SFT Dismissed Sun Yang’s Appeal against CAS Revision Award
Excerpt of Judgment 4A_406/2021 (in English)
Yesterday, the Federal Supreme Court of Switzerland (“SFT”) published its February 14 judgment dismissing the application by Sun Yang, the legendary Chinese swimmer, to set-aside the artibration award delivered by the Court of Arbitration for Sport (“CAS”) in May 2021. The original judgment is in French; below is an English-translation of the main part of legal discussion therein.
Whereas in Law:
1.
According to art. 54 para. 1 of the Federal Supreme Court Act of 17 June 2005 (FSCA; SR 173.110), the Court writes its judgment in an official language, as a rule in the language of the contested decision. If the decision was rendered in another language (in this case English), the Court uses the official language chosen by the parties. Before the CAS, the parties used English, while in their pleadings before the Court, they used French, thereby complying with art. 42 para. 1 FSCA in conjunction with art. 70 para. 1 of the Federal Constitution of the Swiss Confederation (Cst.; SR 101; ATF 142 III 521, para. 1), in accordance with its practice, the Court will therefore render its judgment in French.
2.
An appeal in civil matters is admissible against awards in international arbitration under the conditions set forth in Articles 190 to 192 of the Federal Act on Private International Law of 18 December 1987 (PILA; SR 291), in accordance with Article 77 para. 1 let. a FSCA.
The seat of the CAS is in Lausanne. At least one of the parties was not domiciled in Switzerland at the relevant time. The provisions of chapter 12 of the PILA are therefore applicable (art. 176 para. 1 PILA).
None of these conditions for admissibility are problematic in this case, whether it is a question of the subject matter of the appeal, the right to appeal, the time limit for appeal, or the submissions made by the appellant. There is therefore nothing to prevent the case from going to court. The examination of the admissibility of the various complaints raised by the appellant remains reserved.
3.
An appeal against an arbitration award must comply with the requirement to state the reasons on which the award is based, as laid down in art. 77 para. 3 FSCA in conjunction with art. 42 para. 2 FSCA and the case law on the latter provision (BGE 140 III 86, para. 2, and the references cited). This presupposes that the appellant discusses the reasons for the decision and indicates precisely in what way he considers that the author of the decision has infringed the law. This can only be done within the limits of the admissible grounds of appeal against the award, i.e. only with regard to the complaints listed in article 190 paragraph 2 of the PILA when the arbitration is of an international nature. Moreover, as this reasoning must be contained in the notice of appeal, the appellant cannot use the procedure of asking the Federal Court to refer to the allegations, evidence and offers of proof contained in the pleadings in the arbitration file. Likewise, it would be futile to use the reply to put forward factual or legal arguments that it had not presented in due time, i.e. before the expiry of the non-extendable appeal period (art. 100 para. 1 FSCA in conjunction with art. 47 para. 1 FSCA) or to supplement, outside the time limit, an insufficient statement of reasons (4A_478/2017 of 2 May 2018, para. 2.2 and the references cited).
The Court rules on the basis of the facts established in the contested decision (cf. art. 105 para. 1 FSCA). It cannot correct or supplement the arbitrators’ findings ex officio, even if the facts have been established in a manifestly inaccurate manner or in violation of the law (cf. art. 77 para. 2 FSCA which excludes the application of art. 105 para. 2 FSCA). Its task, when seized of an appeal in civil matters against an international arbitral award, is not to rule with full cognition, like an appellate court, but only to examine whether the admissible complaints against the award are founded or not. To allow the parties to allege facts other than those found by the arbitral tribunal, apart from the exceptional cases reserved by case law, would no longer be compatible with such a mission, even if these facts were established by the evidence in the arbitration file. However, the Court retains the right to review the facts on which the award is based if one of the complaints mentioned in art. 190 para. 2 PILA is raised against the said facts or if new facts or means of proof are exceptionally taken into consideration in the context of the appeal in civil matters (4A_478/2017, supra, para. 2.2).
4.
In the first plea, the appellant, invoking art. 190 para. 2 let. b of the PILA, argues that the respondent foundation filed an appeal late and that, consequently, the CAS should have declared this plea inadmissible. If it had not done so, but had entered the matter, the Panel would have wrongly declared itself competent. Therefore, the contested award should be annulled in accordance with Art. 190 para. 2 let. b of the PILA.
