CAS Award: CAS 2013/A/3437, International Shooting Sport Federation v. WADA, December 18, 2014.
The granting of Therapeutic Use Exemptions (“TUE”) is an important aspect of an Anti-Doping Organization’s daily activities. It is also the only way for Athletes to receive medical treatment while staying active in competitive sport when they are obliged, for therapeutic reasons that can sometimes amount to a matter of life or death, to resort to the Use of a Prohibited Substance or Prohibited Method. Despite their importance, decisions arising from the grant or denial of a TUE are rarely the subject of CAS appeal proceedings.[1]
In December 2014, however, a CAS panel rendered an award, published on the WADA website only, that addresses several key issues surrounding TUEs and some procedural peculiarities of CAS appeal proceedings. With the ISSF v. WADA CAS award being no less than 78 pages, the present contribution shall focus on those aspects that raise issues of principle.
FACTS
A female shooter was diagnosed with a genetic disorder putting her at risk of sudden cardiac arrest, a diagnosis that led to a prescription of Atenolol – a beta-blocker – in order to reduce such risk.[2] Beta-blockers are prohibited at all times in the sport of shooting (class P2 of the WADA Prohibited List). In March 2011, the Athlete applied to her National Anti-Doping Organization for a TUE. The TUE was granted for a daily dosage of 200mg. At some point thereafter, the Athlete participated in an International Shooting Sport Federation (“ISSF”) Event and underwent a Doping Control. The analysis of the Sample revealed the presence of Atenolol. Since no international-level TUE was on the record, as required by applicable ISSF anti-doping rules, disciplinary proceedings were initiated. The Executive Committee of the ISSF found that in absence of a valid TUE the athlete had committed an ADRV but given the circumstances reduced the sanction to a three-month period of Ineligibility. WADA did not appeal this decision. Thereafter, the TUE was withdrawn.[3]
In September 2013, the Athlete applied anew for a TUE, this time with the ISSF TUE Committee and for a twice daily 35mg use of Atenolol. The TUE application was rejected by the ISSF TUE Committee. The TUE Committee found that the Athlete had failed to demonstrate that the requirements for the granting of a TUE were fulfilled, specifically the absence of performance enhancement beyond a return to a normal state of health, as well as the absence of other reasonable alternative therapeutic options. The Athlete requested a review of the decision by WADA. In November 2013, the WADA TUE Committee reversed the ISSF decision and granted the TUE for the requested dosage. The decision stated, in particular, that “given that there is no scientific evidence for a performance-enhancing effect of beta-blockers on shooting in general there is accordingly no evidence that there is a beneficial effect of atenolol on the shooting performance in this athlete”.[4] The ISSF appealed this decision to the CAS.
CAS PROCEEDINGS: PROCEDURAL ISSUES
The procedural debates revolved around the Athlete’s non-participation in the CAS proceedings. The ISSF’s statement of appeal named only WADA as a respondent, but the ISSF also sent a copy of the appeal to the Athlete. Initially, the Athlete asked through her counsel to be allowed to intervene in the proceedings, but subsequently announced that she did not wish to participate in the proceedings for lack of financial resources and fear of being held liable for costs.
Throughout the proceedings, WADA argued that the failure to name the Athlete as a respondent should be fatal to the admissibility of the appeal. The CAS panel rejected this argument and held that it could render its award without the Athlete having been made a party or otherwise being involved in the proceedings. There were three principal reasons for this finding by the CAS panel.
First, the irrelevance of WADA’s objection at the time the award was ultimately issued: during the CAS hearing, the ISSF had withdrawn those requests for relief that were specifically directed at the Athlete, i.e. those which WADA had initially submitted were inadmissible. WADA had not opposed the amendment of the requests for relief. The relief against which the objection of inadmissibility had been directed was therefore no longer sought and would in any event not be granted.[5]
Second, the absence of breach of procedural fairness: in spite of not being formally named as a respondent, the Athlete had been given ample opportunity to participate in the appeal proceedings in various capacities, but had consciously elected not to do so.[6] Additionally, given the “element of common cause or common interest” between WADA and the Athlete, the panel considered WADA “well able through its own resources and experience and its highly competent counsel to present all relevant arguments in favour of dismissing the appeal and/or upholding the decision of WADA’s TUEC”.[7]Hence, the panel concluded that any harm against the Athlete would result from her refusal to participate, rather than the form in which she had been invited to join the proceedings.
