4A_420/ Judgment of January 3, First Civil Law Court

Similar documents
4A_386/ Judgment of January 3, 2011 First Civil Law Court

4A_260/ Judgement of January 6, First Civil Law Court

4A_416/ Judgement of March 17, First Civil Law Court

4A_456/ Judgment of May 3, First Civil Law Court

Parties to the proceedings Luis Fernandez, Appellant, Represented by Mr. Jean-Jacques Bertrand, but electing domicile in Mr. Gérard Montavon's firm,

Arbitration CAS 2006/A/1155 Everton Giovanella v. Fédération Internationale de Football Association (FIFA), award of 22 February 2007

X., Represented by Mr. Pierre-Yves Tschanz, Mrs. Perrine Duteil and Mr. Boris Vittoz Appellant,

Represented by Mr. Dominique Dreyer and by Mr. Alexandre Zen-Ruffinen

4A_362/ Judgment of March 27, First Civil Law Court

4A_550/ Judgement of January 29, First Civil Law Court

4A_448/ Judgment of March 27, First Civil Law Court

Arbitration CAS 2014/A/3472 World Anti-Doping Agency (WADA) v. Marzena Karpinska & Polish Weightlifting Federation (PWF), award of 5 September 2014

4A_510/ Judgment of March 8, First Civil Law Court

Arbitration CAS 2007/A/1367 FC Metallurg v. Leo Lerinc, order of 5 March Panel: Mr. Otto de Witt Wijnen (the Netherlands), Sole Arbitrator

Arbitration CAS 2010/A/2046 Samir Ibrahim Ali Hassan v. National Anti-Doping Committee of the United Arab Emirates (UAE), award of 5 October 2010

Arbitration CAS 2007/A/1367 FC Metallurg v. Leo Lerinc, award of 14 May Panel: Mr Otto de Witt Wijnen (the Netherlands), Sole Arbitrator

Arbitration CAS 2007/A/1274 M. v. Ittihad Club, award of 18 December 2007

4A_234/ Judgment of October 29, First Civil Law Court

Arbitration CAS 2015/A/3970 K. v. Turkish Athletics Federation (TAF) & World Anti-Doping Agency (WADA), award on jurisdiction of 17 November 2015

4A_612/ Judgment of February 10, 2010 First Civil Law Court

Arbitration CAS 2015/A/4272 World Anti-Doping Agency (WADA) v. Sri Lanka Anti-Doping Agency (SLADA) & Rishan Pieris, award of 31 March 2016

Arbitration CAS 2008/A/1731 FC Zorya v. Almir Sulejmanovich, award of 31 August 2009

Arbitration CAS 2011/A/2479 Patrik Sinkewitz v. Union Cycliste Internationale (UCI), order of 8 July 2011

Arbitration CAS 2014/A/3670 Traves Smikle v. Jamaica Anti-Doping Commission (JADCO), award of 23 February 2015 (operative part of 4 November 2014)

4A_506/ Judgement of March 20, First Civil Law Division

Arbitration CAS 2013/A/3241 World Anti Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Alice Fiorio, award of 22 January 2014

Arbitration CAS 2014/A/3642 Erik Salkic v. Football Union of Russia (FUR) & Professional Football Club Arsenal, order of 5 August 2014

4A_178/ Judgment of June 11, First Civil Law Court

Arbitration CAS 2006/A/1077 Incheon United FC v. Dragan Stojisavljevic, award of 20 October 2006

Arbitration CAS 2012/A/2981 CD Nacional v. FK Sutjeska, order of 19 December 2012

Arbitration CAS 2005/A/940 Abel Xavier v. Hannover 96, award of 6 June 2006

Arbitration CAS 2012/A/2786 FC Spartak a.s v. Fédération Internationale de Football Association (FIFA), award of 29 August 2012

Arbitration CAS 2013/A/3283 Fudbalski klub Partizan v. Sao Caetano Futebol LTDA, award of 1 April 2014

Decision of the Dispute Resolution Chamber

Club Sportif Sfaxien ( the Appellant ) is a football club affiliated to the Tunisian Football Federation.

