by Dr Despina Mavromati

4A_424/2018, Judgment of January 29, 2019, Appeal against the CAS award of June 8, 2018 by the Court of Arbitration for Sport (CAS 2017/A/5301 and CAS 2017/A/5302)

Facts occurred after the hearing, violation of the right to be heard but refusal to set aside the CAS award

 This dispute related to a doping-related procedure initiated by the Italian tennis player Ms. Sara Erani (the Athlete) against a decision rendered by the Independent Tribunal of her International federation (ITF). Following a decision imposing a two-month suspension for an anti-doping rule violation issued by the ITF Independent Tribunal, the CAS imposed a ten-month suspension on the Athlete starting from the date of the notification of the arbitral award (June 8, 2018).

In the subsequent appeal to the Swiss Federal Tribunal, the Athlete requested the annulment of the CAS Award for violation of her right to be heard with respect to the starting point of the suspension. The SFT reiterated that the right to be heard concerns particularly factual findings (at 5.2.3), while the parties’ right to express their position on legal issues is only partially recognized in Switzerland.

Delay in issuing the CAS Award

In this particular case, the CAS Panel had considered the issue of the starting point of the suspension in its award, whereby the backdating of the starting point is up to the discretion of the hearing authority under the applicable rules. Notwithstanding the clear wording of the provision, the Athlete argued that the fact that the CAS Panel communicated its award after several postponements led to a significant change of circumstances that would equate to a violation of her right to be heard.  (at 5.4.1). Apart from the fact that it could not be found in the file that the Panel had assured the Athlete that it would render its award within one month, the SFT dismissed this argument considering that the Athlete had not protested against the successive extensions of the time limit for rendering the award.

Consideration of facts subsequent to the hearing without prior consultation with the parties

The Athlete also highlighted that the CAS Panel had taken into account facts subsequent to the hearing without first questioning the parties on these points (at 5.7). More specifically, when setting the starting point for the sanction, the Panel considered that a possible backdating was not necessarily less penalizing for the athlete, given her recent athletic performance. In doing so the Federal Tribunal effectively found that the CAS Panel had violated the Athlete’s right to be heard. However, it did not consider that the CAS Award should be set aside to the extent that the panel’s considerations had no influence on the outcome of the case. The SFT also considered that the fact that the backdating of the sanction’s starting point was discretionary made the violation of the parties’ right to be heard immaterial to the outcome of the dispute.

Violation of the right to be heard but refusal to set aside the CAS Award for lack of impact on the outcome of the case

In order words, the SFT refused to set aside the CAS award notwithstanding the violation of the right to be heard due to the fact that the backdating was simply an option “to the discretion” of the Panel and  there was no evidence adduced as to how such violation could have affected the Panel’s decision.

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.