Non-timely filing due to non-established technical problems and excessive formalism
4A_254/2023 of 12 June 2023
A. v International Fencing Federation (FIE)
motion against the award
A doping-related sanction was issued by the disciplinary body of the International Fencing Federation (FIE) on 31 January 2023. According to the applicable rules, the athlete had 21 days to file an appeal to the CAS. The athlete’s counsel filed the statement of appeal by email only, requesting at the same time the “Case Registration Form” in order to upload the statement via the CAS e-filing platform. On the last day of the time limit, the counsel uploaded the submission on the e-filing platform, noticing that the platform was particularly slow but without receiving an error notification from the system. Several days later, the CAS sent a letter noting that the statement of appeal was filed late.
In the subsequent challenge proceedings, the SFT did not consider that the CAS committed excessive formalism by not admitting the late filed statement of appeal, to the extent that the athlete’s counsel could not adduce any documents showing the inability to upload such submission. It also highlighted that the athlete’s counsel should have verified that the submission was successfully uploaded with the CAS Court Office if he had any doubts to this effect, all the more as such counsel was experienced in the filing of submissions with the CAS. It thus reiterating the importance of the respect of procedural rules (cf also my note on 4A_692/2016).
Ultimately, the SFT considered that there was no violation of the principle of good faith in the proceedings due to the CAS’ letter that the time limit to file the appeal brief was not suspended : in the SFT’s view, such letter does not infringe the principle of good faith as it is without prejudice to the question of the timely filing of the statement of appeal.
All in all, this was a confirmation that the parties uploading the statement of appeal on the e-filing platform bear the burden to establish the valid and timely filing of their submissions, whereas inadmissibility for non-timely filing can in principle not amount to excessive formalism on behalf of the CAS.