Evidence, applicable law and provisional measures at the CAS Ad Hoc and Anti-Doping Divisions at the Olympic GamesDespina Mavromati
In second part of this two-part article, Despina Mavromati, Managing Counsel at Court of Arbitration for Sport (CAS), analyses the specific procedural rules of the CAS Anti-Doping Division (ADD), as the CAS Panels at the Rio Olympic Games interpreted them. The article also compares these rules to the procedural rules of the (general) CAS Ad Hoc Division (AHD) and to the (permanent) CAS in Lausanne, Switzerland.
Part one offered an introduction to the ADD and the AHD Rules and examines their general scope and the jurisdiction of both divisions. Part two analyses the structure of the CAS ad hoc offices and the conduct of the ad hoc proceedings, particularly in terms of evidence, applicable law and provisional measures.
This article is essential reading for any sports lawyer who represents or plans to represent clients in sports disputes before the CAS.
Structure of the CAS ADD and AHD Court Offices / List of Arbitrators
Similar to the structure of the permanent CAS in Lausanne1 and the CAS AHD,2 the CAS ADD comprises a President, a Deputy President, arbitrators appearing on a special list and a Court Office.3 The particularity of the special list of the ADD arbitrators is that they may not act for the regular CAS AHD during the same edition of the OG or later, in case of referral of the case to the permanent CAS in Lausanne or in a case related to the same edition of the OG.4 An analogous provision was added to the CAS AHD Rules to ensure that the two divisions remain independent of each other.5 ADD arbitrators are chosen from the General List of CAS Arbitrators, in the same way as in the AHD Rules.6 The list is set up by the ICAS Board7 and can subsequently be amended if needed (e.g. in case of increased work load or in the event that some of the arbitrators need to be removed or replaced for some urgent reason).8 The arbitrators are selected taking into consideration the geographical distribution, the absence of links between the candidates and the sporting bodies and the qualification and experience of the arbitrators.
In both ad hoc divisions, the President and the Deputy President of the ADD (who may replace the President in his functions throughout the CAS ADD Rules) must be ICAS members and they are bound by analogous obligations of independence from the parties.9 Finally, both the CAS AHD and the new CAS ADD have their Court Offices established at the site of the OG and they are organized under the authority of the CAS Secretary General.10
Language of the proceedings, costs and seat of the ADD arbitration
The two official languages of the CAS (and the ad hoc divisions) are English and French.11 As set out in Article 10 CAS ADD Rules (in fine), the application has to be written in English or French.12 At the Rio OG, all ADD procedures were conducted in English. From the 28 AHD procedures, one procedure was conducted (and the final award was drafted) in French.13
The respective provision on the language of the proceedings to be found in Article R29 of the CAS Code (for regular arbitration proceedings conducted under the CAS Code) is slightly different in that it provides for greater flexibility. The parties have the possibility to have the arbitration conducted in another language under specific conditions.14 This additional possibility is not provided under the ad hoc rules for obvious reasons of urgency but a free of charge interpretation service is provided for first-instance anti-doping procedures pursuant to Article 22 of the ADD Rules if the parties so wish. In contrast, Article 22 of the CAS AHD Rules specify that the parties have to pay their own costs of legal representation, experts and interpreters.15
Apart from the costs of experts and interpreters in the AHD procedures, the entire ad hoc proceedings are free of charge and it is even possible to have recourse to a pro bono counsel at the site of the OG, with a list of pro bono counsel established prior to each version of the OG.
The seat of the CAS ADD is always in Lausanne, Switzerland, irrespective of the site at which the Panel might conduct the hearing or the country hosting the OG.16 This is in line with the general provision of Article R28 of the CAS Code and Article 7 of the CAS AHD Rules. The seat of arbitration has important procedural consequences, mostly with respect to the application of the 12th Chapter of the Swiss Private International Law Act (Swiss PILA) which is the general act for international arbitrations in Swiss law.17
Appointment of the Panel and independence of CAS ADD Arbitrators
Article 8.1.2 of the IOC ADR refers to the CAS ADD Rules for the constitution of the panel. In essence, the President of the CAS ADD appoints either a Sole Arbitrator or a Panel of three Arbitrators. The CAS ADD Rules do not define the criteria for determining the number of Arbitrators but general factors such as the complexity of the case should speak in favour of a Panel of three Arbitrators.18 Under the AHD procedure (Article 11) the sole arbitrator is appointed only in exceptional circumstances, the general rule being a Panel of three arbitrators.19 The main difference between the regular proceedings under the CAS Code the ad hoc proceedings (both the AHD and the ADD) is that in the latter, the parties do not play an active role in the constitution of the Panel or the number of the Arbitrators, in order to save time and reduce the risk of challenges of arbitrators.
