The application of Swiss law in doping cases before the CAS and the Swiss Federal Tribunal

Published 05 April 2017 | Authored by: Despina 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.[1] After a landmark decision rendered by the Swiss Federal Tribunal (SFT) in 1993 in the widely-known Gundel case,[2] the CAS proceeded to a series of reforms in order to become an independent arbitral institution, as confirmed by a subsequent SFT judgment.[3] 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.[4] 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.[5] 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).[6]

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`

 

Application of Swiss law to the arbitration in doping cases (lex arbitri) 

Having their seat in Switzerland, CAS Panels must comply with the general legal framework for international arbitral tribunals provided in the 12th chapter of PILA.[7] Pursuant to Article R28 CAS Code, the seat of the CAS arbitration is (always) Lausanne, Switzerland, irrespective of the place where the hearing is held. The application of Swiss law to the CAS arbitration must be distinguished by the law applicable to the merits[8] and ensures the uniform application of procedural rules notwithstanding the venue of the sporting event or the nationality of athletes. Also, the fact that the seat of CAS arbitration is always Lausanne, Switzerland has the (important) consequence that all motions to set aside CAS awards can only be filed before the SFT, according to Article 190 para. 2 PILA. 

According to Article R59 CAS Code, the award is final upon its notification to the parties. Thereafter, it is only possible to file a motion to set aside the award for formal reasons exhaustively enumerated in Article 190 para. 2 PILA. The grounds are the following: “a. where the sole arbitrator has been improperly appointed or where the arbitral tribunal has been improperly constituted; b. where the arbitral tribunal has wrongly accepted or denied jurisdiction; c. where the arbitral tribunal has ruled beyond the claims submitted to it, or failed to decide one of the claims; d. where the principle of equal treatment of the parties or their right to be heard in an adversary procedure has not been observed; e. where the award is incompatible with public policy”. It must be noted that the majority of these grounds are influenced by the more general international law principles and the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (NYC58).[9] Notwithstanding the above, and like every national supreme judicial instance, the Swiss Supreme Court has established its own jurisprudence in application of Swiss law, and in particular mandatory Swiss law.

 

Swiss law when determining the arbitrability of a dispute & the jurisdiction of CAS in doping-related cases 

According to the CAS Code (Article R27 & Article R47 of the CAS Code) and the general rules on jurisdiction provided in Articles 177 ff. of the Swiss PILA, the basic condition to entertain an appeal is the existence of a valid arbitration clause. The Swiss PILA provides for a broad scope of arbitrable disputes, in that any “dispute involving financial interest may be the subject of an arbitration”, meaning that all sports disputes involving a professional athlete are arbitrable. The disciplinary character of doping disputes is not a hindrance to their arbitrability under Swiss law.[10] As found by the SFT already in the Gundel judgment, the doping-related sanctions arise out of a private law relationship between an association and its members and can therefore be subject to arbitration, to the extent that the financial interest condition of Article 177 para. 1 PILA is fulfilled.[11]

The majority of doping-related appeals filed with the CAS are based on arbitration clauses contained in the rules and regulations of the sports governing bodies that have ratified the WADC.[12] Fairly common are also the “Player Entry Forms”, prior to the participation of an athlete in a major event / competition.[13] A controversial and highly complicated issue arises in cases where the regulations of sports governing bodies include global references, i.e. generally refer to a set of rules that contain the arbitration clause.[14]

Specifically for doping cases, the SFT has been following a liberal approach when it comes to the validity of an arbitration agreement in favour of CAS in order to have an international instance in the fight against doping.[15] Accordingly, global references are valid if they can be understood as the acceptance of the arbitration clause included in the agreement.[16] The SFT also held that the CAS arbitration clause is “branchentypisch” in professional sports, meaning that professional athletes could not validly argue that they ignored the existence of a CAS arbitration clause in order to challenge its validity.[17]

