The application of Swiss law in doping cases before the CAS and the Swiss Federal TribunalDespina Mavromati Antonio Rigozzi
The Court of Arbitration for Sport (CAS) was established in 1984 by the International Olympic Committee (IOC) in order to create a supreme instance for sports disputes, away from the jurisdiction of State Courts. After a landmark decision rendered by the Swiss Federal Tribunal (SFT) in 1993 in the widely-known Gundel case, the CAS proceeded to a series of reforms in order to become an independent arbitral institution, as confirmed by a subsequent SFT judgment. As per Article R28 of the CAS Procedural Rules of the Code of Sports-related Arbitration (CAS Code), the seat of CAS arbitration is in Switzerland, notwithstanding where the hearings are held. This has the practical consequence that CAS proceedings are imperatively governed by the Swiss law of arbitration.
The World Anti-Doping Agency (WADA) is also a foundation under Swiss private law and is based in Lausanne, Switzerland. In addition to WADA, the vast majority of the international federations that have adopted the WADA Code (WADC) are also domiciled in Switzerland. Under the relevant provisions of the WADC, appeals against doping disputes involving international-level athletes/ international events are brought before the CAS in Lausanne, Switzerland. WADA and other international organisations have also the right to appeal against doping-related decisions rendered by first instance bodies to the CAS without the need to exhaust internal remedies. Once the CAS award is rendered, the only way to challenge the award is before the SFT for the reasons exhaustively enumerated in the Swiss Private International Law Act (PILA).
This article aims to highlight the importance that Swiss law plays in both the procedure and the merits of doping-related cases, through concrete examples at the different stages of the anti-doping proceedings before the CAS and before the SFT. Specifically, it looks at:
- Application of Swiss law to the arbitration in doping cases (lex arbitri)
- Swiss law when determining the arbitrability of a dispute & the jurisdiction of CAS in doping-related cases
- Independence & impartiality of arbitrators in doping-related cases
- The parties’ right to be heard and the right to equal treatment
- Violation of public policy in doping-related cases
- Application of Swiss procedural law to doping-related procedures before CAS: evidence, suspension of the CAS
proceedings and provisional measures
- Application of Swiss law to the merits of a doping case
- Specific provisions of Swiss law & general principles applicable to doping cases
- Control of proportionality of a doping-related sanction and Swiss law
- Concluding Remarks`
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- Tags: Anti-doping | Arbitration | CAS Procedural Rules of the Code of Sports-related Arbitration (CAS Code) | Court of Arbitration for Sport (CAS) | Dispute Resolution | International Olympic Committee (IOC) | New York Convention of 1958 | Swiss Federal Tribunal (SFT) | Swiss Private International Law Act (PILA) | Switzerland | WADA Code 2015 | World Anti-Doping Agency (WADA)
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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.
Antonio Rigozzi is the partner in charge of the sports arbitration practice at Lévy Kaufmann-Kohler. He has extensive arbitration, litigation and dispute resolution experience across all the main areas of sports law, in a wide array of sports including football, Formula 1, sailing, athletics, ice hockey, swimming and cycling. As counsel, he represents and advises athletes, teams and sports-governing bodies before the CAS, the BAT and the Swiss courts.