The judgment of the Swiss Federal Court of 29 January 2019 gives a good opportunity to review rulings of the CAS and of the Swiss Federal Tribunal as to due process.
The Swiss Supreme Court has held that, even the CAS had not breached the right of a party to defend herself by arguing on the issue of the starting point of the sanction of suspension from her sport activities, which was a consequence of the finding that she had been positive to a test of letrozole.
The athlete – a tennis professional – was found positive to an antidoping test on 16 February 2017 after having participated to the Australia Open and to the Fed Cup.
The independent Tribunal appointed by the Fédération Internationale de Tennis has suspended the athlete for two months starting from 3 August, date of its decision, and has disqualified the results of her competitions from 16 February to 7 June 2017.
The athlete has submitted her dispute with the Fédération Internationale de Tennis and the agency for the fight against doping before the CAS, seeking that her suspension be set aside and alternatively be reduced to the period between 16 February 2017 and 28 April 2017, time at which she had resulted negative to the same type of test.
The sanction of suspension takes effects from the date of the decision on suspension.
Nevertheless, the arbitrators have a discretion to rule that the sanction starts before the date of the award (what is referred to as “backdating”) provided that at least half of the suspension period must start from the award.
The agency has opposed the challenge and asked that the athlete be suspended for two years.
The CAS has rejected the challenge by the athlete and - allowing in part the agency’s counter challenge - has suspended her for ten months starting from the date of its judgment, 8 June 2018, and has disqualified the results of her performances from 16 February and 6 June 2018.
The athlete has challenged the CAS award before the Swiss Federal Tribunal.
The ground of her challenge is that she was not heard as to the starting point of her suspension.
The judgment of the Swiss Federal Court starts by affirming that “the right to be heard … does not require that an international award gives its grounds” (unofficial translation from the French original). The link between the two parts of this proposition seems to be that the award does not have to state the grounds for not allowing that party to be heard.
The Court has added that it intervenes on the right to be heard only if the non-respect of that right has prevented that party from arguing its case.
The Court has developed further this affirmation. It has started by recognizing that the right to be heard is constitutionally guaranteed.
It has gone further by affirming that the right to be heard mainly concerns fact issues, while the right to be heard on issues of law is recognized in a limited way.
By dealing then with the issue of the starting point of the suspension, the Court has noted that CAS has examined the issue of the starting point of the sanction and has held that it was doubtful that backdating would be less harmful to the athlete that not backdating.
The Court has noted that during the hearing before the CAS the parties had argued that issue and that appellant had submitted three possible options as to the starting point and had challenged the setting aside of the result of her performances from 16 February to 6 June 2017.
The Court has held that the CAS award has taken into account facts subsequent to the hearing, without having heard the parties on them. It follows from this that, when she has expressed herself at the hearing about the issue of backdating, she ignored the results of her performances after the hearing.
The Court has affirmed that by doing so, the CAS has breached the right of the athlete to be heard.
However, the Court has not set aside the award since, while the athlete could have argued that her previous performances were – in her opinion – negative, she could have not foreseen the result of her future performances and, in any event, a backdating was within the discretion of the arbitrators.
The Court has concluded that there was no evidence that the breach of the right of the athlete to be heard had the least influence on the CAS decision.
It is suggested that the judgment in issue raises some queries.
Its very first affirmation that the right of a party to be heard does not give rise to a duty of the arbitrators to provide grounds for its decision on it, is not very convincing. Since the Court recognizes that the right to be heard is constitutionally protected, it is submitted that it should follow from that that grounds for its decision on it should be provided.
Likewise, the Court’s conclusion that, although the athlete was not been able to express herself as to her performances subsequent to the hearing, she could not predict the future, does not seem to justify depriving her of the right to express her views, whatever they were, even if the final decision was within the discretion of the arbitrators.
It is suggested that it is better to exceed in favour of the right of a party to be heard rather than in the opposite sense.