Scientific Evidence in CAS Arbitration for Doping Disputes

Viret, Marjolaine

doi:10.1007/978-94-6265-084-8_8

Marjolaine Viret^5,6

Part of the book series: ASSER International Sports Law Series ((ASSER))

628 Accesses

Abstract

This chapter analyses the main characteristics of the taking of evidence in CAS arbitration proceedings as it applies to scientific evidence. An assessment of the approach to scientific evidence in CAS arbitration proceedings is difficult to conduct in abstracto. The topic has a strong casuistic character, being tied to the facts of the dispute, the parties’ submissions and the CAS panel’s large discretion in conducting the proceedings. Moreover, information on the taking of evidence may be scarce in the award. The procedural background and the elements of the file that influenced the panel in its reasoning may be accessible only to the parties and counsel directly involved in the proceedings. Chapter 4 of this book laid the general foundations for the manner in which science participates in the judicial process. This chapter, by contrast, focuses on practical aspects and the manner in which these foundations are reflected in doping disputes before CAS panels. After a general survey of the principle of freedom of evidence and its limits in CAS arbitration, as well as the idiosyncrasies of doping disputes in this respect (Sect. 8.1), the chapter addresses the topic areas most relevant for scientific evidence, i.e. scientific documentary evidence (Sect. 8.2) and expert evidence (Sect. 8.3). The findings arising from this chapter lead into some general views on the challenges of litigating doping disputes before CAS when it comes to the taking of scientific evidence (Sect. 8.4).

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 169.00; Price excludes VAT (USA)

