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CAS 2017_A_5379 Alexander Legkov vs IOC - Operative Part
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The judgement is far more interesting for its factual background than for its legal findings; it puts an end to highly publicized legal battle between Alexander Legkov (and several other Russian athletes) and the IOC, which lies at the heart of the so-called “Russian doping scandal”.
In the aftermath of allegations related to the existence of a state-sponsored doping scheme in Russia during the Sochi Olympic Games, the IOC Disciplinary Commission (DC) rendered numerous decisions sanctioning Russian Athletes – including Alexander Legkov (the Athlete). The Athlete and several other athletes appealed against their sanctions to the CAS.
In a complex arbitration with a hearing that lasted several days (CAS 2017/A/5379), the CAS Panel issued a lengthy award setting aside the IOC decision for lack of sufficient proof against the Athlete. Ruling de novo, the CAS Panel highlighted that its decision was not about the existence or non-existence of a state-sponsored scheme, but instead was limited to the finding of a specific Anti-Doping Rule Violation (ADRV) by the Athlete, under the specific applicable provisions of the WADA Code.
For the first time since the creation of the CAS, the IOC moved against its “offspring” (i.e. the CAS, which was initially created by the IOC back in 1984) and filed a motion to set aside the CAS Award before the Swiss Federal Tribunal. The latter invoked the violation of its right to be heard, which included the widely alleged (yet extremely rarely admitted) “effet de surprise”.
It came as no surprise that the Swiss Federal Tribunal swiftly dismissed the appeal by repeating its established jurisprudence but also highlighting some interesting points.
The right to be heard relates mainly to findings of fact: the Panel is supposed to know the law (jura novit curia) and may also rule on the basis of rules other than the ones invoked by the parties (unless the arbitration agreement restricts the mission of the Panel in this respect). (See Section 3.1.2)
The IOC’s principal argument, which was allegedly disregarded by the Panel, was simply “to come to a conclusion on the existence of a doping and cover-up scheme, and, secondly, draw conclusions with respect to the general involvement of the athletes” (See Section 3.2.1). As to be expected, the Federal Tribunal found that the plea was merely an attempt to (impermissibly) question the assessment of the evidence made by the Panel.
So… is there no “Effet de Surprise” in highly publicized Cases with experienced Arbitration Specialists involved?
The Federal Tribunal repeated that it is only – and exceptionally – appropriate to challenge the law when the Panel bases its reasoning on a rule whose application the parties could not possibly expect (“effet de surprise”). Furthermore, there could not possibly be any “effet de surprise” in a very important, highly publicized case, with experienced arbitration specialists and considerable stakes that could not be disregarded (See Section 3.2.2). One therefore comes to question whether the admissibility of this plea is dependent on the level of knowledge and specialization of the representing counsel.
A “Clause de style” is different from an alternative reasoning!
The Federal Tribunal further found that the Panel’s alternative reasoning had nothing to do with the “clause de style” formula described in 4A_730/2012, which relates to the use (mostly by CAS Panels) of the stereotypical phrases like “the Panel took into account all the facts, legal arguments and evidence submitted by the parties, but will only refer to arguments and evidence necessary to explain his reasoning” (See Section 3.2.2).
Despina MAVROMATI
Charles PONCET
http://www.swissarbitrationdecisions.com/