The claimant explains that in a Vekoma decision of August 17, 1995 (4P.284/1994), the Court ruled that the question of whether a period of time during which arbitration must be initiated has expired falls within the scope of art. 190 para. 2 let. b PILA. According to him, in the decision 4A_413/2019 of October 28, 2019, concerning a decision in the present case regarding the alleged inability to apply of the counsel of the respondent foundation, the Court would have deviated from this jurisprudence by holding that “compliance with the time limit for appealing to the CAS constitutes a condition of admissibility and not a problem of jurisdiction”, which excludes the admissibility of the complaint invoked on this count on the basis of art. 190 al. 2 let. b PILA. It did so by relying on an author (Antonio Rigozzi) who had not examined this precise point and who subsequently formulated an opinion in the sense of the admissibility of the appeal to the Court in order to have the question of the respect of the time limit for appeal decided in application of the Vekoma jurisprudence, the idea being not to leave the party whose appeal was judged to be late facing a denial of justice. The appellant underlines that if the present case concerns the opposite case, i.e. the one where the arbitral tribunal refuses to put an end to the proceedings notwithstanding the late filing of the appeal, the solution should not differ from the one that applies in the opposite hypothesis since art. 190 para. 2 let. b PILA is formulated in such a way as to treat on an equal footing the case where the arbitral tribunal admits its jurisdiction and continues the proceedings and the one where it declares itself incompetent and puts an end to them. Referring to another precedent (4A_392/2008 of December 22, 2008), he sees this as an example of the Court’s earlier, more flexible practice of ruling in situations comparable to his own and wonders why it should not be treated in the same way. In his opinion, it would be appropriate to be even stricter when sports federations wish to bring an athlete before the CAS, and even more so when the person who initiated the arbitration tribunal in the context of a forced arbitration was not a party to the first instance proceedings, such as the respondent foundation, without committing a denial of justice within the meaning of art. 30 of the Swiss Constitution and art. 6 para. 1 of the European Convention on Human Rights (ECHR; RS 0.101). The appellant also cites other decisions in which the Court has accepted the admissibility of the complaint under art. 190 para. 2 let. b of the PILA in cases where the disputed question did not fall within the jurisdiction of the arbitral tribunal in the strict sense (BGE 142 III 296; 126 III 524; 118 II 193).
On the merits, the appellant, making his own analysis of art. 13.7.1 of the Rules, argues that the time limit within which the respondent foundation had to file its appeal brief to the CAS expired on March 20, 2019 and not on April 10, 2019.
4.1.
In a recent decision, the Court, referring in particular to two doctrinal contributions (Stefanie Pfisterer, Die Befristung der Schiedsvereinbarung und die Zuständigkeit eines Schiedsgerichts ratione temporis — eine Illusion?, in Mélanges in honour of Anton K. Schnyder, 2018, p. 275 ff; Antonio Rigozzi, Le délai d’appel devant le Tribunal arbitral du sport: quelques considérations à la lumière de la pratique récente, in Le temps et le droit, 2008, p. 255 ff), considered that the respect of the time limit for appealing to the CAS is a condition for the admissibility of the appeal, which does not concern the jurisdiction of the arbitral tribunal (4A_413/2019, supra, para. 3.3.2). Failure to comply with the time limit within which an appeal must be filed with the CAS does not in fact entail the lack of jurisdiction of this arbitral tribunal, but only the inadmissibility of the appeal. Consequently, the complaint based on the failure to comply with the time limit for filing an appeal to the CAS does not fall within the scope of art. 190 para. 2 let. b of the PILA. The appellant cannot therefore immediately challenge the incidental award by which the CAS finds that an appeal was filed in due time, insofar as it does not contest either the composition of the arbitral tribunal or its jurisdiction (art. 190 para. 3 PILA).
The Court has confirmed its case law on several occasions since then (4A_198/2020 of December 1, 2020, para. 3.2; 4A_290/2020 of August 26, 2020; 4A_287/2019, supra, para. 4.2).
