CAS 2000/A/262 R. / International Basketball Federation (FIBA), preliminary award of 28 July 2000

Related cases:

• Swiss Federal Court 4P_230_2000 Stanley Roberts vs FIBA
  February 7, 2001
• DIS U (K) 1651_02 Stanley Roberts vs District Court Munich
  October 10, 2002
  
  

• Basketball
• Doping (amphetamines)
• CAS jurisdiction
• Arbitration clause referring to CAS

1. Swiss Law requires for an arbitration agreement to be valid, that it is made in writing. The written form has as a purpose firstly to warn the parties about the existence of an arbitration clause and secondly to serve as evidence. When reference is made to an external document, and particularly when this reference is of a global nature only (not specifically mentioning the arbitration clause) the question as to whether the
requirements of form are met, must be decided upon the principle of trust.

2. A global reference is not sufficient, when the party proposing an arbitration clause in this way knew or should have known by experience, that the other party did not want to agree to such a clause or if such a clause was unusual under the given circumstances. A global reference on the other hand is valid and sufficient between two parties, who are experienced in the field or when an arbitration clause is customary in the particular
sector of business, regardless of whether the other party has indeed read the document of reference and therefore knew, that it contained such a clause. The Swiss Federal Court has applied and confirmed this principle of trust also to sports related disputes.

3. A professional basketball player can be considered experienced in the field of professional sports. Arbitration clauses have become customary in most international sports federations and many By-Laws or procedural regulations of these organisations refer to CAS arbitration with the explicit exclusion of the right to appeal to ordinary courts. Arbitration is also a widely applied way of dispute settlement in the sport in the
US. An arbitration clause such as the one contained in the FIBA Rules can therefore not be considered as unusual.

On 24 November 1999 the U.S. National Basketball Association (NBA) imposed a 2 year period of ineligibility on the Athlete after he tested positive for a prohibited substance Amphetamine .
Based on the NBA decision, FIBA also sanctioned the Athlete with a 2 year period of ineligibiltiy for FIBA competitions. As a consequence the Athlete’s contract to join the Turkish basketball team Efes Pilsen was cancelled.

The FIBA sanctioned the Athlete under a new set of rules in order to prevent basketball players go overseas without restrictions to resume their career after being expelled from the NBA. The Athlete claimed the FIBA decision damaged his career.

Between 2009 until 2003, the Athlete filed without success severals lawsuits before courts in the USA, Germany and Switzerland against the FIBA seeking cancellation of the sanction and damages of just under $1 million.

• The FIBA Appeal Commission dismissed the Athlete's appeal on 4 February 2000.
• On 31 August 2000 (CAS 2000/A/262) the CAS Panel ruled it has jurisdiction about the imposed FIBA sanction, but considered itself incompetent to rule about damages.
• The Swiss Federal Court decided to dismissed his complaint on 7 February 2001.
• The German Distric Court in Munich dismissed the Athlete's appeal on 20 December 2001.
• The German Institution of Arbitration dismissed his appeal on 10 October 2002).

Related cases:
CAS 2000_A_262 Stanley Roberts vs FIAB – Preliminary Award
July 28, 2000
DIS U (K) 1651_02 Stanley Roberts vs District Court Munich
October 10, 2002

On 24 November 1999 the U.S. National Basketball Association (NBA) imposed a 2 year period of ineligibility on the Athlete after he tested positive for a prohibited amphetamines substance.
Based on the NBA decision, FIBA also sanctioned the Athlete with a 2 year period of ineligibiltiy for FIBA competitions. As a consequence the Athlete’s contract to join the Turkish basketball team Efes Pilsen was cancelled.
The FIBA sanctioned the Athlete under a new set of rules in order to prevent basketball players go overseas without restrictions to resume their career after being expelled from the NBA. The Athlete claimed the FIBA decision damaged his career.
Hereafter, between 2009 until 2003, the Athlete filed without success severals lawsuits before courts in the USA, Germany and Switzerland against the FIBA for cancellation of the sanction and damages of just under $1 million.

