Review of SDRCC Jurisprudence
Matthew R. Wilson Arbitrator [email protected] Montreal January 30, 2020 Overview
Since last SDRCC Conference: 24 awards (22 in 2019) 1 Governance 2 Jurisdiction 2 Costs 19 Eligibility/Selection/Carding
Hearings routinely conducted on an expedited basis Eligibility/Selection/Carding
SDRCC 19-0394 Tulk v. Wrestling Canada (Lawless)
Late registration to Roman-Greco in National Championships
Claimant a minor, mother – recent brain tumour treatment impacting senses – failed to register on time Wrestling Canada sympathetic, but determined it did not have discretion to allow late registration Eligibility/Selection/Carding
SDRCC 19-0394 Tulk v. Wrestling Canada (Lawless) (cont’d)
Arbitrator: Factors for decision-maker to consider:
The importance of the matter; The necessity of finality (i.e. for creating start lists or booking tickets, etc.); The age of the applicant; The degree of “fault” of an applicant and any explanation for the failure; The steps an applicant took to correct the mistake or timeliness of any application for redress; The relative prejudice to the applicant, the organization, and other participants / affected persons.
Appeal allowed; Wrestling Canada directed to allow late registration Eligibility/Selection/Carding SDRCC 19-0404/05 Browne and Nordiq Canada (Fortier)
Two issues:
(1) Team selection:
(a) Late publication of selection criteria (6-7 weeks instead of 3 mths) (b) Notice to submit curtailment of training due to health reasons too short as well as problems with French translation
(2) Carding:
Request to be issued a funding card Eligibility/Selection/Carding
SDRCC 19-0404/05 Browne and Nordiq Canada (Fortier) (cont’d)
Arbitrator:
(a) Focus of inquiry was on subjective criteria – arbitrator reviewed the evidence and deferred to Nordiq Canada’s decision
(b) Significant difference between French and English criteria; however athlete author of her own misfortune in not notifying Nordiq Canada
Arbitrator unable to award carding status as criteria only allowed carding for selected athletes Eligibility/Selection/Carding Other Notable Decisions:
SDRCC 18-0377 Daniels v. Canoe Kayak Canada (Roberts) SDRCC 19-0380 Shamiya v. Wrestling Canada (Panko) SDRCC 19-0386/7 Wheelchair Basketball Canada v. Canada Games Council (Webster) SDRCC 19-0388 Girard v. Speed Skating Canada (SSC) (Soubliére) SDRCC 19-0392 Hynes v. Nordiq Canada (Lawless) SDRCC 19-0406 Onyshko v. Gymnastics Canada (GymCan) (Brunet) SDRCC 19-0411 Adhihetty v. Cricket Canada (Brunet) SDRCC 19-0415 O’Neill v. Canoe Kayak Canada (Roberts) SDRCC 19-0417 Karstadt v. Gymnastics Canada (Johnston) SDRCC 19-0425 Loutit v. Rowing Canada Aviron (Peterson) Governance SDRCC 18-0376 Sharara and Table Tennis Canada (Banack)
Table Tennis Canada found claimant ineligible to run for President because of a conflict of interest
volunteer member of Bd. of Dirs. of Table Tennis Canada Marketing Services International (TTCMSI)
signed a cooperation agreement with Quebec Table Tennis Federation Governance SDRCC 18-0376 Sharara and Table Tennis Canada (Banack) (cont’d)
Hearing de novo?
Arbitrator held that he is not required to give any deference to decision- maker, unless the decision-maker has specialized knowledge or expertise. No specialized knowledge or expertise.
Bias? “… what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude?” Governance SDRCC 18-0376 Sharara and Table Tennis Canada (Banack) (cont’d)
Arbitrator held: Decision was biased
Claimant no longer a volunteer board member with TTCMSI No conflict of interest with his involvement in Quebec Table Tennis Federation
Table Tennis Canada made decision based on erroneous information, never raised concerns in advance of its decision.
Nomination reinstated. Jurisdiction SDRCC 19-0411 Adhihetty v Cricket Canada (Decary Q.C.)