So far, the SFT has interpreted the scope of CAS arbitration clauses in numerous judgments related to doping.[18] According to the principle of trust (“principe de la confiance” in French, “Vertrauensprinzip” in German), an arbitration clause through a global reference is binding on a party that is aware of its existence and does not raise any objections e.g., if an athlete validly consents through his signature of the specimen agreement / of the entry form to the major competition, whose regulations expressly contained the arbitration clause.[19] However, when an athlete signs a player entry form for a specific championship, this does not constitute a broader arbitration agreement (or a general consent / blanket consent) outside the scope of the event.[20]

An example of application of Swiss law can be found in the case of Essendon (a professional Australian football club). In this case, the CAS imposed a two-year suspension upon 32 Essendon’s players for use of the prohibited substance Thymosin Beta 4 in the framework of the players’ supplements program in 2012.[21] The players subsequently filed a motion to set aside the CAS award before the SFT holding that CAS had exceeded its jurisdiction (Article 190 para. 2 b PILA) by deciding the case de novo. Although the players had filed their objections as to the full power of the Panel’s review (which, according to the applicable version of the AFL Anti-Doping Code 2010 would be a limited review), they subsequently signed the Order of Procedure (which included the Panel’s decision to rule de novo) without reservations. The SFT therefore rejected the athletes’ motion, in essence holding that they had lost their right to challenge the jurisdiction due to their conduct during the proceedings.[22]

Notwithstanding its finding, the SFT did consider the issue jurisdiction and held (as an obiter dictum) that the jurisdictional issue (and in particular the validity of the arbitration agreement) is determined according to Swiss law. Under Swiss law, and according to the binding CAS Rules (Article R57 of the CAS Code) it is not possible to reduce the full scrutiny of the appeal through a different arbitration agreement. When such agreement is made, it constitutes an agreement with “partially impossible content” (“defective” arbitration clause), which is not invalid as such (under Swiss law):[23] in these cases, it is important to determine, whether the parties would have still opted for CAS had they been aware of such “impossible content” of the agreement.[24]

 

Independence & impartiality of arbitrators in doping-related cases 

Parties who have validly challenged the appointment of one of the arbitrators before the CAS can subsequently file a motion to set aside a CAS award based on the first ground for annulment of an arbitral award (Article 190 para. 2 a PILA). Although, according to the jurisprudence of the Swiss Federal Tribunal, arbitrators are presumed to perform their tasks in an independent and impartial way, the SFT will review the independence of the challenged arbitrators and the validity of the ICAS decision in this respect. The parties who wish to challenge a CAS arbitrator have to do so as soon as they know about it.[25] An issue of particular relevance in this respect is the one of “recurring appointments” of arbitrators, in particular by sports governing bodies. The IBA Guidelines regarding conflicts of interests provide that the practice of recurring appointments might be justified in specialized forms of arbitration.[26] According to the jurisprudence of the SFT, an arbitrator who accepted specific assignments several years prior to the CAS proceedings in question,[27]a university professor who merely put his expertise at the service of the sport community in the general interest (i.e. codifying Anti-Doping Rules and reviewing their application)” does not violate Article 190 para. 2 a PILA.[28]

 

The parties’ right to be heard and the right to equal treatment

The right to be heard and the equality of the parties in adversarial proceedings PILA) is an internationally recognized legal principle and is also provided in Article 182 (3) PILA. A violation of these rights constitutes a ground for appeal und. Under the jurisprudence of the SFT, the parties have to raise all procedural objections / concerns in a timely manner, failing which they lose their right to validly argue violation of their procedural rights. The Panel must take into consideration all the parties’ legal and factual submissions which are relevant for rendering its decision.[29] Four motions to set aside CAS awards have so far been (partly or totally) accepted on this ground by the SFT and only one case relating to a doping suspension. In these cases, the CAS Panel will re-hear the case and remedy the elements violated through the previous award.[30]

 

