The ECHR Recognizes That CAS Fulfils The Requirements Of Independence And Impartiality : Statement of the Court of Arbitration for Sport (CAS) on the decision made by the European Court of Human Rights (ECHR) in the case between Claudia Pechstein / Adrian Mutu and Switzerland / Court of Arbitration for Sport (CAS). - Lausanne : CAS, 2018 _________________________________________________ The Court of Arbitration for Sport (CAS) has noted the ruling of the European Court of Human Rights (ECHR) in relation to the cases between Claudia Pechstein (speed skating / Germany), Adrian Mutu (football / Romania) and Switzerland. Both athletes filed appeals at the ECHR in 2010 against judgments of the Swiss Federal Tribunal (SFT) which confirmed the decisions rendered by CAS in these matters. The ECHR has dismissed all claims, except one concerning the right to a public hearing. The ECHR judgment, published on its website, determines that: - The ECHR considers that there is an interest in allowing the disputes arising in professional sport, in particular those with an international dimension, to be submitted to a specialized jurisdiction, able to rule on such cases in a quick and inexpensive manner. (…) The recourse to an international arbitral tribunal, unique and specialized, facilitates a certain procedural uniformity and strengthens the legal certainty. That is all the more true when the awards of that arbitral tribunal may be appealed before the supreme court of a single country, i.e. the Swiss Federal Tribunal, which renders final judgments. - The ECHR recognizes that a non-State dispute resolution mechanism of first and/or second instance, with a possible appeal, even limited, before a State court, as a last instance, is appropriate in this area (of international sport). - Considering the particular nature of the CAS arbitration system, with mandatory arbitration clauses inserted in the regulations of sports federations, such arbitration shall offer the guarantees provided by Article 6 § 1 of the European Convention on Human Rights. - As far as the funding of CAS by sports entities is concerned, the ECHR emphasizes that State courts are always financed by governments and considers that this aspect is not sufficient to establish a lack of independence or impartiality of these jurisdictions in disputes between citizens and the State. By analogy, it is not possible to establish a lack of independence or impartiality of the CAS based on its funding system. - The ECHR does not see any relevant grounds to overturn the consistent jurisprudence of the Swiss Federal Tribunal stating that the system of a mandatory list of arbitrators complies with the constitutional requirements of independence and impartiality applicable to arbitral tribunals and that the CAS, when it acts as an appeals authority external to international federations, is similar to a judicial authority independent from the parties. - The public nature of the judicial procedures is a fundamental principle of Article 6 § 1 of the European Convention on Human Rights; such principle is also applicable to non-State courts ruling on disciplinary and/or ethics matters. In the case of Claudia Pechstein, the CAS should have allowed a public hearing considering that the athlete had requested one and that there was no particular reason to deny it. The ECHR judgment is another confirmation, this time at a continental level, that CAS is a genuine arbitration tribunal and that such sports jurisdiction is necessary for uniformity in sport. The SFT already came to the same conclusion in 1993 and 2003; the German Federal Tribunal as well in 2016. While these procedures were pending before the ECHR (8 years), ICAS, the governing body of CAS, has regularly reviewed its own structures and rules in order to strengthen the independence and the efficiency of the CAS year after year. ICAS is now composed of a large majority of legal experts coming from outside the membership of sports organizations and has achieved an equal representation of men and women. The list of arbitrators has been increased and the privilege reserved to sports organizations to propose the nomination of arbitrators on the CAS list has been abolished. Furthermore, ICAS has already envisaged the possibility of having public hearings at its newer and much larger future premises at the Palais de Beaulieu in Lausanne.
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CAS 2018 - Statement on the decision made by the ECHR in the case between Claudia Pechstein / Adrian Mutu and Switzerland
Affaire Mutu et Pechstein C. Suisse (Requêtes Nos 40575/10 et 67474/10) : Arrêt / European Court Of Human Rights (ECHR). – Strasbourg : Council of Europe (CoE), 2018. - (Requêtes Nos 40575/10 et 67474/10) ___________________________________________________ In the case of Mutu and Pechstein v. Switzerland (applications no. 40575/10 and no. 67474/10) the European Court of Human Rights Chamber held, by a majority, that there had been: 1. no violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights with regard to the alleged lack of independence of the Court of Arbitration for Sport (CAS), and 2. a violation of Article 6 § 1 of the European Convention in the case of the second applicant (Ms Pechstein), with regard to the lack of a public hearing before the CAS. The case concerned the lawfulness of proceedings brought by professional athletes before the CAS. The Court found that the CAS arbitration proceedings to which the applicants had been parties were required to offer all the safeguards of a fair hearing, and that the second applicant’s allegations concerning a structural absence of independence and impartiality in the CAS, like the first applicant’s criticisms concerning the impartiality of certain arbitrators, had to be rejected. In contrast, the Court held that the questions concerning the merits of the sanction imposed on the second applicant for doping, discussed before the CAS, required a hearing that was subject to public scrutiny. ___________________________________________________ In August 2003 Adrian Mutu, a professional Romanian footballer, was transferred from the Italian club AC Parma to Chelsea. In October 2004 the English Football Association conducted anti-doping checks which showed cocaine traces in the sample provided by Adrian Mutu. Chelsea consequently terminated their contract with him. Between november 2004 and June 2010 a number of proceedings and appeals followed in the dispute between the Chelsea Football Club and Adrian Muti about the Player's breach of contract and Chelsea's claim for compensation filed by both parties with FIFA, CAS and the Swiss Federal Court. Claudia Pechstein is a professional speed skater. On 1 July 2009 the International