Hardcover Book: USD 219.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
On the strongly fact- and evidence-oriented character of CAS arbitration in general, Rigozzi and Quinn 2012, p. 1; for international arbitration in general, Lew et al. 2003, n° 22–4.
2.
CAS 2008/A/1572, 1632 & 1659, Gusmao v. FINA, para 4.30; CAS 2005/A/884, Hamilton v. USADA & UCI, para 48.
3.
See Sect. 4.3.2.1.2 above.
4.
See the principle as codified in Article 9 of the IBA Rules on the Taking of Evidence: “The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence”; see also see Sect. 3.1.3 above.
5.
In committing to the freedom of the means of evidence, the WADC regime is closer to Swiss criminal procedure than to civil procedure, since the latter recognises only specific categories of evidence, see Article 168 of the Swiss Civil Code of Procedure; cpre Piquerez and Macaluso 2012, n° 943 (liberté de la preuve) and Bohnet et al. (Philippe Schweizer), ad Article 168, n° 1 (numerus clausus). Note that these categories are so broadly formulated that most pieces of evidence, even when linked with new technologies, can easily be subsumed under one of the categories (Groner 2011, p. 202).
6.
CAS 2005/A/884, Hamilton v. USADA & UCI, para 48.
7.
CAS 2009/A/1912–1913, Pechstein & DESG v. ISU, para 109; CAS 2010/A/2178, Caucchioli v. UCI & CONI, para 32 et seq.; CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 36 et seq.
8.
See Sect. 3.1.3 above.
9.
On the balance of competing scenarios by CAS panels, see Sect. 7.3.3.1.4 above.
10.
CAS 2008/A/1515, WADA v. SOA & Daubney, para 119.
11.
Kaufmann 2009, p. 140, considers that polygraph evidence presented by a party could hardly be rejected under Swiss law, considering the principles of the freedom of evidence.
12.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 232 et seq. Note that, in the particular matter, the sports organisations were not challenging the admissibility of the evidence, but only its probative value to the extent if would exceed a mere party statement (para 236).
13.
Thus, cyclist Roman Kreuziger announced on his website that he had undergone a polygraph test during the pending proceedings before CAS, see news of 24 January 2015, http://kreuzigercase.cz/have-you-ever-doped-no-i-passed-a-lie-detector-test/ (accessed 25.01.15).
14.
For some reflections on the reliability of the polygraph use, see Kaufmann 2009, p. 140.
15.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 242.
16.
CAS 2013/A/3170, Pinzon v. FCN, para 79.
17.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, p. 183.
18.
Rigozzi and Quinn 2012, p. 41.
19.
Viret M and Wisnosky E, The Pinzon award: When legal presumptions fail under the force of scientific evidence, Anti-Doping Blog 18 June 2014, http://wadc-commentary.com/pinzon/ (accessed 11.05.15).
20.
Rigozzi and Quinn 2012, p. 41; for a similar concern in the context of Swiss criminal law, Kaufmann 2009, p. 141, who considers this risk as an argument pleading against the admissibility of polygraph evidence produced through private means.
21.
For a critical perspective on the use of polygraph evidence in anti-doping proceedings and the lack of scientific evidence as to its reliability, see Koh B and Gibbs P, Lie detectors and anti-doping: who’s kidding who?, http://theconversation.com/lie-detectors-and-anti-doping-whos-kidding-who-12898 (accessed 31.05.15).
22.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 241. Note that, in this particular matter, the second expert appointed by the Athlete only testified with respect to the manner in which the examination had been conducted, and not regarding the scientific validity of the method itself.
23.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 242: “the Panel takes good note of the fact that the results of the polygraph corroborate Mr Contador’s own assertions, the credibility of which must nonetheless be verified in light of all the other elements of proof adduced. In other words, the Panel considers that the results of the polygraph add some force to M Contador’s declaration of innocence but do not, by nature, trump other elements of evidence”.
24.
The requests of some stakeholders during the 2009 WADC review process were thus not heard. In particular, stakeholders had expressed concern that witness evidence might be relied on as the sole basis of an anti-doping rule violation; see e.g. Consultation WADC review process: Danish Sport Community, 3rd 2009 phase, ad Article 2.2: “Witness statements alone should not be sufficient to establish ‘Use or Attempted Use’ of a Prohibited Substance or a Prohibited Method”; the same concern had been expressed by Anti Doping Denmark, 2nd 2009 phase, ad Article 2.2.
25.
See Sect. 8.1.2.2 below.
26.
See Sect. 4.3.1 above for the interplay between expert and judge in general, as well as Sect. 8.3.3 below for the evaluation of expert evidence before CAS.
27.
See Sect. 8.1.2.2.1 below.
28.
See Sect. 8.1.2.2.3 below.
29.
See Sect. 8.2.1.1 below.
30.
See Sect. 3.2 above.
31.
See Sect. 8.1.2.2.2 below.
32.
As a further peculiarity of CAS appeal arbitration proceedings, the Athlete concerned in the decision appealed would technically not always need to be named as a respondent, for example if WADA decided to appeal a decision made by an International Federation. Technically, the challenge should be directed only against the International Federation that made the decision. Functionally, the Athlete is usually named as a second (or even unique) respondent, and CAS panels rather generously accept or even encourage the intervention and participation of all stakeholders in the dispute (see, on the issues, Netzle 2009).
33.
See Sect. 3.1.3 above.
34.
On the lack of relevance of the distinction between issues of fact and issues of opinion in doping disputes, see Sect. 4.3.1.1 above.
35.
See Sect. 8.3.1.2 below.
36.
See Sect. 8.3.1.3 below.
37.
See Sect. 8.3.3.2 below.
38.
See Sect. 8.3.2.1 below.
39.
See Sect. 4.3.1.1.1 below; for DNA analysis reports, Vuille 2011, p. 55.
40.
See Sect. 6.2.3.1.4 above.
41.
See Sect. 8.2.1.3 below.
42.
CAS 2012/A/2857, NADA v. Sinkewitz, para 205.
43.
On demonstrative evidence in science-based arbitration, see Sect. 4.1.2.4 above.
44.
According to Sect. 10 of the ISTI, the Sample falls under the ownership of the ADO in charge of Sample collection (which may transfer the ownership to another ADO). For a critical assessment of this regime, see Viret 2014, p. 105.
45.
Various terms are used to describe the fact that a piece of evidence is not allowed to be part of the file. For example, Lew et al. 2003, n° 22–29, distinguish, among the grounds for exclusion of evidence, irrelevance and lack of probative value on the one hand, and inadmissibility on the other hand (e.g. privileged evidence). The present section adopts the expression “excluding” (the term used in Article 9 of the IBA Rules on the Taking of Evidence).
46.
On the role of the IBA rules in the context of CAS proceedings, see Sect. 3.1.3 above.
47.
See CAS 98/211, Smith-De Bruin v. FINA, para 47 for a combined procedural economy and anticipated assessment argument.
48.
See Sect. 8.2.2.3 below.
49.
See Sect. 3.3.2.2 above.
50.
On the distinction, see Sect. 3.1.3.2 above.
51.
Article R44.2 of the CAS Code provides that “The Panel may limit or disallow the appearance of any witness or expert, or any part of their testimony, on the grounds of irrelevance”; while Article 9 para 2(a) of the IBA Rules on the Taking of Evidence mentions both “lack of sufficient relevance to the case or materiality to its outcome”; recently confirmed in the Sinkewitz v. NADA matter, Swiss Supreme Court, A. v. NADA, 4A_178/2014, para 5.3.3; see also for international arbitration in general and witness evidence, Berger and Kellerhals 2015, n° 1334.
52.
CAS 98/211, Smith-De Bruin v. FINA, para 47 (refusal because the facts that the Athlete asked to cross-examine the witness on would not have triggered a finding of contamination).
53.
CAS 2009/A/1912 & 1913, Pechstein, DESG v. ISU, para 44 (denial of the Athlete’s post-hearing request to hear one of the experts not called to the hearing by the ADO, on the grounds that the panel had not relied on the written opinion of this expert to make their decision).
54.
On this challenge, see Sect. 7.1.2.1 above; CAS Ad hoc Division, n° CAS 06/001, WADA v. USADA, USBSF & Lund, para 4.8: “It is not within the jurisdiction of this CAS Panel to make that decision. Mr Jacoby requested permission to cross-examine WADA’s witnesses, Olivier Rabin and Hans Geyer, about the reason for the inclusion of Finasteride on the Prohibited List. However, as this evidence was irrelevant to the issue to be decided by the Panel, and has not been taken into account by it, the Panel did not allow this cross-examination”.
55.
CAS 2012/A/2857, NADA v. Sinkewitz, para 217.
56.
CAS 2005/A/958, Jerson Anes Ribeiro v. UEFA, para 27.
57.
See Sect. 4.3.1.2 above.
58.
See CAS 2012/A/2857, NADA v. Sinkewitz, para 217, where the CAS panel rejected the Athlete’s request for applying the new rhGH biomarker test to his Sample in order to confirm or refute the findings of the immunoassay test, and did so relying on the evidence given by an expert appearing on behalf of the ADO, on the basis that this expert testified that the new test was not “more reliable” but simply had a different scope of application (which, in para 121, does in any event not correspond exactly to the expert’s testimony); the Swiss Supreme Court Decision of 22 June 2014, A. v. NADA, 4A_178/2014, para 5.2, found that the panel had committed no breach of due process by refusing the test based on a preliminary assessment of such evidence.
59.
Though obiter dictum, the Swiss Supreme Court seemed to assume there was nothing wrong with this argument, see Swiss Supreme Court Decision of 22 June 2014, A. v. NADA, 4A_178/2014, para 5.2: “abgesehen davon legt der Beschwerdeführer nicht dar, inwiefern sich aus dem Grundsatz des rechtlichen Gehörs oder dem Grundsatz der Gleichbehandlung der Parteien im Schiedsverfahren ein Anspruch ergeben soll, neben dem in den anwendbaren Anti-Doping-Regeln vorgesehenen Testverfahren weitere Analysen nach anderen Methoden durchführen zu lassen” [that being said, the appellant does not demonstrate how the right to be heard or equal treatment among the parties in arbitration proceedings should create an entitlement to have additional analyses conducted according to other methods beside the Testing process provided for in the applicable anti-doping rules (author’s translation)] .
60.
See on the approach to technical rules in CAS practice, Sect. 5.1.2.2.1 above; for a similar criticism, see Orth 2004, p. 138, on the incoherencies of the panel’s reasoning.
61.
Article R56 of the CAS Code: “Unless the parties agree otherwise or the President of the Panel orders otherwise on the basis of exceptional circumstances, the parties shall not be authorized to supplement or amend their requests or their argument, nor to produce new exhibits, nor to specify further evidence on which they intend to rely after the submission of the appeal brief and of the answer”.
62.
Article 9 para 2 of the IBA Rules on the Taking of Evidence.
63.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.76 et seq., in particular 5.81 (refusal to admit steroid profile as additional evidence against the Athlete at the hearing); see CAS 98/211, Smith-De Bruin v. FINA, para 47 the CAS panel rejected the Athlete’s request to call an expert at the hearing to give evidence as to the possibility of opening Sample containers without detection, as the Athlete had not complied with the procedural directions of the panel and had failed to include him on the list of witnesses and to file a witness statement. Considering that the topic the witness would have addressed was a key part of the Athlete’s defence, the panel found that “it would be wholly inequitable and unfair to allow the Appellant [the Athlete] to spring such an ambush upon the Respondent [FINA]”; see also, in a non-doping disciplinary matter, CAS 2000/A/290, Abel Xavier & Everton FC v. UEFA, (French, no translation), para 11: the rights of the defense are not breached if the president of the hearing body makes use of its authority to decide on the witnesses to be heard, provided the refusal to hear a witness is not arbitrary and is objectively justified. In the Everton case, the Panel considered that the limit with regard to the equal treatment of the parties would probably be crossed should all the witnesses proposed by the Athlete be rejected and the hearing panel regard the testimonies of the officials of the sport governing body as sufficient to establish the facts.
64.
As confirmed in the Sinkewitz v. NADA matter, Swiss Supreme Court, A. v. NADA, 4A_178/2014, para 5.3.3, there is no breach of the right to be heard if a CAS panel rejects additional evidence when the parties have agreed on a procedural timeframe for closing the evidentiary proceedings.
65.
On the options for the Athlete to proceed, see Rigozzi and Quinn 2012, p. 21/22.
66.
The full Article 13.1.2 of the 2015 WADC (“CAS Shall Not Defer to the Findings Being Appealed”) reads as follows: “In making its decision, CAS need not give deference to the discretion exercised by the body whose decision is being appealed”.
67.
Mavromati 2014, p. 53, interprets the new WADC provision as excluding altogether the application of Article R57.3 of the CAS Code in doping matters, so that the CAS panel will not enjoy the discretion available to it under this provision.
68.
Note that in the meantime, this line seems to have been abandoned, as in the recent CAS 2013/A/3274, Glasner v. FINA, 31 January 2014, paras 65–69, which explicitly reaffirms the importance of the full de novo review from the perspective of Article 6.1 of the ECHR.
69.
The wording of the 2nd draft version of the 2015 WADC has been attenuated in the last version. The former Article 13.1.2 was much clearer in that it provided that “CAS shall not give deference to the findings made, or discretion exercised, by the body whose decision is being appealed”.
70.
CAS 2008/A/1700 & 1710, DRV v. FEI & Ahlmann, Ahlmann v. FEI, para 66. In this matter, the CAS panel gave priority to Article R57 of the CAS Code over a provision of the FEI regulations restricting the scope of the evidence on appeal before CAS to the evidence presented before the FEI Tribunal. The CAS panel was able to reach this conclusion based on a lex specialis interpretation of the anti-doping regulations, but they also took a strong position on the importance of the full power of review and its consequences: “The ‘full power’ granted the deciding Panel under the CAS Code precludes any notion that the Panel must abide by restrictions on evidence which may or may not have been adduced in previous proceedings before a national or international disciplinary tribunal. National or international sports organizations may freely decide to accept or not to accept the arbitral jurisdiction of the CAS; however, when they do accept the CAS’s jurisdiction they necessarily accept the application of the basic principles of the CAS Code, including the principle of a de novo review of the case. The CAS must, therefore, be accorded the unrestricted right to examine not only the procedural aspects of an appealed decision, but also, and above all, to review and evaluate all facts and legal issues involved in the dispute”.
71.
Mavromati 2014, p. 51.
72.
A concept recognised before CAS panels for the early days of their practice in doping matters, see CAS 98/211, Smith-De Bruin v. FINA, para 47.
73.
Rigozzi et al. 2013a, n° 72.
74.
See Sect. 2.2.2.6 above.
75.
Prior to the amendment, a CAS panel in CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.3, found that an Athlete commits a venire contra factum proprium if they challenge the regularity of the chain of custody and then object to the production of documents that could be useful in ascertaining whether some irregularities actually occurred.
76.
CAS 2011/A/2566, Veerpalu v. FIS, para 43.
77.
On the difficulties linked with the concept of B Sample “confirmation”, see Sect. 6.2.4.2.2 above.
78.
On procedural defects, see Sect. 5.2 above.
79.
Technically, a party agreement on the means of evidence, see Sect. 3.3.1 above.
80.
See Sect. 8.1.1.2.2 above; Champod and Vuille 2010, p. 55, considers that the fact that the DNA analysis report is not procedurally treated as expert evidence is of little relevance in criminal matters precisely because all scientific evidence presented is subject to the same free evaluation.
81.
See Sect. 5.2.4.3.1 above on the “inconsistency with biology” reasoning.
82.
Comment ad Article 2.2: “It has always been the case that Use or Attempted Use of a Prohibited Substance or Prohibited Method may be established by any reliable means. As noted in the Comment to Article 3.2, unlike the proof required to establish an anti-doping rule violation under Article 2.1, Use or Attempted Use may also be established by other reliable means such as admissions by the Athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, including data collected as part of the Athlete Biological Passport, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1”.
83.
For the same view, Rigozzi and Quinn 2012, p. 39.
84.
