Arbitrariness at the CAS?

21th November 2022

Author/s:
Attorney-at-law and tax consultant Dr. Dr. Bernd Josef Fehn

As already reported in this blog, the Federal Constitutional Court (BVerfG) disqualifies the Court of Arbitration for Sport (CAS) because it violates principles of the rule of law as an international arbitration court. As a result, legal recourse is open before the German ordinary courts.

It is not only the Pechstein and Sachenbacher-Stehle cases that I am referring to here that are raising eyebrows. The doping affair involving the Russian Olympic champion Kamila Waliyeva also raises the suspicion that the decisions of the International Sports Court are made at the discretion of the court. Despite her doping offense, it had fast-tracked the figure skating favorite into the women's singles at the last Winter Olympics on Feb. 14, 2022. As a minor, according to the CAS, she was a protected person under the World Anti-Doping Agency (WADA) Code. Furthermore, a ban would be unfair in view of unclear evidence and delays in the evaluation of the doping test, thus, the court. Under these circumstances, he meant, that it would cause irreparable damage to the European champion and that her lawyers had presented reasons justifying doubts about her guilt. There had allegedly been contamination with a product that her grandfather had taken. The female figure skater could have drunk from a glass previously used by him. The prohibited substance could have entered her body through saliva transfer.

According to the WADA, no specific exceptions exist regarding mandatory provisional suspensions for protected persons, including minors. The Russian Anti-Doping Agency (RUSADA) Disciplinary Committee's lifting of Ms. Kamila Waliyeva's provisional suspension following her positive doping test in December 2021 was not in accordance with the provisions of its Code, so the WADA.

The CAS' further argument that it was unfair to deny the Russian a participation in the Olympic Games due to unclear evidence and delays in the evaluation of the doping test is not valid because RUSADA is partly to blame, according to the WADA. The RUSADA had not marked the doping sample as a priority. The laboratory in Stockholm had therefore not known that the analysis of the sample should have been processed more quickly.

According to RUSADA, however, Ms. Walijeva's sample was sent to the laboratory in time. Shortly afterwards, the laboratory had informed that there would be a delay due to the Corona situation. Later, it had assured that the sample would be treated as a priority.

Irrespective of who is responsible for which delays or not, I cannot see any particularly unclear evidence - unlike in the case of Ms. Pechstein and Ms. Sachenbacher-Stehle. While in both cases of the latter it was clear that genetic changes were the cause of positive tests, and this was ignored by the CAS, saliva on the edge of a glass is hardly sufficient to trigger a positive doping sample, so that the athlete's presentation seems more like a protective claim. With a hair analysis, it might have been possible to distinguish a multiple ingestion in larger quantities from a single accidental ingestion in small quantities.

It is true that the laboratory value measured was in fact only slightly elevated. But in other cases the CAS also distrusts the athletes, which one could understand in view of the goal of keeping the sport clean. However, its argument of fairness is all the more surprising: Where was the "decent behavior; fair, honest attitude towards others; decent behavior in accordance with the rules of the game" (= fairness) in the cases of Ms. Pechstein and Ms. Sachenbacher-Stehle, both also candidates for medals?

In this context, it must not be disregarded that the career of professional athletes can always be affected by an exclusion from the competition. This has to be taken into consideration with great weight in the context of summary proceedings. However, it is also a fact that positive evidence must be refuted with hard facts and not with soft protective allegations.

After leading in the short program, the favorite for the gold medal made several mistakes in the free skate and missed the medal places. After all, no one else was really disadvantaged by the questionable decision of the CAS which only disqualified itself once more.