“If, as a matter of form, a person is not a respondent but has been given proper notice of the appeal and a proper opportunity to participate in the appeal, this Panel does not think such a person (or anyone else) can complain of any lack of procedural fairness if a deliberate choice is made not to participate.”[8]
Finally, the panel discussed and rejected WADA’s argument that “proper” respondents are to be named in the statement of appeal[9] and that a failure to name a “proper” respondent should therefore be fatal to the admissibility of the appeal, including if there was no denial of procedural fairness. Relying on a Swiss law reasoning, the CAS panel held that “[u]nder Swiss law, the defending party has standing to be sued (‘légitimation passive’) if it is personally obliged by the ‘disputed rights’ at stake. In other words, […] only if it has some stake in the dispute because something is sought against it”.[10] Since relief was sought exclusively against WADA, as opposed to the Athlete, the panel found that only WADA had standing to be sued under Swiss law and could be summoned before CAS. Therefore, while the panel accepted that it may be the obligation of the appellant to identify the proper respondent at the outset of the procedure, the consequence of not identifying all proper respondents is not that the appeal is inadmissible as such, but only that the panel may decline to make orders against a person who has not been joined.
CAS PROCEEDINGS: MERITS
Turning to the merits, the CAS panel opened the discussion with a general statement on the stakes of the matter:
“This is a case which juxtaposes in an unusual fashion two conflicting interests, on the one hand the desire of a young athlete of apparent early promise but adventitiously diagnosed with a potentially fatal heart condition to participate, at the highest level, in her chosen sport, on the other hand the entitlement of her potential competitors to be confident they are not asked to challenge an athlete with an unfair advantage induced by prohibited substances.”[11]
The panel’s analysis began with some general considerations of the four requirements for granting a TUE under the 2011 WADA International Standard for Therapeutic Use Exemption (“ISTUE”).[12]
The CAS panels explained that i.) all four requirements must be shown to be fulfilled and ii.) that the burden of doing so rests on the Athlete.[13] With respect to the standard of proof, the panel noted that this question is not explicitly addressed in the ISTUE. The parties’ respective contentions were “comfortable satisfaction” (for the ISSF) versus “balance of probability” (for WADA). Noting that there were “cogent arguments” for each position, the CAS panel presented the dilemma as involving:
- On the one hand, “the interests of athletes’ competitors demand a stringent sanction for the athlete to escape the ordinary consequences of use of a prohibited substance; and since the object is prophylactic not punitive, the higher standard should apply”,[14] and
- On the other hand, “Article 3.1 of the WADA Code provides that where this Code places the burden of proof upon the athlete or other person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except as provided in Articles 10.4 and 10.6 of the WADA Code where the athlete must satisfy a higher burden of proof. This provision is not directly applicable since, ex hypothesis the applicant for a TUE has not committed an anti-doping rule violation but seeks to avoid being subject to one. It could be said nonetheless to provide an apt analogy”.[15]
The Panel ultimately held that based on its subsequent analysis of the evidence (and its findings), the question of the standard of proof could remain undecided.
With respect to the application for a TUE, the only truly disputed requirement for the TUE grant was the criterion Article 4.1.b.) under the 2011 ISTUE, which provided, at the time and in its relevant parts:
“The Therapeutic Use of the Prohibited Substance or Prohibited Method would produce no additional enhancement of performance other than that which might be anticipated by a return to a state of normal health following the treatment of a medical condition”.[16]
The CAS panel nevertheless started by briefly considering the requirement of the “alternative option” under Article 4.1.c.) of the ISTUE, but stressed that the requirement was the absence of a “reasonable alternative treatment”. Importantly, the panel, insisted that it did “not consider as a matter of principle that, as the price to pay for competing in such sport she/he can be compelled in lieu to use a treatment which is not being advised as the treatment of choice by a responsible medical practitioner, in particular where the alternative treatment carries with it greater hazards and no greater chances of success”.[17] In the particular matter, the panel thus held that the Athlete could not reasonably be expected to resort to the other options as a first resort, especially since those would have involved invasive surgery.
