A recent CAS case highlighted a couple of interesting issues.
The case involved an athlete that failed an in-competition doping control test. It addressed which of the applicable regulations should be applied to the athlete to decide whether his results from other events within the competition should be disqualified, if any. The appeal was not in relation to the imposition of a three month suspension but solely focused on the disqualification of the athlete’s results on 16 December 2012, when the athlete undertook a further doping test that was negative for all prohibited substances, after the failed test on the 14 December 2012.
The first issue was in relation to the CAS’s scope of review. In accordance with article R57 of the CAS Code, CAS has the full power to review the facts and the law. Therefore, CAS can hear any matter de novo – afresh. However, some CAS Panels have, in the past, allowed restrictions where the first instance body was, in view of the very special circumstances of the case and/or in view of its technical expertise, in a better position to decide the matter. Clearly, this can be of significant importance to the athlete who may benefit greatly from a new/fresh hearing.
In this case, CAS explained that the rules at stake in the matter were based upon the WADA Code, the purpose of which was to ensure the uniform application of anti-doping standards throughout the world and across all sports. CAS could not see why a federation would have more expertise in applying the rules of a truly trans-national nature rather than CAS.
The decision went on to explain that restrictions to the fundamental right of access to justice should not be accepted easily, but only where such restrictions are justified both in the interest of good administration of justice and proportionality.
CAS jurisprudence is far from uniform, however there is considerable CAS jurisprudence stating that if an appeal is admissible then the matter is transferred to CAS for a complete rehearing and that CAS is not simply able to depart from a first instance decision if there is a compelling reason to do so as such a restriction would contravene R57. In the case of Kutrovsky CAS stated that the power conveyed in R57 is a "full one" and allows it to review the facts and the law.
The second issue is in relation to the European Convention of Human Rights (ECHR).
CAS highlighted Article 6 of the ECHR, to which it was indirectly bound, and stated that a person affected by a decision must have, in principle, access to (at least) one instance of justice. Importantly CAS went on to state that:
“…it goes without saying that doping sanctions strongly affect the rights of an athlete and that federation instances do not provide for access to justice within the meaning of Article 6 ECHR, since they do not guarantee adjudication of the facts and the law by a truly independent judicial instance”.
This issue is somewhat prevalent with associations in this country. For example, in football it is an FA Regulatory Commission who hears the matter at first instance and, should an appeal be made, an FA Appeal Board. It is certainly questionable as to whether either the FA Regulatory Commission or FA Appeal Board are independent.
As an aside, it is also interesting to note that the FA Regulations for Football Association appeals limits the scope of the player’s appeal in that he can only appeal on certain grounds including that the first instance body misinterpreted or failed to comply with the rules, came to a decision that no reasonable body could have come to, or that the sanction is excessive. Also, a player cannot appeal to CAS whereas FIFA or WADA can appeal an Appeal Board decision to CAS. It may be the case that domestic athletes get harsher treatment than their European or worldwide counterparts that are able to appeal to CAS and may have the benefit of a de novo appeal.