Violation of public policy in doping-related cases

A CAS award can be annulled if it violates (procedural or substantive) public policy (Article 190 (2) (e) PILA). The Swiss Federal Tribunal has offered a wide variety of what constitutes (and what falls outside the scope of) public policy, also within the context of doping cases. An award can only be annulled for substantive reasons if it violates substantive public policy. The Federal Tribunal has reiterated in many cases its view that such notion is to be interpreted very narrowly and covers only “fundamental principles that are widely recognized and should underlie any system of law according to the prevailing conceptions in Switzerland”.[31] The SFT has acknowledged that the principles of strict liability and sanctions do not violate substantive public policy.[32] With specific regard to anti-doping rules, the Federal Tribunal found that awards that excessively restrict athletes’ personality rights may, under specific circumstances, violate the substantive public policy.[33] The issue of personality rights under Swiss law is also relevant in doping cases and is further examined below.

 

Application of Swiss procedural law to doping-related procedures before CAS: evidence, suspension of the CAS proceedings and provisional measures

While there is little relevance of Swiss law in terms of burden and standard of proof in doping cases (these questions are extensively regulated in the text of the WADC), the admissibility of specific forms of evidence is a question that is determined, at least to a certain extent, according to Swiss law.[34] More specifically, when a Panel determines the admissibility of evidence, it must be guided by - and comply with - the Swiss procedural public policy. In this respect, the SFT (within its review of potential violations of procedural public policy) has rendered judgments dealing with the admissibility of illegally obtained evidence[35] and the question of protected witnesses in doping and other disciplinary cases.[36]

Another example where Swiss procedural law has been applied to doping-related procedures before CAS is in case of request for a stay of the CAS proceedings pending criminal proceedings in another country. In CAS 2015/A/4129,[37] the athletes requested the CAS to defer the hearing of the appeal until after the pending criminal proceedings in Bulgaria are over and stay the sanctions imposed. According to Swiss (procedural) law, the alleged existence of criminal proceedings is not a mandatory ground for staying an arbitration procedure, particularly in cases where it is not argued that the Panel could not render a decision based on the evidence brought before it. Therefore, there was no convincing reason for granting a stay. [38]

Swiss law is also pretty relevant in provisional measures ordered by the CAS. Article R37 CAS Code has incorporated the general provision of Article 183 Swiss PILA. The criteria used by the Division President or the Panel when deciding whether to grant the provisional measures are largely inspired by the jurisprudence of the ordinary Swiss courts when deciding on similar requests. Accordingly, the three criteria that have to be cumulatively met are “whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondent(s)”. Article 13.1 of the 2015 WADC provides that “Decisions (…) shall remain in effect while under appeal unless the appellate body orders otherwise”.[39] In order to be admitted, the request has to be complete and accompanied by sufficient evidence.[40]

Apart from the request for provisional measures before the CAS, it is possible to request provisional relief together with the motion to set aside a CAS award before the SFT. There are numerous examples of similar requests, in particular requesting the stay of a doping suspension and the reinstatement of athletes before major competitions. Again, the procedure follows Swiss law and specifically Articles 103-105 of the Federal Tribunal Act.[41] In August 2016, the SFT dismissed the requests for provisional measures filed by Y. Isinbayeva and S. Shubenkov requesting the SFT to be allowed to participate in the Rio Olympic Games.[42] The SFT equally rejected the request for provisional measures filed by the RPC (together with the motion to set aside the CAS Award in the matter RPC v. IPC) in an effort to block the IPC decision to suspend the entire RPC (and its athletes) preventing them from participating in the Rio Paralympic Games.[43]

 

Application of Swiss law to the merits of a doping case

Article R58 of the CAS Code has adapted Article 187 Swiss PILA to sports arbitration and reads as follows: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. (…)”. Since not only WADA but also the vast majority of sports federations are based in Switzerland, Swiss law applies “subsidiarily” in most cases.[44] There are, however, also cases where another national law applies subsidiarily, either because the international federation is based in another country,[45] or because the appeal is governed by the national anti-doping regulations.[46] In some cases, the CAS has even applied Swiss law to doping disputes even though the applicable regulations expressly specified a different law, in an effort to achieve coherence in the interpretation of the anti-doping rules through the CAS case law.[47]