Decision of the Dispute Resolution Chamber

Decision of the Dispute Resolution Chamber (DRC) judge

Arbitration CAS 2015/A/3877 Pésci MFC v. Reggina Calcio, award of 3 August 2015

Arbitration CAS 2007/A/1429 Bayal Sall v. FIFA and IK Start & CAS 2007/A/1442 ASSE Loire v. FIFA and IK Start, award of 25 June 2008

Arbitration CAS 2013/A/3403, 3404 & 3405 SASP Stade Rennais FC v. Al Nasr FC, award of 12 June 2014

Arbitration CAS 2010/A/2140 FK Zeljeznicar v. Racing Club Dakar & Fédération Internationale de Football Association (FIFA), award of 8 September 2010

Arbitration CAS 2005/A/899 FC Aris Thessaloniki v. FIFA & New Panionios N.F.C., award of 15 July 2005

Arbitration CAS 2010/A/2139 Kauno Futbolo Ir Beisbolo Klubas v. Fédération Internationale de Football Association (FIFA), award of 26 October 2010

Panel: Prof. Petros Mavroidis (Greece), President; Mr Rui Botica Santos (Portugal); Prof. Ulrich Haas (Germany)

Arbitration CAS 2016/A/4899 Al Jazira FC Sports Company v. Hugo Garcia Martorell

Arbitration CAS 2006/A/1141 M.P. v. FIFA & PFC Krilja Sovetov, order of 31 August 2006

SEVENTY-THIRD SESSION

Decision of the Dispute Resolution Chamber

Decision of the Dispute Resolution Chamber

CAS 2013/A/3372 S.C. FC

Arbitration CAS 2008/A/1447 E. v Diyarbakirspor, award of 29 August 2008

Arbitration CAS 2008/A/1602 A. v. Caykur Rizespor Kulübü Dernegi & Turkish Football Federation (TFF), award on jurisdiction of 20 February 2009

FÉDÉRATION INTERNATIONALE DE GYMNASTIQUE

Arbitration CAS 2013/A/3237 Bratislav Ristic v. FK Olimpic Sarajevo, award of 14 March 2014

Arbitration CAS 2014/A/3547 Club Grenoble Football 38 v. Sporting Clube de Portugal, award of 5 march 2015

CAS 2011/A/2403 World Anti-Doping Agency (WADA) v. Fédération Internationale de Gymnastique (FIG) & Anastasiya Melnychenko ARBITRAL AWARD

Arbitration CAS 2008/A/1677 Alexis Enam v. Club Al Ittihad Tripoli, order of 15 December 2008

Chapter I LICENCE-HOLDERS

4A_157/ Judgment of December 14, First Civil Law Court Composition

Arbitration CAS 2012/A/2730 RCD La Coruña v. Fédération Internationale de Football Association (FIFA), award of 20 August 2012

Arbitration CAS 2012/A/3007 Mini FC Sinara v. Sergey Leonidovich Skorovich, award of 29 November 2013

ARBITRAL AWARD BASKETBALL ARBITRAL TRIBUNAL (BAT)

Decision of the Dispute Resolution Chamber

Arbitration CAS 2017/A/5227 Sporting Clube de Braga v. Club Dynamo Kyiv & Gerson Alencar de Lima Junior, award of 8 March 2018

Arbitration CAS 2015/A/4176 Club Atlético River Plate v. AS Trencin & Iván Santiago Díaz, award of 4 April 2016

Decision of the Dispute Resolution Chamber

Arbitration CAS 2015/A/4288 El Jaish Sports Club v. Giovanni Funiciello, award of 28 April 2016

CAS 2015/A/ FC

CAS 2015/A/4105 PFC CSKA

Arbitration CAS 2012/A/2871 Southend United FC v. UJ Lombard FC, award of 19 February 2013

Arbitration CAS 2007/A/1366 Slezsky FC Opava v. Rusmin Dedic, award of 29 April 2008

Decision of the Dispute Resolution Chamber (DRC) judge

Sole Arbitrator: Mr Michele Bernasconi (Switzerland)

Arbitration CAS 2010/A/2078 Gabros International Football Club v. Hertha BSC Berlin, award of 16 November 2010

Arbitration CAS 2005/A/944 FC Aris Thessaloniki v. Fédération Internationale de Football Association (FIFA), award of 7 June 2006

Arbitration CAS 2015/A/4326 Al-Ittihad FC v. Ghassan Waked, award of 19 October 2016

Arbitration CAS 2008/A/1468 FC Slovacko v. FC Banik Ostrava, award of 9 February 2009

Decision of the Dispute Resolution Chamber

Decision of the Dispute Resolution Chamber

Decision of the Single Judge of the Players Status Committee

Arbitration CAS 2014/A/3629 Parma F.C. S.p.A. v. Federazione Italiana Giuoco Calcio (FIGC) & Torino F.C. S.p.A., award of 31 October 2014

