Violation of the right to be heard and influence on the outcome of the case
4A_422/2019 Judgment of April 21, 2020 A v. RUSADA, WADA & FISA, appeal against the arbitral award of the CAS of June 26, 2019 (2018/O/5754)
The parties to this doping-related dispute included a former Russian rower (the Athlete), his international federation, his national antidoping organization, and WADA. Following a CAS award that imposed a four-year suspension on the Athlete, the latter filed a motion to set aside the CAS award for alleged violation of his right to be heard.
This judgment brings nothing new: the CAS Panel had allegedly failed to consider two elements prone to affect the outcome of the dispute, namely the argument that the Athlete and his expert left the laboratory on the basis of false information given by the representatives of the laboratory, and the numerous arguments aimed at demonstrating that any violation committed by the Athlete could only have been unintentional.
On the first argument, the SFT found that the Athlete could not establish how this allegedly false information given to the Athlete could have influenced the reasoning and decision of the arbitral tribunal, since the arbitral tribunal explicitly acknowledged that the Athlete and the expert left the laboratory with the knowledge that the analytical process would be initiated in their absence and without having objected to it.
The SFT equally dismissed the second element of the plea relating to numerous arguments on the unintentional antidoping rule violation, to the extent that the panel had expressly addressed -and rejected- the argument that the substance in dispute was due to the consumption of contaminated dietary supplements.
Note: the full Judgment (4A_424/2017 of October 23, 2017 (Sports Arbitration) – Appeal against the CAS Award rendered on June 26, 2017 (CAS 2016/A/4919) is available in French at the website of the Swiss Federal Tribunal www.bger.ch. The English translations of important 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.
