Swiss Federal tribunal, 1st Court of civil law, 2 May 2018, X. v. World Ant-doping Agency (WADA), 4A_478/2017

The athlete (“Claimant”), X, is a member of the Belarusian Taekwondo Federation (“BTF”) which is affiliated with the World Taekwondo Federation (“WTF”). He was subject to a doping control in mid-July 2016 and mid-August, after which meldonium was detected. The use of this substance was prohibited from 1 January 2016. In November 2016, the BTF refused to suspend the athlete for two years on the recommendation of the National Anti-Doping Agency of Belarus.

In order to challenge this decision, the World Anti-Doping Agency filed a Notice of Appeal with the Court of Arbitration for Sport. The abovementioned Agency also asked, inter alia, to suspend the athlete for four years from the date of the rendering of the arbitration award. The sole arbitrator ruled in its favour. The athlete subsequently brought an action for annulment on the basis of the violation of his right to be heard during the adversarial proceedings.

The Swiss Federal Tribunal (“SFT”) deals first with the allocation of the burden of proof and then recalls the constitutional nature of the right to be heard. It upholds one ground of annulment put forward by Claimant. In particular, the SFT considers that a tribunal’s failure to take into account the athlete’s arguments that are essential for the outcome of the dispute, namely those relating to the starting date of his 4-year suspension, violates this procedural guarantee. As a result, the relevant finding made in the operative part of the award is annulled.

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