Thursday, 1 November 2007

WADA loses important case on "jurisdiction" basis

In Pakistan, two players whose doping cases, on facts involving testing at the national level, were overturned in their favour by the Pakistan Cricket Board Appeals Committee...

CAS 2006/A/1190 - WADA v/Pakistan Cricket Board & Akhtar & Asif

WADA appealed, apparently seeking to extend its legalistic reach via means of attacking this national situation. It argued that it should be permitted to appeal based on:

"CAS’s precedents and to the case law of the Swiss Federal Tribunal, a global reference to a document containing an arbitration clause in favour of CAS is sufficient ground to establish CAS’s jurisdiction, so long as the arbitration clause is customary amongst the parties involved or with respect to the issues to be dealt with."

And, after citing two cases: "CAS 2006/A/1153, WADA v. Assis and FPF (where WADA was found to have a right to appeal by virtue of the fact that FPF’s Statutes contained a global reference to the FIFA Statutes); and CAS 2006/A/1102 &1146, WADA v. Eder and Ski Austria (where WADA had the right to appeal because Ski Austria’s Order of Conduct contained a global reference to article 13.2.1 of the FIS Anti-Doping Rules and of the WADC)"

It continued with its argument:

"according to the terms of Article 13.2 of the WADC, which states:

“A decision that an anti-doping rule violation was committed, a decision imposing Consequences for an anti-doping rule violation, a decision that no anti-doping rule violation was committed, a decision that an Anti-Doping Organization lacks jurisdiction to rule on an alleged anti-doping rule violation or its Consequences, and a decision to impose a Provisional Suspension as a result of a Provisional Hearing or in violation of Article 7.5 may be appealed exclusively as provided in this Article 13.2: (Paras. 4.1 - 4.3)

WADA lost this case.

The CAS ruling (which may be pulled from the web site, according to the Award statement) stated, as far as WADA's extended theory of Jurisdiction:

In order for CAS to have jurisdiction to hear an appeal, the statutes or regulations of the sports-related body from whose decision the appeal is being made must expressly recognise CAS as an arbitral body of appeal. This interpretation of Article R47 is supported by CAS’s jurisprudence, particularly CAS 2002/0/422 Besiktas v. FIFA & SC Freiburg (where the Panel held that because the articles of the FIFA Statutes had not yet been amended expressly to recognise CAS, the FIFA regulations relevant to the case contained no arbitration clause establishing CAS’s jurisdiction) and the Cole Case (referred to in paragraphs 5.1 and 5.2 above; where the Panel stated in its decision that “for CAS to have jurisdiction to rule on an appeal, Article R47 of the Code requires that a direct reference to CAS be contained in the statutes or regulations of the body whose decision is being appealed against”).

In the present case, the statutes or regulations of the relevant body – the PCB – do not contain any reference to a right of appeal to CAS. In fact, clause 11.5 of the PCB Regulations states that the decision of the PCB Appeals Committee will be final and binding on the parties to the appeal. (Paras. 7.2 & 7.3)

WADA has clear jurisdiction from Signatory approval and express inclusion by reference towards appeals to CAS.

But WADA may be spending valuable resources to short-circuit its limitations via Federations that have not yet modified statutes, or adhered to its program.

Watch WADA!!

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