CAS 2022/A/8700 Anna Harkowska v. Polish Anti-Doping Agency (POLADA)
- Cycling
- Doping (meldonium)
- CAS Jurisdiction
- Interpretation of a NADO’s arbitration clause for national level athletes
- Compliance of a NADO’s arbitration clause for national level athletes with article 6.1 ECHR
1. According to Article 186 para. 1 of the Swiss Private International Law Act, the arbitral tribunal shall rule on its own jurisdiction. The objection of a lack of jurisdiction must be raised prior to any defence on the merits. In order for the CAS to have jurisdiction to hear an appeal, there must exist either a specific arbitration agreement between the parties, or the jurisdiction of the CAS must be expressly recognized in the statutes or regulations of the sports-related body that issued the decision appealed against.
2. The National Anti-Doping Organisation’s Anti-Doping Rules (NADO ADR) adopted pursuant to the applicable provisions of the World Anti-Doping Code (WADC) and the International Standard shall be interpreted in a manner that is consistent with said provisions and standard. With respect to national level athletes not involved in international events, a NADO can provide either that the appellate body be an independent and impartial national-level appeal body provided the principles of a fair hearing are respected or provide that a national-level athlete not involved in international events has a right to appeal directly to CAS. Where the NADO ADR has clearly opted for a right to appeal to a national appellate body, there is therefore no CAS arbitration clause entitling a national-level athlete to file an appeal to CAS.
3. As a matter of principle, according to the case law of the European Court of Human Rights, a violation of Article 6.1 of the European Convention on Human Rights (ECHR) cannot be grounded on the lack of independence or impartiality of a decision-making tribunal or on the breach of an essential procedural guarantee by that tribunal, if the decision taken is subject to subsequent control by a judicial body that has “full jurisdiction” and ensures respect for the relevant guarantees by curing the failing in question. Accordingly, in cases where a final appeal to CAS is possible, the requirements of independence and impartiality are always met, since the CAS has been found to be a true and independent arbitral tribunal. If the appellate body established by the rules of a NADO is competent to finally decide the case i.e. in a case involving a national-level athlete (not involved in international events), Article 13.2.2 WADC ensures that the same standards of independence and impartiality are met at the local appellate level. If not, the national-level athlete has a right to appeal the first instance decision directly to CAS. From the perspective of the principle of equal treatment, the purported asymmetric nature of the adjudicatory system established by a NADO ADR in so far as it entitles only WADA, to file an appeal to CAS against decisions of the national federation’s appellate body does not amount to a violation of Article 6.1 ECHR. Indeed, the positions of a national-level athlete (not involved in international events) and WADA are not comparable. The athlete’s rights are fully respected by a national two-instance adjudicatory mechanism provided that the national appellate body respects the principles of independence and impartiality as well as the right to be heard stemming from Article 6.1 ECHR. Conversely, WADA’s right to appeal to CAS against decisions issued by a national appellate body is consistent with the role of WADA, which is charged, i) to ensure the uniform application of anti-doping rules worldwide and the respect of the principle of equal treatment of athletes at transnational level; ii) to correct potential mistakes in the interpretation and/or application of anti-doping rules by the anti-doping national sports bodies; iii) to avoid the risk of unredressable “home-town” decisions.
On 16 August 2021 The Disciplinary Panel of the Polish Anti-Doping Agency (POLADA) decided in first instance to impose a 4 year year period of ineligibility on the cyclist Anna Harkowska after she tested positive for the prohibited substance Meldonium.
Thereupon on 21 December 2021 the POLADAD Disciplinary Panel of Second Instance dismissed the Athlete's appeal in its entirety. Hereafter the Athlete appealed the POLADA decision of 21 December 2021 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to set aside the Appealed Decision of 21 December 2021. She asserted that under the Rules she is a national level athlete and that she has the right to appeal her case to CAS.
The Athlete denied the intentional use of the substance and requested for a reduced sanction. She argued that there are grounds for No Fault or Negligence, or alternatively, that she acted with No Significant Fault or Negligence.
POLADA contended that CAS has no jurisdiction in this case and that that the Appealed Decision rendered by the Disciplinary Panel of Second Instance was final. It argued that only a limited number of entities are entitled to file an appeal to CAS.
In view of the issues raised by the Parties the Sole Arbitrator determines that:
- The present Award is dedicated to the issue of CAS Jurisdiction.
- Under the POLADA ADR international level athletes are entitled to appeal to CAS.
- The provisions of the POLADA ADR concerning the appeals are fully consistent with the WADC.
- in the POLADA ADR there is no CAS arbitration clause entitling a national-level athlete (not involved in international events) to file an appeal to CAS against decisions of the Second Instance Disciplinary Panel.
- The two-instance adjudicatory system established by POLADA ADR is fully consistent with both WADC and Art. 6.1 ECHR.
- Article 13.2.3.2 of the POLADA ADR is not in contrast with Article 6.1 ECHR.
- This Article 6.1 does not entitle national-level athletes to file an appeal to CAS against decisions of the Second Instance Disciplinary Panel.
Therefore the Court of Arbitration for Sport decides on 24 April 2023 that:
1.) CAS has no jurisdiction to decide on the appeal filed on 29 March 2022 by Ms. Anna Harkowska against the decision rendered by the Disciplinary Panel of Second Instance on 21 December 2021 with reasons notified on 9 February 2022.
2.) The appeal filed by Ms. Anna Harkowska against the decision rendered by the Disciplinary Panel of Second Instance on 21 December 2021 with reasons notified on 9 February 2022 is not entertained.
3.) (…).
4.) (…).
