(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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including CAS awards, if the parties had agreed in writing to be bound by it or participated in the arbitration proceeding 78 . Judicial recognition and enforcement of CAS awards under the New York Convention has the potential to legitimize the development of a body of lex sportiva thereby supplanting confl icting national laws in 144 countries that have signed this treaty 79 . The lex sportiva established by the collective body of CAS awards is accorded important legal international standing pursuant to the New York Convention’s requirement that the integrity of foreign arbitral awards generally be respected and enforced by national courts. This is a very signifi cant development, especially given the following factors: the monolithic global governing authority of IFs; required consent to CAS jurisdiction as a condition of a NOC’s recognition by the IOC or athlete’s eligibility to participate in Olympic and other international sports competitions; and potential confl icts with national laws that may provide greater substantive legal protection to individuals than are recognized by a CAS award 80 . Gatlin v. United States Anti-Doping Agency, Inc., illustrates how international law may enable a CAS award to effectively displace otherwise applicable national laws of an athlete’s home country by precluding a court from remedying their alleged erroneous interpre-tation or application by an arbitral tribunal 81 . In Gatlin, a federal district court ruled it did not have jurisdiction to consider Justin Gatlin’s claim that his four-year suspension imposed by CAS for a 2006 doping offense violated the Americans 78. Slaney v. Int’l Amateur Athletic Fed’n (IAAF), 244 F.3d 580 (7th Cir.), cert. denied, 534 U.S. 828 (2001); Gatlin v. U.S. Anti-Doping Agency, Inc., No. 3:08-cv-241/LAC/EMT, 2008 WL 2567657 (N.D. Fla. June 24, 2008). These cases are consistent with nonsports cases rejecting claims that a foreign arbitral award should not be enforced because it violates public policy. Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1445 (11th Cir. 1998) (fi nding no “violation of public policy of the sort required to sustain a defense under ... Convention”); Parsons & Whittemore Overseas Co. v. Societe Generale de L’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir. 1974) (“Convention’s public policy defense should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum state’s most basic notions of morality and justice”.). But see Dynamo v. Ovechkin, 412 F. Supp. 2d 24 (D.D.C. 2006) (refusing to enforce Russian arbitration award fi nding that Alexander Ovechkin is contractually obligated to play for Moscow Dynamo during the 2005-06 hockey season and banning him from playing for any other club because Dynamo did not prove Ovechkin agreed in writing to arbitrate the parties’ dispute). 79. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, United Nations Treaty Collection (Sept. 9, 2010), http:// treaties.un.org/pages/participationstatus.aspx (follow “Chapter XXII” hyperlink; follow “1. Convention on the Recognition and Enforcement of Foreign Arbitral Awards” hyperlink) (listing countries ratifying the Convention). 80. The CAS does provide two important procedural rights to athletes, namely the right to be heard before an independent and impartial panel of arbitrators, and de novo review of international sports governing body decisions, which is not constrained by national laws that would preclude a domestic court from providing the same scope of judicial review. See, e.g., Arbitration CAS 2008/A/11574, D’Arcy v. Australian Olympic Comm., award of July 7, 2008. 81. Gatlin, 2008 WL 2567657. With Disabilities Act (ADA) 82 . In an arbitration proceeding held in the United States, the CAS panel determined that Gatlin’s 2006 positive test for exogenous testosterone was his second doping offense (thereby subjecting him to an eight-year suspension pursuant to an IF’s antidoping rule) because he previously tested positive for amphetamines in 2001, which was his fi rst doping violation. Gatlin asserted that characterizing his 2001 positive test, which resulted from taking prescription medication for his attention defi cit disorder, as his fi rst doping offense (even though the IAAF had restored his eligibility because he was taking it for a legitimate medical reason) violated the ADA, which the CAS panel rejected 83 . However, the CAS panel reduced Gatlin’s suspension to four years based on its fi nding that the circumstances surrounding his 2001 doping offense constituted exceptional circumstances justifying a reduction from the