(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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assessing the balance of probabilities. In achieving this two preliminary considerations must be accounted for: a) First, given the universal principle of the presumption of innocence; nobody can be convicted without benefi tting from due process; i.e. from a proceeding that respects the principles of a fair hearing, of equality and of the right to be heard. b) Second, the different value of the evidence presented at the stage of proceedings before the CNCDD of the RFEC. In this case, two opposing sets of scientifi c evidence are confronted, which are relevant when it comes to assessing the situation. On the one hand, the tests of the Cologne Laboratory, which has the most advanced technology in the world to detect clenbuterol below the levels required of other laboratories (2 pg/mL), prove the presence of clenbuterol in the bodily sample of the Athlete, but do not enable to determine how it entered the latter’s body, despite such determination being necessary because of the strict liability principle. On the other side, the evidence produced by the Athlete, who has made considerable efforts to adduce written expert evidence of a type which would not even be accessible to more than a few professional athletes with signifi cant income, and who has thus scientifi cally proven before the CNCDD of the RFEC that the cause of the adverse analytical fi nding was a food contamination, even though this origin can only remain a probability due to the absence of any direct and positive proof. This probability prevails over other scenarios, in light of the evidence presented by the Athlete. Furthermore, although it is true that authoritative scholars and the jurisprudence of CAS qualify the criteria laid down under the WADC as entailing the strict liability of athletes, this does not mean that the subjective element is completely absent in the interpretation of the standard. It only means that the “onus probando” is inversed. An athlete can escape sanctioning nonetheless if he/she proves that: a) there is absence of fault or no signifi cant fault (Article 9 WADC); and b) he/she did not seek to improve his/ her performance (Article 10.4 WADC). In this case, the problem is that both parameters are subject to interpretation. If one wants a cold justice, scientifi c and detached from the fundamental principles of the sanctioning law and from fundamental human rights, the judge, in this case the Panel, should give priority to the literal meaning of the words and direct evidence. If, however, one aspires to a different, more human and equitable sports justice, which respects and protects the fundamental rights of athletes to participate in doping-free activities, to promote their health and always ensure equity and equality in sports, the award must be based on the purpose or will of the legislator, favouring judicial discretion to the detriment of the ultimate predictability of the award. The RFEC emphasises that the evidence put forward in the proceedings before the CNCDD was different from the evidence put forward in the present CAS proceeding. The procedure followed before the CAS allows the parties, according to Article R57 of the Code, to bring new evidence that has not been presented and examined in the fi rst instance proceeding and is not known to this party. Accordingly, it is clear that one faces two different evidentiary scenarios, one which arose in front of the disciplinary body of the federation of which the Athlete is a member (the CNCDD of the RFEC) and another which is submitted in the appeal to the CAS. Therefore, the balance of probabilities discussed in the fi rst instance by the CNCDD of the RFEC could have some variation in light of new evidence presented in this second instance, to which the sanctioning body of the RFEC never had access. Even though the CNCDD of the RFEC made its decision on the basis of a different evidentiary scenario from the one elaborated in front of the CAS, i.e. taking into account the evidence presented by the Athlete and the absence of other evidence apart from the adverse analytical fi nding itself, the new evidence presented by the Appellants on appeal in front of the CAS is insuffi cient to tip the balance of probability towards an anti-doping rule violation by food contamination. Thus, the determination of the CNCDD of the RFEC as to the balance of probabilities was correct in the fi rst instance and remains valid. 3.5 Position of the Panel 3.5.1 The point of departure The Panel notes that it is not in dispute that the Appellants successfully established that Mr Contador committed an anti-doping rule violation. Neither is it disputed that in order for the Athlete to escape a two-year sanction, he must establish, on a balance of probability: Jurisprudence majeure / Leading cases - 115
- how the Prohibited Substance entered the Athlete’s system; and - that he bears no fault or negligence, or no signifi cant fault or negligence. Consequently, the burden of proof shifts to the Athlete and the standard of proof for the Athlete to establish his theory how the prohibited substance entered his body is, pursuant to Article 22 UCI ADR, on a “balance of probability”. The parties to these proceedings are in dispute as to how the term “burden of proof ” is to be understood and what obligations derive therefrom. The applicable regulations do not defi ne the term “burden of proof ”. Despite the notion of “burden of proof” being tied to the taking of evidence, the predominant scholarly opinion is that – in international cases – burden of proof is governed by the lex causae, i.e. by the law applicable to the merits of the dispute and not by the law applicable to the procedure (POUDRET/BESSON, Comparative Law of InternationalArbitration, 2 nd ed, 2007, no 643; KAUFMANN-KOHLER/RIGOZZI, Arbitrage International, 2 nd ed., 2010, no 653a; BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2 nd ed, 2010, no 1203). Therefore, the fi rst question to be determined is which is the applicable law to the merits, other than the UCI Regulations, to which the Panel can turn for any necessary clarifi cations concerning the content of the “ burden of proof ”. While Art. 345 UCI ADR points – at least subsidiarily – to Swiss Law, Art. 369 of the UCI ADR provides that “[T]hese Anti-Doping Rules shall be interpreted as an independent and autonomous text and not by reference to existing law or statutes”. Despite the contradiction in the regulations the Panel will seek guidance from Swiss law to the extent that this is compatible with international standards of law. Under Swiss law, the “burden of proof” is regulated by Art. 8 of the Swiss Civil Code (“CC”), which, by stipulating which party carries such burden, determines the consequences of the lack of evidence, i.e. the consequences of a relevant fact remaining unproven (non liquet, cf BSK-ZGB/SCHMID/LARDELLI, 4 th ed., 2010, Art 8 no 4; KuKO-ZGB/MARRO, 2012, Art. 8 no 1). Indeed, Art. 8 CC stipulates that, unless the law provides otherwise, each party must prove the facts upon which it is relying to invoke a right, thereby implying that the case must be decided against the party that fails to adduce such evidence. Furthermore, the burden of proof not only allocates the risk among the parties of a given fact not being ascertained but also allocates the duty to submit the relevant facts before the court/tribunal. It is the obligation of the party that bears the burden of proof in relation to certain facts to also submit them to the court/tribunal (ATF 97 II 216, 218 E. 1; BSK-ZGB/ SCHMID/LARDELLI, 4 th ed 2010, Art 8 no 31; DIKE- ZPO/Glasl, 2011, Art 55 no 15). The question of who bears the risk of a certain fact not being ascertained only comes into consideration if the fact submitted by the party bearing the burden of proof is contested by the other party. Therefore, a crucial question is what efforts a party must make in order to validly contest the allegations made by the other party. According to Swiss Law a valid contestation of facts needs to be specifi c, i.e. it must be directed and attributable to an individual fact submitted by the party bearing the burden of proof (DIKE-ZPO/ LEU, 2011, Art 150 no 59). Whether in addition to that, the contesting party needs to substantiate its submission, in particular whether the contesting party is under an obligation to give an explanation of why it thinks that the facts it contests are wrong, is not clearly regulated. The new CPC appears to point in that direction (DIKE-ZPO/LEU, 2011, Art 150 no 59). However, the threshold for meeting such an obligation to specify the contestation is – under normal circumstances - rather low, since it must be avoided that the prerequisites for contesting an allegation result in a reversal of the burden of proof (BSK-ZPO/GUYAN, 2010, Art 150 no 4; BSK-ZGB/ SCHMID/LARDELLI, 4 th ed, 2010, Art 8 no 30). Nevertheless, there are exceptions to this low threshold. The exceptions concern cases in which a party is faced with a serious diffi culty in discharging its burden of proof (“ état de nécessité en matière de preuve ”, “Beweisnotstand ”). A cause for the latter may be that the relevant information is in the hands or under the control of the contesting party and is not accessible to the party bearing the burden of proof (cf ATF 117 Ib 197, 208 et seq). Another reason may be that, by it very nature, the alleged fact cannot be proven by direct means. This is the case whenever a party needs to prove “negative facts ”. Jurisprudence majeure / Leading cases - 116