In a decision rendered on March 15, 2021 (4A_626/2020), the Court was called upon to rule once again on the solution adopted in decision 4A_413/2019. In this case, the appellants argued that the contribution of Stefanie Pfisterer, quoted in the judgment 4A_413/2019, only examined the question of the jurisdiction ratione temporis of the arbitral tribunal in commercial arbitration and not in the field of sports. As for the other doctrinal opinion cited in the judgment in question, they pointed out that the author concerned had also argued, in a later contribution, that the Court could examine the question of the time limit for appealing to the CAS from the point of view of art. 190 para. 2 let. b of the PILA (Rigozzi/Hasler, in Arbitration in Switzerland, The Practitioner’s Guide, vol. II, 2nd ed. 2018, no 26 ad art. R49 of the Code and footnote 65). They pointed out that recent doctrine had been critical of the solution adopted in 4A_413/2019. The Court of Appeal considered that the elements put forward by the appellants did not justify calling into question the solution it had recently adopted. Although the judgment 4A_413/2019 has given rise to some criticism in the doctrine (cf. in particular Sebastien Besson, note on the above-mentioned judgment, in Revue de l’Arbitrage 2020/3 p. 916), several authors had welcomed this new case law (cf. Marco Stacher, Jurisdiction and Admissibility under Swiss Arbitration Law — the Relevance of the Distinction and a New Hope, in Bulletin ASA 2020/1 p. 67 f. and 73; Stacher/Puschel-Arnold, BGer 4A_413/2019: Schiedsgerichtsbarkeit: Fristgerechte Klage und Postulationsfähigkeit — beschwerdefähige, Zuständigkeitsfragen? in PJA 2020/2 p. 250 f.; Mladen Stojiljkovic, Swiss Federal Court addresses Jurisdiction and Admissibility in CAS Arbitration, in dRSK, 17 December 2019).
4.2
Considered in the light of the foregoing, and particularly in light of the recent case law of the Federal Court, the complaint under review appears to be inadmissible. In this respect, the considerations set out in judgment 4A_626/2020 can be repeated here mutatis mutandis. It should be added that the judgments cited by the appellant in which the Court examined certain complaints from the point of view of art. 190 para. 2 let. b PILA refer to different situations, so that the appellant can draw nothing from them here. Further, the fact that the Court examined the question of whether the CAS had been seized in good time on the basis of art. 190 para. 2 let. b PILA in an isolated and relatively old decision (4A_392/2008 cited above) is not in itself decisive. Nor can the appellant be followed when he complains of a possible denial of justice. It should be emphasized that the appellant, even though he claims to have been brought before the competent sports court in an irregular manner, was nevertheless given the opportunity to put forward all his arguments — including those relating to the question of the time limit for appeal — before a truly independent and impartial court, the CAS, that is to say, a specialized court with full power of examination in fact and in law, and that he was then given the possibility of bringing a case before the Court by a legal means whose particular procedural rules, and in particular the extremely limited grounds of appeal, are compatible with the guarantees of the ECHR (4A_248/2019, paras. 5.1 and 5.2.4–5.2.6 not published in ATF 147 III 49).
4.3
In any event, the complaint, even if admissible, should be rejected in any case, as we shall see.
4.3.1.
The Court has interpreted the statutes of major sports associations, such as UEFA and FIFA, in the same way as a law, in particular their clauses relating to questions of jurisdiction (4A_564/2020 of June 7, 2021, para. 6.4; 4A_490/2017 of February 2, 2018, para. 3.3.2, 4A_600/2016 of June 29, 2017, para. 3.3.4.1). It did the same to discover the meaning of rules below the level of the statutes enacted by a sports association of this importance (judgment 4A_600/2016, cited above, para. 3.3.4.1). In the present case, the topical provisions dealing with a question relating to the time limit for appealing to CAS are rules of a lower level than the statutes of the respondent association, i.e. the Rules, which were enacted by the umbrella organization governing swimming at world level. The appellant is therefore right to interpret them in accordance with the methods of interpretation of the laws.
4.3.2.