Note that some CAS panels did in some instances refuse to admit to the proceedings analytical evidence offered by the ADO beyond the Adverse Analytical Finding (i.e. longitudinal profiles), but the refusal was rooted in the fact that the Athlete had not been given the opportunity to take a position or on the belated character of the filing, rather than an a priori inadmissibility of these means of evidence under Article 2.1 (Veerpalu v. FIS, para 43; CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.76 et seq., in particular 5.81).
85.
In CAS 2011/A/2566, Veerpalu v. FIS, paras 27 & 80, and para 207 et seq., a case originally prosecuted under Article 2.1, the ADO alternatively invoked that the Athlete had admitted to using rhGH, which would also allow the CAS panel to confirm the finding of an anti-doping rule violation made by the FIS hearing panel. The CAS panel “agreed with this assertion” and assessed whether such admission had occurred, even though the existence of an admission was rejected in the particular case; the CAS panel in CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 169 & 180 seemed to implicitly support a similar reasoning when they decided that, in the presence of a demonstrated procedural defect related to Sample collection, the ADO may demonstrate that the defect did not cause the Adverse Analytical Finding, but also prove the factual basis for the anti-doping rule violation, i.e. “provide convincing evidence positively demonstrating that the Athlete ingested HCT”; in the rhGH case CAS 2014/A/3488, WADA v. Lallukka, para 46, WADA invoked in its appeal both a violation of Article 2.1 and of Article 2.2 of the applicable rules (equivalent to the WADC), but the operative part of the CAS award does not specify which violation was finally retained to make the finding of an anti-doping rule violation.
86.
See Sect. 8.3.2.1 below.
87.
Article 17 of the WADC: “No anti-doping rule violation proceeding may be commenced against an Athlete or other Person unless he or she has been notified of the anti-doping rule violation as provided in Article 7, or notification has been reasonably attempted, within 10 years from the date the violation is asserted to have occurred”. Note that, in addition, the “date” of the violation will not be the same whether the violation asserted is one for an Adverse Analytical Finding or for the underlying Use of the substance or method at stake.
88.
CAS 2010/A/2041, Chepalova v. FIS, paras 85 & 149 et seq.
89.
On the various “intermediate” reports, see Sect. 6.2.3.1.3 above.
90.
CAS 2010/A/2041, Chepalova v. FIS, para 85, on the “Additional Evidence” that may be required to report an Adverse Analytical Finding for rhEPO.
91.
CAS 2012/A/2857, NADA v. Sinkewitz, para 205; in para 207, the award makes it clear that the violation retained was Presence of a Prohibited Substance, not Use.
92.
CAS 2014/A/3488, WADA v. Lallukka.
93.
Former Article 3.2.3, a provision introduced during the previous 2009 review process.
94.
Note that the provision refers only to the factual findings, as opposed to the legal characterisation of these facts. Hence, sports authorities are not bound by the finding that a criminal offence was committed to decide that an anti-doping rule violation was committed. The initial wording in the draft revised WADC was less clear.
95.
Niggli 2008, p. 165 et seq.
96.
Rigozzi and Quinn 2012, p. 20; on the effective equivalence of the two concepts, see Sect. 3.1.4.1 above; Berninger 2012, p. 174, translates the language of the provision, as treating these decisions as “irrebuttable evidence” (“unwiderlegbarer Beweis”).
97.
Albeit supported by some major ADOs (see e.g. Consultation WADC review process: IAAF, 2nd 2009 phase, ad Article 3.2, p. 3; AFLD, 2nd 2009 phase, ad Article 3.2, p. 9), the provision did raise significant concerns during the consultation phase as to its clarity and compatibility with Athlete rights (see Australian Athletes’ Association, 2nd 2009 phase, ad Article 3.2, p. 4; Anti Doping Denmark, 2nd 2009 phase, ad Article 3.2, p. 8; Anti-Doping Netherlands, 2nd 2009 phase, ad Article 3.2, p. 9; FINA, 3rd 2009 phase, ad Article 3.2, p. 1; Danish Sport Community, 3rd 2009 phase, ad Article 3.2, p. 2: “Question is raised on these articles as to whether it is possible to uphold them against the International Covenant on Civil and Political Rights, and the European Convention on Human Right”; Anti-Doping Authority of the Netherlands, 3rd 2009 phase, ad Article 3.2, p. 4.
98.
Even within the criminal domain, many issues would arise: how would the diversity in national decision-making, in particular in criminal law, be handled to prevent inequalities? In some countries, criminal decisions are issued with full reasoning only if the accused announce their intent to appeal, in other countries criminal proceedings may be terminated through agreement. Criminal decisions are not necessarily made public. Could the Athlete be compelled to produce decisions made against him? What if the factual findings are too vague and the Athlete claims that only the criminal file can make the judge’s determinations understandable?
99.
Berninger 2012, p. 175; Comment ad Article 3.2.4 of the 2015 NADA Code interprets the word “court” as referring only to “ordinary tribunals” in the understanding of German law, and professional tribunals as covering for example disciplinary bodies of the military or medical commission.
100.
See the similar reasoning of the panel in CAS 2008/A/1572, 1632 & 1659, Gusmao v. FINA, para 4.44, but to justify a refusal to recognise an Athlete’s acquittal state proceedings; similarly, during the Consultation WADC review process: ICC, 1st 2015 phase, ad Article 3, p. 2; for the equivalent reverse reasoning in CAS 2010/A/2267 et al., Metalist et al . v. FFU, para 745; Maihold 2013, pp. 95–99, similarly reaches the conclusion that in spite of Article 3.2.4, diverging evidentiary principles (e.g. in dubio pro reo versus strict liability), might still result in diverging outcomes between criminal proceedings and sports proceedings.
101.
English courts have, in the past, supported sports authorities who had relied on criminal investigations to restrict the scope of their evidentiary proceedings, or even refused to accept contrary evidence by the Athlete due to criminal proceedings (see Queen’s Bench Division, Fallon v. Horseracing Regulatory Authority [2006] EWHC 2030 (QB); [2007] ISLR, SLR-1; (2006) SLJR 10 (28 July 2006) and Queen’s Bench Division, Colgan v. Kennel Club, Source: All England Reporter, Publisher Citation: [2001] All ER (D) 403 (Oct)). However, the refusal in Fallon v. HRA dealt with a provisional suspension pending criminal investigations. In the Colgan v. Kennel Club matter, the issue at stake was limited to the refusal of an oral hearing in disciplinary proceedings.
102.
In France, the fight against doping is regulated by uniform legislative and governmental texts which provide both for criminal sanctions and the duty for national federations to prosecute the same circumstances, so that the national federation is bound by res iudicata regarding the factual background and the legal characterisation, and may rely on the decision of the criminal court as a sole justification for imposing disciplinary sanctions (see Décision Conseil d’Etat 18 May 2005, n° 270569).
103.
While this argument would not in theory preclude a disciplinary hearing panel of an ADO from complying with the restriction, it would go against common sense and procedural efficiency if those bodies were bound to rely on court findings while the CAS panels could, on appeal, carry out an unfettered re-evaluation of the facts.
104.
For similar concerns regarding the FEI rule prohibiting new evidence on appeal, see CAS 2008/A/1700 & 1710, DRV v. FEI & Ahlmann, Ahlmann v. FEI, para 66.
105.
For a similar concern, see David 2013, p. 211.
106.
As an illustration, an Athlete convicted for using a doping substance in criminal proceedings in attenuated circumstances would be denied the right to challenge the fact that he used a doping substance, while the sports organisations could freely adduce evidence to show that the attenuating circumstances were not realised.
107.
In CAS 2008/A/1572, 1632 & 1659, Gusmao v. FINA, para 4.44, the panel, in the proceedings, refused to accept as evidence for exceptional circumstances a judgment of the criminal courts of the Athlete’s home country finding that there was not enough evidence for a conviction of the Athlete. The panel made clear that it had to follow only the rules on evidence and standards of proof in the relevant sports regulations, while the criminal court “applied different rules of evidence and standards of proof on an unknown factual basis and comes to the conclusion that there was not enough evidence to continue criminal proceedings”.
108.
In CAS 2007/A/1426, Gibilisco v. CONI, the Athlete relied on the fact that the criminal proceedings had been terminated against him and referred to the factual findings of the judicial decisions. This in no way hindered the panel from carrying out their own assessment of the evidence, only to reach the same conclusion.
109.
The context is somewhat different in that the orders were made pending the conclusion of the criminal proceedings and the reasoning relates more to the admissibility of evidence unlawfully obtained through other proceedings (Article 3.2.4 of the WADC was not applicable at the time) these matters are a strong sign given by CAS panels that they wish to maintain a full power of review.
110.
CAS 2009/A/1879, Valverde v. CONI, para 67 et seq., with references.
111.
CAS 2010/A/2267 et al., Metalist et al . v. FFU, para 743 et seq., in particular the difference in the standards of proof (para 745).
112.
See the example of the three Russian swimmers who tested positive to an anabolic steroid after—allegedly—ingesting a “spiked” cake offered by an envious teammate (CAS 97/180, P et al. v. FINA). Criminal investigations had been opened against the teammate, who had admitted the facts, and a civil tort claim brought before the Russian courts. The Russian court had ordered the payment of a compensation for tort moral per default and the teammate had not appealed the decision. The CAS panel was not impressed by the existence of state decisions in Russia and decided that the team mate’s testimony was not credible. On the basis of its own assessment of the evidence, the panel reached the conclusion that the Athletes had not succeeded in proving the origin of the substance, in direct opposition to the Russian court’s finding on the facts.
113.
CAS 2010/A/2083, UCI v. Jan Ullrich & Swiss Olympic, para 64; CAS A4/2007, ASADA v. Wyper; CAS 2008/A/1513, Hoch v. FIS & IOC; AAA Panel, USADA v. Collins, No. 30 190 00658 04, 9 December 2004.
114.
See e.g. CAS 2010/A/2267 et al., Metalist et al . v. FFU, para 647, where the CAS panel considered that the criminal prosecutor’s and court’s decisions freeing the individuals accused of match-fixing from charges should be considered as part of the evidence. This is, of course, subject to any res iudicata effect, which CAS panels would have to respect, whether to the advantage or to the disadvantage of the Athlete. The res iudicata effect is reviewed by the Swiss Supreme Court under the ground of breach of procedural public policy. For a CAS award which was set aside on this ground, see Swiss Supreme Court, BGE/ATF 136 III 345.
115.
See Sect. 7.3.3.2.2.2 above.
116.
See Sect. 3.1.2.2.4 above.
117.
“Principles of natural justice” are a general concept originating from common law which is not familiar in civil law countries. The WADC French translation “principes de justice naturelle” does not refer to an established legal concept in French-speaking legal cultures. Its nearest equivalent in civil law would probably be “due process”. It is not clear, however, whether it would also include blatant substantive flaws in the factual findings, such as an arbitrary assessment of the evidence. On the role of natural justice in sports disciplinary matters, see Lewis and Taylor 2014, C1.70; Blackshaw 2009, p. 134, defines the rules of natural justice as encompassing “the rule against bias” and “the right to a fair hearing”.
118.
See for several illustrations in early nandrolone “grey-zone” cases, when it was shown that the findings could also result from endogenous production, McLaren 2006b, leading subsequent CAS panels to depart from the factual assumptions of earlier panels.
119.
See Sect. 6.3.4.1 above.
120.
See Sect. 6.1 above.
121.
Articles 5.2.4.4 (urine) and 6.2.4.3 (blood) of the ISL.
122.
Hair analysis contributed, in particular, to the exculpation of the Athlete in cocaine cases such as CAS 2014/A/3475, Van Snick v. FIJ, in particular para 85; as another illustration, in the Gasquet v. ITF matter, the player’s negative hair test led the CAS panel, based on the experts’ agreement, to consider it “as established that the Player is certainly not a regular user of the substance in question” (see CAS 2009/A/1926 & 1930, ITF v. Gasquet, WADA v. ITF & Gasquet, para 5.12).
123.
Under the 2009 WADC, the absence of intent to enhance performance was an important element for reducing the sanction under Article 10.4 of the 2009 WADC. Under the 2015 WADC, the same type of evidence could presumably be used to establish that the substance was Used in a context unrelated to sport performance, as per Article 10.2.3 of the 2015 WADC. See, on this, Rigozzi et al. 2015.
124.
CAS 98/214, B. v. FIJ, para 19.
125.
The Laboratory Code of Ethics, Annex B of the ISL, bars laboratories from accepting analyses on Samples from Athletes or organisations acting on their behalf (Sect. 4.0), as well as from analysing commercial materials or preparations other than at the request of an ADO as part of a doping case (section 4.2).
126.
See Sect. 8.3.1.2.3 below for expert evidence.
127.
On the possible evolution under the 2015 WADC, see Sect. 6.2.3.3.3 above.
128.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.14.
129.
CAS 2006/A71149 & 2007/A/1211, WADA v. FMF & Carmona, para 48 et seq., where the panel insisted on the “sole relevance of the accredited Laboratory; they would otherwise lead to endless debate. This confirms the soundness of a system which gives decisive effect to the findings of a single accredited laboratory as long as it has followed applicable protocols, rather than to leave open the door to insistence upon the lowest common denominator of a number of laboratories. What is relevant is that the UCLA Laboratory is internationally accredited, whereas CONADE is not”. This was an exceptional case where, for reasons that remained largely unexplained, Samples were sent both to the WADA laboratory and a national laboratory.
130.
CAS 2005/A/958, Jerson Anes Ribeiro c. UEFA, para 23.
131.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.14 (denial of evidentiary request by Athlete that an additional blood profile be established based on values obtained from Samples taken on his initiative and analysed by private laboratories ), the “controlled” cannot be the “controller”.
132.
CAS 2005/A/958, Jerson Anes Ribeiro c. UEFA, para 22.
133.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.14: “even if the Panel does not intend to put in question the quality of the private laboratory which carried out the analyses for the Appellant, there is no evidence showing that the standards followed by the latter are the same as requested and followed by the WADA accredited laboratories”.
134.
See Sect. 8.1.1 above.
135.
It bears noting that in the opposite situation where additional evidence is beneficial to the prosecution, CAS panels do not shy away from considering such “additional” evidence to confirm the finding of a violation under Article 2.1 of the WADC, even though the Adverse Analytical Finding should be the only means of evidence considered in this context; see e.g. CAS 2008/A/1479, WADA v. CONI, FPI & Comastri, para 40, Athlete’s admission, “combined” with the positive finding, constituting a violation; taking into account the ELISA screening results as “giving even more weight” to the results; see also CAS 2009/A/1820, Schumacher v. UCI, para 158.
136.
CAS panels in pre-WADC matters were able to reject the relevance of these analyses for invalidating the finding of a doping offence without having the benefit of a formal exclusion of such means of proof: CAS OG 00/006, Baumann v. IOC, German NOC & IAAF, para 40c; CAS 98/214, B. v. IJF, para 19.
137.
CAS panels have found it scientifically recognised that hair is a material which allows for considerably less precise testing than urine or blood, leading to the conclusion that a negative finding in hair cannot exclude that doping occurred (see CAS 2005/A/958, Jerson Anes Ribeiro c. UEFA, para 65).
138.
CAS 2005/A/958, Jerson Anes Ribeiro c. UEFA, para 12 & 65.
139.
Article 8.3.1 of the ISTI (requirement that documentation is completely and securely handled); Article 9.3 of the ISTI (documentation to be send to the ADO as soon as practicable and to the laboratory but without documentation identifying the Athlete, storage of documentation).
140.
Article 7.4.5 of the ISTI. Broadly speaking, the list includes information to keep track of the chronology, personal data of the Athlete, information about the type of Sample collection and the Sample, Athlete’s consent to the use of his or her data, disclosure of medications and supplements, if applicable remarks from the Athlete, signatures by all relevant persons.
