EQUESTRIAN ENDURANCE RACING: WORLD CHAMPIONSHIPS 2005 Barbara Lissarague and F ´ed ´erationFacts: At the F ´ed ´eration Equestre Internationale (‘‘FEI’’) Endurance World Franc¸aise d’Equitation and Emirates
Championship 2005 in Dubai, HH Sheikh Hazza (on Hachim) finished the
International Endurance Racing, theOrganising Committee of the FEI
race in the first position, and Barbara Lissarague arrived as the second
Endurance World Championships 2005 vF ´ed ´eration Equestre Internationale (‘‘FEI’’)
After the race, Hachim’s urine A sample tested positive to
and HH Sheikh Hazza Bin Sultan BinZayed Al Nahyan
Methylprednisolone, a prohibited substance. HH Sheikh Hazza immediately
requested from the local equestrian federation to attend any further testing
of samples. In various letters and motions filed with the FEI in the months
Published online at www.tas-cas.org
thereafter, he again and repeatedly requested his admittance to the B
sample analysis as well as the nullification of the A sample analysis for
procedural reasons. The head of FEI’s Legal Department confirmed to HHSheikh Hazza’s representatives in a telephone conference that HH SheikhHazza would be granted access to the confirmatory analysis. The B sample,however, was analysed afterwards without his presence as he had notbeen invited.
When he was informed of the positive B sample analysis, HH Sheikh
Hazza requested the negative qualification of the A and B sample testsfrom the FEI Judicial Committee. Among other things, he argued thathis absence at the B sample analysis was irremediable. Without holdinga hearing, the Judicial Committee held that the non-admittance of HHSheikh Hazza to the B sample analysis disqualified the B sample analysisand therefore the entire urine test and that, as a consequence, HH SheikhHazza would receive the gold medal.
Barbara Lissarague et al. challenged this decision in an appeal to the
CAS, requesting the disqualification of HH Sheikh Hazza because of his horse’s positive doping testing. HH Sheikh Hazza, among other things, contested Barbara Lissarague’s standing regarding this appeal as she had not been a party before the FEI Judicial Committee. On the merits, he argued that the World Anti-Doping Code (‘‘WADA Code’’), more specifically the athlete’s right to be present at the B sample analysis stated therein, was applicable. According to HH Sheikh Hazza, the same right had to be granted to the person responsible for an allegedly doped horse, and the same right had apparently already been granted to other riders. He called on the Swiss constitutional rights to equal treatment, to be heard and to a fair procedure. Held: Barbara Lissarague’s right to appeal the FEI Judicial Committee’s decision was confirmed by the CAS, based on the FEI regulation granting this right to anyone with a legitimate interest, not limited to the parties to the appealed decision. This was declared consistent with the WADA Code as the rights stated therein were not denied but rather extended by the FEI.
HH Sheikh Hazza’s alleged right to attend the B sample analysis was
not confirmed by the CAS. Article 16 of the WADA Code with regard todoping control for animals does not refer to Art.7.2 of the WADA Code,which provides for this attendance right of the athlete. Therefore theCAS held that the FEI regulations—not granting access to the B sampleanalysis to a person responsible for a horse tested positive in an A sampleanalysis—were fully compatible with the WADA Code.
The CAS then rejected the application of the Swiss constitutional rights,
even though Swiss law was applicable to the present case, as thoseconstitutional rights were relevant only in connection with measures takenby the state and not by a private entity like a sports governing body. However, the CAS examined the merits of the due process principlesinvoked by HH Sheikh Hazza without referring to a specific legal system.
[2006] I.S.L.R., ISSUE 3 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS]
In examining those due process principles, the CAS decided that HH
Sheikh Hazza’s right to be heard was not violated as it did not include the right to be present at the analysis of the B sample. The confirmation given at the telephone conference did not constitute such a right as it was not passed by the correct body. HH Sheikh Hazza had had other opportunities to exercise his right to be heard and his right to a fair trial that he partially even chose not to use. Also, the right to equal treatment was not considered hurt as other riders who had been present at their horses’ B sample analysis were given access only as a courtesy and not based on the right to such presence. Comment: The authors limit their comment to the application of Swiss law and do not go into details with regard to the WADA Code and the FEI internal regulations.
The CAS’s refusal to apply Swiss constitutional rights such as the right
to equal treatment, the right to a fair trial and the right to be heardis consistent with the standing jurisdiction of the Swiss Federal SupremeCourt. Those rights stated in the Swiss Constitution protect individuals fromthe state, being the holder of the public power. Their scope, however, doesnot cover private relations. In Decision 127 III 429,1 the Federal SupremeCourt stated the non-applicability of a constitutional right within a caseheld before the judicial bodies of a sports organisation as they were not tobe considered as arbitral tribunals bound by constitutional law principles. This opinion has been confirmed by various essays and decisions. As HHSheikh Hazza argued before the CAS (being a court of arbitration) thatthe organisational and jurisdictional bodies within the FEI had violated hisfundamental rights, Decision 127 III 429 is correctly applied to the presentcase.
1 Which was called upon by the CAS andpublished in the ASA Bulletin 2001, p.566.
The authors consider the findings of the examination of the merits of
the due process principles invoked to be comprehensible. It is interesting,however, that the CAS still referred to the standing jurisdiction of the
Swiss Federal Supreme Court and to Swiss law books with respect to
the principle of equal treatment in tort and the right to be heard, after
ZurichChristoph Gasser and Eva Schweizer are
having declared that they were discussing the fundamental rights out of
both members of a major Swiss business
connection with a specific legal system only two paragraphs earlier. This
law firm and advise clients in various
referral was—substantially—correct, but it seems to be inconsistent with
matters of telecommunications, licensing,intellectual property and sports law.
the decision that the Swiss constitutional rights were not applicable.
[2006] I.S.L.R., ISSUE 3 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS]
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EQUESTRIAN ENDURANCE
In examining those due process principles, the CAS decided that HH
Sheikh Hazza’s right to be heard was not violated as it did not include