Every interpretation begins with the letter of the law (literal interpretation), but this is not the decisive factor: it is necessary that the true scope of the regulation be restored, which also derives from its relationship with other legal provisions and its context (systematic interpretation), from the aim pursued, in particular the interest protected (teleological interpretation), as well as from the will of the legislator as it results from the preparatory works (historical interpretation). The judge will deviate from a clear legal text if the other methods of interpretation mentioned above show that this text does not correspond in all respects to the true meaning of the provision in question and leads to results that the legislator cannot have intended, that offend the sense of justice or the principle of equal treatment. In short, the Federal Court does not favor any method of interpretation and does not establish a hierarchy, drawing on a pragmatic pluralism to seek the true meaning of the norm (BGE 142 III 402 para. 2.5.1 and references cited; 4A_600/2016, supra, para. 3.3.4.2).
4.3.3.
At this point, it is appropriate to reproduce the text of art. 13.7.1 of the Rules for a better understanding of the explanations that follow:
“13.7.1 Appeals to CAS
The deadline to file an appeal to CAS shall be twenty-one (21) days from the date of receipt of the decision by the appealing party. The above notwithstanding, the following shall apply in connection with appeals filed by a party entitled to appeal but which was not a party to the proceedings that led to a decision being appealed:
a) Within a deadline of fifteen (15) days from receipt of the decision, the party/ies entitled to appeal can request a copy of the complete case file from the body that issued the decision, including the motivation of the decision and, if the proceedings took place in another language, a translation in one of FINA’s official languages (English or French) of the decision and of the motivation, as well as of any document which is necessary to understand the content of the decision.
b) If such a request is made within the fifteen-day period, then the party making such request shall have twenty-one (21) days from the receipt of the full file, including translations, to file an appeal to CAS.
The above notwithstanding, the filing deadline for an appeal filed by WADA [Respondent Foundation] shall be the later of:
(a) Twenty-one (21) days after the last day on which any other party in the case could have appealed, or
(b) Twenty-one (21) days after WADA’s receipt of the complete file relating to the decision.
Similarly, the filing deadline for an appeal by FINA [respondent association] shall be in any event the later of:
(a) Twenty-one (21) days after the last day on which any other party (except WADA) could have appealed before CAS; or
(b) Twenty-one (21) days from the day of receipt of the complete file relating to the decision.”
4.3.4.
In the contested award (n. 184–191), the Panel considers, on the basis of its interpretation of the aforementioned regulatory provision, that the Respondent Foundation had an additional 21 days to file an appeal to the CAS compared to all other parties entitled to file an appeal to the CAS. In reaching this conclusion, she referred in particular to the text of Article 13.7.1 § 2 a), according to which the Respondent Foundation has 21 days to bring an appeal to the CAS “after the last day on which any other party in the case could have appealed”. In her view, the expression “any other party” undoubtedly includes the respondent association. Therefore, the time limit for appeal began to run for the respondent foundation after the expiration of the time limit within which the respondent association could have appealed the decision of its Commission to CAS (Award, n. 188). This literal interpretation is corroborated by the systematic interpretation of the topical provision. Indeed, if the drafters of the Rules had intended to impose the same time limit on the respondent association and the respondent foundation — which, according to the respondent foundation, would have constituted a violation of the respondent association’s obligations to develop its rules in accordance with the WADC — there would have been no need to separate the time limits for appeals by these two entities into two separate subsections of the same standard (Award, n. 189). The Panel then points out that the positions of the Respondent Association and the Respondent Foundation are indeed similar within the meaning of Art. 13.7.1 § 3 of the Regulations (“similarly to WADA”), in that they each have more time than the other parties to file an appeal to CAS. However, their respective situations are not identical. According to Art. 13.7.1 § 3 of the Rules, the respondent association may file an appeal to CAS after the appeal deadlines applicable to the other parties have expired, to the exclusion of the respondent foundation (“except WADA”). The Respondent Foundation, on the other hand, may file an appeal with CAS after all other parties, including the Respondent Association. What the two respondents have in common is that they are subject to a special regime that derogates from the general rule. It does not follow, however, that the two exceptions are identical in every respect. The opposite conclusion seems to be more in line with the text, structure and purpose of Art. 13.7.1 of the Regulations (Award, n. 190).