141.
Article 7.4.7 of the ISTI, WADA Guidelines for Blood Sample Collection, section 7.7, WADA Guidelines for Urine Sample Collection, section 7.5; the Doping Control form must be adapted for the Athlete Biological Passport.
142.
The standard Doping Control form proposed by WADA is an “all-in-one” document: a notification form, a form to record all information related to Sample collection and a confirmation form that Sample collection was performed in accordance with relevant procedures. The back of the form is an Athlete’s consent form to Sample collection, acknowledgement of anti-doping rules and acceptance of the manner in which data may be processed and made accessible to other ADOs.
143.
A standard form is proposed on the WADA website: https://wada-main-prod.s3.amazonaws.com/resources/files/wada_doping_control_form_v6.pdf (accessed 12.05.15).
144.
See Sect. 8.2.1.3 below.
145.
See for the contents of this report, Articles 5.2.6.6 et seq. (urine) & 6.2.6.6 et seq. (blood) of the ISL and WADA Guideline for Laboratory Test Reports, Version 2.0, August 2008.
146.
For more on the Laboratory Documentation Package, see Sects. 8.2.1.3 and 8.2.2.1.1 below.
147.
Technical Document on Results Management Requirements (TD2015RMR); for more details on the Athlete Biological Passport procedures, see Sect. 11.1.3 below.
148.
More precisely: having the Athlete reiterate his or her consent, as the Athlete who is selected for Testing should typically already have agreed to the requirements of Doping Control at an earlier stage, by submitting to anti-doping regulations.
149.
A CAS panel in an equine doping case recommended that an explicit mention to that effect be included by each ADO into their Doping Control form, see CAS 2009/A/1768, Hansen v. FEI, para 16.3.
150.
In all these cases, however, this argument was presented more by way of an obiter dictum, while the panel considered that in any event no procedural defect had been demonstrated: see CAS 2000/A/313, B. v. FEI, para 57; CAS 2002/A/399, P. v. FINA, para 62; CAS 2006/A/1162, Iglesias v. FILA, para 3.19; CAS 2007/A/1415, B. v. FEI, para 61. For an overview of other CAS and other anti-doping panels’ fluctuating views on this issue, see Lewis and Taylor 2014, C2.70.
151.
CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 115; CAS 98/188, Coan v. IPW, para 63.
152.
Note that CAS panels would not readily accept the Athlete’s testimony that he was prevented from inserting comments concerning the Sample collection, see CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102 vii.
153.
Even though CAS panels are reluctant to accept this as an excuse (see e.g. CAS 2009/A/1768, Hansen v. FEI, para 16.3;CAS 99/A/234 & 235, Meca-Medina & Majcen v. FINA, para 7.4), it remains a fact that an Athlete who has just completed the race of his or her lifetime or comes exhausted from a Competition may be less attentive than they should be during the Sample collection process and realise errors at a later stage.
154.
CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova et al., para 193.
155.
See ITF Independent Anti-Doping Tribunal, Decision in the case of Ms Martina Hingis, para 99: “That does not mean that by signing the doping control form, the player formally waived her right to allege later that the requirements of the IST had been breached; indeed the ITF did not so contend. What it means is that the player’s signature and any comment she makes such as in this case the comment “All good!”, is of potential evidential value in determining whether Article F.5 of the Programme which the Player is deemed to understand, and the IST, have been complied with”; for a somewhat ambiguous position on this point see, CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 120.
156.
See Sect. 5.2 above.
157.
Hence, CAS panels may insist on the fact that the Athlete who made no objections is a professional, had experienced previous Sample collections or had indeed made use of the Doping Control form to record another irregularity than the one alleged (see e.g. CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 115); CAS 98/188, Coan v. IPW, para 63: “the Appellant was well experienced in doping control, with substantial experience in providing specimens. He readily admitted that he signed the form provided to him that acknowledged that he was satisfied with the collection and identification procedures”; CAS 2008/A/1555 & 1779, UCI v. Kashechkin et al., para 89: “en sa qualité de cycliste professionnel, il mesurait parfaitement la signification de ce formulaire et la portée de la signature qu’il y apposait” [in his position as a professional cyclist, he was perfectly able to assess the meaning of this form and the stakes of the signature he was apposing thereon (author’s translation)]; CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102 vii: “Ms Javornik, an experienced athlete, signed the form without inserting any remark”.
158.
Fuchs 1999, p. 301, whereby Athletes are only forfeit if they fail to mention irregularities that they noticed or should reasonably have noticed.
159.
Dvorak et al. 2006, p. 17: “The information declared on the forms used for this purpose is covered by patient confidentiality and may not be communicated to non-medical personnel (for example, the general secretary of the football association concerned, the player’s coach or the club’s general manager), unless the A sample test positive”.
160.
Fuchs 1999, p. 297. CAS 95/142, L. FINA, para 22: “The declaration essentially serves the purpose of supporting the laboratory in analysing the test sample. The absence of a declaration does not in itself constitute a doping offence”.
161.
However, in an early pre-WADC case, a CAS panel appeared to support the adoption of a rule that would explicitly allow for some sanctions in case of non-declaration (see CAS 96/149, A.C. v. FINA, para 9).
162.
On the protection of Athlete rights in this respect, see Sect. 3.2.3 above.
163.
CAS 95/142, L. FINA, para 22: “failure to comply with the duty to declare a certain medication in the test form may indeed raise serious doubts about the medical necessity to use that medication and even lead to the assumption that there was a doping offence”; similarly CAS 96/149, A.C. v. FINA, para 9, highlights the declaration’s “utility in assisting the competitor in establishing the medical necessity (if such exists) for the use of the substance in question”.
164.
CAS 2005/A/951, Cañas v. ATP, para 8.4, where the panel declared themselves “troubled” by the player’s lack of disclosure, but accepted the player’s explanation that he believed he did not have to list these medications because they were provided by the tournament doctor; CAS 2005/A/921, FINA v. Kreuzmann & German Swimming Federation, where the Athlete indicated that he did not disclose the medication because he had obtained confirmation that this medication did not contain any Prohibited Substance when receiving the initial prescription (he had not noticed that the substance had been added to the Prohibited List one year later).
165.
CAS 2009/A/1802, WADA v. CONI & Perotto, para 45.
166.
CAS 2008/A/1488, Pous v. ITF, para 7.13.
167.
See Sect. 6.2.3.2 above.
168.
CAS OG 06/001, WADA v. USADA, USBSF & Lund, para 4.14.
169.
CAS 94/129, USA Shooting & Q. v. UIT, para 49. Otherwise, an Athlete who candidly listed a Prohibited Substance would “find himself in a worse position than an athlete who says nothing: an athlete should not be penalised or prejudiced for having been honest”.
170.
CAS OG 06/001, WADA v. USADA, USBSF & Lund, para 4.14.
171.
The only situation where admission could be used in the context of a violation for Presence of a Prohibited Substance is as part of the evidence adduced by the ADO that a procedural defect established by the Athlete did not cause the Adverse Analytical Finding. This is acceptable, as it does not contradict the limitations on admissible types of evidence for purposes of Article 2.1 WADC, since admission is used only as an element to support the means of evidence of a valid A or B Sample.
172.
See Sect. 8.1.2.2.1.2 above.
173.
CAS 2011/A/2645, UCI v. Kolobnev & RCF, para 75, where the CAS panel considered that the origin of the substance was established in spite of the non-disclosure on the Doping Control form.
174.
CAS OG 12/07, ICF & Sterba v. COC & IOC, para 6.6.10; CAS 2012/A/2804, Kutrovsky v. ITF, para 9.8, in reference to the Comment ad Article 10.4 of the 2009 WADC, which referred to open Use or disclosure of Use.
175.
Another issue is the Doping Control form that would reveal a significant health risk for the Athlete. The question of an ADO’s duties with respect to collateral health data obtained during Doping Control is a controversial one that falls outside the scope of this book and will not be discussed further in this context (for a discussion, see Giraud et al. 2014, p. 341; Viret 2014, p. 109).
176.
See e.g. CAS OG 06/001, WADA v. USADA, USBSF & Lund, para 4.16. Zachery Lund tested positive because of a medication he had been using for years without realising that the active component “Finasteride” had been included on the Prohibited List at some point. Even thereafter, he had continued to disclose on the Doping Control form that he was taking the medication and no ADO had picked up on this until he finally tested positive. The CAS panel felt “this failure both surprising and disturbing, and is left with the uneasy feeling that Mr Lund was badly served by the anti-doping organisations”. These circumstances were not sufficient for the panel to relieve Lund from his liability, but were probably decisive for granting a No Significant Fault or Negligence finding and for refraining from Disqualifying the subsequent results (Rigozzi 2006b, p. 455).
177.
Laboratories may nevertheless volunteer in certain cases to produce additional documents to demonstrate the reliability of their procedures, or they may be requested to do so by a CAS panel (see Sect. 8.2.2.2 below).
178.
Confirmed in CAS 2007/A/1394, Landis v. USADA, para 178.
179.
CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova, paras 194 and 195, CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102ix; CAS 98/188, Coan v. IPF, para 68.
180.
CAS 2010/A/2277, referenced in CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 162, where the DCO testified that the partial Sample had never been left unattended.
181.
CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102 ix; CAS 2007/A/1394, Landis v. USADA, para 178.
182.
Under the 2004 version of the Technical Document for Laboratory Internal Chain of Custody (TD2003LCOC), the requirement was that the chain of custody should provide a complete record of the Sample or Aliquot location, “along with relevant testimony from individuals documented on the chain of custody documents”. This sentence has been deleted in TD2009LCOC.
183.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.101. The laboratory had interrupted the preprogrammed sequence of the analysis in order to manually alter the positioning of the Aliquot vials without recording this movement in the Internal Laboratory Chain of Custody. Instead, a cut-and-paste sequence file had been produced as part of the Laboratory Documentation Package that did not show the manual intervention. The CAS panel found that the intervention should have been recorded in accordance with the ISL and TD2003LCOC: “this directive is obviously intended to provide a procedural safeguard ensuring the accountability and control of the run. […] the laboratory analyst violated a fundamental safeguard which ensures transparency to the testing process and its authenticity”.
184.
The use of the term “should” in WADA technical rules has been interpreted in CAS 2010/A/2185, Blanco v. USADA, para 9.4, as expressing a non-mandatory requirement.
185.
See Sect. 8.2.1.2.2 above with respect to non-disclosure of medication use on the Doping Control form.
186.
CAS 2011/A/2566, Veerpalu v. FIS, para 132: “The Panel finds that it is unambiguously stated that the DCO must only report the exact temperature at which the samples are stored if there is a deviation from the guidelines. As the DCO did not report the exact temperature, it can be presumed, and the Panel finds, that this condition was complied with and that there was no deviation from the Collection Guidelines with regard to the preservation and handling of the samples in the five hours following their collection”.
187.
Seemingly open to this possibility, but left undecided since the respondent ADO and the laboratory did not appear in the CAS proceedings to provide explanations, CAS 2013/A/3170, Pinzon v. FECNA, para 75.
188.
See Sect. 5.3.3.2 above; see also CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.101: “no evidence or indication that Mr. Tsikhan's vials may have been confused, misplaced or lost. In fact, if the laboratory had lost control over the samples, the results of the analysis of the samples attributed to Mr. Tsikhan would have been completely inconsistent, which in fact they are not”.
189.
David 2013, p. 111, submits that “the documentary record must be such that, in the absence of an analyst, another competent analyst could evaluate what had been performed and interpret the data. The steps in the analysis process have to be traceable to the person who performed the step”.
190.
Viret 2014, p. 104.
191.
See Sect. 8.2.1.1 above.
192.
Articles 5.2.6.1 (urine) & 6.2.6.1 (blood) of the ISL: “In the case of an Adverse Analytical Finding, the record shall include the data necessary to report the conclusions reported as set forth and limited by the TD LDOC”.
193.
Section 1.0 of the ISL regarding EQAS results; Articles 4.4.12 of the ISL and 5.4.4.2.3 (urine) of the ISL (not explicitly referred to for blood!), for validation data.
194.
Giraud et al. 2014, p. 343.
195.
See Sect. 6.3 above.
196.
David 2013, p. 112/113, however, under the assumption that the relevant explicit provision in the technical rules barring discovery requests was removed, with respect to the Standard Operating Procedures (SOP): “Generally, such documents will be irrelevant where an adverse analytical finding is challenged, but, if an athlete can establish the relevance of a request to claims of a breach of the ISL, a tribunal cannot, it is submitted, be barred from ordering the discovery of the documents where the tribunal has power to do this under its procedural rules”.
197.
See Sect. 3.1.4 above; see, also, for similar concerns after the USADA v. Jenkins case, Straubel 2009, p. 18/19.
198.
CAS 2014/A/3630, De Ridder v. ISAF, para 109.
199.
The Comment in the 2009 WADC emphasised that this only amounts to a codification of CAS decisions.
200.
Rigozzi and Quinn 2012, p. 8; Berninger 2012, p. 183/184, considers that Article 3.2.4 is not compliant with Athlete rights under German law insofar as the inferences are not limited to mere non-appearance of the Athlete; by contrast, David 2013, p. 210, considers that this possibility exists in professional disciplinary matters, “an allegation which might be said to be broadly analogous to a doping allegation in its possible effect on a career”; note that CAS panels in the past have been reluctant to use adverse inferences from the silence of the Athlete in the fact of the allegation, while admitting that the possibility exists (CAS 2004/O/645, USADA v. Montgomery); similarly, Lewis and Taylor 2014, C 2.60: “there is no ‘right to silence’ in anti-doping proceedings”.
201.
See Sect. 8.2.3 below.
202.
See subsequent Sect. 8.2.2.1.3 below.
203.
Similarly, AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, para 23 et seq., the AAA panel ordered from USADA the production of certain laboratory SOPs.
204.
As a rule, parties are required to file any evidentiary request with their respective submissions (appeal brief or answer), except in exceptional circumstances (Article 44.1 of the CAS Code), i.e. unless the existence or relevance of the evidence should “become apparent further to the filing of the other party’s submission or the circumstances that have arisen after the filing of the relevant submission” (Rigozzi and Quinn 2012, p. 12, footnote 26).
205.
“A party may request the Panel to order the other party to produce documents in its custody or under its control. The party seeking such production shall demonstrate that the documents are likely to exist and are relevant”. […] “If it deems it appropriate to supplement the presentations of the parties, the Panel may at any time order the production of additional documents or the examination of witnesses, appoint and hear experts, and proceed with any other procedural act” (Article 44.3 of the CAS Code).
206.
The initial CAS Code did not contain any provision in that respect, so that CAS panels had to apply general principles of law developed for commercial arbitration (Rigozzi 2005, n° 1093).
207.
Born 2014, p. 2321, specifically for approaches to disclosure.
208.
Zuberbühler et al. 2012, ad Article 3, n° 141; Habegger 2006, p. 33, notes that Swiss arbitrators are usually mindful that this assessment should not prejudge their final decision, so that it is sufficient that the materiality of the document can be reasonably argued; see also Hamilton 2006, p. 74, Hanotiau 2006, p. 125 and Derains 2006, p. 94.
