No direct challenge to the Swiss Federal Tribunal following a decision rendered by the CAS Anti-Doping Division acting as a 1st instance tribunal
4A_612/2020, judgment of 18 June 2021
A v. International Biathlon Union (IBU), Appeal against CAS 2019/ADD/6
This judgment relates to an interesting doping-related case that was heard by the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) acting as the first-instance tribunal, upon the delegation of its doping disciplinary authority by the International Biathlon Union (IBU). Before the CAS ADD, the Athlete objected to the tribunal’s jurisdiction. Following the notification of the CAS ADD award and pending the outcome of his appeal to the CAS, the Athlete filed a motion to set aside the CAS ADD award before the SFT instead of expecting the outcome of the appeal proceedings.
In its judgment, the SFT refrained from determining whether the CAS ADD was a “true court of arbitration”, simply reminding that the internal tribunals of sports federations are not arbitral tribunals, and their decisions are simple acts of management rather than judicial acts. As such, their decisions cannot be brought before the SFT directly but only challenged based on Art. 75 CC (if Swiss law applies). Even if the CAS ADD were to be considered as a “true court of arbitration”, the Athlete would still need to exhaust all previous remedies before filing a motion before the SFT.
The SFT also rejected the Athlete’s claim that the contested decision of the CAS ADD was an preliminary award dealing only with preliminary procedural questions (thus open for a challenge based on Article 190 (3) Swiss Private International Law Act – LDIP) and that the CAS Appeals Division would a fortiori not have jurisdiction to deal with this case. In addition, the SFT drew an interesting distinction between the final nature of the award (as opposed to an interim or a partial award) and that of the final or challengeable decision before the SFT (at 5.1.2).
Difference between the final nature of the award and that of the final and challengeable decision before the SFT
The SFT concluded that the athlete’s motion to the SFT was inadmissible in that the prior available instances had not been exhausted awaiting the outcome of the CAS award, based on the analogous application of Art. 75 and 77 of the LTF. By doing so, it dismissed the Athlete’s argument that the exhaustion of prior remedies was not appropriate in this case, invoking that the appeal to the CAS would be a “meaningless formality” (at 5.3.1) and considered that there were no grounds for granting an exception to the obligation to exhaust prior remedies (at 5.3.2).
Note: the full Judgment 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.