Turning to the core of the dispute, the CAS panel addressed the issue of whether the beta-blocker was conferring a performance-enhancing benefit to the Athlete. Through an analysis of the wording of the appealed decision, the panel reached the conclusion that the WADA TUE Committee had focused on the absence of scientific evidence regarding performance-enhancing effects of Atenolol generally, rather than on evidence of the lack of such performance-enhancing effect on the Athlete specifically. The fact that beta-blockers are on the WADA Prohibited List in the sport of shooting, and that there is no intention to remove them, was considered by the panel as:
“indicative of the height of the hurdle confronting the Athlete who seeks to satisfy Condition 4.1(b), for even on the premise that atenolol will have beneficial performance enhancing effect on some persons but will not on others, it remains for the Athlete to show that she falls into the category with those who would derive no performance enhancing effect from use of the substance”.
WADA submitted the shooter’s individual competitive scores over the period in which she started the beta-blocker treatment, and a comparison of her scores with those of another competitor. Looking at the comparison of competitive records with another Athlete, the panel found that reliance on a single comparator was “manifestly inadequate” from a statistical viewpoint.[18] As to the Athlete’s own records, the panel determined that one could indeed recognise an increase in scores after the athlete had commenced her treatment, and even though it was difficult to directly correlate such increase to a particular factor among those cited in the proceedings (“physical, physiological, equipment, coaching, training, competitive experience, and even luck”[19]), “the influence of Atenolol cannot be discounted”.[20] Reiterating that the burden of proof rests on the Athlete to show that the four requirements to receive a TUE set forth in article 4.1 of the ISTUE were fulfilled, the panel held that “raw statistics which are unfiltered and not broken down by weighing different factors are inherently inconclusive”.[21]
In response to the question raised by WADA’s counsel as to “what more could the Athlete have done?”, the CAS panel found that the issue is not whether the Athlete did all she could to provide evidence, but “whether the evidence which she has actually provided is sufficient to establish that the criterion in 4.1(b) is satisfied. The Panel concludes that it is not”.[22]
In a final paragraph, the panel added:
“It does so with the regret appropriate in the case of someone, like the Athlete, who has been able to participate in a chosen sport at the highest level while at the same time being the victim of a heart complaint. Nonetheless while all human rights instruments recognize that there is a right to life, none recognize that there is an equivalent right to sport.”[23]
COMMENTS
Who is a Respondent in CAS Proceedings?
Determining the “proper” parties to CAS proceedings is regularly a challenge, especially in doping matters. The difficulties arise from the ambiguity inherent in the nature of the CAS “appeal arbitration proceedings”, which have been highlighted in literature with respect to decisions made by private sports organisations:[24] procedurally, the CAS panel intervenes as a first instance judicial body, in a dispute between the sports organisation that made the decision (i.e. most frequently an association of Swiss law) and the individual or entity challenging that decision. Functionally, by contrast, CAS proceedings in disciplinary matters are regarded as an appeal against the sports organisation’s initial decision. Unfortunately, the Code itself does not provide any guidance in this matter, since it defines who has a right to appeal against anti-doping decisions in general and WADA TUEC decisions in particular, but not contain any indication as to the party against which the appeal must be directed.
The analysis in the award, based on Swiss law and the concept of “proper” respondent is, as a result, not entirely straightforward. The CAS panel mentioned both Article R58 of the CAS Code, which determines the law applicable to the merits of the dispute, and Chapter 12 of the Swiss Private International Law Act, which determines under which circumstances the Swiss lex arbitri applies to the arbitration proceedings, but did not clearly distinguish the two aspects. In particular, while the award seems to treat the argument as a “procedural issue”, the standing to be sued (légitimation passive) is a concept of substantive law under Swiss law.[25] Thus, the CAS panel’s reasoning appears somewhat circular, in that it implies that it is sufficient for an appellant to seek relief against a party to make it a proper respondent. Under Swiss law, however, the determination of the standing to be sued supposes an assessment of the provision of substantive law on which the (alleged) claim is based, to determine who is obliged under that provision.
The CAS panel did not – at least not explicitly – include in its assessment that the Athlete had expressed her wish to participate, but had considered that she did not have the financial means to do so. CAS panels have found that procedures related to the grant of TUE are not free of charge since they cannot be considered “disciplinary matters” within the meaning of Article R65 of the CAS Code.[26] This situation raises questions, especially given the fact that Athletes carry the burden of proof for all requirements of the TUE, requirements which may suppose investing significant amounts into expert evidence. Whether the athlete could have received legal aid upon request, despite not being a named party, or her potential liability for costs if she were to have intervened in the proceedings are two issues that were not addressed in the award.