209.
Article R44.3 of the CAS Code only mentions the criterion of relevance, while Article 3 of the IBA Rules on the Taking of Evidence incorporates a dual test of relevance (“are the documents associated with the subject matter of the dispute”) and materiality (“are the documents likely to be material for the outcome of the dispute”), see for more details Zuberbühler et al. 2012, ad Article 3, n° 131 et seq. and Sattar 2010, p. 214. In our view, this apparent difference is resolved if one takes into account the fact that under the CAS Code the request for production is addressed in an initial step to the panel, while under the IBA Rules on the Taking of Evidence the request is made directly from party to party. Thus, in CAS arbitration, the panel may use its discretion to conduct an anticipated evaluation of the evidence to reject a request, as noted for Swiss arbitration by Habegger 2006, p. 33.
210.
Born 2014, p. 2358 et seq.
211.
Under Article 9.2 of the IBA Rules, legal impediment or privilege under the legal or ethical rules determined by the arbitral tribunal to apply, unreasonable burden, grounds of commercial or technical confidentiality, or considerations of procedural economy or fairness that the arbitral tribunal determines to be compelling.
212.
See Sect. 8.2.2.1.1 above.
213.
This could include making plausible that procedural defects could become apparent from such documents or that these would assist in establishing the origin of the substance detected.
214.
Born 2014, p. 2362/2363: also stressed that, whereas arbitral tribunals are generally reluctant to let parties engage in “fishing expeditions”, the most that can be requested at this stage is a prima facie judgement of likely relevance and materiality to the outcome of the dispute.
215.
See e.g. CAS 2013/A/3170, Pinzon v. FECNA, para 38; on the difficult evaluation of the concept of “control”, see Zuberbühler et al. 2012, ad Article 3, n° 149 et seq.
216.
Poudret and Besson 2002, n° 649.
217.
The hypothesis in which the laboratory is itself a party to CAS arbitration proceedings, e.g. after suspension or withdrawal of its accreditation, is not addressed here (see Sect. 5.1.1.2.2).
218.
In international arbitration, disclosure is ordinarily limited to the parties, Born 2014, p. 2343; Zuberbühler et al. 2012, ad Article 3, n° 209, and this is certainly true at least for international arbitration in Switzerland, see Berger and Kellerhals 2015, n° 1326; in US based arbitration, arbitral tribunals have certain opportunities to summon third parties to appear at a hearing along with documents (see Bianchi 2010).
219.
See Sect. 5.1.1.1.2 above.
220.
In arbitration conducted under English law, there is the possibility of “witness summons” upon request of a party, see Tackaberry and Marriot 2003, n° 2–709.
221.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 3.29.
222.
CAS 2013/A/3170, Pinzon v. FECNA, para 20.
223.
Van Houtte 2009, p. 204; Zuberbühler et al. 2012, ad Article 9, n° 61, whereby tribunals generally refuse to hold a party “accountable for the failure of organisations over which it had no control to provide certain requested information”.
224.
Born 2014, p. 2365, on the broad concept of “control”: “the essential point is that control is not a technical concept, but rather a practical one which should be liberally interpreted and applied”, i.e. does not extend only to documents that are in the immediate possession of a party, its officers or employees.
225.
Hamilton 2006, p. 80, mentions an arbitral award where the panel included in the scope of “control” any entity towards which the other party has a contractual or other right to obtain the document; by contrast, in arbitration conducted under English law, documents in the possession of an agent are not deemed “in the possession or power” of the party unless they emanate from such party or were obtained by the agent for the party (see Tackaberry and Marriot 2003, n ° 2–707).
226.
For a similar reasoning, see Rigozzi and Quinn 2012, p. 13.
227.
Zuberbühler et al. 2012, ad Article 3, n° 229, mention that arbitral tribunals may expect parties to produce documents held by entities they have a “significant relationship” with before being admitted to claim that they have no control over such documents. Whether a “relationship” is sufficient is a decision that must be made in the specific case.
228.
ITF Independent Anti-Doping Tribunal, Martina Hingis, 3 January 2008, para 139 et seq.: “In the matter ITF v. Hingis, the ITF anti-doping tribunal considered it questionable “whether a chairman could or should order the ITF to disclose documents in the possession of an independent WADA accredited laboratory, which the ITF many have no contractual power to obtain from the laboratory”.
229.
See Sect. 8.2.2.3.2 below.
230.
See Sect. 8.2.2.3.2 below.
231.
See Sect. 8.2.1.1 above.
232.
CAS 2011/A/2566, Veerpalu v. FIS, para 135: “The Panel is convinced by the submissions of the Respondent that there is no ISL which requires that internal QC policies be provided to individuals such as the Appellant. On that basis, the Panel is not persuaded that a presumption against the application of ISL standards should be maintained where QC policies are not provided. Therefore, the Panel finds that there has been no breach of any ISL and no violation of the right of the Appellant to defend itself”.
233.
See Sect. 8.2.2.1.1 above.
234.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.148.
235.
Article 5.3.7.3.2 of the ISL.
236.
Article 5.4.4.2.3 (urine) of the ISL (not explicitly referred to for blood), new in 2015 ISL: “Analytical method validation data (including the estimation of measurement uncertainty as described in ISL 5.4.4.3) is assessed in the ISO/IEC 17025 accreditation process for approval of the method for its inclusion in the Laboratory’s ISO scope of accreditation. As such, a Laboratory shall not be required to produce validation data or other evidence of method validation in any legal proceeding”.
237.
See Sect. 6.3.2.1 above.
238.
See Sect. 6.3.3 above.
239.
Berger and Kellerhals 2015, n° 1329; Zuberbühler et al. 2012, ad Article 9, n° 43, who refer to the “generally acknowledged principle that parties should not gain unauthorised access to trade secrets”.
240.
Zuberbühler et al. 2012, ad Article 9, n° 43, mention, i.a., “research and development information” and “recipes”. See O’Malley 2010, p. 499, for a view that protection should be accorded depending on the repercussions which revealing the documents could have for a party, and that such reasoning would not only refer to the financial inner working of a company, but include “formulas, know-how and trade secrets which firms go to great length to keep confidential”.
241.
CAS 2011/A/2566, Veerpalu v. FIS, para 173.
242.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.160.
243.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.160.
244.
In CAS 2005/A/884, Hamilton v. USADA & UCI, para 67, the Athlete was asked to specify the false positives that—allegedly—occurred on other Doping Control Samples.
245.
CAS 2009/A/1820, Schumacher v. UCI, para 147.
246.
CAS 2005/A/884, Hamilton v. USADA & UCI, para 67; Born 2014, p. 2388: “restricting inspection of documents to a single location (with no right to copy)”.
247.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.162, where this request was rejected by the panel; indeed, Poudret and Besson 2002, n° 654, submit that in order to avoid a breach of the right to be heard, such solution should be chosen only with the agreement of all parties; similarly Fouchard et al. 1999, p. 693, plea for a very cautious approach to this solution, due to the risk of a breach of due process.
248.
CAS 2010/A/2185, Blanco v. USADA, para 9.2.2, in which the panel directed the parties to execute a confidentiality order for the laboratory to produce the relevant SOPs; see on the use of this possibility in international arbitration, Fouchard et al. 1999, p. 693: “the aim of such an agreement is to oblige each signatory to limit the use of the disclosed documents to purposes strictly related to the arbitration, if need be to limit the number of individuals who will have access to the documents, and to return all original documents and copies after the arbitration”; Born 2014, p. 2388.
249.
Van Houtte 2014, p. 84; Born 2014, p. 2388, about situations in which “it is appropriate to include heightened protections for certain materials, including by limiting its review to specific individuals, requiring “counsel only” review”.
250.
See Sect. 6.3.2.3 above.
251.
CAS 2011/A/2566, Veerpalu v. FIS, para 173. The Panel further noted also that because there is no requirement for the publication of such underlying data for WADA-accredited tests there can be no breach of the Appellant’s right to be heard.
252.
See Sect. 6.3.3.3 above.
253.
See Sect. 6.3.1.2 above.
254.
CAS 2009/A/1820, Schumacher v. UCI, para 147.
255.
CAS 2011/A/2566, Veerpalu v. FIS, para 135 (Quality Control Policy).
256.
CAS 2010/A/2185, Blanco v. USADA, para 9.5.6; see also, before the AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, para 23 et seq.
257.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.162.
258.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.162.
259.
CAS 2005/A/884, Hamilton v. USADA & UCI, para 75.
260.
See Sect. 8.2.2.3.2 above.
261.
Note that arbitral tribunals are generally reluctant to do so, Born 2014, p. 2392/2393.
262.
Rigozzi and Quinn 2012, p. 13; for general international arbitration, Born 2014, p. 2391 et seq.; see also Sect. 3.1.2.2.3 above.
263.
For international arbitration, Born 2014, p. 2393.
264.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.162: “that it cannot place the Appellants at a procedural disadvantage in bearing their burden of proof, where the evidence requested is critical to their defence and the laboratory remains in exclusive control of its disclosure”; CAS 2006/A/376, Baxter v. IOC, para 16, where the CAS panel found that given the refusal by the IOC to instruct the laboratory to determine the isomer contained in the Sample, the panel had to assume that the isomer was the one alleged by the Athlete (however, the issue was not decisive in the case, since the CAS panel continued to find that both isomers were prohibited).
265.
CAS 2011/A/2566, Veerpalu v. FIS, para 43.
266.
CAS 2011/A/2566, Veerpalu v. FIS, para 43. In Veerpalu v. FIS, the CAS panel went so far as to reject the results of longitudinal profiles produced by the sports organisations as additional evidence in the CAS proceedings, based on the fact that these results had never been communicated to the Athlete and that the Athlete had not been provided with the relevant DCO reports and laboratory documentation in spite of his requests, so that “the reliability and accuracy of those Test results cannot be verified”.
267.
CAS 2011/A/2566, Veerpalu v. FIS, para 241.
268.
See Sect. 8.2.1 above.
269.
CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 35: “To the extent that the Appellants’ expert found the Lab documentation deficient or lacking in explanation, he had through the counsel, the power to obtain production of other information. This power was never exercised. Rather, Dr. de Boer comes to the hearing stating he cannot confirm the final conclusion because of a deficiency in the Lab package”.
270.
CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 108.
271.
CAS 2010/A/2185, Blanco v. USADA, para 9.2.3.
272.
See e.g. CAS 2006/A/1025, Puerta v. ITF, para 6.3. One could possibly reserve as an exception cases in which the proportionality of the sanction is solely at stake and the origins of the Adverse Analytical Finding do not raise scientific issues.
273.
On the management of expert evidence in CAS proceeding, see Sect. 8.3.2 below.
274.
Rigozzi and Quinn 2012, p. 12; Rigozzi 2005, para 989; for an example where the panel appointed two “independent experts”: CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, paras 3.46 & 3.55. The situation could possibly evolve with the new procedural instructions in Article 3.2.1 of the 2015 WADC, whereby the CAS panel is to appoint an expert at WADA’s request when the validity of analytical science is challenged.
275.
Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 34; Born 2014, p. 2279; on possible evolutions for CAS-appointed experts, see Sect. 8.3.2.4 below.
276.
Rigozzi and Quinn 2012, p. 12; Born 2014, p. 2280, stresses in general that “there can be differing expectations about the independence of experts”.
277.
Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 22; Ehle 2012, p. 78.
278.
Born 2014, p. 2281: “At a minimum, however, experts are subject to the same duties of honesty as fact witnesses and their failure to demonstrate independent professional judgment will seriously impair their credibility”.
279.
See Sect. 8.1.1.1 above.
280.
Rigozzi and Quinn 2012, p. 12.
281.
Other guidelines, such as the Protocol of the Chartered Institute of Arbitrators, go further in requesting experts to sign a declaration providing, i.e. that “I understand that my duty in giving evidence in this arbitration is to assist the arbitral tribunal decide the issues in respect of which expert evidence is adduced”, and “I confirm that this is my own, impartial, objective, unbiased opinion which has not been influenced by the pressures of the dispute resolution process or by any party to the arbitration” (Article 8 CIArb Protocol). If the arbitrators are satisfied that the expert’s opinions, either expressed in writing or orally, are not in accordance with the declaration, they shall disregard such opinions in whole or in part having regard to all circumstances (Article 7.4 CIArb Protocol).
282.
According to the Commentary of the IBA Rules on the Taking of Evidence, the declaration of relationships is a requirement for disclosure, while the declaration of independence is a requirement for the expert “to evaluate any such relationships and attest that he or she is “independent”, for example in the sense that he or she has no financial interest in the outcome or otherwise has relationships that would prevent the expert from providing his or her honest and frank opinion”. This provision is “intended to emphasise the duty of each party-appointed expert to evaluate the case in an independent and neutral fashion rather than to exclude experts with some connection to the participants or the subject-matter of the case”.
283.
This “duty of assistance of the tribunal” has been characterised as “a laudable but unrealistic model” by Goldstein M, Independence of Party-Appointed Experts Under the Revised IBA Evidence Rules, http://arbblog.lexmarc.us/2010/06/independence-of-party-appointed-experts-under-the-revised-iba-evidence-rules/ (accessed 15.02.15).
284.
Similarly, Harris 2010, p. 213, emphasising that “it is the quality of those connections which is really of importance”.
285.
See Sects. 8.3.1.2 and 8.3.1.3 below.
286.
Giraud et al. 2014, p. 335.
287.
See e.g. CAS 2009/A/1768, Hansen v. FEI, para 12.1, where the testimony of the FEI veterinarian for the relevant event, who had also been present when checking the horse for the pre-Competition hypersensitivity examination, was considered valid expert evidence to confirm the prohibited character of the substance detected; see also the related matter CAS 2008/A/1700 & 1710, DRV v. FEI & Ahlmann, Ahlmann v. FEI, para 36.
288.
CAS 2011/A/2566, Veerpalu v. FIS, 25 March 2013, para 182: “The Panel has no reason to assume that the producers of the Kits and the Respondent’s expert witnesses would have allowed any potential conflicts of interest to affect their professionalism and veracity in the course of the present proceedings. The Panel finds it highly unlikely that the Kits’ producers would jeopardize their professional reputations by producing unreliable testing kits or concealing any shortcomings the Test may have”; expressing concern on the similar feature (scientist having shares in the company producing the analysis kits) in the NADA v. Sinkewitz matter, see Orth 2004, p. 138; CAS 2007/A/1394. Landis v. USADA, para 94 (significant weight given to the witness who was involved in writing the software and operating manuals for the instruments used for the analysis).
289.
On the caution to be exercised when evaluating the probative value of expert evidence given by treating physicians in favour of their patients, see the Swiss Supreme Court case law in health insurance matters, Müller JP and Reich J, Rechtsgutachten zur Vereinbarkeit der bundesgerichtlichen Rechtsprechung zur medizinischen Begutachtung durch Medizinische Abklärungsstellen betreffend Ansprüche auf Leistungen der Invalidenversicherung mit Article 6 der Konvention vom 4 November 1950 zum Schutze der Menschenrechte und Grundfreiheiten, 11 February 2010, http://www.humanrights.ch/upload/pdf/100422_Rechtsgutachten_IV.pdf (accessed 14.05.15), p. 18; see also Guyaz 2011, p. 129.
290.
CAS 2008/A/1572 / 1632 / 1659, Gusmao v. FINA, para 2.4, where the Montreal laboratory director who had conducted the analysis was heard “as witness and expert witness”.
291.