Claimant challenged Cricket Canada’s decision to not allow him to be drafted to a team at the 2019 Global T20 Canada cricket tournament
Arbitrator:
Two parties involved in a sports related dispute (s. 1.1 of the Code) Internal appeal process exhausted (s. 3.1(b))
Claimant had sent “request to appeal”, which received no response Arbitrator held that appeal process had effectively been exhausted Costs SDRCC 19-0396 Tong v. Badminton Alberta (McIntyre)
Team Selection case involving 13-year old boy Father advocating on son’s behalf; also a certified coach Prior to announcement of team selection, father sought to have son added to team (outside of criteria) under the threat of litigation Arbitrator described behaviour as “bullying” Awarded: $1,500 in costs Costs SDRCC 19-0396 Tong v. Badminton Alberta (McIntyre) (cont’d)
“Such an award should signal to Mr. Tong and others to be judicious about what disputes need be redressed and not to use their superior financial resources as a weapon to force sporting organizations to depart from their policies and procedures in order to advantage the athletic aspirations of a small few. Fairness demands that all athletes in the sport are able to compete under the same rules and criteria.” Costs
SDRCC 19-0380 Shamiya v. Wrestling Canada Lutte (WCL) (Panko)
Original award issued on May 22, 2019
Arbitrator stated costs award was unlikely, but offered to consider submissions.
No submissions from Respondent or Affected Party Intervenor sought costs from Claimant (arguing that Claimant’s counsel vigorously pursued unsubstantiated, serious, and defamatory allegations) Costs
SDRCC 19-0380 Shamiya v. Wrestling Canada Lutte (WCL) (Panko) (cont’d)
Arbitrator considered factors in section 6.22(c)
Claimant inappropriately raised issues of more general concern that were unsubstantiated --- this was overzealous advocacy Claimant requested Med/Arb process, which could lead to a more expeditious process Claimant made a settlement offer (but due to allegations, no surprise it was rejected) Respondent was entirely successful Significant factor: Claimant’s undisputed financial struggles as a recent university graduate with significant debt Costs declined Also declined to award costs against lawyer personally Costs SDRCC 19-0416 – Corey v. Speed Skating Canada (SSC) (Bennett)
Claimant partially successful, but not successful on its main ground of appeal
Outcome of Proceedings - A critical factor, but not a determining factor --- success on its own does not warrant an award of costs --- s. 6.22(c) says as much
Conduct of Parties - Requires significant misconduct – where the claimant is unsuccessful, the conduct must have harmed the claimant’s interests and delayed a decision (note there were disagreements over procedure, but they were resolved without delay)
Intent - Bad faith is a factor in determining whether to award costs Fostering Integrity in Sport with Dispute Resolution SDRCC & CAS SEMINAR | Montréal, 30 January 2020 REVIEW OF RECENT CAS JURISPRUDENCE
JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT OUTLINE
1. PROCEDURAL MATTERS 2. ELIGIBILITY MATTERS 3. DISCIPLINARY MATTERS
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT 1. PROCEDURAL MATTERS
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT a. CAS 2019/A/6298 Manchester City FC v. UEFA
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Exhaustion of internal legal remedies Art. 34 CFCB Procedural Rules: 1. A party directly affected has the right to appeal a final decision of the CFCB. 2. Final decisions of the CFCB may only be appealed before the CAS (...). Only “final decisions” that directly affect a party can be appealed before CAS Also final decisions of the Investigatory Chamber (cf. Art. 34(3) CFCB Procedural Rules 2019: “the final decision of the CFCB investigatory or adjudicatory chamber, respectively”)
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Referral to the Adjudicatory Chamber Art. 14(1) CFCB Procedural Rules: At the end of the investigation, the CFCB chief investigator (...) may decide to: a) dismiss the case; or b) conclude, with the consent of the defendant, a settlement agreement; or c) apply, with the consent of the defendant, disciplinary measures (...) d) refer the case to the adjudicatory chamber A referral decision is not final The Adjudicatory Chamber may still decide to dismiss the entire case In principle, an appeal against a referral decision of the Investigatory Chamber is premature REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Exhaustion of internal legal remedies
An exception would be warranted in case irreparable harm would be incurred and in case the proceedings would be wholly unbearable On a prima facie basis, no procedural violations of such a nature that MCFC legitimately lost all faith in fair proceedings and a fair decision The Adjudicatory Chamber will seriously assess MCFC’s procedural complaints In any event, procedural deficiencies will be reviewable in an appeal to CAS against a decision of the Adjudicatory Chamber
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Answer to MCFC of the Investigatory Chamber
Simple response to MCFC’s request that the investigation be suspended Does not contain any decision refusing to stay the proceedings Merely indicates that the Chief Investigator rejects MCFC’s allegations Not an actual decision, merely a communication of information Did not dispose of the matter in dispute If any, merely a procedural decision comparable to decisions on whether or not to hold a hearing, to hear witnesses, to admit documents on file, etc.