The qualification and independence requirements of CAS ADD arbitrators are set out in Article 12 of the Rules. Said provision is a combination of Article S14 CAS Code (since the ADD Arbitrators must first appear on the general list of CAS Arbitrators), S18 CAS Code (on the prohibition of the double hat practice) and Article R33 CAS Code (on the independence obligations).20 In addition, ADD Arbitrators should possess “recognized competence with regard to antidoping matters”. CAS Arbitrators may obtain such experience either from involvement in CAS anti-doping proceedings (before the CAS Court Office in Lausanne) or be involved in anti-doping matters in another capacity, so long as this does not result in a conflict of interests. In view of the very tight timeline of the proceedings, ADD Arbitrators should be available at any time during the OG but also outside the period of the OG if need arises. As expected, CAS ADD arbitrators cannot act as counsel for other parties before the CAS ADD (the so-called “double hat prohibition”).21
With respect to the conditions for challenge and disqualification of arbitrators, Article 13 CAS ADD Rules is, again, identical to the respective provision of Article 13 CAS AHD Rules and very similar to Article R34 CAS Code: The arbitrators should voluntarily disclose any circumstances giving rise to legitimate doubts regarding their independence and disqualify themselves. All petitions for challenge by the parties are decided by the ADD President. The latter also has the power to remove an arbitrator if she/he is prevented from carrying out the duties under the ADD Rules) and to proceed to her/ his replacement as soon as practicable thereafter. The ADD President has the possibility to submit two related cases to the same Panel (if an application is related to an arbitration already pending before the CAS ADD).22 As specified in Article 11, the Division President will take into account criteria such as the progress already made in the first, pending case.23
“Provisional suspensions” in the ADD Rules
Article 14 of the ADD Rules is entitled “Provisional suspensions”. The Panel (or the President of the Division if the Panel has not yet been appointed) may rule on an application for a provisional suspension as defined in the IOC ADR. The IOC ADR provide some guidance and additional information regarding provisional suspensions. Article 7.6 of the rules foresees two different types of suspension, i.e. the mandatory suspension and the optional suspension. The former occurs when the analysis of an A sample has resulted in an AAF for a prohibited substance that is not a specified substance (Art. 4.2.2 WADC), or for a prohibited method, and in the absence of an applicable Therapeutic Use Exemption (TUE). The CAS ADD does not seem to have an alternative but to impose a provisional suspension promptly after the notification of the AAF. The “optional provisional suspension” applies to AAF for a specified substance (or for violations not covered by Article 7.6.1 on the mandatory provisional suspension). In both cases, if a provisional suspension is imposed, the athlete (or other person) will have the opportunity for a provisional hearing before the CAS ADD and an opportunity for an expedited final hearing before the CAS ADD, but also the right to appeal against the provisional suspension under Article 12.2 IOC ADR. It must be noted that the only person having standing to appeal against a provisional suspension is the athlete (or the person provisionally suspended).
