By Despina Mavromati

4A_490 / 2017, Judgment of February 2, 2018

A v. IAAF, Appeal against the arbitral awards of the Court of Arbitration for Sport (CAS) of November 29, 2016 (CAS 2016/O/4469) and from July 18, 2017 (CAS 2017/A/4949).

  1. The Background Facts

The case involved a Russian international-level track-and-field athlete (the Athlete, the Appellant) who was suspected for anti-doping rule violations with two parallel procedures opened against her, one for the presence of a prohibited anabolic steroid, that led to a decision by her national federation (All-Russia Athletic Federation, or “ARAF”) and which was subsequently appealed before the CAS by the IAAF, and a second procedure based on her biological passport and the indirect detection of doping based on a variety of her blood samples over several years.

The particularity of the case is that it fell within the period of time in which the Athlete’s national federation (ARAF) was suspended from IAAF membership.

According to the relevant provision of the IAAF Competition Rules (Article 38 thereof), the IAAF considered that the suspension of the Athlete’s national federation entailed the application of a rule submitting her case to a Sole Arbitrator at the CAS since the federation would not be in a position to conduct a hearing in a timely manner.

The case was then brought before a Sole Arbitrator of the CAS, where the Athlete merely contested the tribunal’s jurisdiction and, in appeal, before a three-member Panel of the CAS.

  1. The Appeal to the Federal Tribunal

Interpretation of Article 38 IAAF Competition Rules

In appeal to the Swiss Federal Tribunal, the Athlete challenged both the first-and the second CAS Awards, considering that the CAS wrongly accepted its jurisdiction to hear the case.

The Athlete considered that the Sole Arbitrator lacked jurisdiction since the IAAF Rules provided for the first instance proceedings by the national federation and the jurisdiction of the Sole Arbitrator was reserved to cases where the national instance “failed to complete” its obligations. Since the federation was suspended, the national tribunal was not even given the opportunity to deal with the case and therefore no such failure could be established.

Principle of subsidiarity and appeal against (only) the final decision

The Federal Tribunal swiftly rejected the appeal that was directed at the (first-instance) award of the Sole Arbitrator as inadmissible, since the principle of subsidiarity imposes an appeal only against the final decision, and the Sole Arbitration decision was subsequently brought before the CAS in appeal (at 2.5).

Interpretation of Article 38 IAAF Competition Rules according to the principle of trust

After repeating the well-established jurisprudence on the interpretation of arbitration clauses according to the principles of statutory interpretation (with references, among others, to the Platini Judgment), the Federal Tribunal considered that, since the Athlete did not contest the formal validity of the arbitration agreement, the principle of utility had to be applied and give the arbitration agreement a scope in accordance with the will of the parties.

The pertinent provision, namely Article 38.3 of the IAAF Competition Rules, aims to provide the affected Athlete with a request for a hearing before a national federation, and then a timely internal decision, which can subsequently be appealed against to the CAS. For this purpose, the provision foresees a two-month period for the performance of the requested hearing (“If the Member fails to complete a hearing in two months […]”) and then the timely issuance of a decision within a reasonable time limit (“[…] or, if having completed a hearing, fails […]”, whereby the IAAF can set time limits, if necessary (“[…] the IAAF may impose a deadline for such event.”). The transfer of the case to the Sole Arbitrator of the CAS is provided in case these time limits are not met.

The Federal Tribunal endorsed the Arbitral Tribunal’s focus on ARAF’s suspension in its conclusion that the ARAF would be incapable to carry out a timely disciplinary procedure against the Athlete. In this respect, it would be unnecessary to grant a deadline to ARAF and therefore the Respondent had the right to bring the dispute directly to the CAS.

Furthermore, the Federal Tribunal considered that the Athlete failed to show in which respect an internal procedure by the IAAF would have been preferable compared to the Sole Arbitrator of the CAS, by repeating that the judicial instances of a federation are not “true arbitral tribunals” and their decisions are mere expressions of will of the associations involved.

Note: the original judgment (4A_490/2017 of February 2, 2018 ) is available in German at the website of the Swiss Federal Tribunal www.bger.ch. The English translations of the international arbitration decisions rendered by the Swiss Federal Tribunal (from French, German and Italian) are available on the website www.swissarbitrationdecisions.com , operated jointly by Dr. Despina Mavromati and Dr. Charles Poncet as a service to the international arbitration community.