Lack of legal interest worthy of protection in case of a sporting competition that already took place
Federal Tribunal Judgment 4A_56/2018 of 30 January 2019 Russian Paralympic Athletes v. IPC Motion to set aside the CAS Award of 20 October 20 2017 (CAS 2016/A/4770)
This dispute was between 28 Russian Paralympic Athletes (Appellants) and the International Paralympic Committee (IPC), an association under German law with its seat in Bonn. Following the suspension of the Russian Paralympic Committee due to allegations and reports on a sophisticated doping plan in Russia in 2016, including disabled Russian athletes, the IPC received numerous individual applications requesting their participation in the Rio 2016 Games as “neutral” athletes. The IPC sent a reasoned letter to the 28 Appellants refusing their admission in the Rio Games but did not agree to a further appeal to the CAS.
The Athletes filed an appeal to the CAS against this decision and the CAS denied its jurisdiction, finding that there was no arbitration agreement allowing the Appellants to seize the CAS.
The legal interest before the Swiss Federal Tribunal is determined based on the requests that were submitted by the parties in the CAS proceedings
In the subsequent motion to set aside the CAS award, filed long after the Paralympic Games had taken place, the SFT examined – and dismissed – the appeal due to the lack of a “present” legal interest worthy of protection in the annulment of the contested decision. The legal interest is determined based on the requests that were submitted by the parties in the CAS proceedings: In this case, the requests were exclusively focused on the Athletes’ participation in the Rio 2016 Games, which ended long before they filed their civil law appeal to the SFT.
The SFT further differentiated the legal interest in attacking a decision of a direct member of an association and the athletes, who were merely indirect members of the IPC. Unlike the RPC that was a direct member of the IPC and its suspension would remain in place even after the Rio 2016 Games, the Athletes’ suspension related exclusively to the Rio 2016 Games.
Interestingly, a potential claim for damages against the IPC was not found to be a sufficient ground to establish legal interest.
Finally, the SFT confirmed that the standard for the derogation from the requirement of a current interest is very high: To the extent that the admission criteria are constantly changing, this case could not qualify as “a question of principle” that the SFT would be required to examine as it would likely occur in similar circumstances in the future.
