenge immediately but the grounds for challenge must be investigated and those that could reasonably be expected to be discovered shall be deemed to have been known by the party trying to challenge an arbitrator in a subsequent appeal to the Federal Tribunal. One may agree or not with this strict approach but it certainly has the merit of clarity.
2.) Repeated appointments within the meaning of the IBA guidelines may constitute ground for challenge but do not necessarily lead to the disqualification of an arbitrator.
3.) There is no duty to disclose a possible conflict of interest concerning facts for which an arbitrator may in good faith assume that the parties are aware of.
4.) Arbitral awards, even emanating from the same institutional arbitration system, do not in all likelihood constitute a source of arbitration law.

Facts
The French Pétanque Federation (Fédération Française de pétanque et jeu provençal, FFPJP)) charges respondent M57 for a violation of the Anti-Doping Rules. During a match on May 6, 2007, a sample was taken for doping test purposes. The analysis of the sample showed the presence of a metabolite of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent uses cannabis occasionally, he had used it in the weekend before the match in a social setting. There was no intention to enhance sport performance.

Decision
1. The sanction is a period of ineligibility of two months in which respondent can't take part in competition or manifestations organized or authorized by the FFPJP.
2. The period of ineligibility will be reduced by the period already served by the sanction of the decision dated September 28, 2007,
3. The decision will start on the date of notification.
4. The decision will be published and sent to the parties involved.

Facts
The French Athletics Federation (Fédération française d'athlétisme, FFA) charges respondent M56 for a violation of the Anti-Doping Rules. During an athletic event on May 17, 2009, respondent didn't attend the doping control after the match.

History
The respondent was taking flight at the sight of the sampler doctor after the finish who tried to perform the doping control. He claims to be running for recovery together with a friend, but his friend testified he was not running with him but going to change his outfit in his car, which means a contradiction.

Decision
1. The sanction is a period of ineligibility of three years in which respondent can't take part in competition or manifestations organized or authorized by French sport federations.
2. The decision starts on the date of notification.
3. The decision will be published and sent to the parties involved.