rule’s prescribed eight-year duration. The court characterized the CAS panel’s rejection of Gatlin’s ADA claim as an “arbitrary and capricious” decision 84 . The court found this error did not “rise to the level of moral repugnance” required by the New York Convention’s public policy exception, which would justify judicial refusal to recognize a CAS award 85 . Rather, the court effectively recognized and enforced the CAS arbitration award by refusing to permit Gatlin to relitigate its merits under the ADA 86 . Expressing concern that its ruling “is quite 82. Id. However, U.S. domestic sports law generally does not provide athletes with greater legal rights than the developing body of lex sportiva. Strict liability for Olympic sports doping violations is permissible. See, e.g., Walton-Floyd v. U.S. Olympic Comm., 965 S.W.2d 35 (Tex. App. 1998). Monolithic private sports governing bodies may establish “take it or leave it” terms applicable to their members and athletes as a condition of eligibility to participate in competitive sports. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 939 P.2d 1049 (Nev.), cert. denied, 522 U.S. 1028 (1997). U.S. courts refuse to allow state law to directly regulate the internal affairs of national sports governing bodies. See Flood v. Kuhn, 407 U.S. 258 (1972); Nat’l Collegiate Athletic Ass’n v. Miller, 10 F.3d 633 (9th Cir. 1993); Partee v. San Diego Chargers Football Co., 668 P.2d 674 (Cal. 1983). Moreover, the CAS’s de novo review of international sports governing body rules and conduct exercised is more exacting than the very deferential arbitrary and capricious standard of review that U.S. courts generally exercise in reviewing domestic sports governing body rules and conduct. See generally Matthew J. Mitten & Timothy Davis, Athlete Eligibility Requirements and Legal Protection of Sports Participation Opportunities, 8 Va. Sports & Ent. L.J. 71 (2008). 83. Arbitration CAS 2008/A/1461, Gatlin v. USADA, award of June 6, 2008. In rejecting Gatlin’s ADA claim, the CAS panel stated: The Panel agrees with the IAAF’s argument that there was no discrimination on the basis of a disability in this instance. The Panel is of the view that in order to constitute a violation, Mr. Gatlin must have been prevented from competing by virtue of his disability.... The Panel notes from Mr. Gatlin’s own submissions that “[h]is ADD affected his ability to focus in the classroom .... While Mr. Gatlin’s disability admittedly put him at a disadvantage in the classroom, it in no way put him at a disadvantage on the track. Indeed, until recently, he was the reigning 100m Olympic champion. Id. para. 32. 84. Gatlin, 2008 WL 2567657, at *1. 85. Id. 86. The Gatlin court cited and relied upon Slaney v. Int’l Amateur Athletic Fed’n (IAAF), 244 F.3d 580 (7th Cir.), cert. denied, 534 U.S. 828 (2001), in which the United States Court of Appeals for the Seventh Articles et commentaires / Articles and commentaries - 11
troubling because . . . United States Courts have no power to right the wrong perpetrated upon one of its citizens,” the court observed that Gatlin’s only judicial recourse was to request that the Swiss Federal Tribunal vacate the CAS award 87 . Gatlin is consistent with the general refusal of U.S. courts to review the merits of claims resolved by arbitration awards 88 . Of interest to comparative and arbitration law scholars is the apparent confl ict between U.S. courts and the European Court of Justice (ECJ) regarding public international law and its relation to the state, specifi cally whether a fi nal and binding arbitration award should preclude judicial reconsideration of the merits of the dispute it resolves 89 . In Meca-Medina & Majcen v. Commission of European Communities, the ECJ allowed two professional swimmers (a Spaniard and a Slovenian) to relitigate the merits of their claim that the Fédération Internationale de Natation (FINA)’s rule regarding the minimum level of nandrolone (a banned substance) in one’s system suffi cient to establish a doping offense violated European Union law 90 . A CAS panel had previously rejected their contention 91 , but reduced on other grounds the four-year suspension imposed on both swimmers by FINA, the Swiss-based IF for swimming, for testing positive for nandrolone during the 1999 World Cup swimming competition in Brazil 92 . Rather than appealing the CAS panel’s award to the SFT, the swimmers brought separate litigation alleging that the subject antidoping rule contravened European Circuit held that a U.S. athlete’s state law claims seeking to relitigate the same doping dispute issues decided by a valid foreign arbitration award are barred by the New York Convention. It concluded, “Our judicial system is not meant to provide a second bite at the apple for those who have sought adjudication of their disputes in other forums and are not content with the resolution they have received”. Id. at 591. See Weston, supra note 37, at 103-04 (“The United States has implicitly assigned the protection of the rights of its [athletes] to a private international tribunal seated in a foreign nation.”). 