Skating Union (ISU) imposed a 2 year period of ineligibility on Pechstein for blood doping. Between July 2009 and June 2016 a number of proceedings and appeals followed in the dispute between Claudia Pechstein the ISU and the DESG filed with CAS, the Swiss Federal Court and the German Civil Court. The Athletes filed their applications with the European Court of Human Rights on 13 July 2010 and 11 November 2010. Relying on Article 6 § 1 of the Convention, the Athletes submitted that the CAS could not be regarded as an independent and impartial tribunal. Pechstein complained that she had not had a public hearing before the ISU disciplinary board, the CAS or the Swiss Federal Supreme Court, despite her explicit requests to that end. Relying on Article 4 § 1 (prohibition of slavery and forced labour) and Article 8 (right to respect for private and family life) of the Convention and Article 1 of Protocol No. 1 (protection of property), Mutu complained about the sum he had been ordered to pay to Chelsea Football Club. (Source: ECHR Press Release ECHR 324 (2018), 2 October 2018)
CAS A1/2008 Australian Sports Anti-Doping Authority vs Nathan O'Neill In March 2008 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the cyclist Nathan O’Neill after his A and B samples – collected in the United States in August 2007 – tested positive for the prohibited substance Phentermine. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Court of Arbitration for Sport (CAS) Oceania Registry. The Athlete admitted the use of the substance, accepted the test results and argued that there were grounds for No Significant Fault or Negligence. He stated that he knew that the substance was prohibited in competition and he understood that 5 days would be more than enough time to clear this substance from his system. Because of the positive test he was surprised that the substance could remain in his system for some 7 days. Through research the Athlete demonstrated, sustained with evidence, that his use of phosphate tablets and bicarbonate capsules while using Phentermine effected the clearance time and consequently the Phentermine could be detected within a period of 10 days producing a positive test. The Panel accepted the Athlete’s explanation and evidence and concludes that he established No Significant Fault or Negligence in this case for a reduced sanction. Therefore the The Court of Arbitration for Sport decides on 13 June 2018 that: 1.) Nathan O'Neill has breached Article 5.1 of the Anti-Doping Policy of Cycling Australia and has thereby committed an Anti-Doping Rule Violation. 2.) Pursuant to Article 13.1 of the Anti-Doping Policy of Cycllng Australia, Nathan O’Neill is disqualified from his individual results obtained in the Tour of Elk Grove Event on 11 and 12 August 2007 with all consequences, incluqing forfeiture of all medals, points and prizes. 3.) Nathan O'Neill has established that he bears No Significant Fault or Negligence, within the meaning of Article 13.6.2 of the Anti-Doping Policy of Cycling Australla, in respect of the Violation referred to in 1 above. 4.) The period of ineligibility in respect of that Violation is reduced to a period of 15 months, commencing on 12 August 2007 and expiring at midnight on 11 November 2008. 5.) Pursuant to Article 11.10 of1he Anti-Doping Policy of Cycling Australla and clause 16 of the signed Order of Procedure herein, there be no order as to costs.
TAS 2000/A/272 UCI v/ Outchakov CAS 2000/A/272 UCI vs Outchakov In September 1999 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Ukranian cyclist Sergiy Oukchakov after his A and B samples tested positive for the prohibited substances Human chorionic gonadotrophin (hCG) and Testosterone with with at a T/E ratio above the UCI threshold. The UCI notified the Cycling Federation of Ukraine (FVSU) about the Athlete’s violation but the FVSU deemed in November 1999 that the there was no doping and the Athlete was not subject to sanction. After deliberations between the UCI and the FVSU about implementing disciplinary proceedings the FVSU decided on 22 March 2000 to acquit the Athlete. Hereafter in April 2000 the UCI appealed the FVSU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the FVSU decision of 22 March 2000 and to sanction the Athlete. The FVSU requested the Panel to dismiss the UCI appeal and argued that in this case decisions were already rendered in November and December 1999. Here the UCI failed to appeal these decisions within the time limit and there were more delays attributed to the UCI. Further the FVSU contended that the Athlete only had used homeopathic products, and not pharmaceutical. These products were not prohibited and when ingested could have produced an increased hCG reading and a positive test. The Panel deems that a FVSU decision was made on or about 22 March 2000 which was appealed by the UCI within the time limit. The Panel establish that there was the admission of the positive test and that an anti-doping rule has been committed. The Panel concludes that the Athlete failed to explain the concentration levels of hCG found in his system nor did he explain with evidence how and when he had used the homeopathic products. The Panel also considers that the UCI could have responded in a more timely fashion, particularly between 23 December and 6 March and may have resolved this dispute earlier if it had been more specific between November 1999 and March 2000 on exactly what the FVSU was required to do. Therefore the Court of Arbitration for Sport decides on 30 August 2000 and directs as follows: 1.) That the appeal of the Union Cycliste Intemationale (UCI), the Appellant, against the decision of the Ukrainian Cycling Federation (UCF), the Respondent, is granted and therefore the decision of UCF dated 22nd March, 2000 is hereby cancelled. 2.) That Mr. Outchakov is found guilty of a doping offence under UCI Regulations. 3.) That Mr. Outchakov is hereby disqualified from the "Vuelta a Espana 1999". 4.) That Mr. Outchakov is suspended under the UCI Regulations with effect from the 22nd March 2000 for a period of six (6) months ending on the 22nd September 2000 with the consequence that all results and points are cancelled and other penalties or sanctions, if any, under the aforesaid Regulations shall apply during this period. 5.) That Mr. Outchakov shall pay a fine under the UCI Regulations of CHF 4'000.--. 6.) That Mr. Outchakov shall pay the UCI costs of this appeal limited to the amount of CHF 3'000.-- inclusive of the UCI Court Office fee of CHF 500.--. 7.) That all financial amounts referred to above shall be payable within seven (7) days of the date of this award and any sums paid later shall attract interest at the rate of 6% per annum calculated on a daily basis.