In our view, the ultimate question is not whether “appeals” filed before CAS against only some of the “proper” respondents concerned by the dispute are admissible under the CAS Code, but on whom the final award will be binding, i.e. the scope of the res iudicata. In the matter at hand, the proceedings were conducted between the ISSF and WADA, with respect to a decision made by WADA, i.e. a foundation of Swiss law. The CAS panel did not discuss whether its award could have an erga omnes effect in this context. In the award, the binding effect was only addressed implicitly, as part of the CAS panel’s findings on procedural fairness and the Athlete having been given an opportunity to participate.[27]
In disputes, like those in doping matters, that typically affect a plurality of individuals and entities, it is a regular concern for CAS to design ways of having all parties concerned participating in the proceedings. It is true that – even in disciplinary matters – there is CAS precedent for deciding cases without the participation of a respondent named in the statement of appeal, so long as the panel is satisfied that the respondent was properly notified of the appeal.[28] By contrast, the CAS panel’s reasoning in the present matter goes one step further, in that it stretches the concept of procedural fairness as to suggest that the award is binding to a third party not named in the statement of appeal. This approach is difficult to square with previous cases where CAS panels have held that the only way to guarantee the “basic rights” of a third party is to make them a party to the proceedings,[29] and have even gone so far as to hold themselves as powerless to make a decision that would “directly affect the situation of a third party in such a way without that party being able to present its position”. [30] Other panels have limited their own scope of review, agreeing to hear a matter that could overturn the decision of a sports association, but refusing to go so far as to issue an award that would injure the interests of an non-named party that was the subject of the decision under review.[31]
As part of its procedural fairness analysis, the panel identified a “common cause” between WADA and the shooter which does not appear to be a sufficient reason to accept a more generous res iudicata effect against the Athlete. The panel observed that it was “a matter of pure speculation as to what, if anything, the Athlete’s presence could add to the legal or factual arguments which [WADA’s Counsel] made so ably.”[32] It is undeniable that WADA and the Athlete shared a common cause but only to the extent that neither had an immediate interest in the overturning of the WADA TUEC decision. Past this point, however, their causes or at least their interests diverge. This divergence becomes manifest in the panel’s reasoning on the merits. The panel framed the question of whether the Athlete was entitled to a TUE as a balance of interests between the shooter’s right to participate in sport and her competitor’s right to participate in sports on a level playing field. While WADA surely has an interest in ensuring that the individual rights of Athletes are fully protected, its overarching interest, indeed its raison d’être, lies firmly on the side of the balance opposite to the shooter’s, i.e. on the side of protecting a level playing field in sports.
In sum, while one could fairly draw the conclusion that the CAS panel intended the award to be binding upon the Athlete once satisfied there were no concerns of procedural fairness, the issue of whether the binding effect of the award would extend beyond the parties actually named in the appeal, i.e. WADA and the ISSF, would have deserved an explicit discussion in the CAS award.[33] The resulting uncertainty surrounding the scope of the binding effect raises questions as to the consequences should the shooter decide to continue to practice her sport, since the last decision (the decision of the WADA TUEC) rendered in proceedings to which she was a party granted her a TUE.
Absence of Additional Performance Enhancement
The award clearly assumes that the ISTUE require proof that there is no performance enhancement in the specific Athlete’s case, so that mere reliance on a lack of scientific evidence that the Prohibited Substance has, in general, a performance enhancing effect is insufficient. This situation makes the distribution of the burden of proof and related standards of proof particularly important in terms of the outcome of the dispute.
In this respect, the CAS panel accepted that the burden is on the Athlete to prove that the requirements for the grant of a TUE are fulfilled. Note that this allocation of burden was not, at the time of the dispute, explicitly stated in the ISTUE. The 2015 version of the ISTUE newly provides in its Article 4.1 that “An Athlete may be granted a TUE if (and only if) he/she can show that each of the following conditions is met” (emphasis added), which is undoubtedly a welcome addition for legal predictability.