The Athlete’s appeal with the FIBA Appeal Commission was dismissed on 4 February 2000.
On 3 March 2000 the Athlete appealed his case with the Court of Arbitration for Sport (CAS).
On 31 August 2000 (CAS 2000/A/262) the CAS Panel ruled it has jurisdiction about the imposed FIBA sanction, but considered itself incompetent to rule about damages.
The Athlete appealed hereafter with the Swiss Federal Court, which decides to dismiss his complaint on 7 February 2001.
Again the Athlete appealed his complaint with the German Distric Court in Munich (dismissed on 20 December 2001) and the German Institution of Arbitration (dismissed on 10 October 2002).

In March 2009 the International Skating Union (ISU) reported an anti-doping rule violation against the Athlete Claudia Pechstein after her samples, collected in February 2009, showed abnormal blood values, due to the use of a prohibited substance and/or a prohibited method, i.e. blood doping.

After a hearing in June 2009, the ISU Disciplinary Commission decided on 1 July 2009:

1.) Claudia Pechstein is declared responsihle for an Anti-Doping violation under Article 2.2 of the ISU ADR by using the prohibited method of blood doping.

2.) The results obtained by Claudia Pechstein in the 500m and 3000m races at the World Allround Speed Skating Championships on February 7, 2009, are disqualified and her points, prizes and medals forfeited.

3.) A 2 year period of ineligibility, beginning on February 9, 2009, is imposed on Claudia Pechstein.

4.) The Deutsche Eisschnelllauf-Gemeinschaft e. V. shall pay to the ISU the costs to be determined.

5.) Each party bears its own costs of proceedings.

On 21 July 2009 the Athlete and DESG appealed the ISU decision of 1 July 2009 with the Court of Arbitration for Sport (CAS). However on 25 November 2009 the CAS Panel decided (CAS 2009/A/1912-1913) to uphold the ISU decision of 1 July 2009.

Hereafter the Athlete appealed the CAS-decision of 25 November 2009 with the Swiss Federal Court. The Athlete submitted arguments related to the composition of the CAS Panel, her right to be heard, equal treatment and Ordere Public.

After the Athlete’s application the Swiss Federal Court granted the Athlete’s participation to the training and competition for the Salt Lake City skating World Cup in December 2009. Ultimately the Swiss Federal Court decides on 10 February 2010 to dismiss the Athlete’s appeal.

The Swiss Court determines in this case:

1.) The Federal Tribunal reiterated that the judiciary review it exercises as to international arbitral awards issued in Switzerland is limited and the Court is not inclined to extend it.

2.) The Federal Tribunal devoted some interesting developments to the independence of the CAS and confirmed its previous decisions as to that issue, despite the criticism expressed by some commentators.

3.) The Federal Tribunal had to deal with the argument of a public hearing within the meaning of the European Convention on Human Rights (“ECHR”) and, whilst confirming that arbitral proceedings do not require a public hearing, the Court suggested that, should an athlete request it, it would be desirable for a public hearing to be held.

4.) The rest of the opinion is devoted to various arguments relating to the right to be heard or to an alleged violation of public policy.

Facts
The French Surfing Federation (Fédération Française de Surf, FFSurf) charges respondent M40 for a violation of the Anti-Doping Rules. During a surf event on March 16, 2009, the respondent provided a sample for doping test purposes. The sample showed the presence of prednisolone and prednisone which are prohibited substances on the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent did mention the use of a medical product containing prednisolone and prednisone. It was used to treat allergies and for acute asthma attacks but also for when having a sting from a jellyfish.
Considering, however, that the symptoms described by respondent do not meet the conditions in which it is allowed to use, without
prior medical consultation, the substance found in his urine; In fact, neither a flu-like condition, which was not a life-threatening emergency, nor helps against an asthma attack. Only beta-2 agonists are taken by inhalation instead of orally consumption are used for this condition.