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT b. CAS 2019/A/6181 FRBG v. FIG & JGA
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Deadline to submit an application
Interpretation of “mid-December” Art. 18 of the Bid Contract: “this Contract shall be governed by and interpreted exclusively in accordance with the Laws of Switzerland” Art. 76 para. 2 SCO: “A time limit expressed as the middle of the month means the fifteenth day of that month” The general provisions (art. 68 to 113) of the Swiss Code of Obligations are applicable to all legal matters (i.e. also to associations like the FIG) Also the “natural and ordinary meaning” of the expression
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Deadline to submit an application (cont'd) In ordinary English parlance, early December is 1-10 December, middle of December is 11-20 December and late December is 21-31 December On 18 December 2018, FIG confirmed to FRBG that it was the only candidate to have submitted a bid JGA’s completed Bid Contract mentioned “submittal date: December 15, 2018” on its first page and “date: 15 December, 2018” on its last page JGA’s application filed on 21 December 2018 was late and has to be disregarded
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT 2. ELIGIBILITY MATTERS
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT CAS 2018/A/6001 Bruce Bird v. UCI
Elite cyclist licence holder 14th place at the 2018 Global Relay Canadian Road Championship in June 2018 - Awarded 1 UCI point Wins the Time Trial and Road Race events of the UCI Gran Fondo World Championships in the Men's 50-54 age category at the end of August 2018 Bird found ineligible to compete in the Gran Fondo WC by reason of his UCI point - Disqualification Appeal to the CAS
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT UCI Regulation 15.5.011
All license holders (...) may participate in the UCI Gran Fondo World Championships, apart from: (...) c) Any rider who scored UCI points in the year of the World Championships.
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Findings of the CAS Panel
In its ordinary and natural meaning, in particular in the context where UCI Regulation 15.5.011(c) is located, “UCI points” means any UCI points, otherwise the phrase would have to read “more than one point’’ A bar from participation after the race does not change the intrinsic character of the measure, which is not disciplinary, but an inevitable consequence of application of UCI Regulation 15.5.011 Observing a rider’s ineligibility is an objective assessment of facts of purely administrative nature and is a constant before, during and after the race Mr. Jones was exercising an administrative function by communicating to the Appellant the ineluctable consequence of his own unauthorised participation REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT 3. DISCIPLINARY MATTERS
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT CAS 2018/A/6007 Jibril Rajoub v. FIFA
International friendly match between Israel and Argentina scheduled on 9 June 2018 in Jerusalem On 3 June 2018, Jibril Rajoub expresses negative views in the media regarding such match and incites fans to target Lionel Messi and burn his shirt IFA files a complaint with FIFA The match does not take place FIFA DC suspends Rajoub for twelve months for inciting hatred and violence FIFA AC dismisses Rajoub's appeal on 24 September 2018
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT Findings of the CAS Panel Jibril Rajoub failed to establish any legitimate doubt in respect of the impartiality of the FIFA DC or the FIFA AC Jibril Rajoub has failed to establish that any procedural violations were committed in the proceedings before the FIFA DC/FIFA AC that could justify the annulment of such decisions Jibril Rajoub is guilty of violating Article 53(1) and (2) FDC • He exceeded the legitimate boundaries of freedom of speech • He requested "everybody" to burn their Messi shirt, used mass media and his high political position The 12-month match suspension and fine of CHF 20,000 imposed by the FIFA DC are not disproportionate
REVIEW OF RECENT CAS JURISPRUDENCE JEAN-PHILIPPE DUBEY | HEAD OF CAS SCIENTIFIC DEPARTMENT THANK YOU FOR YOUR ATTENTION !
JEAN-PHILIPPE DUBEY, Dr. of Laws Head of CAS Scientific Department Château de Béthusy Av. de Beaumont 2 CH-1012 Lausanne, Switzerland [email protected]