4.3.5.
Considered in the light of the jurisprudential principles recalled above and applied by analogy in case, the solution adopted by the Panel appears convincing. Therefore, the Court agrees with the arguments developed by the arbitrators when interpreting article 13.7.1 of the Rules.
The criticisms made by the appellant with regard to the reasoning of the Panel do not convince the Court. Firstly, by merely highlighting the term “similarly” in article 13.7.1 § 3 of the Rules, the appellant fails to mention the existence of the expression “except WADA”, used in letter a) of the same provision, which invalidates the argument that the respondent association and the respondent foundation should benefit from the same time limit for appeal. Secondly, the systematic interpretation proposed under n. 112 of the appeal brief is not convincing either. It is also conceivable that, out of deference to the respondent foundation, whose ad hoc regulations (WADC) it was responsible for adopting and implementing, the respondent association thought it more elegant to deal first with the time limit for appeals reserved for that entity before talking about its own.
The explanations concerning the alleged “will of the legislator” (appeal, n. 113) carry little weight, since they are based on an opinion of March 22, 2019, subsequent to the filing of the statement of appeal, in which the respondent association appears to take up the appellant’s cause and clearly intends to avoid the CAS reviewing the decision in his favor rendered by its internal jurisdictional body. Moreover, the document cited is not suitable for revealing the historical will of the “legislator,” which is the only thing that matters in this type of interpretation, but at most the way in which the respondent association interprets the disputed provision today.
In an attempt to give substance to his argument, the appellant further alleges that the respondent association knowingly deviated from the rules that the respondent foundation advocates in the WADC (see appeal, n. 114). This last argument is not serious insofar as it suggests that the respondent association did not intend to transpose the relevant provisions of the WADC correctly into its own regulations, but this is not proven.
The appellant’s peremptory assertion that the Panel should not have taken into account the time limit for appeal available to the Chinese Anti-Doping Agency (CHINADA) when calculating the time limit for appeal of the respondent foundation does not appear to be convincing either (appeal, n. 115).
As for the alleged criticism made by the appellant, from the point of view of the right to be heard, that the Panel did not refute, even implicitly, the arguments that he had put forward concerning the allegedly contradictory behavior of the respondent foundation with regard to the time limit within which it had to bring the case before the CAS, this also appears to be irrelevant. The Panel was in fact required to examine ex officio the issues related to the admissibility of the appeal. Consequently, it is not clear how the conduct of the respondent foundation could have altered the interpretation of the topical provision by the arbitrators and thus affected the outcome of the case. Moreover, as the Respondent Foundation rightly points out, the Panel referred in paragraph 160 of its Award to the argument of allegedly contradictory conduct. It must therefore be accepted that the Panel implicitly denied the existence of an attitude incompatible with the rules of good faith on the part of the Respondent Foundation.
In view of the foregoing, the complaint under consideration, if it were admissible, which is not the case, should in any event be rejected.
5.
In a plea that must be examined in the second place, the appellant argues that the failure to observe the time limit for appeal to the CAS had the effect that the decision rendered by the Commission in his favor had come into force and therefore had the force of res judicata. Consequently, by taking up the case when the time limit for appeal had expired, the Panel would have disregarded this effect of the first instance decision, so that its award should be annulled for contravening procedural public policy within the meaning of article 190 para. 2 let. e PILA.
Such an argument cannot succeed. At the outset, it should be noted that it is doubtful, to say the least, that the appellant can invoke the res judicata of the first instance decision in order to refuse to follow an appeal procedure that was allegedly introduced late by the other party. In fact, it follows from the jurisprudential definition of res judicata (ATF 140 III 278 para. 3.3) that the application of this legal figure supposes the existence in time of two distinct trials, with a second lis pendens, which would exclude its implementation in the relations existing between two jurisdictions of different degrees (first and second instance) in charge of the same case. However, there is no need to examine this question further, since, according to the considerations set out above, to which reference may be made here, the Court considers that the Panel rightly recognized that the Respondent Foundation had brought the case before the CAS in good time.
6.
Thirdly, the appellant, invoking art. 190 al. 2 let. d PILA, complains of a series of violations of his right to be heard.
6.1.