The CAS panel left undecided which of the two standards of proof known under the WADC regime (i.e. comfortable satisfaction or balance of probability, Article 3.1 of the WADC) should apply to an application for a TUE. It is not clear why the CAS panel considered that the issue could remain undecided, but likely the implicit findings were that the evidence submitted by WADA on behalf of the Athlete was considered not even sufficient to meet the (lower) balance of probability standard. In our view, the proper standard in this case ought to be the balance of probability, in accordance with the general provision in Article 3.1 of the WADC. There seems to be no compelling legal argument to place on the Athlete a standard of “comfortable satisfaction”, especially in the absence of an explicit provision to that effect in the WADC. The reason CAS panels developed the “comfortable satisfaction” standard for prosecution in disciplinary matters,[34] relates to the punitive nature of these proceedings and the harsh consequences involved for the Athlete. To the contrary, where no disciplinary sanction is at stake, another CAS panel refused to impose the standard of comfortable satisfaction, even on a sports organisation.[35] Moreover, TUE proceedings have a strong link with disciplinary proceedings as, at least in some case, the (non-)existence of a proper TUE is an ingredient of the offence and the consequences of refusing an Athlete can be compared to those of a ban from practicing sport. Thus an additional argument for applying the balance of probability standard is that the refusal of a TUE can carry consequences just as harsh as disciplinary proceedings.
The revised 2015 ISTUE provides that the additional performance enhancement must be “highly unlikely”.[36] If this language were to be interpreted as imposing a standard of proof on the Athlete higher than a balance of probability, this higher threshold should be applied cautiously by TUE Committees and CAS panels. As the CAS panel itself noted,
“[T]he evidence was clear that success in shooting is down to a multitude of factors, physical, physiological, equipment, coaching, training, competitive experience, and even luck. In such circumstances to detect what caused or did not cause any improvement in an athlete’s performance (whether in this case the beta blockers or something else) would be exceptionally difficult.”[37]
In general, the award confirms, in the context of TUEs, that the system of the WADC is harsh on the Athlete with respect to the impact on performances of a substance or method.[38] On top of that, the CAS panel also relied on the (mere) fact that the substance was on the WADA Prohibited List and that there was no intention to remove it as an additional indication of a performance-enhancing effect of beta-blockers. If carried through, this reasoning would almost inevitably lead to a dead-end for the Athlete. In effect, there would be virtually no possibility to obtain a TUE for Prohibited Substances and Prohibited Methods that (i) are prescribed for the treatment of a health condition (even a life-threatening one) that does not itself negatively affect the Athlete’s performance, and (ii) bear even a remote possibility of enhancing the Athlete’s performance in his or her sport. Indeed, WADA acknowledged that the condition in 4.1 (b) of the ISTUE is “difficult to apply literally in this case” since it envisages Prohibited Substances that are Used to “mitigate or heal symptoms”[39], as opposed to the Use in this case, which is aimed at treating an asymptomatic condition. As a result, WADA was willing to accept the most “stringent” reading of this requirement, namely that as the shooter’s “condition does not negatively impact her health, she is required to demonstrate on a balance of probabilities that atenolol does not improve her performance.”[40]
The system further disregards the fact that not all substances on the WADA Prohibited List are necessarily required to meet the “performance enhancement” criterion,[41] and that this criterion cannot be verified by CAS panels by virtue of the exclusion contained in Article 4.3.3 of the WADC. Thus, whereas WADA exempts itself from having to establish that a Prohibited Substance or Prohibited Method has a performance-enhancing effect, and in fact bars Athletes from bringing an argument based on lack of such effect when charged with an anti-doping rule violation, Athletes, by contrast, are required to prove that there is no such performance-enhancing effect in their case when requesting a TUE.
It is widely recognised in anti-doping that demonstrating the relationship between the intake of a substance or Use of a method on the one hand, and a corresponding impact on the performance of an athlete on the other, is both delicate and burdensome. Indeed, this is one of the reasons why performance enhancement was ultimately not made a mandatory criterion for inclusion of a substance on the Prohibited List during the 2015 WADC revision.[42] It is significant that the CAS panel did not discuss the ISSF’s allegation of the paradox underlying the WADA TUE Committee decision, i.e. how a WADA Committee could conclude a lack of evidence of performance-enhancement on performance in shooting in general, without undermining the credibility of the prohibited status of the substance itself.