The CAS ADD Panel may further lift the provisional suspension if it can be established that the AAF was linked to a contaminated product. In any event, the Panel’s decision as to the lifting of the provisional suspension cannot be challenged.24 The provisional suspension is also lifted if the B Sample does not confirm the A Sample analysis (since the provisional suspension is based on the analysis of the A Sample).25 Moreover, pursuant to Article 7.6.5 of the IOC ADR, it is also possible to accept a provisional suspension voluntarily pending the resolution of the matter.26 In the second CAS ADD procedure at the Rio OG, the Panel applied Article 7.6.1 of the IOC ADR and held that the mere departure from the International Standard for Laboratories (ISL) was not sufficient to prevent the possibility of a provisional suspension. The application can only be denied if the panel is satisfied that the departure (if it occurred) caused the AAF.27
Article 14 of the ADD Rules differs from Article 14 of the AHD Rules, as in the latter case the applicant usually requests the CAS AHD to stay the decision appealed against or to be granted interim relief.28 The different procedure regarding interim relief before the CAS AHD is as follows: in principle, applicants for provisional measures are the athlete / the IF or the NOC. The Panel may grant interim relief even without hearing the respondent (in cases of extreme urgency). A decision to grant interim relief has only a provisional effect and is replaced by the final award of Article 20 of the CAS AHD Rules. The criteria employed by the Panel / Division President when deciding on the provisional measures are similar to the ones enumerated in Article R37 CAS Code (irreparable harm, likelihood of success on the merits and balance of interests).29 These criteria do not appear in the wording of Article 14 of the ADD Rules, as this is a first-instance procedure.
Practical information regarding the ADD procedure
Communications between the ADD Court Office and the parties
Under Article 8 of the CAS ADD Rules, Athletes, sports organizations and all other parties involved in a CAS ADD procedure may be represented or assisted by persons of their choice, to the extent that this is feasible in view of the urgent character of the proceedings. The same wording is used in Article 8 of the CAS AHD Rules and the provisions are analogous to Article R30 of the CAS Rules (for regular CAS arbitration).30 The parties have to provide the coordinates of their representatives / assistants (including names, addresses, e-mail addresses and telephone numbers) either in their application to the CAS ADD (in accordance with Article 10 ADD Rules) or at the outset of the hearing.31
The CAS ADD sends all communications and notifications in writing (or by telephone and subsequently in writing) to the IOC legal affairs department, to the athlete / other person involved / their representative, to the NOC or / and the IF concerned and to the World Anti-Doping Agency (WADA). Aim of the provision is to ensure that a maximum of persons / entities involved in the proceedings take note of the communications by the CAS ADD Court Office. At the same time, the provision allows for increased flexibility due to the short timeframe (e.g. the communication is valid if the addressee had knowledge thereof, even in the absence of written confirmation).32 The parties have to email or deliver their communications to the CAS Court Office at the site of the OG (or to the CAS Court Office in Lausanne if this falls outside the period of the OG). The only document that has to be delivered (and not emailed) to the CAS ADD Court Office is the application according to Article 10 CAS ADD Rules.33
As seen above, the ADD Rules deal with alleged anti-doping rule violations and cases are referred to the CAS ADD (which acts as the first-instance body) through a written application filed by the IOC, as soon as the latter asserts an anti-doping rule violation.34 The content of the application is described in Article 10 of the CAS ADD Rules and comprises, inter alia, the coordinates of the athlete / other person involved / their representative at the site of the OG, a brief statement of the material facts and legal arguments and a request for relief. The provision is almost identical to Article 10 of the CAS AHD Rules. The filing of the application triggers the beginning of the arbitration procedure. In most cases the application is filed through a standard form that is available for the parties at the Court Office. This application is then served on the respondent and any interested parties, along with the notice for the hearing in very urgent cases.
Procedure before the Panel
Article 15 is the lengthiest provision of the CAS ADD Rules and deals with the procedure before the Panel (the same provision can also be found in Article 15 of the CAS AHD Rules). It is first specified that any objection to jurisdiction has to be raised at the outset of the proceedings or at the beginning of the hearing. This reflects the general provision on jurisdictional challenges of the CAS Code (which, in turn, is in line with the 12th chapter of the Swiss PILA and, most specifically, Article 186 thereof).
