The application of Swiss law in doping cases before the CAS and the Swiss Federal Tribunal

The Court of Arbitration for Sport (CAS) was established in 1984 by the International Olympic Committee (IOC) in order to create a supreme instance for sports disputes, away from the jurisdiction of State Courts.[1] After a landmark decision rendered by the Swiss Federal Tribunal (SFT) in 1993 in the widely-known Gundel case,[2] the CAS proceeded to a series of reforms in order to become an independent arbitral institution, as confirmed by a subsequent SFT judgment.[3] As per Article R28 of the CAS Procedural Rules of the Code of Sports-related Arbitration (CAS Code), the seat of CAS arbitration is in Switzerland, notwithstanding where the hearings are held.[4] This has the practical consequence that CAS proceedings are imperatively governed by the Swiss law of arbitration.

The World Anti-Doping Agency (WADA) is also a foundation under Swiss private law and is based in Lausanne, Switzerland. In addition to WADA, the vast majority of the international federations that have adopted the WADA Code (WADC) are also domiciled in Switzerland. Under the relevant provisions of the WADC, appeals against doping disputes involving international-level athletes/ international events are brought before the CAS in Lausanne, Switzerland. WADA and other international organisations have also the right to appeal against doping-related decisions rendered by first instance bodies to the CAS without the need to exhaust internal remedies.[5] Once the CAS award is rendered, the only way to challenge the award is before the SFT for the reasons exhaustively enumerated in the Swiss Private International Law Act (PILA).[6]

This article aims to highlight the importance that Swiss law plays in both the procedure and the merits of doping-related cases, through concrete examples at the different stages of the anti-doping proceedings before the CAS and before the SFT. Specifically, it looks at:

• Application of Swiss law to the arbitration in doping cases (lex arbitri)
  
  
• Swiss law when determining the arbitrability of a dispute & the jurisdiction of CAS in doping-related cases
  
  
• Independence & impartiality of arbitrators in doping-related cases
  
  
• The parties’ right to be heard and the right to equal treatment
  
  
• Violation of public policy in doping-related cases
  
  
• Application of Swiss procedural law to doping-related procedures before CAS: evidence, suspension of the CAS
  proceedings and provisional measures
  
  
• Application of Swiss law to the merits of a doping case
  
  
• Specific provisions of Swiss law & general principles applicable to doping cases
  
  
• Control of proportionality of a doping-related sanction and Swiss law
  
  
• Concluding Remarks`