(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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without FIFA being a party in such procedures. - Mr Reeb denies OLA’s assertions that CAS needs football to exist. A simple explanation is that if CAS should “lose” the football cases, the situation would simply be the same as when FIFA was not recognizing CAS, i.e. before 2004. - As to Article R59 of the CAS Code, Mr Reeb states that his intervention as General Secretary only relates to matters of pure form (clerical mistakes, standardisation of style with other CAS awards, etc.) and that he might draw the Panel’s attention to CAS case law when the award to be rendered is manifestly not in line with such case law. Mr Reeb notes that his advice is not binding on the arbitrators. - As to the list of arbitrators, Mr Reeb states that according to Article S14 of the CAS Code, in force in 2011, IOC, International Federations and National Olympic Committees can propose the nomination of arbitrators but ICAS has the fi nal exclusive competence about such nominations. Following the Lazutina case, CAS decided to publish a short biography and the CV of all the arbitrators. On 23 November 2011, ICAS Board dismissed OLA’s petition to challenge Messrs Lafranchi and Gay as arbitrators. Still on 23 November 2011, OLA, in view of the refusal of Messrs Blatter, Villiger, Infantino and the fi duciary company X. SA to testify before CAS, requested from the Panel to seek the assistance of the State Court in order to summon such persons to testify at the hearing, in application of Articles 375 para. 2 and 356 para. 2 of the Swiss Code of Civil Procedure (CCP). OLA further requested that the hearing be postponed. Further to Mr Leu’s letter dated 22 November 2011, OLA informed CAS on 23 November 2011 that it extended its request to the Panel to seek the State Court’s assistance to subpoena Mr Leu. Also on 23 November 2011, the Panel informed the Main and Third Parties of its decision to maintain the hearing date of 24 November 2011. The Panel further emphasized that Mr Reeb’s witness statement addressed most of the issues raised by OLA in its answer, which “may considerably reduce the discussion related to disputed facts and make the presence of witnesses and experts unnecessary”. Finally, the Panel stated that it would consider all issues related to evidence at the outset of the hearing and, if necessary, it reserved its right to appoint a second hearing at a later stage in the event that further evidence should be produced. On 24 November 2011, OLA requested that Mr Reeb’s witness statement be removed from the fi le as the fi ling of a witness statement by a witness called upon by a party is not foreseen in the CAS Code and as this witness statement amounts to a written submission. On 24 November 2011, a hearing took place at the CAS headquarters in Lausanne, Switzerland. On 8 December 2011, the Panel informed the Parties that it dismissed all of the pending requests for production of documents and subpoena of witnesses fi led by OLA, the grounds for the decisions would be given in the fi nal award. The Panel further informed the Main and Third Parties that the evidentiary procedure was closed and that the fi nal award would be issued on or before the 23 December 2011. On 14 December 2011, the Main and Third Parties were informed that the Award, without grounds, would be notifi ed to them on 15 December 2011. D. Parties’ Prayers for Relief 1. UEFA’s Prayers for Relief In its Statement of Claim and First Reply to Exception of Lack of Jurisdiction of 1 November 2011, Claimant requests that the Panel issue an award holding that: Requests and prayers for relief a) As to the merits: (i) To declare that UEFA Regulations, and the Regulations of the UEFA Europa League 2011/2012 in particular, are not for themselves in violation of Swiss law nor constitutive of an abuse of a dominant position pursuant to Swiss competition law and to the Federal Act of 6 October 1995 on Cartels and other Restraints of Competition in particular; (ii) To declare that the disciplinary measures taken by UEFA against OLA pursuant to the Regulations of the UEFA Europa League 2011/2012 and the UEFA Disciplinary regulations are not in violation of Swiss law and are not constitutive of an abuse of a dominant position pursuant to Swiss competition law and to the Federal Act of 6 October 1995 on Cartels and other Restraints of Competition in particular; Jurisprudence majeure / Leading cases - 183
(iii) To confi rm that OLA is not entitled to be reintegrated in the UEFA Europa League 2011/2012; (iv) To declare that UEFA did not violate Swiss law nor breach in any manner OLA’s personality rights or the personality rights of the six players by considering such six players ineligible as per the applicable UEFA regulations, the six players being Messrs S., P., J., B., M., and G.; (v) To confi rm that the players P., J., B., M., and G. shall not be permitted to participate in the UEFA Europa League 2011/2012 and the mentioned players as well as the player S. are not eligible in accordance with the applicable FIFA, UEFA and SFV/SFL regulations; (vi) To consequently lift the provisional measures ordered by the Tribunal Cantonal of Vaud (Cour Civile) on 5 October 2011; (vii) To deny any entitlement of Respondent against UEFA for compensation of damages; (viii) To grant the Claimant any further or other relief that may be appropriate. b) As to costs: To order OLA to bear all costs of these arbitration proceedings and to compensate Claimant for all costs incurred in connection with this arbitration, including but not limited to the arbitration costs, arbitrator fees, and the fees and/or expenses of Claimant’s legal counsel, witnesses and experts, in an amount to be shown. 