87. Gatlin, 2008 WL 2567657, at *1-2. In April 2009, Gatlin settled his claims against all defendants (USOC, USA Track and Field, the United States Anti-doping Agency, and the International Association of Athletics Federations) on terms that were not publicly disclosed. Gatlin Settles Suit with USADA, USOC and Others, Universal Sports, Apr. 14, 2009, http:// www.universalsports.com/news/article/newsid=284396.html. 88. Thomas E. CARBONNEAU, The Revolution in Law Through Arbitration, 56 Clev. St. L. Rev. 233, 239-41 (2008). 89. See MITTEN, supra note 65, at 64-67. 90. Meca-Medina v. Comm’n of European Cmtys., 2006 E.C.R. I-6991. 91. Arbitration CAS 99/A/234 and 99/A/235, Meca-Medina & Majcen v. Fédération Internationale de Natation Amateur (FINA), award of Feb. 29, 2000, paras. 4.4-.10; see also Arbitration CAS 2005/A/951, Cañas v. ATP Tour, award of May 23, 2007 (concluding that WADA antidoping rules and sanctions do not violate European law); Massimo COCCIA, Applicable Law in CAS Proceedings: What To Do with EU Law?, in Sport Governance, Football Disputes, Doping and CAS Arbitration, supra note 130 (discussing the relationship between CAS proceedings and EU law). 92. Arbitration CAS 2000/A/270, Meca-Medina & Majcen v. Fédération Internationale de Natation (FINA), award of May 23, 2001. Union competition and freedom to provide services laws. The ECJ ruled that European Union law applied because FINA’s doping rules have the requisite effect on economic activity by regulating professional swimming. However, it rejected the swimmers’ claims on their merits because they failed to prove that the rule regarding the minimum level of nandrolone suffi cient for a doping violation was not disproportionate to FINA’s legitimate objectives of ensuring that athletic competitions are conducted fairly and protecting athletes’ health. However, it is remarkable that the ECJ did not consider that their European Union law claims had been expressly rejected by a prior CAS award, which the swimmers had agreed would be fi nal and binding, or whether the fact that Switzerland, Spain, and Slovenia are parties to the New York Convention should preclude relitigation of their merits. Although the ECJ’s decision effectively upheld the CAS award, Meca- Medina establishes precedent that permits future judicial challenges to the merits of CAS awards based on European Union law. The potential for a CAS award to displace otherwise applicable national laws of an athlete’s home country is also illustrated by an Australian court’s decision in Raguz v Sullivan 93 . Citing irregularities in an Australian NGB’s application of the selection criteria, the CAS ruled that Raguz’s selection for the Australian Olympic Team should be revoked and that another competitor should be selected instead. The New South Wales Court of Appeal rejected Raguz’s request that it reverse the CAS ruling because the court lacked jurisdiction to do so. Curiously, the court did not base its ruling on the New York Convention, to which Australia is a party, or the federal legislation that implements it 94 . Instead, it relied on nationally uniform arbitration laws enacted by Australian state legislatures 95 . Raguz contracted with the Australian Olympic Committee to resolve any disputes by CAS arbitration rather than litigation in an Australian court, which is permitted by the uniform state arbitration laws for an arbitration “in a country other than Australia” 96 . Because the seat of all CAS arbitrations is Lausanne, Switzerland, irrespective of where the arbitration proceeding is conducted, the court held that state arbitration law precluded it from considering the merits of Raguz’s claims 97 . The 93. Raguz v Sullivan (2000) 50 NSWLR 236 (Austl.); see also Damian STURZAKER & Kate GODHARD, The Olympic Legal Legacy, 2 Melb. J. Int’l L. 241 (2001) (analyzing the Raguz decision). 94. International Arbitration Act 1974 (Cth) (Austl.). 95. Commercial Arbitration Act 1984 (NSW) s 40 (Austl.). 96. International Arbitration Act 1974 (Cth) s 3(1) (Austl.). 97. Raguz v. Sullivan (2000), 50 NSWLR 236, 257 (Austl.). Articles et commentaires / Articles and commentaries - 12
Page 1 and 2: Bulletin TAS CAS Bulletin 1 / 2012
Page 3 and 4: Arbitration CAS 2011/O/2422 .......
