(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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.).
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