2. OLA’s Prayers for Relief Together with its Response, OLA requested CAS to rule that: 1. Décliner sa compétence 2. Déclarer irrecevable la requête de l’UEFA dans toutes ses conclusions. 3. Mettre les frais de l’arbitrage à la charge de l’UEFA. E. Hearing A hearing was held in Lausanne on 24 November 2011. At the beginning of the hearing, OLA reiterated its request that the Panel solicits the assistance of the State Court (Article 375 para. 2 CCP) in order to subpoena the witnesses called by OLA. UEFA’s position in this regard is that the requested evidence is irrelevant as there is no doubt that CAS is an independent arbitral tribunal. OLA requested again that Mr Reeb’s witness statement be removed from the fi le and asked to be allowed to fi le the decision of the SFL Appeal Tribunal dated 21 November 2011 annulling the decision rendered by the SFL Disciplinary Commission pursuant to which the Players were suspended for fi ve games. The Panel informed the Parties that it would decide on OLA’s procedural requests at a later stage, depending on the relevance of the requests. The fi rst witness heard was Mr Matthieu Reeb, Secretary General of CAS. - Mr Reeb testifi ed on the functioning and the procedural rules of CAS. He fi rst confi rmed the content of his witness statement fi led on 23 November 2011. - The witness explained the procedure to nominate arbitrators to appear on the list of CAS according to Article S14 of the CAS Code in force in 2011. 1/5 th of the arbitrators are selected from among the persons proposed by the International Olympic Committee (IOC), 1/5 th from among the persons proposed by the International Federations, 1/5 th from among the persons proposed by the National Olympic Committees, 1/5 th , after appropriate consultations, with a view to safeguarding the interests of the athletes and 1/5 th from among persons independent from the aforementioned bodies. In this respect Mr Reeb admitted that the proportionality rule referred to in Article S14 of the CAS Code was not always followed, and that Article S14 of the CAS Code would be amended soon. - With respect to the fact that the “origin ” of the arbitrators was not publicly known, Mr Reeb testifi ed that ICAS created in 2003/2004 a list of arbitrators to be appointed upon proposal of football entities. He noted that biographies of all the arbitrators were published on the CAS website, thus enabling the parties to check on possible confl icts of interest. Mr Reeb also testifi ed that a simple request to CAS would allow a party to learn which entity proposed which arbitrator. - Mr Reeb further testifi ed that 1/3 of the arbitrators were often appointed, 1/3 occasionally and 1/3 very rarely. He referred to the freedom of each party to appoint an arbitrator of its choice. - Mr Reeb testifi ed that in the large majority of cases submitted to the ordinary procedure, i.e. except in Jurisprudence majeure / Leading cases - 184
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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
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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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Page 141 and 142: One of the reasons for that could b
Page 143 and 144: ingested by him was contaminated wi
Page 145 and 146: The Athlete refers the Panel to the
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Page 149 and 150: The USOC argues that the IOC Regula
Page 151 and 152: period of ineligibility (non-partic
Page 153 and 154: Arbitrage TAS 2011/A/2433 Amadou Di
Page 155 and 156: précisions sur les offres que le Q
Page 157 and 158: estrictions, non, entre les comité
Page 159 and 160: En date du 3 février 2011, la Comm
Page 161 and 162: II 271; H.M. RIEMER, Berner Komment
Page 163 and 164: onne foi et de respect de la procé
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Page 167 and 168: des droits de la personnalité. L
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Page 171 and 172: En l’espèce, celui qui cherchait
Page 173 and 174: évidence le fait que leur “condu
Page 175 and 176: toute activité liée au football
Page 177 and 178: Extracts from the legal fi ndings A
Page 179 and 180: Arbitration CAS 2011/O/2574 Union o
Page 181 and 182: SFL Appeals Tribunal of 29 July 201
Page 183 and 184: its position on OLA’s request for
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Page 189 and 190: CCP. The substantive validity of th
Page 191 and 192: 2.2 Article R46 (1) of the CAS Code
Page 193 and 194: constitutive of an abuse of a domin
Page 195 and 196: Claimant to indicate its prayers fo
Page 197 and 198: It results from the above that UEFA
Page 199 and 200: The UEL 2011/2012 is an internation
Page 201 and 202: The Panel considers that the sancti
Page 203 and 204: - discriminate OLA pursuant to Arti
Page 205 and 206: Appellant requested the matter be d
Page 207 and 208: The Panel is satisfi ed that the Bu
Page 209 and 210: E. Conclusion In summary, the Panel
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Page 215 and 216: in doping matters is to be upheld w
Page 217 and 218: * * 4A_404/2010 Judgment of 19 Apri
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Page 221 and 222: Art. 2.1 of the Statutes of Respond
Page 223 and 224: validity, namely with regard to its
Page 225 and 226: that he is a Turkish citizen, who p
Page 227 and 228: in the provisions of any other serv
Page 229 and 230: Respondent had their domicile, seat
Page 231 and 232: evidential submission took place ti
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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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