The case law has deduced from the right to be heard, as guaranteed by art. 182 para. 3 and art. 190 para. 2 let. d PILA, a minimum duty for the arbitral tribunal to examine and deal with the relevant issues. This duty is violated when, through inadvertence or misunderstanding, the arbitral tribunal fails to take into consideration allegations, arguments, evidence and offers of proof presented by one of the parties and important for the award to be made. The burden of proof is on the allegedly aggrieved party to show, in its appeal against the award, how an oversight by the arbitrators prevented it from being heard on an important point. It is up to the aggrieved party to establish, on the one hand, that the arbitral tribunal did not examine certain elements of fact, evidence or law that it had regularly put forward in support of its conclusions and, on the other hand, that these elements were of such a nature as to influence the outcome of the dispute (BGE 142 III 360, paras. 4.1.1 and 4.1.3; 4A_478/2017, supra, para. 3.2.1). If the award completely ignores elements that are apparently important for the resolution of the dispute, it is up to the arbitrators or the respondent to justify this omission in their observations on the appeal (BGE 133 III 235, para. 5.2; 4A_618/2020 of June 2, 2021, para. 4.2; 4A_478/2017, cited above, para. 3.2.1). However, the arbitrators are not obliged to discuss all the arguments put forward by the parties, so that they cannot be reproached, as a violation of the right to be heard in adversarial proceedings, for not having refuted, even implicitly, a plea that is objectively irrelevant (ATF 133 III 235, para. 5.2; 4A_692/2016 of April 20, 2017, para. 5.2).
It should be recalled that the complaint based on the violation of the right to be heard should not serve, for the party complaining of defects in the grounds of the award, to provoke by this means an examination of the application of the substantive law (ATF 142 III 360, para. 4.1.2).
6.2.
6.2.1.
In the first part of the present plea, the Appellant complains that the Panel did not take into consideration certain elements that he had put forward concerning compliance with the time limit for appeal to the CAS. He argues that the arbitrators should have declined jurisdiction or issued an inadmissibility decision if they had taken his arguments into account. He also complains that the Panel ruled on the admissibility of the appeal on February 26, 2021, without the pleadings filed with the Court in case 4A_192/2020 being included in the case file. Finally, he complains that the arbitrators limited the length of the parties’ written submissions to five pages in order to develop their arguments regarding the admissibility of the appeal period.
6.2.2.
As presented, the complaint cannot succeed. It should be noted at the outset that, according to case law, there is no general principle in international arbitration that all procedural steps should be repeated when an arbitrator has been challenged and replaced (BGE 147 III 379, para. 3.2). Art. R36 of the Code provides that, unless otherwise agreed by the parties or decided by the Panel, the proceedings shall continue without repetition of the procedural steps taken prior to the arbitrator’s removal. In the present case, the new Panel, even though it was under no obligation to do so, offered the parties the opportunity to present their arguments once again on the admissibility of the appeal and on the substantive issues. It also held a new hearing and allowed the parties to question witnesses during the hearing. Thus, the Panel made every effort to respect the parties’ right to be heard.
As the Respondent Foundation then points out, without being contradicted by the Appellant, the Panel, when it ruled on the admissibility of the appeal on February 26, 2021, had in its possession the entire file existing before the CAS, i.e. at least the award rendered by the CAS on February 28, 2020, as well as the writings and exhibits produced in the context of these proceedings, as well as the judgment rendered on December 22, 2020 by the Court in case 4A_318/2020. As pointed out by the Respondent Foundation, the Panel had before it, inter alia, the response memorandum produced on August 14, 2019 by the Athlete, which already addressed the issue of the admissibility of the appeal to CAS. Attached to this document was the appeal brief to the Federal Court filed by the athlete in case 4A_187/2019, which dealt, on fourteen pages, with the admissibility of the appeal to CAS and which, on this point, was similar to the content of the appeal filed in case 4A_192/2020. It must therefore be admitted that the Panel was aware of the arguments presented by the appellant on this point in the appeal proceedings 4A_192/2020.
