On October 3 2011 the Supreme Court issued an interesting decision,(1) in which it dismissed a motion to set aside an award rendered by the Court of Arbitration for Sport (CAS).
A, a middle-distance runner, was a member of the athletics federation of her home country, Z. In December 2008 the anti-doping commission of Z suspended her for a two-year period because she had breached certain anti-doping regulations. Two years later, A refused to submit to a doping test. As a result of this second offence, the commission imposed a lifetime ban on A. A appealed this decision before the CAS and applied for legal aid (which was granted). On July 26 2011 the CAS dismissed A's appeal and confirmed the commission's decision. A lodged an appeal against the CAS award before the Swiss Supreme Court. A sought to have the CAS award set aside on the grounds that:
- the commission did not meet the requirements of an "independent and impartial tribunal";
- the proceedings conducted before the commission were procedurally flawed; and
- the CAS did not have the authority to remedy these violations of A's procedural rights.
In its decision, the Supreme Court highlighted the rule pursuant to which the CAS has "full power to review the facts and the law [and] may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance".(2)
In this context, the Supreme Court referred to one of its recent decisions in the Valverde saga,(3) where it held that the CAS was entitled to bar an athlete from taking part in sports events, notwithstanding the fact that the relevant national commission had refused to initiate disciplinary proceedings against the athlete. Thus, the CAS has a wide power to review the facts and the law in the context of appeal arbitration proceedings within the meaning of Articles R 47 and following of the CAS Code. Against this background, the Supreme Court held that, in the case at hand, the CAS had the authority to cure the procedural flaws which purportedly affected the proceedings that had been conducted by the commission. As a result, the Supreme Court dismissed A's appeal.
This decision emphasises the wide discretion of the CAS in appeal arbitration proceedings. In particular, the CAS may:
- cure any procedural deficiencies which occurred at the level of the sports organisation whose decision is being challenged; and
- issue a new ruling (as opposed to quashing the decision challenged and referring the case back to the relevant sports organisation).
From a more practical perspective, this decision is a useful reminder that the International Council of Arbitration for Sport (the independent body which supervises the CAS) has created a legal aid fund, which is available to facilitate access to CAS arbitration for individuals without sufficient financial means (although the specific legal aid guidelines expected from the CAS remain to be published). By contrast, in the context of the challenge of a CAS award before the Supreme Court, legal aid is granted to financially weak parties only if their case is not prima facie unfounded (Article 64 of the Supreme Court Act). In practice, the Supreme Court grants legal aid only in rare instances.
Finally, the Supreme Court used a somewhat surprising legal terminology in its decision when it stated that the CAS was entitled to review de novo the decision of the "first-instance authority" ("autorité de première instance" in Paragraph 3.3.2 of the original French text). Arguably, it is not legally accurate to portray the CAS as a second instance authority, as this decision of the Supreme Court might suggest. The purpose of the chapter of the CAS Code dedicated to the appeal arbitration procedure is to pave the way for the challenge of a decision taken by a sports organisation. As regards Swiss-based sports organisations (which are generally structured in the form of an association within the meaning of Articles 60 and following of the Civil Code), the CAS proceedings constitute the procedural tool to exercise the right to challenge a decision taken by a body of an association (as set forth in Article 75 of the Civil Code). In terms of remedies, the CAS is therefore acting as a first instance authority, in the same way that a court of first instance would if the dispute were referred to it absent an arbitration agreement in favour of the CAS.
For more information please contact Philipp Fischer, Marjolaine Viret or Rocco Rondi at Lenz & Staehelin by telephone (+41 58 450 7000), fax (+41 58 450 7016) or email ([email protected], [email protected] or [email protected]).
Endnotes