Islr06_3_55-80.pdf

EQUESTRIAN ENDURANCE
RACING: WORLD
CHAMPIONSHIPS 2005
Barbara Lissarague and F ´ed ´eration Facts: 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 v F ´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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