If WADA itself considers that it cannot be expected to adduce scientific evidence that a substance on the Prohibited List has a performance-enhancing effect in general, it is questionable how an Athlete could reasonably be expected to make the reverse proof, which is – in addition – the proof of a negative. One may wonder whether the introduction of a Beweisnotstand doctrine, similar to the one developed in UCI v. Contador,[43]ought to be considered here, so that the Athletes who could make a credible prima facie case that there was no reason to expect or suspect an impact on performances in their case would trigger a procedural duty on the part of the Anti-Doping Organization that refused the TUE to adduce concrete elements showing in what respect performance was, indeed, enhanced. In the present case, WADA did not go that far in defending the Athlete’s interests.
No Right to Sport?
The CAS panel’s conclusion regarding the absence of a right to sport enshrined in human rights instruments, while a priori intended to express sympathy for the young shooter, appears somewhat laconic and out of context, given the private law background of the case, based on a private sports regulation of a sports association and with no public law aspect involved. Moreover, the CAS panel did not assess the situation under Swiss law, which it itself declared applicable on the merits when assessing the admissibility of the appeal.
Under Swiss law, in particular, it is accepted that the personality rights (Article 28 of the Swiss Civil Code) of an athlete encompass the freedom to exercise a sports activity and to compete against opponents on a similar level. The Swiss Supreme Court listed, among the interests protected by personality rights: “the right to health, to physical integrity, to professional consideration, to sports activities, and, within professional sports, the right to economic development and fulfilment”.[44]
While it is true that such rights can be outweighed, in a particular matter, by overriding legitimate interests of a third party (Article 28.2 of the Swiss Civil Code), a balance of interest and proportionality assessment is still required by the law. Such balance would also have been in line with the panel’s initial statement that the case could be summed up as a conflict between the interests of a young Athlete with an adverse medical condition to compete at the highest level in the sport of her choice versus the interest of fellow competitors to trust that they are not required to compete against an opponent with an unfair advantage. Denying the Athlete a right to sport would amount, in effect, to giving automatic priority to the interests of the competitors, which was probably not the panel’s intention.
The Athlete’s right to sport would have certainly be discussed more thoroughly if the Athlete had been involved in the proceedings. Thus, this case illustrates the importance of an effective legal aid mechanism being available for Athletes who wish to participate in CAS proceedings, but are barred for reasons of cost.[45] It also underscores the appellant’s responsibility to name the right respondent carefully at the risk of being faced with multiple litigations relating to a single set of facts, or possibly even with an award with which the Athlete is not required to comply at all.
[1] For other CAS awards dealing with appeals in connection with TUEs, see, e.g. CAS 2009/A/1948, Berger v. WADA, March 2010, which also concerns a request for a TUE for beta-blockers in the sport of shooting; and CAS 2014/A/3751, X. v. WADA, February 10, 2015.
[2] The name of the shooter is redacted in the award published by WADA.
[3] ISSF v. WADA award at [14]. The award does not specify why or by whom this TUE was withdrawn.
[4] ISSF v. WADA award at [20].
[5] ISSF v. WADA award at [257]–[262].
[6] ISSF v. WADA award at [263]–[266].
[7] ISSF v. WADA award at [267]. Notably, the Panel’s ultimate decision was based on WADA’s failure to adequately discharge “the Athlete’s” burden of proof.
[8] ISSF v. WADA award at [270].
[9] Article R48 of the CAS Code lists the name of the respondent(s) among the mandatory elements that need to be mentioned in the statement of appeal.
[10] ISSF v. WADA award at [280].
[11] ISSF v. WADA award at [288].
[12] The wording of Article 4.1 of the ISTUE used in the 2011 version has been modified in the 2015 version, but not in a manner that would have a substantive effect on the issues at stake. In order to be granted a TUE, an Athlete must cumulatively show:
- The significant impairment to the Athlete’s health if the substance or method was withheld,
- The lack of any performance enhancement beyond a return to a normal state of health,
- The absence of any other reasonable Therapeutic alternative,
- The necessity for the Use is not a consequence of prior use without a valid TUE.
[13] ISSF v. WADA award at [292].
[14] ISSF v. WADA award at [294].
[15] ISSF v. WADA award at [295]–[296].
[16] Article 4.1 of the ISTUE 2011. The new version under the ISTUE 2015 reads as follows: “The Therapeutic Use of the Prohibited Substance or Prohibited Method is highly unlikely to produce any additional enhancement of performance beyond what might be anticipated by a return to the Athlete’s normal state of health following the treatment of the acute or chronic medical condition.”
[17] ISSF v. WADA award at [302].
[18] ISSF v. WADA award at [327].
[19] ISSF v. WADA award at [317].
