In a recent decision,(1) the Supreme Court dismissed a challenge against an arbitral award issued by the Court of Arbitration for Sport (CAS), once again confirming the CAS's independence and impartiality. The Supreme Court also dismissed the plaintiff's belated attempt to argue a violation of her right to a public hearing and it recalled that the application of the principle of presumed innocence in disciplinary proceedings before private law associations is not self-evident.
The dispute arose in the context of the doping scandal that involved Russia and a number of its athletes in connection with the Sochi 2014 Winter Olympics. A Russian biathlete was found to have violated anti-doping rules and was penalised accordingly by a disciplinary commission established by the International Olympic Committee (IOC).
The biathlete appealed the commission's decision before the CAS. Further to the formation of the arbitral tribunal, the biathlete unsuccessfully challenged its president. Thereafter, a hearing was held that was considered to be public, although the parties had decided to restrict access to the hearing room to a limited number of identified persons, in view of the covid-19 pandemic outbreak. The biathlete reiterated the objections that she had raised in her challenge of the presiding arbitrator and otherwise confirmed that her right to be heard had been fully respected.
In its award, the CAS held that, considering the IOC's limited investigation powers (compared to those of a national or international body tasked with applying the law), the arbitral tribunal may find that an anti-doping rule violation has been established even if it were impossible to base such finding on direct evidence alone. However, given the seriousness of the violations attributed to the biathlete, the IOC had to establish the biathlete's deliberate participation in the alleged violations; the mere establishment of a general system of doping involving Russia would be insufficient evidence to penalise the biathlete. The CAS concluded that the IOC had met this test and that the biathlete had indeed participated in the substitution of her urine for the purpose of concealing the presence of prohibited substances in violation of article 2.2 of the World Anti-Doping Code. Other violations were not established and thus the CAS partially admitted the appeal.
The biathlete challenged the CAS award before the Supreme Court.
The plaintiff argued that the arbitral tribunal had been improperly constituted, pursuant to article 190(2)(a) of the Private International Law Act. She asked the Supreme Court to re-examine the issue of the structural independence of the CAS, particularly considering the IOC's influence within the International Council of Arbitration for Sport (ICAS) on the selection and appointment of the CAS arbitrators.(2)
The Supreme Court found that the plaintiff was precluded from relying on this ground for challenge as she had never argued or a fortiori demonstrated during the arbitration proceedings that the CAS did not offer the necessary guarantees of independence.(3) Even if this plea were not precluded, the Supreme Court found that it would have had to be dismissed because the Supreme Court has already confirmed the CAS's independence several times.(4) In addition, the European Court of Human Right (ECHR) has also already found that the CAS has the appearance of a tribunal established by law and is truly independent and impartial, despite sports organisations' influence in the mechanism for appointing its arbitrators.(5) According to the Supreme Court, the plaintiff was thus attempting to reopen the debate on a question that had been definitively settled by the ECHR. Further, the Supreme Court stressed that the mechanism for appointing arbitrators had evolved from that examined by the ECHR, as the ICAS is no longer obliged to use a quota of arbitrators selected from among those proposed by sports organisations.(6)
Referring to article 6(1) of the European Convention on Human Rights and article 190(2)(e) of the Private International Law Act, the plaintiff argued that the arbitral tribunal had violated her right to a public hearing. According to her, she had not freely consented to the limitation of this right and the arbitral tribunal had not addressed her request to broadcast the hearing on the CAS website.(7)
The Supreme Court recalled that article 6(1) of the European Convention on Human Rights is not a separate ground for challenge and that it is incumbent on the plaintiff to demonstrate how the alleged violation of this provision is incompatible with procedural public policy within the meaning of article 190(2)(e) of the Private International Law Act.(8)
The plaintiff failed in such a demonstration as she had not invoked any violation of her right to a public hearing during the hearing. The Supreme Court found that her belated attempt to do so was incompatible with the principle of good faith.(9) The Supreme Court also recalled that it is possible to derogate from the right to a public hearing when necessary, which was the case due to the health risks related to the covid-19 crisis.(10)
In her last plea, the plaintiff argued that the disputed award was incompatible with substantive public policy as it violated the principle of presumed innocence. According to her, the arbitral tribunal found her guilty even though every step of the doping scenario alleged by the defendant had been ruled out.(11)
The Supreme Court noted from the outset that the automatic application of principles such as presumed innocence and in dubio pro reo is not self-evident in the case of disciplinary proceedings led by private law associations such as sports federations (as opposed to ordinary disciplinary or criminal proceedings).(12) Therefore, the plaintiff's criticisms could not be linked to the specific and strictly limited Swiss concept of public policy.(13)
In any event, the Supreme Court found that the plaintiff's arguments were not convincing because, although the arbitral tribunal found that there was no direct evidence establishing various acts imputed to the plaintiff, it accepted the possibility of finding an anti-doping rule violation in the absence of decisive direct evidence, provided that the plaintiff's deliberate participation in the alleged infringement was established (which it had been).(14) Therefore, the disputed award did not bear any internal contradiction and the result reached by the arbitral tribunal did not appear to be contrary to substantive public policy or even open to criticism.(15)
Thus, the Supreme Court dismissed the challenge.
This umpteenth confirmation of the CAS's independence is unsurprising. It shows how the CAS must deal with continuous criticisms raised against it, notwithstanding the Supreme Court's consistent and repeated findings in favour of the CAS's independence. Such findings have also received support from the ECHR. Thus, there seems to be limited room to reopen the debate on the question of the CAS's independence.
For further information on this topic please contact Daniela Franchini or Frank Spoorenberg at Tavernier Tschanz by telephone (+41 22 704 3700) or email ([email protected] or [email protected]). The Tavernier Tschanz website can be accessed at www.taverniertschanz.com.
(1) Supreme Court, 4A_644/2020, 23 August 2021.
(4) Ground 4.3.2, referring to Federal Tribunal decision (DTF) 129 III 445, ground 3.3.4 (Lazutina, 27 May 2003); DTF 144 III 120, ground 3.4.2; DTF 133 III 235, ground 22.214.171.124; Supreme Court, 4A_248/2019, ground 5.1.2).
(5) Ground 4.3.2, referring to Mutu and Pechstein v Switzerland (Applications 40575/10 and 67474/10), European Convention on Human Rights 324 (2018) (2 October 2018) and to Platini v Switzerland (Application 526/18), European Convention on Human Rights 232 (2020) (11 February 2020).
(12) Ground 6.3, referring to Supreme Court, 4A_462/2019, 29 July 2020; Supreme Court, 4A_178/2014, 11 June 2014; Supreme Court, 4A_488/2011, 18 June 2012.