Page 5 and 6: “ Sports law ”: implications fo
Page 7 and 8: and procedures of the CAS 10 . The
Page 9 and 10: 2. Considering the plenary power of
Page 11 and 12: over the emerging game of indoor so
Page 13: appeals arbitration proceedings, ab
Page 17 and 18: La médiation : processus et applic
Page 19 and 20: Ainsi, la solution au confl it éma
Page 21 and 22: voir sa demande profonde comprise :
Page 23 and 24: pour les parties elles-mêmes. Cell
Page 25 and 26: divergent sur l’exécution (mer/m
Page 27 and 28: Ces deux grands courants font l’o
Page 29 and 30: peine de retomber rapidement dans u
Page 31 and 32: mémoires déposés par les parties
Page 33 and 34: d’un règlement d’obtenir un av
Page 35 and 36: • une brève description des moye
Page 37 and 38: R64.2 (…) R65 Appels contre des d
Page 39 and 40: written comments and shall give bri
Page 41 and 42: his own discretion, the questions s
Page 43 and 44: strong links between the two 1 . In
Page 45 and 46: According to Article 17.4 “If any
Page 47 and 48: Finally, in the absence of other de
Page 49 and 50: epresentative (Respondent) argued t
Page 51 and 52: Figure 2: Orders on language in CAS
Page 53 and 54: litiges pouvant être soumis à la
Page 55 and 56: au lien du litige en cause avec le
Page 57 and 58: Contrairement aux autres institutio
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Page 61 and 62: Investigating magistrate no. 31 of
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interference by state courts) with
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against doping in sports. To achiev
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Arbitration CAS 2010/A/2091 Dennis
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had stated that his claim had been
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effectiveness and validity of that
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another players’ agent (…) oper
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Beitar FC. In the Appellant’s vie
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The referred letter, in its pertine
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8. Condemn the Respondent to the pa
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It is clear for the Panel that the
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damage. There is wilful damage when
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in the determination of the compens
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Arbitration TAS 2010/A/2220 Corina
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En date du 27 août 2010, l’Appel
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2010, le droit de Greffe acquitté
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Il relève en effet que leur versio
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Arbitration C AS 2010/A/2275 Croati
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of golf clubs in Croatia had withdr
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(depending upon the translation) th
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waiting until the eve of the AGM 20
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provisional suspension and also to
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that it did not have any particular
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c) The resolution fi le dated Febru
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2011, Art. 156 no. 11 ff) if the ev
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Article 293 UCI ADR determines the
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The Decision seems to be based on t
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clenbuterol can only have entered t
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- how the Prohibited Substance ente
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entry into his system of the Prohib
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which will be addressed in detail b
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in those countries is rampant. Sinc
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as high as 1 out of 100 slaughtered
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athletes having tested positive to
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illustrate that his blood values ar
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specifi c gravity of 1.020. Without
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values of subjects that did not und
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urine tests performed the evenings
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WADA that the calculations regardin
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One of the reasons for that could b
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ingested by him was contaminated wi
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The Athlete refers the Panel to the
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athlete but withdrawn once the time
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The USOC argues that the IOC Regula
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period of ineligibility (non-partic
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Arbitrage TAS 2011/A/2433 Amadou Di
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précisions sur les offres que le Q
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estrictions, non, entre les comité
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En date du 3 février 2011, la Comm
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II 271; H.M. RIEMER, Berner Komment
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onne foi et de respect de la procé
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son exploitation mais, comme observ
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des droits de la personnalité. L
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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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