By limiting the length of the parties’ supplementary submissions on the admissibility of the appeal, the Panel did not violate the appellant’s right to be heard either. In this respect, it should be noted at the outset that the appellant did not complain about this restriction during the arbitration proceedings. Therefore, the appellant cannot invoke such a plea after the fact, without contravening the rules of good faith, since he should have raised it immediately during the arbitration proceedings. In any event, the limitation of the length of the pleadings did not, in view of all the circumstances, affect the appellant’s right to be heard. Indeed, when the Panel ruled on the admissibility of the appeal, the appellant had already put forward, on at least three occasions, his arguments on this point in his reply of August 14, 2019, in his appeal brief to the Court of June 11, 2019 (case 4A_287/2019) and in his supplementary brief of February 23, 2021. The interested party had thus had ample opportunity to put forward all his arguments on this issue, without the slightest limitation.
Finally, it should be noted that the appellant has not sufficiently established how the outcome of the proceedings could have been different if the alleged violation of his right to be heard had not occurred.
6.3.
6.3.1.
In the second part of the appeal, the appellant submits that the Panel violated his right to be heard when it ruled on the question whether the BCA could, under Chinese law, take a blood sample in the athlete’s home town. In this regard, the athlete stated that he had commissioned an expert in Chinese law, Prof. Pei Yang, who confirmed in his written report that the blood sample taken during the doping control was contrary to Chinese law. During the hearing of the Panel, Prof. Pei Yang clarified that a Chinese nurse can only practice at the place where she is registered, but not outside the hospital. He pointed out that this point had not been addressed in his written report because he had not been instructed to comment specifically on this issue at the time. In addition to having wrongly attributed to him the burden of proving the illegality of the blood sampling process and having applied the wrong standard of proof, the appellant complains that the arbitrators failed to consider his argument on the grounds that it was not included in the report of the Chinese law expert but was only addressed during his examination before the Panel. He claims that the Panel violated his right to be heard by excluding, by procedural order of February 15, 2021, any new evidence, and then reproached him for not having produced additional evidence. The appellant states that, if he had been allowed to produce new evidence, he could, in particular, have produced an additional report by Prof. Pei Yang explaining why the BCA’s PNC (Practicing Nurse Certificate) did not allow her to take blood during the disputed doping test. He further complains that the arbitrators completely ignored the testimony of Prof. Pei Yang during the hearing.
6.3.2.
It should be noted at the outset that, by means of his criticism, which is very appellatory in tone, the appellant is attempting, under the guise of an alleged violation of his right to be heard, to re-discuss certain substantive issues relating to the formalities of the anti-doping test which were not dealt with as he would have wished, on the pretext that the Panel had ignored them. It goes without saying that such an approach is inadmissible in international arbitration.
When reasoning on the basis of the rules of the burden of proof, the appellant loses sight of the fact that this question is not subject to examination by the Court, which is called upon to hear an appeal in civil matters concerning an international arbitration award (4A_616/2015 of September 20, 2016, para. 4.3.1, and the references cited). Nor can the interested party be followed when he asserts that the Panel violated his right to be heard by holding that Prof. Pei Yang had not addressed the issue of BCA’s right to practice nursing in the geographical area where the doping test took place, even though the expert had produced, as an annex to his written report, an extract from the Chinese law dealing with the issue. Under n. 338 of the contested award, the Panel stated as follows:
“More complicated is the Athlete’s assertion that the BCA’s PNC was geographically limited, i.e., invalid in Hangzhou, and therefore would not have sufficed as a valid professional credential even if it had been shown. This assertion is a relative latecomer to these proceedings. The Athlete’s expert on Chinese law, Professor Pei Yang, acknowledged on cross-examination that he had not been asked to address this issue, and his report does not speak to it. The only provision of Chinese law annexed to his expert report which the professor mentioned during his live testimony as potentially bearing on the issue merely requires that nurse have a PNC before “engaging[ing] in nursing at the registered practice place. “Left unclear was the article’s scope, for example whether Chinese law considers blood collection as part of a doping control to be “engagement in nursing”. The Panel was also presented with certain evidence as to certain exceptions to this restriction, such as emergency deployments of nurses to address public health emergencies, etc. Yet other provisions that may bear on the issue, in particular parts of the Chinese Nurse Regulations, were fleetingly noted by Professor Pei Yang on direct examination but were neither included in his expert report nor otherwise submitted into the record.”
