Partial annulment of a CAS award due to violation of the party’s right to be heard
4A_478/2017, Judgment of 2 May 2018
X. v. WADA and Belarussian Taekwondo Federation
Appeal against the CAS award of 20 July 2017
This is one of the rare cases in which the Swiss Federal Tribunal admitted a violation of the parties’ right to be heard and partially annulled the CAS Award. An Athlete found positive to a prohibited substance (Meldonium) was subsequently cleared by the disciplinary committee of his federation and WADA filed a statement of appeal with the CAS requesting a four-year period of ineligibility. During the CAS proceedings, the Athlete and his federation changed counsel and the new counsel submitted to CAS a 22-page submission entitled “Amendment to answer to the appeal”, invoking “exceptional circumstances” within the meaning of Art. R56 of the CAS Code (the Code); they requested authorization to disassociate the position of the Athlete from that of his federation and to modify the requests for relief filed with the answer brief.
The CAS Sole Arbitrator upheld WADA’s appeal and imposed a suspension of four years on the Athlete from the effective date of the award with a deduction of the period of provisional suspension already served. The award further invalidated all the results obtained by the Athlete from July 13 to August 11, 2016. The Arbitrator ruled that the sanction should be a suspension for a period of four years from the effective date of the CAS award because the Athlete failed to establish the unintentional nature of the anti-doping rule violation (thereby deducting the 159 days of the provisional suspension already served).
The Athlete based his appeal to the SFT uniquely on the violation of his right to be heard (Art. 190 (2) (d) PILA), claiming that the Sole Arbitrator had failed to consider various arguments raised during the proceedings.
While dismissing most of the Athlete’s arguments (including the disregard of his arguments relating to the absence of a doping effect of the substance detected), the SFT considered that there was a particular issue (the starting point of the ineligibility period) on which the Sole Arbitrator had made further reference and was not possible to infer a conscious rejection. The SFT could further not detect from the reading of the award an acceptance of WADA’s arguments, which would result in an implicit rejection of the Athlete’s arguments in this respect.
The SFT considered that the Arbitrator failed to mention the elements which the Appellant had regularly put forward in support of one of his subsidiary submissions, without any reference to the fact that the Appellant’s submissions were implicitly discarded. The SFT also acknowledged that the disregarded elements were prone to affect the outcome of the dispute, a criterion that is not easily complied with in similar cases.
The SFT partially admitted the appeal and annulled the operative part of the award that determined the beginning of the four-year suspension period on the date of the award, remanding the case back to the Sole Arbitrator for re-assessment of this particular issue.