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Bulletin TAS CAS Bulletin 1 / 2012
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Arbitration CAS 2011/O/2422 .......
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“ Sports law ”: implications fo
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and procedures of the CAS 10 . The
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2. Considering the plenary power of
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over the emerging game of indoor so
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appeals arbitration proceedings, ab
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troubling because . . . United Stat
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La médiation : processus et applic
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Ainsi, la solution au confl it éma
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voir sa demande profonde comprise :
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pour les parties elles-mêmes. Cell
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divergent sur l’exécution (mer/m
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Ces deux grands courants font l’o
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peine de retomber rapidement dans u
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mémoires déposés par les parties
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d’un règlement d’obtenir un av
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• une brève description des moye
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R64.2 (…) R65 Appels contre des d
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written comments and shall give bri
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his own discretion, the questions s
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strong links between the two 1 . In
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According to Article 17.4 “If any
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Finally, in the absence of other de
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epresentative (Respondent) argued t
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Figure 2: Orders on language in CAS
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litiges pouvant être soumis à la
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au lien du litige en cause avec le
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Contrairement aux autres institutio
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coûts doivent être raisonnables 4
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Investigating magistrate no. 31 of
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2. Proper Defendants Article 282 of
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interference by state courts) with
Page 67 and 68: against doping in sports. To achiev
Page 69 and 70: Arbitration CAS 2010/A/2091 Dennis
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Page 91 and 92: En date du 27 août 2010, l’Appel
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Page 95 and 96: Il relève en effet que leur versio
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Page 109 and 110: c) The resolution fi le dated Febru
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Page 115 and 116: The Decision seems to be based on t
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Page 121 and 122: entry into his system of the Prohib
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Page 125 and 126: in those countries is rampant. Sinc
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Page 153 and 154: Arbitrage TAS 2011/A/2433 Amadou Di
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ne peut que prendre note de remarqu
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En l’espèce, celui qui cherchait
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évidence le fait que leur “condu
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toute activité liée au football
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Extracts from the legal fi ndings A
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Arbitration CAS 2011/O/2574 Union o
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SFL Appeals Tribunal of 29 July 201
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its position on OLA’s request for
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- production par la fondation du co
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(iii) To confi rm that OLA is not e
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CCP. The substantive validity of th
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2.2 Article R46 (1) of the CAS Code
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constitutive of an abuse of a domin
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Claimant to indicate its prayers fo
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It results from the above that UEFA
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The UEL 2011/2012 is an internation
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The Panel considers that the sancti
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- discriminate OLA pursuant to Arti
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Appellant requested the matter be d
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The Panel is satisfi ed that the Bu
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E. Conclusion In summary, the Panel
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Appellant described as caffeine pil
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apply the various regulations of FI
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in doping matters is to be upheld w
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* * 4A_404/2010 Judgment of 19 Apri
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BGG; Jean-Maurice Frésard, in Comm
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Art. 2.1 of the Statutes of Respond
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validity, namely with regard to its
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that he is a Turkish citizen, who p
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in the provisions of any other serv
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Respondent had their domicile, seat
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evidential submission took place ti
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un contrôle antidopage ou à l’a
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essortissant à la conception suiss
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4A_428/2011 Arrêt du 13 février 2
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interdiction d’exécuter les sanc
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Il leur a cependant échappé que c
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éférence (arrêt 4A_246/2011 du 7
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l’AMA entendait tirer de la Conve
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4A_652/2011 Arrêt du 7 mars 2012 I
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