Decision
1. The respondent is sanctioned with a period of ineligibility of one month in which respondent can't take part in competition or manifestations organized or authorized by the FFSurf.
2. The decision will start on the date of notification.
4. The decision will be published and sent to the parties involved.

Facts
The French Cycling Federation (Fédération Française de Cyclisme, FFC) charges respondent M39 for a violation of the Anti-Doping Rules. During a cycling event on January 21, 2007, a sample was taken for doping control purposes. Analysis of the sample showed the presence of Salbutamol which is a prohibited substance according to the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent had mentioned the use of a pharmaceutical product containing salbutamol. It was used to treat his asthma condition. His medical files where transmitted, and a certificate from his polmonologist. He had inhaled twice the product 4 hours before the game, which is exact the amount he can handle because of a heart condition. However the information in the documents doesn't show the amount that is needed to be used, but the respondent claims not to have use the product to enhance his sport performance.

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

Facts
The French University Sport Federation (Fédération Française du Sport Universitaire, FFSU) charges respondent M38 for a violation of the Anti-Doping Rules. During an Athletics event on December 9, 2007, a sample was taken for doping test purposes. The analysis of the sample showed the presence of prednisolone and prednisone which are prohibited substances according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent had mentioned the use of a pharmaceutical product, containing the prohibited substance, ten days before the match. He had used this medication to treat headaches and problems with the throat. However the dosage for use shown on the prescription doesn't match the amount measured in the analysis.

Decision
1. The sanction is a period of ineligibility of six months in which respondent can't take part in competition or manifestations organized or authorized by the FFSU.
2. The decision will start on the date of the notification.
3. The decision will be published and sent to the parties involved.

Facts
The French Basketball Federation (Fédération Française de Basket-Ball, FFBB) charges respondent M37 or a violation of the Anti-Doping Rules. During a match on September 28, 2007, a sample was taken for doping test purposes. The analysis of the sample showed the presence of a metabolite of methylphenidate which is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent had mentioned on the doping control form the use of a pharmaceutical product containing the prohibited substance. He had no intention to enhance his sport performance. His psychiatrist explained he used this medication because of the attention disorder and hyperactivity since childhood and to stabilize a chronic depression. However he didn't produce a medical report for his condition or prescription for this medication.

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

Facts
The French Athletics Federation (Fédération française d'athlétisme, FFA) charges respondent M36 for a violation of the Anti-Doping Rules. During an athletic event on May 17, 2009, a sample was taken for doping control purposes. The analysis of the sample showed the presence of a metabolite of cannabis. Cannabis is a prohibited substance on the World Anti-Doping Agency (WADA) prohibited list. It is regarded as a specified substance.

History
The respondent didn't provide any information about how the prohibited substance had entered the body.

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

Facts
The French Motorcycling Federation (Fédération Française de motocyclisme, FFM) charges respondent M35 for a violation of the Anti-Doping Rules. During a motorcycling event on September 25, 2006, respondent didn't attend the doping control station.

History
The respondent was did not answer his phone calls. The competition was cancelled due to weather conditions. Because of safety measures around the track he couldn't go to the doping control station. In a second attempt the samplers got lost in the crowd. At a third location there was no phone network which made communication impossible.

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

Facts
The French Federation of American Football (Fédération Française de Football Américain, FFFA) charges respondent M34 for a violation of the Anti-Doping Rules. During a match on June 17, 2006, a sample was taken for doping control purposes. The analysis showed the presence of prednisolone and prednisone which are prohibited substances according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent acknowledged in its written submissions taking the day of doping control, an anti-inflammatory drug which explains the presence of prednisone and prednisolone in his urine; this was used to heal a sprained left ankle. He has two medical certificates and the results of ultrasonically test.
Considering that the documents passed to certify that respondent has suffered in the weeks preceding the doping control the invoked pathology. The drug he used however, can not be regarded as having provided evidence of the justification for therapeutic use.

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