CAS 2009/A/1873, WADA v. FPC & Da Costa Cabreira, para 121, CAS Kicker Vencill v. USADA, para 37: “Moreover, if there were any doubt in this respect, it was put to rest by the testimony of Dr. Catlin at the hearing, which the Panel found both credible and compelling and which was not seriously challenged by the athlete”; CAS 2008/A/1572 / 1632 / 1659, Gusmao v. FINA, 13 November 2009, para 4.19 et seq.; CAS 2010/A/2185, Blanco v. USADA, para 9.4.4 (with respect to the absence of requirement of a quality control for IRMS analysis).
292.
CAS 2008/A/1555 & 1779, Kashechkin & CFRK v. UCI, para 90, where the director of the laboratory that conducted the analysis is simply referred to as an “expert”; CAS 2005/A/958, Ribeiro v. UEFA, para 62; CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova, para 194.
293.
CAS 2007/A/1362, CONI v. Petacchi, 2007/A/1393, WADA v. Petacchi & FCI, para 6.9 et seq., where the directors of both laboratories who had conducted the analysis were relied on by CONI and treated as “experts” for the general scientific issues related to the inhalation of salbutamol, and whose opinion finally prevailed in the eyes of the panel over the opinions of the Athlete’s experts.
294.
See e.g. the assessment in CAS 2009/A/1873, WADA v. FPC & Da Costa Cabreira, para 106.
295.
CAS 2005/A/884, Hamilton v. USADA & UCI, para 74 et seq.
296.
CAS 98/222, B v. ITU, para 5. At that time, the presumption was enshrined in the IOC Medical Code, a precursor of the WADC. Note that the CAS made this remark in answer to a challenge of the evidence by the federation involved, so that there may have been a certain component of venire contra factum proprium involved behind the panel’s reasoning.
297.
On the appearance of the WADA laboratory network as experts in general, see Sect. 8.3.1.3.2 below.
298.
See Sect. 10.2.2.1 below.
299.
See Sect. 10.2.2.1 below on the various roles.
300.
Lewis and Taylor 2014, C2.87, mention service contracts with the laboratory containing a “provision requiring the laboratory personnel to assist as necessary in disciplinary proceedings, including appearing to give evidence in support of any adverse analytical finding”. These commentators continue that “it may also become necessary to obtain evidence from an independent expert”, thereby implicitly considering that the laboratory personnel cannot be independent in such situation.
301.
The UK Civil Court Council prohibited conditional or contingency fees, see Sect. 88 of the UK Justice Council “Guidance for the instruction of experts in civil claims”, December 2014: “Payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In ex parte Factortame (no8) [2003] QB 381 at [73], the court said ‘we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement’”.
302.
On bias due to financial predisposition, see Dwyer 2008, p. 169/170.
303.
On the actual situation within the laboratory network, however, see Sect. 8.3.1.3.2 below.
304.
With respect to experts not tied to instructions but regularly intervening in an institutional manner in health insurance matters, see Müller JP and Reich J, Rechtsgutachten zur Vereinbarkeit der bundesgerichtlichen Rechtsprechung zur medizinischen Begutachtung durch Medizinische Abklärungsstellen betreffend Ansprüche auf Leistungen der Invalidenversicherung mit Article 6 der Konvention vom 4 November 1950 zum Schutze der Menschenrechte und Grundfreiheiten, 11 February 2010, http://www.humanrights.ch/upload/pdf/100422_Rechtsgutachten_IV.pdf (accessed 14.05.15), n° 56.
305.
See Sect. 8.3.2.1 below.
306.
See Sect. 8.3.2.1.1 below.
307.
Dwyer 2009, p. 173.
308.
See Sect. 11.4.1 below; under Swiss law, for court-appointed experts, the mere fact than an expert has previously given a report on the same procedure does not—as a rule—create an appearance of partiality, whereas the matter is less clear for experts who express their opinions in the media (for an overview, see Groner 2011, pp. 282 and 284).
309.
Rigozzi 2005, n° 952.
310.
CAS 2012/A/2979, WADA v. Nirupama Devi Laishram & NADA, para 115, where reliance on a written statement of a Manager in WADA Science was criticised by the Athlete since the person was working for WADA, but the CAS panel found her to be a trustworthy scientist; CAS 2013/A/3050, WADA v. Krylov & FIG, para 84, in this case the statement remained unchallenged since the Athlete had not appointed any expert in the proceedings; CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 260, where the WADA Science Director submitted an “expert report” abundantly referred to in the CAS award; CAS 2007/A/1362, CONI v. Petacchi, 2007/A/1393, WADA v. Petacchi & FCI, para 6.9 et seq.
311.
For a recent example, see CAS 2010/A/2185, Blanco v. USADA, where the Chief Science Officer of USADA intervened as the main expert with no mention of his position in the award; similarly, the WADA Science Director has been called as an expert in CAS proceedings without mention of his position, CAS 2011/A/2353, Tysse v. WAF & IAAF.
312.
See Sect. 4.3.2.1.4 above.
313.
Dwyer 2009, p. 167, for the situation from an English law perspective; according to the Swiss Supreme Court on health insurance matters, the mere fact that an expert report originates from a doctor employed by the insurer does not as such rule out his objectivity nor impartiality in the absence of particular circumstances (see Müller JP and Reich J, Rechtsgutachten zur Vereinbarkeit der bundesgerichtlichen Rechtsprechung zur medizinischen Begutachtung durch Medizinische Abklärungsstellen betreffend Ansprüche auf Leistungen der Invalidenversicherung mit Article 6 der Konvention vom 4 November 1950 zum Schutze der Menschenrechte und Grundfreiheiten, 11 February 2010, http://www.humanrights.ch/upload/pdf/100422_Rechtsgutachten_IV.pdf (accessed 14.05.15), p. 18).
314.
Dwyer 2009, p. 167.
315.
See Sect. 8.3.1.3.3 below.
316.
CAS 2012/A/2979, WADA v. Nirupama Devi Laishram & NADA, para 115, where the CAS panel insisted on the “trustworthiness” of the person as a scientist.
317.
See, in particular, Sect. 4.3.1 above; on the evaluation of expert evidence by CAS panels and the importance placed on the “credibility” factor, see for more details Sect. 8.3.3.1.4 below.
318.
Inversely, if the criticism originates from the ADO, the mere fact that an accredited laboratory is located in the Athlete’s country “does not render such testimony less trustworthy” (CAS 98/222, B. v. ITU, para 5). More generally, it should prove quite difficult—leaving aside whether this would be wise from a perspective of anti-doping policy—for ADOs to challenge the reliability of evidence provided by accredited laboratories, even more so if the laboratory was the one entrusted with analysing the Sample in the particular case.
319.
CAS 2007/A/1394, Floyd Landis v. USADA, para 76.
320.
CAS 2007/A/1394, Floyd Landis v. USADA, paras 50 & 76; With respect to a laboratory accredited by the FEI for testing of equine Samples in France: CAS 2005/A/895, Lissarague et al. v FEI et al., para 118: “competence and independence cannot be questioned absent a convincing basis in fact”.
321.
CAS 2009/A/1755, Seroczinsky v. IOC, para 79.
322.
Specifically, the debate revolved around the interplay between two paragraphs: the general clause in Article 5: “The Laboratory personnel shall not engage in conduct or activities that undermine or are detrimental to the anti-doping program of WADA, and International Federation, a National Anti-Doping Organization, a National Olympic Committee, a Major Event Organizing Committee, or the International Olympic Committee. Such conduct could include, but is not limited to, conviction for fraud, embezzlement, perjury, etc. that would cast doubt on the integrity of the anti-doping program”, and the more specific Article 5.3: “If laboratory staff is requested by either party or the tribunal to appear in arbitration or court hearing, they are expected to provide independent, scientifically-valid expert testimony. Laboratory experts should not be an advocate to either party”.
323.
Christopher Campbell, Dissenting Opinion, AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 15. The dissenting opinion mentions laboratory directors admitting before the panel that they would not testify for an Athlete even if they knew that another WADA laboratory made a mistake, or that they had received reprimands for having done so in the past.
324.
AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 316.
325.
Christopher Campbell, Dissenting Opinion, AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 16: concludes that the WADC Laboratory Code of Ethics “unnecessarily operates as an obstacle to the search for truth”.
326.
Christopher Campbell, Dissenting Opinion, AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 13: “If there are flaws in procedures for testing, as evidenced above, those flaws should be immediately disclosed and admitted in an adjudicative proceeding. Drug testing agencies should not be playing hide the ball when athletes’ careers are on the line”.
327.
On the risks of “self-serving vows of silence”, see Jassanoff 1995, p. 220.
328.
See also Sect. 8.4.2 below.
329.
The fact that the same directors testified before the AAA panel that they would not have testified in this case had they not be convinced of the presence of a “true” positive finding, or that they would find a way of informing the responsible testing authority if they were convinced that another laboratory committed a procedural flaw, is not in our view sufficient to restore the appearance of impartiality.
330.
Section 11 of the UK Justice Council “Guidance for the instruction of experts in civil claims”, December 2014: “A useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by another party”.
331.
Ehle 2012, p. 79; in the context of employment relationship, stating that any term requiring the employee to breach the overriding duty of the expert to the court would be void for illegality (see Dwyer 2009, p. 168).
332.
Christopher Campbell, Dissenting Opinion, AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 16.
333.
For an overview of the drawbacks and risks of party-appointed experts in criminal proceedings, see Champod and Vuille 2010, p. 88.
334.
Sachs and Schmidt-Ahrendts 2010, p. 218; Hunter M (2006) Expert conferencing and new methods, ICCA Congress 2006—Montreal, Session 7—Techniques for Eliciting Expert Testimony, http://www.arbitration-icca.org/media/0/12232940146050/jmh-techniques-for-eliciting-expert-testimony.pdf (accessed 14.05.15), n° 3, whereby the expert is “bought” by the party presenting it; Van Houtte 2004, p. 136; Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 22.
335.
Dwyer 2009, p. 228.
336.
See on the difficult management of party-appointed experts, Sect. 8.3.2.2 below.
337.
For similar considerations with respect to expert evidence in criminal proceedings, Champod and Vuille 2010, p. 94, in which the public prosecution typically has easier access to proficient and established expert opinion, as well as to accredited analysis facilities, which tends to diminish the credibility of the experts presented by the defence from the outset.
338.
See e.g. Schamasch and Rabin 2012, p. 1693; Marclay 2014, p. 8.
339.
CAS 2007/A/1394. Landis v. USADA, para 76, where entire segments of the expert statement were identical to the appeal brief.
340.
With respect to the phenomenon of “expert shopping”, see Dwyer 2009, p. 177.
341.
CAS 2008/A/1572, 1632 & 1659, Gusmao v. FINA, paras 1.17, 1.27, 2.4 & 4.39, where the panel denounced a clear case of conflict of interests and collusion of the “expert” the Athlete had appointed before the FINA panel, and heard him only as a witness (para 2.4).
342.
CAS 2008/A/1555 & 1779, Kashechkin & CFRK v. UCI, para 89.
343.
These arguments are generally dismissed by the CAS panels, see e.g. CAS 2011/A/2566, Veerpalu v. FIS, paras 223 & 231; reproach also dismissed in CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 80.
344.
Groner 2011, p. 285: the mere links of an expert with an institution (association, federation, public body) that has a clear stance on the matter at stake or on the parties does not—as a rule—appear sufficient to create an appearance of partiality.
345.
See e.g. ECHR Court, Eggertsdottir v. Islande (2007), para 47.
346.
ECHR Court, Brandstetter v. Austria (1991), para 44; see the critical analysis by Müller JP and Reich J, Rechtsgutachten zur Vereinbarkeit der bundesgerichtlichen Rechtsprechung zur medizinischen Begutachtung durch Medizinische Abklärungsstellen betreffend Ansprüche auf Leistungen der Invalidenversicherung mit Article 6 der Konvention vom 4 November 1950 zum Schutze der Menschenrechte und Grundfreiheiten, 11 February 2010, http://www.humanrights.ch/upload/pdf/100422_Rechtsgutachten_IV.pdf (accessed 14.05.15), n° 43 et seq.
347.
ECHR Court, Eggertsdottir v. Islande (2007), para 53: “the applicant had legitimate reasons to fear that the SMLB [the State Medico-Legal Board that provided the opinion to the court] had not acted with proper neutrality in the proceedings before the Supreme Court. It further transpires that, as a result of this deficiency and of the SMLB's particular position and role, the applicant's procedural position was not on a par with that of her adversary, the State, as it was required to be by the principle of equality of arms”. For an overview of the ECHR case law on the impartiality of expert evidence, see Champod and Vuille 2010, p. 100.
348.
For a comparative overview of the practice of medical expertise in this field over Europe, see Swiss Supreme Court, BGE/ATF 137 V 210.
349.
De facto, those are treated as tribunal-appointed experts.
350.
See, for an overview, Guyaz 2011, p. 130/131, and references cited; most notably, the legal opinion by Müller JP and Reich J, Rechtsgutachten zur Vereinbarkeit der bundesgerichtlichen Rechtsprechung zur medizinischen Begutachtung durch Medizinische Abklärungsstellen betreffend Ansprüche auf Leistungen der Invalidenversicherung mit Article 6 der Konvention vom 4 November 1950 zum Schutze der Menschenrechte und Grundfreiheiten, 11 February 2010, http://www.humanrights.ch/upload/pdf/100422_Rechtsgutachten_IV.pdf (accessed 14.05.15), considers that the situation in Swiss law is not compliant with Article 6 of the ECHR.
351.
Swiss Supreme Court, BGE/ATF 137/V/210, paras 2.4.4 & 2.5.
352.
See Sect. 8.4 below.
353.
See e.g. CAS 2007/A/1362, CONI v. Petacchi, 2007/A/1393, WADA v. Petacchi & FCI, para 6.9 et seq.; CAS OG 06/001, WADA v. USADA, USBSF & Lund, para 4.8, where the Athlete asked to be allowed to cross-examine WADA witnesses as to the reasons for including a particular substance onto the Prohibited List. Albeit the panel denied the request for irrelevance (no challenge admitted to the Prohibited List), they did not seem to have any particular objections against such request in general.
354.
See e.g. CAS 2011/A/2566, Veerpalu v. FIS, paras 123 & 201; CAS 2009/A/2018, Rebellin v. IOC, para 72; CAS 2006/A/1025, Puerta v. ITF, para 11.3.5.
355.
Only exceptionally is the particular status of the WADA officer taken into account before receiving the testimony, as for example in CAS CAS 2007/A/1396 &1402 WADA & UCI v. Valverde & RFEC, para 94: “With the consent of all Parties, Dr. Rabin, Science Director of WADA, was heard as well, as the scientific counsel of a party”.
356.
In CAS 2005/A/958, Ribeiro v. UEFA, para 31, the football player found positive to cocaine claimed to have been the victim of contamination by skin contact. The CAS panel decided at the end of the hearing to request an opinion from WADA on passive contamination by cocaine and the opportunity of introducing a minimal reporting level for the laboratories. The CAS panel acted with the agreement of all parties, so that no challenge was brought as to the admissibility, status and weight of this evidence.
357.
CAS 2005/A/958, Ribeiro v. UEFA, para 31: “L’hypothèse d’une contamination par simple contact accidentel pour une concentration urinaire de benzoylecgonine de 10 ng/ml n’apparaît donc pas crédible” [The hypothesis of a contamination through mere accidental contact for a urinary concentration of benzoylecgonine of 10 ng/ml does therefore not appear credible (author’s translation)].
358.
In fact, in CAS 2011/A/2566, Veerpalu v. FIS, para 223, the Appellant raised the objection that the experts’ role had become undistinguishable from the arguments of the ADO and therefore amounted to an unauthorized intervention of WADA in the proceedings, an argument that was rejected by the CAS panel (para 231).
359.
In connection with a start prohibition imposed by the FIS on a German cross-country skier, the Panel rejected the argument that the limits for elevated haemoglobin values was arbitrary on the sole ground that those were established in cooperation with WADA, see CAS OG 06/004, German Ski Association & Sachenbacher v. FIS, para 4.12; we agree with Rigozzi 2006, p. 459, that given the criticism regarding the CAS decisions applying the WADC, “this sort of bold statement should have been avoided”.
360.
In Ribeiro v. UEFA, the CAS panel put aside the Athlete’s argument that some laboratories would not have reported the same substance below a certain limit, merely by referring to WADA’s position that a screening limit of detection was not an issue for the time being (CAS 2005/A/958, Ribeiro v. UEFA, para 69).