[20] ISSF v. WADA award at [319].
[21] ISSF v. WADA award at [323].
[22] ISSF v. WADA award at [326].
[23] ISSF v. WADA award at [327].
[24] See, e.g. Netzle, Stephen, ‘Wer ist meine Gegenpartei? SchiedsVZ Heft, April/Mai 2009.
[25] CAS 2008/A/1639, RCD Mallorca v. FA & Newcastle United, April 24, 2009 at [26].
[26] CAS 2014/A/3751, X. v. WADA, February 10, 2015 at [7.1].
[27] The binding effect of the award appears implied in the following statement made by the CAS panel, contemplating the effect of the award on the Athlete: “But it is true that the Athlete is directly affected if such relief is granted. The consequence of setting aside the Decision will be to revoke or rescind the TUE granted by that body to the Athlete with the further consequence that the Athlete will be at risk of being charged with an ADRV if she decides to continue to participate in the sport of shooting whilst taking Atenolol.” ISSF v. WADA award at [275].
[28] For two recent examples, see CAS 2014/A/3347, WADA v. Koterba, December 22, 2014 and CAS 2014/A/3615, WADA v. Daiders, January 30, 2015.
[29] CAS 2010/A/2083, UCI v. Ullrich, February 9, 2012 at [47].
[30] See CAS 2011/A/2551, Fenerbahçe v. UEFA, September 20, 2011 at [6.8] for a CAS award reflecting similar reasoning.
[31] See, e.g. CAS 2011/A/2654, Namibia Football Association v. CAF, March 1, 2012, in which CAF’s Appeal Board rejected the national team of Namibia’s allegation that the national team of Burkina Faso fielded an ineligible player. While both teams were represented at the CAF-level hearing, Namibia named only CAF as a respondent in its appeal to the CAS. The CAS found that while Burkina Faso should have been the “principle” respondent, it noted that it was Namibia’s choice against whom it directed its appeal, “but by not including the Burkina Faso FF as a party … [the Panel’s] scope of review is limited to a review of the Appealed Decision alone. In the event that, on the merits, it is determined to overturn the Appealed Decision, then this Panel would be unable to go further and issue an award that would have the effect of replacing Burkina Faso with Namibia.” at [17].
[32] ISSF v. WADA award at [268].
[33] See, e.g. Mavromati, Despina, ‘Res judicata in sports disputes and decisions rendered by sports federations in Switzerland’, CAS Bulletin 2015/1, 40, [46]-[48].
[34] Rigozzi and Quinn 2012, p. 29; see, explicitly, CAS 2014/A/3630, De Ridder v. ISAF, December 8, 2014 at [114].
[35] CAS 2008/A/1480, Pistorius v. IAAF, May 16, 2008 at [38].
[36] Article 4.1 (b). of the 2015 ISTUE : “The Therapeutic Use of the Prohibited Substance or Prohibited Method is highly unlikely to produce any additional enhancement of performance beyond what might be anticipated by a return to the Athlete’s normal state of health following the treatment of the acute or chronic medical condition”.
[37] ISSF v. WADA award at [317].
[38] For an earlier case where a CAS Panel adopted a similar “harsh” approach in denying a TUE on the basis of a failure to establish the “lack of performance enhancement” criteria in the context of a shooter using a beta-blocker prescribed to mitigate the risks of his underlying heart condition, see CAS 2009/A/1948, Berger v. WADA, March, 2010.
[39] ISSF v. WADA award at [205].
[40] ISSF v. WADA award at [206].
[41] See the mechanism in Article 4.3.1 of the WADC, whereby any two-of-three among the criteria of “performance enhancement”, “health risk” and “violation of the spirit of sport” are sufficient for WADA to include a substance or method in the List.
[42] Prof. Arne Ljungqvist, Minutes WADA ExCo Meeting 10 November 2012, p. 31.
[43] CAS 2011/A/2384, UCI v. Contador, February 6, 2012.
[44] Swiss Supreme Court, ATF 134 III 193, Schafflützlel & Zöllig v. FSC at [4.5] (original text in French).
[45] Guidelines on Legal Aid before the Court of Arbitration for Sport, September 1, 2013, available at http://www.tas-cas.org/fileadmin/user_upload/Legal20Aid20Rules20ENG20_clean_FINAL.pdf
Copyright August 10, 2015 by the WADC Commentary Team
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