Rivista di Diritto ed Economia dello Sport - Rdes.it

236 Giurisprudenza Internazionaleregulations, including the rules on sanctions. Such sanctions are thus notconsidered as violations of one’s personality 94 as long as they are not excessiveunder art. 27.2 Swiss Civil Code.1.4.5 Limitations on Contractual Penalties141 The same result is reached by applying art. 163 Swiss Code ofObligations (CO) which governs contractual penalties or liquidated damages(“Konventionalstrafen”, “peines”). According to art. 163.1 of the CO,liquidated damages may be agreed upon in any amount by the parties.Excessively high liquidated damages shall be reduced at the discretion of thejudge. 95 Whether sanctions imposed by associations upon their memberscan be regarded as liquidated damages or contractual penalties, is disputed. 96However, it is the Panel’s opinion that it is justified in seeking assistancefrom these provisions since (i) the relationship between athletes and nationalor international sports federations is often based on contracts instead ofdirect membership and (ii) art. 163 of the CO reflects the fundamentalprinciples which have been established also by art. 27 and 28 of the SwissCivil Code, namely, the right of the parties to agree to confer a wide discretionin the regulation of their own affairs and the right or jurisdiction of thecourts only to interfere if such discretion has been abused.1.5 Conclusion142 The Panel concludes that Swiss law grants an association a widediscretion to determine the obligations of its members and other peoplesubject to its rules, and to impose such sanctions it deems necessary toenforce the obligations.143 The right to impose a sanction is limited by the mandatory prohibitionof excessive penalties, which is embodied in several provisions of Swiss law.To find out whether a sanction is excessive, a judge must review the typeand scope of the proved rule-violation, the individual circumstances of thecase, and the overall effect of the sanction on the offender. However, only ifthe sanction is evidently and grossly disproportionate in comparison withthe proved rule violation and if it is considered as a violation of fundamentaljustice and fairness, would the Panel regard such a sanction as abusive and,thus, contrary to mandatory Swiss law.2. Are the Rules of the WADC which Differ Substantially from the FIFAAnti-Doping Rules Compatible with Swiss law?144 The material differences between the WADC and the FIFA Anti-DopingRules have been identified in para. 121. These discrepancies have to be____________________94Art. 28.2 Swiss Civil Code.95Art. 163.3 CO.96BK-Riemer, art. 70 N 223.