Judgment of 6 February 2025, A. v. NADA, WADA & DFB
Motion to set aside CAS Award of 27 August 2024 CAS 2023/A/9550, CAS 2023/A/9586 & CAS 2023/A/9607
This is the SFT judgment following the CAS award involving Croatian professional football player Mario Vušković (the Athlete) and NADA, WADA and the German Football Federation (DFB). The Athlete had undergone an out-of-competition doping test and the results showed an adverse analytical finding for prohibited substance rEPO in November 2022. He was provisionally suspended a couple of days later, whereas the opening of the B sample confirmed the presence of rEPO in December 2022, and the result of the second expert opinion was also issued shortly afterwards. In March 2023, the Athlete was issued a two-year suspension from the federation’s sports tribunal (as of 15 November 2022), but after an appeal from all parties involved (the Athlete, NADA, WADA and DFB), the CAS dismissed the Athlete’s appeal and confirmed WADA / NADA’s appeal, imposing 4 years on the Athlete.
In the subsequent motion to the SFT, the Athlete invoked a violation of his right to be heard denying his right to submit evidence. The SFT held that the Athlete should have expected a full review of the evidentiary record, however it is inadmissible to invoke an incorrect assessment of the evidence before the SFT.
The SFT further dismissed the Athlete’s argument that the CAS did not inform the parties prior to the hearing that it would rely decisively on a particular element of the file for its decision, to the extent that said element was on record and was the subject of an oral hearing. It follows that the CAS does not need to draw the parties’ attention to a specific element of the file.
With respect to the alleged violation of public policy, the Athlete invoked a violation of Art. 27 para. 2 CC (excessive commitment) considering that he was forced to submit to the SAR-PAGE method, which is used to determine whether an athlete’s urine sample should be considered positive or negative for rEPO. More specifically, the CAS panel, composed of non-medical experts, was called to issue sanctions based on the examination of technical images. The Athlete also alleged a violation of public policy to the extent that WADA prohibits the eight experts in its EPO Working Group from assisting him, preventing him from providing exculpatory proof and violating his personality rights.
The SFT swiftly dismissed these arguments confirming its longstanding case law whereby the CAS panel may issue “far-reaching sanctions” against an athlete and enjoys broad discretion in doing so (cf. SFT 4A_318/2018 of 4 March 2019, paras. 4.5.2 and 4.5.4). The interpretation of samples forms part of the examination of whether an anti-doping rule violation occurred and this is not incompatible with ordre public. Similarly, there is no proof of public policy violation through the allegations concerning the purported impossibility of proving the Athlete’s innocence, as the presumption of doping under the “strict liability principle”, and the athlete’s rebutting that presumption having both been accepted by the SFT (SFT 134 III 193 para. 4.6.2.3; SFT 4A_528/2022 of 13 March 2023 para. 4.3.1). The assertion that the Athlete was not capable of submitting evidence was also discarded in view of the fact that the Athlete himself had submitted expert reports from several experts.
Interestingly, the argument invoking WADA rendering the exculpatory proof impossible does not lead to a violation of public policy, since it should be the CAS itself – and therefore not a party – that would rende the exculpatory proof impossible. The subsequent question of whether the appellant succeeded in producing exculpatory evidence pertains to the assessment of evidence, which is not subject to ordre public review by the Federal Supreme Court (BGE 144 III 120 para. 5.1).
Finally, with respect to the principles in dubio pro reo and lex mitior, the SFT repeated its longstanding jurisprudence that disciplinary measures imposed by private sports federations in cases of doping findings are not to be assessed under criminal law principles such as the presumption of innocence or the principle of in dubio pro reo (judgments 4A_528/2022 of 13 March 2023 para. 4.3.3; 4A_470/2016 of 3 April 2017 para. 3.4; 4A_178/2014 of 11 June 2014 para. 5.2; each with references) and that, in any event, the CAS panel did not have any doubts as to the doping violation.
The allegation that the CAS violated the principle of lex mitior was also dismissed as he could not establish how the new version applied by the CAS was actually harsher than the previous version, and even questioned whether the violation of this principle could fall within public policy altogether. Finally, the Athlete relied on Art. 6 ECHR, and more specifically to the right to a fair trial. However, the SFT found that the Athlete did not meet these strict requirements by merely equating the alleged violation of a fair trial under Art. 6 ECHR with the objections raised through the previous grounds (alleged violation of the principles in dubio pro reo etc.) and discarded this argument as inadmissible.