Furthermore, the Panel has a wide discretionary power as to the conduct of the proceedings, within the logical limits of due process and fair trial.35 The conduct of a hearing is established as the general rule and the parties are summoned on very short notice.36 In particular, the athlete (or any other person involved) receives the application annexed to the summons to appear to the hearing. An invitation is equally sent to NOC and IF concerned and / or other affected parties, irrespective of their status as parties to the proceedings. The rules provide that a WADA Independent Observer may attend the hearing. In cases brought before the CAS ADD, where the athlete has accepted the anti-doping rule violation or has waived the hearing / his written defence under Article 7.7 of the IOC ADR, the panel is not required to hold a hearing. The panel will swiftly issue a written decision confirming the violation and inflicting the relevant consequences.37
The enhanced flexibility of the Panel is extended to the conduct of the hearing and to the admission of evidence.38 Apart from the evidence produced by the parties during the hearing, the parties can provide additional evidence after the hearing (and, in any event, prior to the issuance of the final award), on condition that such evidence is relevant / necessary and could not be produced at the hearing. Additionally, the panel has the authority to admit or refuse evidence and may appoint (independent) experts and order the production of documents or other information it deems appropriate.39 Similar to AHD procedures and to Articles R44.5 (in fine) and R57 (in fine) CAS Code, the parties’ failure to appear at the hearing does not prevent the panel from conducting the hearing and issuing an award.40
Law applicable to the merits and time limit to issue the decision
Article 16 ADD Rules provides that “the Panel has full power to establish the facts on which the application is based”. This is logical because the ADD proceedings are first-instance proceedings. The same wording is used in Article 16 of the CAS AHD Rules but the AHD proceedings are, in principle, appeal proceedings (once the internal remedies have been exhausted). Article 12.1.1 of the IOC ADR goes even further and provides that the “scope of review on appeal includes all issues relevant to the matter and is expressly not limited to the issues or scope of review before the initial decision maker”.41 Under Article 12.1.2 of the same rules, CAS does not need to give deference to the decision under appeal.
In respect of the applicable law to the merits of the case, the Panel primarily applies the IOC ADR, along with the applicable anti-doping regulations (e.g. of the specific federation), Swiss law but also general principles of law.42> Throughout the years, the CAS and the CAS AHD have created a solid case law regarding the application of general principles of law, which can be applied in addition to the otherwise applicable rules.43 The applicable law to the merits before the AHD is, pursuant to Article 17 of the AHD Rules, the “applicable regulations”, general principles of law “and the rules of law, the application of which deems appropriate”. In most cases, the Panel will apply the “applicable regulations”, which are the rules of the IF, the OC or the WADC. In doping-related cases in appeal brought before the AHD, the Panel might need to apply the pertinent provisions of the IOC ADR, where applicable.
The time limit to issue the decision is laid down in Article 18 of the CAS ADD Rules (identical to Article 18 of the CAS AHD Rules). During the OG, the time limit is 24 hours (starting from the conclusion of the hearing or, in the absence of a hearing, from the conclusion of the evidentiary proceedings).44 Article 8.2.3 of the IOC ADR specifies that the CAS ADD must render a timely and reasoned award. The extension of the time limit (by the ADD Division President) is exceptional “if circumstances so require”. Outside the period of the OG, Article 18 ADD Rules provides that the Panel shall give a decision “within a reasonable time”.