Decision of the Dispute Resolution Chamber

Decision of the Dispute Resolution Chamber

Arbitration CAS 2008/A/1751 Brazilian Football Federation v. Sport Lisboa e Benfica- Futebol S.A.D., award of 5 August 2009

Decision of the Dispute Resolution Chamber

Decision of the Dispute Resolution Chamber (DRC)

Arbitration CAS 2008/A/1482 Genoa Cricket and Football Club S.p.A. v. Club Deportivo Maldonado, award of 9 February 2009

Arbitration CAS 2013/A/3058 FC Rad v. Nebojša Vignjević, award on jurisdiction of 14 June 2013

Arbitration Law no. 31 of 2001

Decision of the Dispute Resolution Chamber

Arbitration CAS 2013/A/3160 Gheorghe Stratulat v. PFC Spartak-Nalchik, award of 19 November 2013

Decision of the Dispute Resolution Chamber

Decision of the Dispute Resolution Chamber

Arbitration CAS 2014/A/3611 Real Madrid FC v. Fédération Internationale de Football Association (FIFA), award of 27 February 2015

Arbitration CAS 2008/A/1517 Ionikos FC v. C., award of 23 February 2009

Part VII. Part V of the Polish Code of Civil Procedure Arbitration. [The following translation is not an official document]

Arbitration CAS 2007/A/1427 M. v. ATP Tour Inc., award of 11 June 2008

Arbitration CAS 2006/A/1189 IFK Norrköping v. Trinité Sports FC & Fédération Française de Football (FFF), award of 24 May 2007

Arbitration CAS 2015/A/4186 FK Bohemians Praha v. Fédération Internationale de Football Association (FIFA), award of 30 May 2016

Decision of the Dispute Resolution Chamber

Transcription:

4A_420/2010 1 Judgment of January 3, 2011 First Civil Law Court Federal Judge KLETT (Mrs), Presiding Federal Judge CORBOZ, Federal Judge KOLLY, Clerk of the Court: M. CARRUZZO Alejandro Valverde Belmonte Appellant, Represented by Mr. Sébastien Besson v. 1.World Anti-Doping Agency (WADA) Represented by Mr. François Kaiser and Mr. Yvan Henzer. 2. International Cyclist Union (ICU) Represented by Mr. Philippe Verbiest 3. Real Federación Española de Ciclismo (RFEC) Represented by Mr. Jorge Ibarrola Respondents, 1 Translator s note : Quote as Alejandro Valverde Belmonte v. AMA, UCI and RFEC, 4A_420/2010. The original of the decision is in French. The text is available on the website of the Federal Tribunal www.bger.ch.

2 Facts: A. In May 2004 a criminal investigation for doping was opened in Spain ( Operation Puerto ). Two years later it led to the arrest of Dr. Fuentes and other people. They were accused of violating Spanish laws on public health. On August 29, 2007 the International Cycling Union (ICU) which had joined the criminal proceedings next to the World Anti-Doping Agency (WADA) asked the Spanish Cycling Federation, Real Federación Española de Ciclismo (RFEC) to initiate disciplinary proceedings against Alejandro Valverde Belmonte, a professional racing cyclist of Spanish citizenship. To justify its request it relied on the fact that on May 6, 2006 investigators acting in the framework of Operation Puerto had seized a pack containing blood allegedly belonging to that racing cyclist in Dr. Fuentes laboratory (hereafter: pack nr. 18). On September 7, 2007 the Comité Nacional de Competición y Disciplina Deportiva (CNCDD), the competent body for doping matters within RFEC, refused to open disciplinary proceedings against Alejandro Valverde Belmonte. The President of RFEC took a decision identical to that of the CNCDD on the same day. B. On October 2007, WADA and ICU filed an appeal with the CAS against the decisions taken by CNCDD and by the President of the RFEC on September 7, 2007. In their last submissions on the merits both asked that Alejandro Valverde Belmonte be banned for two years and that all his results since May 4, 2004 should be annulled. The racing cyclist submitted that the matters were not capable of appeal and the RFEC that they should be rejected. A Panel composed of Mr. Otto L.O De Witt Wijnen, attorney at Bergambacht (Netherlands) (Chairman), Prof. Richard H. McLaren of London (Canada) (arbitrator appointed by the Appellants) and of the Spanish law professor Dr. Miguel Angel Fernandez Ballesteros (arbitrator appointed by the Respondents) was constituted on January 28, 2008 (hereafter: the Panel). After investigating the merits of the case the Panel issued a majority award on May 31, 2010 partially admitting the appeals and holding Alejandro Valverde Belmonte guilty of a violation of Art. 15.2 of the ICU Anti-Doping Rules (2004 version) and banning him for two years from January 1 st, 2010. Moreover