The above passage demonstrates that the Panel did not ignore the annex to the expert’s report. Based on the expert’s own statements at the hearing, the Panel only considered that the expert did not address in his report the issue of the geographic limitation of the validity of the BCA’s PNC.
The appellant is also wrong when it asserts that the Panel ignored the statements made by the expert at the hearing and some of his arguments on the grounds that they were not included in the expert’s written report. As the above passage illustrates, the arbitrators took into account the expert’s statements at the hearing in their award. On the basis of an assessment of the available evidence, the Panel only found that the appellant’s contention that the validity of the BCA’s PNC was geographically limited had not been established to the satisfaction of the law. Under the guise of an alleged violation of his right to be heard, the appellant is in fact attacking the assessment of the evidence, as it was made by the arbitrators. The appellant implicitly acknowledges this in paragraph 139 of his appeal, since he states the following: “…On this basis, the Panel found that the Appellant had not proved that the PNC in possession of the BCA did not authorize him to draw blood in the city of Hangzhou…”. By arguing in this way, the appellant loses sight of the fact that the assessment of the evidence that led the Panel to draw certain conclusions in legal terms is beyond the knowledge of the Federal Supreme Court when it rules on an appeal in international arbitration (BGE 142 III 360, para. 4.1.1; 4A_136/2016 of 3 November 2016, para. 4.2.1).
The appellant also complains in vain that the Panel infringed his right to be heard by excluding, by order of February 15, 2021, the production of any new evidence. The annulment of the first award rendered on February 28, 2020 by the CAS following the dismissal of the president of the first panel called upon to rule in the present case did not in fact require the newly appointed arbitrators to proceed with other investigative measures or to authorize the production of new evidence. Therefore, the Appellant has only himself to blame for not having produced, in due time, all the evidence to support the claim that Chinese law prevented the BCA from taking blood in the context of a doping control outside certain geographical areas.
6.4.
In the third part of the plea examined, the appellant claims that the Panel ignored his argument that the handwritten document signed by all the protagonists at the time of the doping test had the effect that the test had been “abandoned.”
Such an accusation is untrue. In the contested award, the Panel reproduced the content of the said document (n. 46). The Panel further found that, according to the ISTI rules, the DCO was obliged to give the appellant the opportunity to comment in writing on the course of the doping test. DCOs were also instructed to sign such statements from an athlete. According to the Panel, the fact that the DCO signed the handwritten note in question did not mean that she agreed with its content (Award, n. 352). The argument raised in relation to an alleged abandonment of doping control was thus not ignored by the Panel, but simply not accepted by it. This is further corroborated by the conclusion reached by the Panel, which cannot be challenged, that the appellant evaded doping control by not allowing the DCO to take the blood samples that had been collected with it.
6.5.
6.5.1.
In the fourth and last part of the appeal, the appellant complains that the arbitrators ignored his argument concerning the historical interpretation of article 5.3.3 ISTI, which was intended to show that the presentation of a generic authorization letter was not sufficient and that the sample collection personnel should have submitted a document to the athlete specifically indicating that they had been authorized to carry out the disputed doping control.
6.5.2.
The Court is not convinced by such an argument. It should be noted at the outset that the Panel summarized the main arguments developed by the parties in their respective pleadings in paragraphs 136 et seq. of its award. In paragraphs 137 and 139 of its decision, it referred in particular to the interpretation of art. 5.3.3 ISTI advocated by the appellant and the respondent association, as well as to the methods of interpretation — in particular the historical interpretation — that were supposed to support their thesis. It can thus be admitted that it took into consideration, in other words, dealt with, the argument invoked by the appellant, and that, if it did not expressly reject it, it did so at least implicitly. On reading the award, it must be noted that the Panel made a detailed interpretation of article 5.3.3 ISTI in order to determine its true meaning. By considering that their literal, systematic and teleological interpretation of the topical norm led to one and the same result, the arbitrators clearly rejected the thesis defended by the appellant and the historical interpretation intended to support it. In view of the foregoing, the claim of violation of the right to be heard must be rejected.