The time limit of 24 hours (provided in Article 18 ADD Rules) does not apply if the Panel decides, for a number of reasons enumerated in Article 20 (a) ADD Rules, to render a final award outside the period of the OG. The reasons include, indicatively, the urgency and the complexity of the case, the extent of evidence required and, most importantly, the parties’ right to be heard. The Panel may also render a partial award during the OG and leave some issues to be decided in a final award at a later stage.45 Logically, if the final award is issued outside the period of the OG, the same panel will remain in charge of the case and the panel will consult the parties in order to establish the procedural directions for the remaining part of the arbitration proceedings.46 The procedural directions is usually a short document where the panel requests specific documents necessary for the hearing and / or sets the time limits for the filing of the parties’ (and the interested parties’) submissions, according to the urgency / complexity of the matter. It also informs the parties on the date and place of the hearing, if a hearing is to be held. The ADD Rules do not provide more information on this, however the Panel may issue procedural directions more than once.47
The procedure is slightly different from the one foreseen under the AHD Rules. While the general time limit to issue an award is 24 hours in both procedures, CAS AHD Panels have the possibility to choose between the issuance of a final award or a referral to the permanent CAS in Lausanne (in accordance with the CAS Code).48 Therefore, the main procedural difference is that, under the AHD Rules, the referral to the CAS in Lausanne will entail the application of the relevant provisions of the CAS Code. The referral will either take place upon request by the applicant (request for arbitration of Article R38 CAS Code or statement of appeal of Article R48 CAS Code), or can be decided ex officio by the Panel.49It has been suggested that reasonably predictable (and therefore less complicated) cases should be decided by the AHD and the referral to the CAS in Lausanne should be limited to when it is really necessary.50 The particularity is that the time limits linked to the appeal procedures (defined in Article R49 CAS Code) do not apply in case of referral.51 Similar to the ADD procedure, the same panel (assigned under the AHD Rules) will rule on the case brought before the CAS in Lausanne.52
The issuance of the award
Articles 19 and 20 of the ADD Rules set forth the conditions for the deliberations of the panel and the issuance of the award. Decisions are taken by majority or, in the absence of a majority, by the President of the Panel.53 In the Panels of three arbitrators, decisions are taken by a majority or, in the absence of a majority, by the President of the Panel, who is therefore vested with an increased power. Decisions are written and include brief reasons. The CAS ADD President reviews the award before it is signed by the arbitrators, in order to make amendments of form and “without affecting the Panel’s freedom of decision”.54 Again, the provisions are identical to Articles 19 and 20 of the CAS AHD Rules. The only difference between the ADD (and the AHD) Rules and the CAS Code is that the proofreading procedure prior to the notification of the award under the CAS Code is made by the CAS Secretary General55 Although it is not explicitly provided in the AHD Rules, it is possible to have a consent award, i.e. an award drafted by the panel upon agreement of its terms by the parties.56
The award is communicated to the parties (and to all parties concerned, even if they have not participated to the proceedings) immediately. It is also possible to have the operative part issued first and the reasons issued at a later stage, if the circumstances so require (mostly for reasons of urgency).57 The IOC ADR58 provide that in all cases where the CAS ADD issues an award relating to an anti-doping rule violation, imposes a provisional suspension or agrees to decide on an anti-doping rule violation without a hearing, the CAS ADD must give notice thereof to other Anti-Doping Organizations, which will have the right to appeal to the CAS AHD or to the CAS in Lausanne.59 The IOC ADR equally provide that the CAS ADD must render a timely reasoned decision, and notify such decision (by sending a full copy of the decision) to the IOC, the athlete (or other person), the relevant NOC and the IF, a representative of the Independent Observer Program and WADA.60
While the award is immediately enforceable upon its notification,61 it may be appealed to the CAS AHD (under the AHD Rules) or the CAS in Lausanne within 21 days from the date of receipt of the award by the appealing party (in accordance with Article R47 ff. of the CAS Code).62 The difference between ADD and AHD procedures is that the latter has the effect of a final arbitral award rendered by the (permanent) CAS in Lausanne, and the parties can only file a motion to set aside the award in accordance with the relevant provisions of Swiss PILA (and, more specifically, Article 190 para. 2 thereof).
The IOC ADR provide that the ADD award will be publicly disclosed,63 unless the case involves a minor (in which case the public reporting does not apply, or has to be “proportionate to the facts and circumstances of the case”).64
CAS Ad Hoc Divisions at the Olympic Games have been a very successful tool for the resolution of sports disputes. Since the OG in Atlanta in 1996, the CAS AHD have been providing athletes and other participants in the OG with a swift, efficient and free dispute resolution mechanism for a variety of disputes arising out of the OG.65 For the first time at the 2016 Rio OG, CAS has created a special, first-instance anti-doping tribunal for all alleged anti-doping rule violations occurring during the period of the OG. The ICAS Board has adopted specific rules applicable to these procedures, which apply along with the procedural and substantive provisions of the IOC ADR.
The CAS ADD rules are, in essence, very similar (and in many provisions identical) to the respective provisions of the CAS AHD and the major differences arise out of the first instance character of the ADD procedure. From a procedural viewpoint, there is no need to exhaust internal remedies before seizing the ADD: this is a condition for jurisdiction under the AHD Rules (subject to some exceptions). Furthermore, the scope of the ADD jurisdiction is considerably narrower than the one of the AHD (which deals with all disputes arising out of the OG), even if the AHD has established a general policy of not interfering with the so-called “field of play” decisions rendered by officials as well as technical decisions.