3 it rejected the requests by the ICU and WADA seeking the annulment of the results obtained in competitions by the Spanish racing cyclist before January 1 st, 2010. C. On June 29, 2010 Alejandro Valverde Belmonte filed a Civil law appeal with the Federal Tribunal with a view to obtaining the annulment of the May 31, 2010 award and seeking a finding that the CAS had no jurisdiction on the merits. D. On June 29, 2010 too the Appellant filed a request for interpretation and correction of the May 31, 2010 award with the CAS. On July 9, 2010 the Deputy of the President of the Appeals Arbitration Division of the CAS refused to address the merits of the request. The Appellant also filed a Civil law appeal with the Federal Tribunal against the aforesaid decision on July 28, 2010 (Case 4A_420/2010). He requested that the case be joined with case 4A_386/2010. The Presiding Judge rejected the request on October 4, 2010 as well as the CAS request of September 17 and 20, 2010 seeking a stay in case 4A_420/2010 until a decision on the merits in case 4A_386/2010. In their respective answers, WADA, ICU and the CAS all submit that the appeal should be rejected. The RFEC did not submit an answer within the time limit it had been given. Reasons: 1. According to Art. 54 (LTF) 2 the Federal Tribunal issues its decision in an official language 3, as a rule in the language of the decision under appeal. When that decision is in another language (in this case English) the Federal Tribunal resorts to the official language chosen by the parties. In front of the CAS they used English. In the brief sent to the Federal Tribunal the Appellant used French. According to its practice the Federal Tribunal will resort to the language of the appeal and consequently issue its decision in French. 2 Translator s note : LTF is the French abbreviation for the Federal Statute of June 17, 2005 organizing the Federal Tribunal, RS 173 110. 3 Translator s note : The official languages of Switzerland are German, French and Italian.

4 2. The issue as to whether or not the decision challenged was capable of a Civil law appeal to the Federal Tribunal needs not be decided as in any event the matter is not capable of appeal for the following reasons. 3. The admissibility of a Civil law appeal requires among other conditions that the Appellant should have a legally protected interest to the annulment or the modification of the decision under appeal (Art. 76 (1) (b) LTF). In his appeal seeking the annulment of a decision refusing to address the merits of his request for interpretation the Spanish racing cyclist really seeks to obtain an interpretation and, as the case may be, a rectification by the Panel of the award issued on May 31, 2010. He emphasizes in this respect that his appeal raises the same issue, yet under different perspective, as that which he raised in this respect in his appeal against the aforesaid award (July 28, 2010 brief at 62). Yet in the judgment issued today as to that other appeal, the specific language of which (i.e. the language at 8.3.2) is deemed to be reproduced here in extenso, the Federal Tribunal, after reviewing the Appellant s argument, reached the conclusion that the award itself did not at all contradict the reasons of the award. Consequently the Appellant may no longer claim a present and legally protected interest to obtain the annulment of the decision refusing to address the substance of a request for interpretation of which it was moreover held that it would be bound to fail anyway because the alleged incoherence between the reasons and the award did not exist. Consequently the matter is not capable of appeal. 4. The Appellant shall pay the judicial costs (Art. 66 (1) LTF) and compensate WADA and the ICU for the federal judicial proceedings (Art. 68 (1) and (2) LTF). The RFEC did not file an answer and is not entitled to compensation. Therefor the Federal Tribunal pronounces: 1. The matter is not capable of appeal. 2. The judicial costs set at CHF 2 000.- shall be borne by the Appellant.

5 3. The Appellant shall pay to the World Anti-Doping Agency (WADA) an amount of CHF 2 500.- for the federal judicial proceedings. He shall pay the same amount to the International Cyclist Union (ICU) for the same reason. 4. This judgment shall be notified to the representatives of the Parties and to the Court of Arbitration for Sport (CAS). Lausanne, January 3, 2011 In the name of the First Civil Law Court of the Swiss Federal Tribunal The Presiding Judge: The Clerk: KLETT (Mrs) CARRUZZO