In a French-language decision dated 2 May 2018, the Swiss Supreme Court partially upheld a challenge against a Court of Arbitration for Sport (CAS) award.
Arman-Marshall Silla, a Belarus taekwondo athlete, underwent an out-of-competition doping test revealing the presence of meldonium, a prohibited substance. On 10 November 2016, the National Anti-Doping Agency of Belarus recommended that the Belarus Taekwondo Federation (BTF) disqualify Silla for a two-year period. On 23 November 2016, the BTF decided not to sanction Silla. On 17 January 2017, the World Anti-Doping Agency filed an appeal with the CAS against the decision of the BTF. In the CAS proceedings, the athlete and the BTF were initially represented by the same counsel and filed a joint answer to the appeal. After Silla instructed new counsel, he filed an additional submission amending his requests for relief, asking that the period of ineligibility commence on the date on which he was tested positive, as opposed to the effective date of the CAS award. The CAS allowed the appeal and sanctioned Silla to a four-year ineligibility period starting on the effective date of the CAS award.
Silla challenged the CAS award arguing, among other things, that the sole arbitrator had breached Silla's right to be heard (Article 190(2)(d) Private International Law Act 1989 (PILA)) because he had failed to address the request for relief contained in his additional submission.
The court partially upheld the challenge, holding that the sole arbitrator omitted to take into consideration Silla's amended request for relief. Confirming its established case law, the court held that:
- Silla's amended request for relief was duly made in the arbitration proceedings, as it was admitted on the record.
- The sole arbitrator's omission was material insofar as it influenced the outcome of the dispute. In fact, had the sole arbitrator accepted Silla's request for relief, his period of ineligibility would have expired at an earlier date than that resulting from the CAS award.
The court remanded the case to the sole arbitrator for determination of the commencement date of the period of ineligibility.
This is one of the very rare instances a challenge to the court was actually successful. Given that the sole arbitrator's omission to consider the amended requests for relief submitted by Silla was so obvious, it seems that the court had no choice but to (partially) uphold the challenge.
Case: Decision 4A_478/2017, dated 2 May 2018.