SWISS FEDERAL SUPREME COURT APPEAL BY FIGURE SKATER DISMISSED

Of the many appeals against awards of the Court of Arbitration for Sport (CAS) submitted last year to the Swiss Federal Supreme Court (TFS), one appeal, in particular, is worthy of mention. Because it concerned the treatment of a minor athlete, namely, the Russian figure skater, Kamila Valieva, in a doping case.

In January 2024, the CAS Appeals Division imposed a four-year suspension and stripped Valieva of her results following a positive test.

She appealed this award to the TFS, claiming that:

• The CAS lacked jurisdiction as she had not consented in writing to the arbitration clause contained in article 15.2 of the Russian Anti-Doping Rules (RAR); and
• The award violated public policy because the CAS failed to take into account her young age when imposing the sanctions.

On 5 September 2024, the TFS dismissed this appeal, citing the decision of the European Court of Human Rights in the cases of Mutu and Pechstein that compulsory arbitration in sports disputes is valid, provided that the guarantees of independence and impartiality, enshrined in article 6(1) of the European Convention on Human Rights, are satisfied. Also, as article 178(4) of the Swiss Private International Law Act of 18 December 1987 recognises arbitration clauses contained in statutes, athletes could be bound by arbitration clauses in the statutes of a federation of which they are a member, even if they did not actually sign a membership form. Furthermore, the TFS pointed out that it was contrary to good faith for the athlete to challenge the jurisdiction of the CAS Appeals Division given that she had, in earlier appeals proceedings before the CAS Ad Hoc Division, expressly relied on article 15.2 of the RAR, arguing that the dispute ought to be submitted to the CAS Appeals Division. This, according to the TFS, demonstrated that she considered herself bound by the arbitration clause in the RAR.

As to her claim that the award violated public policy, the TFS held that it could only review the decision of an arbitral tribunal exercising discretionary power if the outcome was manifestly unfair or shockingly unjust. In the Valieva case, there was no reason to impose a more lenient sanction on an underage athlete, where an intentional violation of anti-doping rules was established. In any event, the CAS had considered the young age of the athlete when deciding her case.

The main takeaway from the Valieva case is there is no public policy violation where a doping sanction is imposed upon a minor athlete, because a different treatment, which depended upon age, would endanger the fight against doping in sport.

We advise and represent parties involved in CAS and TFS proceedings, and further information is available from Dr Lucien Valloni and Noemi Delli Colli by emailing them at ‘valloni@valloni.ch’ and ‘dellicolli@valloni.ch’ respectively.