An example of Swiss law applying “subsidiarily” to the merits of a doping-related case can be found in CAS 2014/A/3604. In this case, the single issue was whether the athlete (an ice-hockey player) had a prohibited substance in his body during his participation at the Sochi Olympic Games. The Panel applied the WADC, the ADR, and the WADA International Standard for Laboratories (ISL) and Swiss law subsidiarily. The appellant challenged in particular the validity of the IOC DC decision, due to the fact that it was signed only by its chairman and therefore there were doubts as to whether it was a truly collegiate decision. Under Swiss law, the signature of the Chairman alone did not invalidate the IOC DC decision. Even if such requirement existed, it would constitute excessive formalism to hold that the sole signature of the Chairman would invalidate the decision.[48]

 

Specific provisions of Swiss law & general principles applicable to doping cases

Swiss law protects personality rights in Articles 27-28 of the Swiss Civil Code. Through the years, the SFT has developed the notion of personality rights including various rights such as “the right to health, physical integrity, honour, professional standing, the right personal fulfilment through sporting activities and the right to economic freedom”.[49] Since the ineligibility period for an anti-doping rule violation de facto restricts the economic freedom of the athlete, it is necessary to have a justification under Article 28 para. 2 of the Swiss CC.[50] In CAS proceedings, the violation of personality rights has been examined in the context of non-doping-related cases.[51]

 

Control of proportionality of a doping-related sanction and Swiss law 

As in all sanctions, the control of proportionality is systematically made in doping-related sanctions by CAS panels. Proportionality is a widely recognized principle in the Swiss legal system (emanating from constitutional and administrative law) and also a recognized principle under EU law.[52] The WADC includes provisions aiming at guaranteeing proportionality in the context of doping-related sanctions[53] but the principle of proportionality is also systematically examined by CAS Panels.[54] In CAS jurisprudence and for doping-related sanctions, proportionality means that “the severity of a sanction must be proportionate to the offense committed. To be proportionate, the sanction must not exceed that which is reasonably required in the search of the justifiable aim”.[55] The Panel thus controls (on a case by case basis and within the limits of the WADC) whether the sanction exceeds the justifiable aim and is therefore unlawful.[56]

The issue of proportionality was also extensively discussed in some recent CAS procedures. A recent example can be found in CAS 2016/A/4745,[57] the Panel examined the proportionality of the IPC decision to suspend the RPC without reservation or exceptions for the Russian Paralympic athletes. Some of the criteria considered were the “magnitude of the failure” of the RPC in what was found to be the “biggest doping scandal in sports history” and the zero tolerance Anti-Doping policy. Furthermore, the fight against doping constituted an “overriding public interest[58] and the damage caused by the non-compliance with the WADA Code was found to be substantial and there were found no obvious alternatives to the suspension of the RPC. Overall, the Panel found the IPC goals to be legitimate and the measure taken (i.e. the suspension of the RPC) to be appropriate to achieve the goals pursued, and the IPC decision was not in breach of its statutory provisions.[59]

 

Concluding Remarks`

Although the WADC harmonized the different anti-doping regulations and created a truly international regime for anti-doping rule violations, Swiss law continues to have a significant importance in the adjudication of doping-related procedures before the CAS. The importance of Swiss law is more evident when it comes to the procedural law, since the CAS is based in Switzerland and has to comply with the more general legal framework of international arbitral institutions seated in Switzerland (as the lex arbitri). As to the law applicable to the merits, Swiss law applies “subsidiarily” in all cases where the federation whose body issued the appealed decision is based in Switzerland. The importance of the law applicable to the merits is limited compared to the law applicable to the proceedings, also due to the fact that many legal concepts are internationally legal principles (e.g. the principle of proportionality).

 

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About the Author

Despina Mavromati

Despina Mavromati

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.

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Antonio Rigozzi

Antonio Rigozzi

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.

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