The time limit to issue the ADD award is 24 hours (starting from the conclusion of the hearing or, in the absence of a hearing, from the conclusion of the evidentiary proceedings), with the possibility to extent the time limit “if circumstances so require” or if the Panel decides to render a final award outside the period of the OG. Under the AHD Rules, and although the time limit to issue an award is, again, 24 hours, CAS AHD Panels have the possibility to choose between the issuance of a final award or a referral to the CAS in Lausanne (in accordance with the CAS Code). Therefore, the main difference between the two procedures is that the referral to the CAS in Lausanne under the AHD Rules will entail the application of the relevant provisions of the CAS Code.
A further difference between the two procedures relates to the effect of the award: while the ADD award is immediately enforceable upon its notification, it may be appealed to the CAS AHD (under the AHD Rules) or the CAS in Lausanne within 21 days from the date of receipt of the award by the appealing party (in accordance with Article R47 ff. of the CAS Code). The difference between ADD and AHD procedures is that the latter has the effect of a final award rendered by the (permanent) CAS in Lausanne, and the parties can only file a motion to set aside the arbitral award in accordance with the relevant provisions of Swiss PILA (and, more specifically, Article 190 para. 2 thereof).
Finally, an additional major difference between the two procedures relates to the provisional measures: the ADD Rules refer to “provisional suspensions”, while the AHD Rules provide for the “stay of decision challenged and preliminary relief of extreme urgency”. It seems that the procedure for pronouncing the provisional suspension under the ADD Rules is much more technical, and the Panel orders such suspension almost systematically. Against this background, the procedure of the AHD is similar to the procedure foreseen in the general provisions of Article R37 of the CAS Code, with all the relevant criteria (irreparable harm, likelihood of success on the merits and balance of interests) applying also to the AHD.
Overall, the importance of the CAS and its ad hoc divisions in the resolution of sports-related – and in particular – doping-related disputes is growing at an ever increasing pace. At the Rio OG, the CAS AHD registered 28 procedures in total, almost two times more than its previous record (15 registered cases at the Sydney OG in 2000). The ADD was called to rule on eight doping-related cases that would otherwise have been adjudicated by the IOC Executive Board. The newly drafted procedural rules were “tested” and applied for the first time at the Rio OG. The ADD procedures will create a new body of jurisprudence, which will influence the future interpretation of the relevant rules. More importantly, though, the delegation of the doping-related procedures by the IOC Executive Board to the CAS ADD must be seen as an important step towards increasing substantially the independence of anti-doping testing procedures from sports organizations.
Statistics - Types of disputes brought before the CAS AHD
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- Tags: Anti-Doping | Court of Arbitration for Sport (CAS) | Court of Arbitration for Sport Ad Hoc Division (CAS AHD) | Dispute Resolution | Governance | Litigation | Olympic | Regulation
- Rules, scope and jurisdiction of the CAS Ad Hoc and Anti-Doping Divisions at the Olympic Games
- CAS Rio: The CAS ad hoc division in Rio closes with a total of 28 procedures registered
- Activities of the CAS Divisions at the Olympic Games Rio 2016
- The legal framework of the CAS Ad Hoc Division at the Rio Olympic Games
About the Author
Despina is a qualified lawyer with many years of experience in international sports law and arbitration and the founder of SportLegis, a highly specialized international sports law practice based in Lausanne (Switzerland). She is an Accredited Mediator and a Fellow of the Chartered Institute of Arbitrators (FCIArb). She sits as arbitrator in international arbitrations administered by Sport Resolutions (UK) and is a member of the Doping Hearing Panel of the International Powerlifting Federation. Despina served as Managing Counsel at the Court of Arbitration for Sport (CAS) for nine years, where she was responsible for the drafting of legal opinions, mediation proceedings, the scrutinizing of CAS awards and appeals to the Swiss Federal Tribunal.