361.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.21; CAS 2011/A/2566, Veerpalu v. FIS, para 110.
362.
See Sect. 8.3.3.2.3 below.
363.
See also Sect. 8.3.1.3.1 above; for a contrary example, see CAS 2006/A/1025, Puerta v. ITF, para 11.3.7, where the panel preferred the opinion of the Athlete’s expert and noted that the evidence of Dr Rabin of WADA was simply “a text-book statement and is of little assistance to it”.
364.
See e.g. CAS 2011/A/2566, Veerpalu v. FIS, para 53.
365.
Rigozzi and Quinn 2012, p. 10.
366.
Vuille 2011, p. 438.
367.
See Sect. 8.3.1 above.
368.
Rigozzi and Quinn 2012, p. 10/11; more generally, prescriptions used for forensic sciences could be of value, see e.g. Champod and Vuille 2011, p. 230, footnote 9, for a survey; and Vuille 2011, p. 75.
369.
See Sect. 8.3.3.1.4 below.
370.
See Chap. 11 below.
371.
Article R44.2 of the CAS Code provides that the President of the Panel may, with the agreement of the parties, “exempt a witness/expert from appearing at the hearing if the latter has previously filed a statement”.
372.
CAS 2007/A/1396 & 1402, WADA & UCI v. Alejandro Valverde & RFEC, para 95, and Sect. 8.1.1.2 above on the blurred distinctions between categories of evidence in CAS arbitration.
373.
CAS 2007/A/1396 & 1402, WADA & UCI v. Alejandro Valverde & RFEC, para 95. The CAS panel found that the author of the report had neither been acting as a party-appointed expert, nor had he submitted a witness statement, so that none of the IBA Rules on experts or witnesses could apply.
374.
See Sect. 8.3.1.1 above.
375.
For a more comprehensive presentation, see Peter 2002, pp. 47–58.
376.
Harris 2010, p. 215; Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 24.
377.
Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 23.
378.
Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 25.
379.
Jones 2008, p. 10.
380.
Jones 2008, p. 138, regarding the “Woolf Report” in the UK.
381.
Hunter M (2006) Expert conferencing and new methods, ICCA Congress 2006—Montreal, Session 7—Techniques for Eliciting Expert Testimony, http://www.arbitration-icca.org/media/0/12232940146050/jmh-techniques-for-eliciting-expert-testimony.pdf (accessed 14.05.15), n° 4; Weiss and Bürgi Locatelli 2004, p. 482.
382.
Hunter M (2006) Expert conferencing and new methods, ICCA Congress 2006—Montreal, Session 7—Techniques for Eliciting Expert Testimony, http://www.arbitration-icca.org/media/0/12232940146050/jmh-techniques-for-eliciting-expert-testimony.pdf (accessed 14.05.15), n° 4, footnote 2.
383.
The difficulty of hearing experts or witnesses on technical matters in the context of arbitration has been accurately explained by Wolfgang 2002, pp. 47–58: “The traditional method of hearing witnesses consists of long hours of questioning technically trained witnesses who extensively develop points which either may not be relevant or may turn out to be disputable from a technical point of view, but nobody in the hearing room can efficiently counter such a witness. To confront at a later stage a counter-witness with the transcript of the hearing of the first witness in hand also proves inefficient. The counter-witness will often explain why, from a technical point of view, the first witness was entirely wrong, and, again nobody can effectively check or challenge this”.
384.
For an overview, see Jones 2008, p. 8 et seq.; Sachs and Schmidt-Ahrendts 2010, p. 218.
385.
CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.39 et seq.: “the expert witnesses conferred among themselves prior to the opening of the afternoon session in order to discuss and evaluate the results of the Laboratory testimony and to seek consensus on the open technical issues. Upon resuming the hearing in the afternoon (without the Beijing Laboratory), the expert witnesses for both of the Parties presented their conclusions and entered into a discussion together with the Panel in an attempt to better understand the still open scientific issues”; similarly, in a non-doping matter (assessment of the right of a runner with a double prosthesis to compete against valid runners), CAS 2008/A/1480, Pistorius v. IAAF, para 25, the experts were asked to gather in another room during the hearing, with the mission of making a list of the matters they agreed on, and a list of the matters they disagreed on.
386.
CAS 2010/A/2185, Blanco v. USADA, para 4.16 et seq.
387.
Jones 2008, p. 143 et seq., for an overview of the conclusions of the “Woolf Report” in the UK; Tackaberry 2012, p. 193.
388.
Jones 2008, p. 143, summarising the New South Wales Supreme Court Practice Note SG Gen 11.
389.
In our view, the approach favoured by the CIArb Protocol, whereby the conference is held before reports are produced, would be impracticable within the tight timeline for CAS appeal proceedings. In addition, in many cases, the expert reports filed have been produced already for the internal disciplinary proceedings.
390.
Ehle 2012, p. 82; Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 42.
391.
Jones 2008, p. 10; Ehle 2012, p. 83; see also Hunter M (2006) Expert conferencing and new methods, ICCA Congress 2006—Montreal, Session 7—Techniques for Eliciting Expert Testimony, http://www.arbitration-icca.org/media/0/12232940146050/jmh-techniques-for-eliciting-expert-testimony.pdf (accessed 14.05.15), n° 8 et seq.
392.
For some examples, see CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 49; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, p. 3; CAS 2009/A/1768, Hansen v. FEI, para 8.2; CAS 2008/A/1700 & 1710, DRV v. FEI & Ahlmann, Ahlmann v. FEI, para 36.
393.
See e.g. CAS 2007/A/1362, CONI v. Petacchi, 2007/A/1393, WADA v. Petacchi & FCI, para 6.28; in a non-doping matter, see CAS 2008/A/1480, Pistorius v. IAAF, para 88.
394.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 253; Hunter M (2006) Expert conferencing and new methods, ICCA Congress 2006—Montreal, Session 7—Techniques for Eliciting Expert Testimony, http://www.arbitration-icca.org/media/0/12232940146050/jmh-techniques-for-eliciting-expert-testimony.pdf (accessed 14.05.15), n° 8; Sutton et al. 2007, n° 5–202, stress that in theory English law on arbitration would give the arbitral tribunal the authority to decide without the parties’ agreement, but that this is not generally done.
395.
According to Article 44.2 of the CAS Code, the President of the panel may decide to hear some parties, witnesses or experts via tele- or video-conference. On the general rise of “witness conferencing” in arbitration and its advantages, see Berger and Kellerhals 2015, n° 1337.
396.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, p. 13.
397.
More doubtful about the time-saving component of witness-conferencing, Born 2014, p. 2293.
398.
The advantages mentioned by Peter W, Witness “Conferencing”, include: speed, clarification of factual and technical issues, elimination of irrelevant positions, enhanced efficiency by enabling the most knowledgeable witness to answer the question, lack of solemnity bringing out the best from a qualified witness, conducive to settlement; Born 2014, p. 2293, on witness conferencing in general: “properly-implemented, witness-conferencing can effectively expose evasions, over-simplifications and inaccuracies”.
399.
Sachs and Schmidt-Ahrendts 2010, p. 218.
400.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 143.
401.
Jones 2008, p. 148.
402.
Peter 2002, pp. 47–58; Berti et al. 2000 (Michael Schneider), ad Article 184 SPILA, n° 28.
403.
See Sect. 8.3.1.3.3 above.
404.
For a similar conclusion regarding commercial arbitration, see Jones 2008, p. 154.
405.
So, for commercial arbitration: Schlaepfer and Bärtsch 2010, p. 215; see also Jones 2008, p. 154, on so-called “shadow experts”.
406.
The question remains whether experts could be appointed by the hearing panels directly during the initial disciplinary process. Such appointments would make sense only where the disciplinary process is outsourced to an external hearing body, such as a national anti-doping tribunal. Where the disciplinary decision is issued by an internal tribunal of the sports federation, any tribunal-appointed expert is technically an expert appointed by the sports federation.
407.
See the procedural time limits in the chapter “Special provisions applicable to the appeal arbitration procedure”, Article R47 et seq. of the CAS Code, and the (theoretical) time limit to render the CAS award is three months from communication of the file to the panel (Article R59 of the CAS Code).
408.
Sachs and Schmidt-Ahrendts 2010, p. 219; Sachs K, Experts: Neutral or Advocates, http://www.josemigueljudice-arbitration.com/xms/files/02_TEXTOS_ARBITRAGEM/01_Doutrina_ScolarsTexts/evidence/experts__icca_2010_sachs.pdf (accessed 19.05.15), n° 53 et seq.
409.
Van Houtte 2014, p. 84/85.
410.
For such example of tribunal-appointed expert, see CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 3.37 et seq.
411.
Under Article R44.3 of the CAS Code, for evidentiary measures orders by the panel, “the Panel may order the parties to contribute to any additional costs related to the hearing of witnesses and experts”; see for the practice before English courts, Dwyer 2009, p. 170.
412.
See CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, 10 June 2010, para 3.37 et seq.
413.
See Sect. 8.3.1.3.3 above on the equivalent dilemma before state courts.
414.
Born 2014, p. 2280: “It is beyond debate that an expert appointed by the arbitral tribunal must be independent and impartial, in a manner analogous to the arbitrators”; for Swiss law, see Article 183 para 2 of the Swiss Code of Civil Procedure, whereby the same causes for challenges applicable for the judge apply to the court-appointed expert; this requirement is recognised as part of due process within the meaning of Article 6 of the ECHR (Groner 2011, p. 280). See in particular, ECHR Court, Eggertsdottir v. Iceland (2007), para 47: “[…] the opinion of an expert who has been appointed by the competent court to address issues arising in the case is likely to carry significant weight in that court's assessment of those issues. In its case-law the Court has recognised that the lack of neutrality on the part of a court-appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms inherent in the concept of a fair trial (see Bönisch v. Austria, judgment of 6 May 1985 (Merits), Series A no. 92, §§ 30–35; and Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, p. 21, § 33). In particular, regard must be had to such factors as the expert's procedural position and role in the relevant proceedings”.
415.
ECHR Court, Eggertsdottir v. Iceland (2007), para 48: “what is decisive is whether the doubts raised by appearances can be held to be objectively justified”. More generally, on the illusion of the “neutral” expert, see Labrusse-Riou 2012, p. 91.
416.
Dwyer 2009, p. 171.
417.
See the CAS panel’s reply to the Athlete’s objection in CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 3.46.
418.
Including asking questions to the Athlete’s expert witnesses (see CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, paras 3.89, 3.9, 3.110 & 5.41).
419.
The greater weight attributed to tribunal-appointed experts was a factor relied on by ECHR Court, Eggertsdottir v. Iceland (2007), para 49; see, for the general risk of an insufficient assessment of expert evidence in jurisdiction relying on the tribunal-appointed expert system, Champod and Vuille 2010, p. 104.
420.
See Sect. 8.4.2 below.
421.
For international arbitration, Born 2014, p. 2280, whereby arbitrators typically invite recommendations from the parties regarding the person and credentials of the expert, and will generally welcome joint proposals.
422.
Labrusse-Riou 2012, p. 94.
423.
CAS 2005/A/831, IAAF v. Hellebuyck, para 7.2.4.2.
424.
See Sect. 4.2.1 above; in the non-doping matter CAS 2008/A/1480, Pistorius v. IAAF, para 52, the CAS panel made clear that their decision that there was currently no sufficient scientific proof of a net advantage of the Athlete using the Cheetah prosthesis over able-bodied competitors did not preempt the possibility that such proof may be adduced in the future, with advances in science or new Testing protocols, nor should the decision be viewed as a precedent for clearing other Athletes or use of other devices, since each case would have to be assessed on its own merits.
425.
E.g. in connection with Testosterone abuse, the T/E ratio initially considered a reliable indication of doping, was subsequently found to be insufficiently accurate when applied to a larger population (see Sottas 2010, p. 105).
426.
On the effects of the new Article 3.2.1 of the WADC, see Sect. 6.3.3 above.
427.
See Sect. 3.1.2.1.3 above.
428.
See Sect. 3.1.2.1.3 above.
429.
Leitner 2008, p. 12, rightly points out that the judge inevitably brings into the process his or her own life experience and background knowledge as a correlate of the free evaluation of the evidence.
430.
As explicitly highlighted in UKAD Anti-Doping Panel Decision, British Cycling v. Tiernan-Locke, 15 July 2014, para 14.
431.
For a critical view on the possibility of an “expert-judge” and the same conclusion, Bettex 2006, p. 266/267, who reserves the situation in which parties would agree that one of the judges should also act as expert; see, for similar considerations under English case law, Murphy and Glover 2011, p. 684.
432.
For specialised courts, it is accepted under Swiss law that the judge of panels constituted of members of the relevant trade or social group may refrain from calling on an expert when they have the necessary knowledge (see Groner 2011, p. 278, Swiss Supreme Court, 5A_242/2008, para 4.2.1; for an overview of the opinions and court practice in CH, Bettex 2006, p. 235 et seq., in particular 235, stating that a large majority of commentators accept the possibility for a judge to act as expert). Article S14 of the CAS Code, however, only makes the composition of the list of CAS arbitrators depend on qualifications that include “recognized competence with regard to sports law and/or international arbitration [and] a good knowledge of sport in general”. It cannot thus be regarded as a “specialised” court in doping or scientific matters.
433.
For a similar solution, see Article 183 para 3 of the Swiss Code of Civil Procedure; according to the survey in Bettex 2006, p. 261/262, this appears to correspond to the majority view in Switzerland.
434.
See Sect. 8.1.1.1.1 above.
435.
The Swiss Supreme Court has found that arbitrators who do not have the necessary knowledge to make a decision requiring expertise in technical points must appoint an expert, even in the absence of a request by a party, see Poudret and Besson 2002, n° 664; Berti et al. 2000 (Michael Schneider), ad Article 184 SPILA, n° 35; disapproving of this decision, see Berger and Kellerhals, 2015, n° 1347 et seq.
436.
See for this balance in general, Sect. 4.3.1.2.3 above.
437.
See Sect. 6.3 above on this specific type of challenge.
438.
See Sect. 5.2 above.
439.
See Sect. 7.3.3.1.3 above.
440.
Schlaepfer and Bärtsch 2010, p. 218.
441.
Poudret and Besson 2002, n° 666.
442.
More generally on the difficulty of judges in controlling expert evidence, see Sect. 4.3.1 above; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79; McLaren 2012, p. 92.
443.
CAS 2005/A/958, Ribeiro v. UEFA, para 50; CAS 2007/A/1368, Scarponi v. FCI, para 86.
444.
Schlaepfer and Bärtsch 2010, p. 218.
445.
CAS 2006/A/1032, Karatancheva v. ITF, para 82; see also CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79: “must approach the evidence with care and self-awareness of its own lack of expertise in the area under examination”; CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.62: “the Panel wishes to underscore that its three members are not scientists. They must rely on the scientific opinions expressed by the experience and respected expert witnesses before them”, or CAS 2009/A/2018, Rebellin v. IOC, para 66 and CAS 2009/A/1820, Schumacher v. UCI, para 146: “S’agissant ici d’éléments techniquement complexes qui requièrent des connaissances scientifiques spécifiques, la Formation arbitrale estime qu’il lui appartient, pour trancher cette question, de s’appuyer avant tout sur les déclarations des différents experts auditionnés durant les débats, lesquels avaient été désignés par les Parties” [Since technically complex elements calling for specific scientific knowledge are concerned here, the arbitration panel considers that it must, to decide on this issue, rely above all on the declarations of the various experts heard during the debates, who had been designated by the Parties (author’s translation)].
446.
See e.g. CAS 2009/A/1873, WADA v. FPC & Da Costa Cabreira, para 123; CAS 2010/A/2041, Chepalova v. FIS, para 119; CAS 2005/A/884, Hamilton v. USADA & UCI, para 64; CAS 2006/A/1032, Karatancheva v. ITF, para 85 (“since there is no reason to doubt the foregoing concurring opinions on the state of scientific knowledge”); CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 93 & 99; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 3/4; CAS 2008/A/1700 & 1710, DRV v. FEI & Ahlmann, Ahlmann v. FEI, para 89 (“the Panel must accept the unanimous experts’ opinion”).
447.
See the expression “two ships passing in the night”, by Van Houtte 2014, p. 84.
448.
See Sect. 8.3.2.3 above.
449.
Schlaepfer and Bärtsch 2010, p. 218; CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 78 and 83; CAS 2009/A/1768, Hansen v. FEI, para 18.4.
450.
Bettex 2006, p. 189, submits that judges should generously resort to an additional expert in case of expert disagreement, since it can be very difficult for a layman to decide on the most convincing expertise.
451.
Thus, contrary to the panel’s statement in CAS 2014/A/3488, WADA v. Lallukka, para 97, the panel is not “bound to form a view as to which of possibly competing expert views it considers to be more persuasive”.
452.
CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 70 et seq.; CAS 2012/A/2997, NADA v. Y, para 40 (blood exposure to UV and potential for enhancing oxygen transport); for a famous non-doping matter, where the expert evidence available failed to demonstrate conclusively that the prosthesis gave the Athlete an overall net advantage over valid runners, see CAS 2008/A/1480, Pistorius v. IAAF, para 98.
453.
CAS 2006/A/1057, UCI v. Forde & Barbados Cycling Union, para 62, for the effort that is expected from the Athlete: “the exculpatory evidence required could have been disclosed in the form of an expertise enabling to question the entire testing and reporting process, by indicating different indices of inconsistencies in the [laboratory] testing process, such as errors during transmittal of electronic data to paper, poor record keeping processes, inaccuracies of the testing procedures and reporting procedures”.
454.
See also, in a TUE matter, CAS 2009/A/1948, Berger v. WADA: “while accepting that the Panel had to give the views of medical experts respect and appropriate weight, the Panel would not shrink from taking a different view if that was appropriate on the evidence ‘as a matter of logic and commonsense’”; contra: 2004/A/769 & 965, Bouyer v. UCI & WADA.
455.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79; repeated in CAS 2014/A/3488, WADA v. Lallukka, para 97 (perceiving itself as an “appellate body”, which is inaccurate in all cases in which the CAS panel intervenes as a “first instance” judicial body after a disciplinary hearing body related to a sports organisation).
456.
Repeated last in CAS 2014/A/3488, WADA v. Lallukka, para 97.
457.
See Sect. 8.3.3.1.4 below.
458.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.4; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79.
459.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.4; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79. In De Bonis v. CONI & UCI, the CAS panel added that they could verify the “correctness” of the expert’s conclusion. The panel’s statement needs to be interpreted cautiously, in the light of the limits inherent in the control that a legal hearing panel can exercise on the contents of an expert’s opinion.
460.
See Sect. 4.3.1.2.3 above.
461.
For an instance in which the CAS panel, exceptionally, announced what criteria would be taken into account in its evaluation, see CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79.
462.
For a similar summary set of criteria, see Davies 2012, p. 30.
463.
CAS 2009/A/1873, WADA v. FPC & Da Costa Cabreira, para 106 (“les qualifications scientifiques pertinentes de ces deux témoins ainsi que leur expérience dans le domaine du contrôle antidopage donnent du poids et de la crédibilité à leur témoignages” [the relevant scientific qualifications of these two witnesses, as well as their experience in the field of doping control gives weight and credibility to their testimonies (author’s translation)]); CAS 2008/A/1555 & 1779, Kashechkin & CFRK v. UCI, para 95; CAS 2007/A/1394. Landis v. USADA, para 50 (“vast experience in this field”); CAS 2009/A/1752 & 1753, Devyatovskiy & Tsikhan v. IOC, para 5.69 (“even if not articulated in detail and scientific terms, the plausibility of these explanations by experienced and respected experts cannot be discounted”); CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79.
464.
CAS 2007/A/1394. Landis v. USADA, para 94; CAS 2005/A/884, Hamilton v. USADA & UCI, para 90 (“This general criticism was not backed up by any facts, nor is Dr Brugnara a flow cytometrist”); CAS 2009/A/1912 & 1913, Pechstein & DESG v. ISU, para 198 (“Prof. d’Onofrio, whose haematological expertise appears to the Panel to be very reliable in light of his impressive curriculum, of his many publications specifically devoted to this subject and of his oral evidence at the hearing”).
465.
CAS 2007/A/1394. Landis v. USADA, para 50 (independence of the director of a WADA-accredited laboratory not involved in the analysis); CAS 2005/A/884, Hamilton v. USADA & UCI, para 62.
466.
This criterion has been given true consideration rather unilaterally, on very rare occasions, to the detriment of the Athlete CAS 2008/A/1572, 1632 & 1659, Gusmao v. FINA, paras 1.17, 1.27, 2.4 & 4.39, where the panel denounced a clear case of conflict of interests and collusion of the “expert” the Athlete had appointed before the FINA panel, and heard him only as a witness (para 2.4).
467.
See Sect. 8.3.1 above.
468.
CAS 2007/A/1394. Landis v. USADA, para 76,.
469.
CAS 2009/A/1912 & 1913, Pechstein & DESG v. ISU, para 198, regarding the possibility of a hereditary blood anomaly: “The fact itself that Prof. d’Onofrio put forward such an explanation in his written reports appears to be, in the Panel’s eyes, as a sign of his bona fide attitude in these proceedings and thus of his particular credibility as an expert witness”.
470.
CAS 2006/A/1032, Karatancheva v. ITF, 3 July 2006, para 66.
471.
CAS 2008/A/1555 & 1779, Kashechkin & CFRK v. UCI, para 95 (non-appearance at the hearing to confirm the report despite having been invited to do so); CAS 2007/A/1394. Landis v. USADA, paras 46 and 76, 132 (also consistency between the different experts’ statements); CAS 2006/A/1032, Karatancheva v. ITF, para 66; CAS 2009/A/1768, Hansen v. FEI, para 19.1; CAS 2008/A/1608, IAAF v. AFS & Javornik, para 89.
472.
CAS 2009/A/1912 & 1913, Pechstein & DESG v. ISU, para 200 (“the only expert, of all those who gave written or oral evidence in these proceedings, who actually examined the Athlete in depth from a medical point of view”); CAS 2007/A/1362, CONI v. Petacchi, 2007/A/1393, WADA v. Petacchi & FCI, para 6.12 & 6.25; CAS 2006/A/1038, N’Sima v. FIBA & AMA, para 69.
473.
CAS 2007/A/1362, CONI v. Petacchi, 2007/A/1393, WADA v. Petacchi & FCI, para 6.25: “The Panel is satisfied that the opinions which it prefers have a sound and accepted scientific basis whereas the opinions expressed by Prof. Fitch and Mr. Pieraccini are more theoretical and speculative and are not based on established scientific evidence”; CAS 2009/A/1912 & 1913, Pechstein & DESG v. ISU, para 158 (regarding a mere statement that “you cannot absolutely exclude errors”); idem, para 209 (“the Panel finds such research fascinating but cannot find any concrete indication that could specifically help the Athlete’s case”).
474.
CAS 2011/A/2566, Veerpalu v. FIS, para 146 (genetic predisposition unsupported by any analysis of the Athlete’s genetic makeup); CAS 2009/A/2018, Rebellin v. IOC, para 77; CAS 2005/A/884, Hamilton v. USADA & UCI, para 90; CAS 2008/A/1608, IAAF v. AFS & Javornik, para 75; CAS 2005/A/831, IAAF v. Hellebuyck, para 7.2.5.2; CAS 2006/A/1025, Puerta v. ITF, para 11.3.7 (“Professor Forrest’s extensive report based on analytical calculations”, “without providing contrary analytical data to rebut the analysis conducted by Professor Forest, it is not persuasive, in the view of the Panel, for Dr Rabin to criticize Professor’s Forrest’s conclusions, which are based on an analysis of the actual concentration levels’, as being ‘speculative’ and ‘highly speculative’”).
475.
CAS 2011/A/2566, Veerpalu v. FIS, para 176.
476.
CAS 2011/A/2566, Veerpalu v. FIS, para 177; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79.
477.
See more generally, on this almost inevitable consequence of the lack of proficiency of legal hearing panels in verifying the expert’s assessment, Laukkanen 2004, p. 130; Groner 2011, p. 287: “die fachliche Qualifikation des Gutachters spielt für die richterliche Würdigung einer Expertise ein erhebliche Rolle” [the technical qualifications of the expert play a significant role for the judicial assessment of an expertise (author’s translation)].
478.
As opposed to the reasoning in the Pistorius v. IAAF matter, CAS panels generally do not insist on the reliability of the methodology used for the expert to reach his or her conclusions (see for an analysis of this case, Davies 2012, p. 25/26). This may be linked to the fact that the expert evidence provided usually precisely addresses the reliability of a method which is the object of the challenge in the proceedings.
479.
In general, see Sect. 4.3.2.1.2 above.
480.
Black 1988, p. 626. Normally peer review and criticism from outside the subspecialty should avoid self-validation by a small group, so that there can be no such thing as the creation of a “niche” in science.
481.
See Sect. 4.3.2.1.1 above.
482.
US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993 [Justice Blackmun]: “Scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes”.
483.
In CAS 2005/A/884, Hamilton v. USADA & UCI, para 64, this was, however, accepted as an important factor.
484.
See e.g. in UKAD Anti-Doping Panel Decision, British Cycling v. Tiernan-Locke, 15 July 2014.
485.
See Sect. 8.3.3.1.2 above.
486.
See Sect. 5.1.2 above.
487.
For different forms of rhEPO detection, only one of which is applied in the WADC regime, see Lundby et al. 2012, p. 1310; for methods to identify bacterial contamination in Samples, see Kuuranne et al. 2014, p. 6.
488.
Specifically with respect to the presumption of scientific validity of innovations in analytical science, see Sect. 6.3.3.2 above.
489.
Black 1988, p. 623; on the use of the general acceptance criterion and peer review to test expert evidence, see Sect. 4.2.3.1.2 above.
490.
In CAS 2002/A/370, Latuzina v. IOC, para 29, the CAS panel rejected the Athlete’s expert’s argument that publication and discussion in medical circles was necessary and that “he was unwilling to accept that meetings of those involved in the carrying out of anti-doping procedures, and their approval of the methodology of such procedures, was sufficient validation”. The CAS panel considered the evidence of the ADO’s experts more convincing.
491.
For the Sinkewitz case: Orth 2004, p. 138, criticises the superficial evaluation by the CAS panel of the expert evidence on the record.
492.
For an exceptional case in which the CAS panel departed from the “official” science by finding that the scientific validity of the decision limit imposed by WADA for the detection of exogenous human Growth Hormone was not sufficiently established, see CAS 2011/A/2566, Veerpalu v. FIS.
493.
See Sect. 6.3.2 above, with respect to challenges directed against the analytical tools used.
494.
Dwyer 2009, p. 274/275.
495.
Note that in anti-doping this finding in reality already includes a finding on an issue of law, since Prohibited Method and Prohibited Substance are defined terms under the WADC, thus already legal concepts in themselves.
496.
See e.g. Rule 704, para 2 of the US Federal Rules of Evidence; for more details in English law, see Dwyer 2009, p. 274 et seq.
497.
Rule 702 of the US Federal Rules of Evidence.
498.
See Sect. 4.3.1.2.3 above.
499.
For more details, see Chaps. 10 and 11 below.
500.
See Sect. 2.1.1.2 above.
501.
See e.g. the WADA Science Director in CAS 2009/A/2018, Rebellin v. IOC, para 70 et seq.
502.
For an illustration, see CAS 2006/A/376, Baxter v. IOC, para 20 et seq., where the issue at stake was whether the term “methamphetamine” in the Prohibited List had to be interpreted as including both isomers of the Prohibited Substance, a determination for which the CAS panel relied in part on expert evidence regarding the accepted meaning of the term in the medical context.
503.
CAS 2012/A/2997, NADA v. Y, para 32.
504.
CAS 2001/A/317, A v. FILA, para 23.
505.
For similar views on the interplay between the two set of principles and the need to coordinate the two, in a non-doping matter, see CAS 2009/A/1910, Telecom Egypt Club v. EFA, para 33.
506.
See also Sect. 7.1.2.3.3 above.
507.
CAS 2011/A/2353, Tysse v. WAF & IAAF, para 8.10 (expert evidence of the WADA Science Director as to how the expression “corresponding” should be understood in a WADA Technical Document); CAS 2007/A/1312, Adam v. CCES, paras 49 and 147 (General Manager of the CCES testifying about whether the rule should be interpreted as including a requirement to provide Athletes with a clean catheter); CAS 2008/A/l668, WADA v. NOC & Sports Confederation of Denmark & Dansk Boldspil-Union & Münsberg, para 155 (WADA Science Director testifying, beside technical issues, on the purpose of a recent rule change); CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 12 (duty for laboratories always to apply the most recent state-of-the-art method, so that they may anticipate new Technical Documents not yet in force).
508.
Such as the Chief Science Officer for USADA, acting as an expert appointed by USADA, testifying to the CAS panel about the proper interpretation of a rule to determine whether the laboratory committed a procedural flaw that would undermine the disciplinary proceedings conducted by USADA: “The Panel accepts Dr. Bower’s testimony that, when drafting the ISL, WADA used the term ‘shall’ to mean ‘must’ and the term ‘should’ to mean ‘may’” (CAS 2010/A/2185, Blanco v. USADA, para 9.4); see also a laboratory director who had been involved in the drafting of the ISL confirming the “legislative intention” (CAS 2010/A/2296, Vroemen v. KNAU & ADAN, 171 et seq.); see also AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, para 121, on the interpretation of the term “analytical procedure” for determining the scope of the “different analyst” rule, where the AAA panel relied on the support of the expert’s opinions.
509.
See e.g. Teynier 2005, p. 19; Grisel and Vinuales 2007, p. 413 et seq.; Obadia 2007, p. 349 et seq.
510.
Rigozzi et al. 2013a, n° 28.
511.
Grisel and Vinuales 2007, p. 383.
512.
Gélinas 2004, p. 33, considers that amicus curia briefs may be of benefit whenever “issues of wider interest are raised”.
513.
Amicus curia briefs were used in CAS 2011/O/2422, USOC v. IOC, para 3.8; this was done “to ensure that the Panel would have as comprehensive a view as possible of the potential issues surrounding the IOC Regulations”, albeit in a procedurally surprising manner: all amicus curiae briefs were to be attached to a party’s submissions. Only WADA submitted a separate amicus curiae brief to the panel. Traditionally amicus curiae briefs are addressed to and admitted by the arbitral tribunal. An amicus curiae brief which is attached to the submission of a party comes in our view very close to a pleading.
514.
See Sect. 7.3.3.2.2.2 above.
515.
See Sect. 8.2.2.1.2 above.
516.
See Sects. 5.2.1.1 and 6.3.3 above.
517.
See Sects. 8.3.1.2 and 8.3.1.2 above.
518.
Champod and Vuille 2010, p. 93.
519.
See Sect. 8.2.3 above.
520.
See also Sect. 9.2.2 below.
521.
This situation, however, is not unique to anti-doping but is encountered equally in criminal proceedings, Champod and Vuille 2010, p. 94.
522.
See Sect. 8.3.1.3.2 above.
523.
See Sect. 8.3.2.3 above; note that in ECHR Court, Eggertsdottir v. Iceland (2007), para 41, the court rejected the government’s argument of the practical difficulties in finding knowledgeable experts who were also independent, due to the reduced size of the Iceland population, finding that the requirements of impartiality of the tribunal cannot fluctuate depending on practical contingencies.
524.
See Sect. 8.3.2.3 above.
525.
See Sect. 8.3.2.4.3 above.
526.
For similar proposals in court proceedings at European level, “Comité d’évaluation des preuves scientifique” and European register of experts, see Champod and Vuille 2010, p. 111.
527.
Schamasch and Rabin 2012, p. 1693.
528.
Giraud et al. 2014, p. 335/336.
529.
For similar suggestions in forensic sciences, see Vuille 2011, p. 438.
530.
For arbitration in general, Born 2014, p. 2280.
531.
See also Sect. 4.3.1.1 above.
532.
Vuille 2011, p. 439/440, for similar reservations in the context of forensic expertise in criminal matters.
533.
See Sect. 8.3.3.1.3 above.
534.
Expressing a similar suspicion, Davies 2012, p. 30.
535.
See Sect. 8.1.2.2.3 above.
536.
See Sect. 4.3.2.1.2 above.
537.
See Sect. 8.3.3.1.5 above.

Author information

Authors and Affiliations

Attorney-at-law, University of Fribourg, Carouge, Geneve, Switzerland
Marjolaine Viret
University of Neuchâtel School of Law, Carouge, Geneve, Switzerland
Marjolaine Viret

Authors

Marjolaine Viret
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Marjolaine Viret .

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Viret, M. (2016). Scientific Evidence in CAS Arbitration for Doping Disputes. In: Evidence in Anti-Doping at the Intersection of Science & Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-084-8_8

Download citation

DOI: https://doi.org/10.1007/978-94-6265-084-8_8
Published: 01 November 2015
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-083-1
Online ISBN: 978-94-6265-084-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Societies and partnerships

TMC Asser Press (opens in a new tab)