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Bulletin TAS CAS Bulletin Bulletin TAS CAS Bulletin 2/ 2013 Bulletin TAS CAS Bulletin 2/ 2013 Table des matières / Table of contents Message du Secrétaire Général du TAS / Message of the CAS Secretary General Message of the CAS Secretary General .................................................................................................................................. 1 Articles et commentaires / Articles and commentaries The jurisprudence of the Swiss Federal Tribunal on challenges against CAS awards.................................................... 2 Prof. Massimo Coccia CAS jurisprudence related to the elimination or reduction of the period of ineligibility for specifi ed substances ........................................................................................................................................................... 18 Ms Estelle de La Rochefoucauld, Counsel to the CAS Jurisprudence majeure / Leading cases Arbitration CAS 2011/A/2362 ..............................................................................................................................................28 Mohammad Asif v. International Cricket Council (ICC) 17 April 2013 Arbitration CAS 2011/A/2566 .............................................................................................................................................34 Andrus Veerpalu v. International Ski Federation (ISF) 25 March 2013 Arbitration CAS 2012/A/2754 .............................................................................................................................................. 41 U.C. Sampdoria v. Club San Lorenzo de Almagro & Fédération Internationale de Football Association (FIFA) 8 February 2013 Arbitration CAS 2012/A/2813 ..............................................................................................................................................46 Croatian Golf Federation (CGF) v. Croatian Olympic Committee (COC) 23 January 2013 Arbitration CAS 2012/A/2854 ..............................................................................................................................................50 Horacio Luis Rolla v. U.S. Città di Palermo S.p.A. & Fédération Internationale de Football Association (FIFA) 26 March 2013 Arbitrage TAS 2012/A/2862 ..................................................................................................................................................55 FC Girondins de Bordeaux c. Fédération Internationale de Football Association (FIFA) 11 janvier 2013 Arbitration CAS 2012/A/2875 ..............................................................................................................................................60 Helsingborgs IF v. Parma FC S.p.A. 28 February 2013 Arbitrage TAS 2012/A/2961 ..................................................................................................................................................64 Khaled Adenon c. Fédération Internationale de Football Association (FIFA) 20 mars 2013 Arbitration CAS 2012/A/2981 ..............................................................................................................................................69 Clube Desportivo Nacional v. FK Sutjeska 27 March 2013 Jugements du Tribunal Fédéral / Judgments of the Federal Tribunal 4A_388/2012, Judgment of 18 March 2013, First Civil Law Court ..................................................................................72 4A_730/2012, Arrêt du 29 avril 2013, Ire Cour de droit civil ............................................................................................78 4A_476/2012, Judgment of 24 May 2013, First Civil Law Court .................................................................................... 84 Informations diverses / Miscellaneous Publications récentes relatives au TAS / Recent publications related to CAS ................................................................ 90 Chambre ad hoc du TAS pour les J.O. de Sotchi/CAS ad hoc Division for the O.G. in Sochi........................................ 90 Message of the CAS Secretary General The majority of the “so-called” leading cases handled (Switzerland), Co-President. It will be composed of by the Court of Arbitration for Sports (CAS) selected nine arbitrators, namely Judge Annabelle Bennett for this issue deal with football. In this respect, the (Australia), Ms Alexandra Brilliantova (Russia), Judge case FC Girondins de Bordeaux c. FIFA address Robert Décary (Canada), Prof. Luigi Fumagalli (Italy), the international transfer of a minor player and the Mr Patrick Lafranchi (Switerland), Prof. Matt Mitten interpretation of article 19 of the FIFA Regulations (USA), Prof. Gary Roberts (USA), Prof. Brigitte Stern on the Status and Transfer of Players (RSTP). In (France), Mr David Wu (China). The arbitrators will Sampdoria v. Club San Lorenzo de Almagro & FIFA, be based in the Olympic city. It is the tenth CAS ad the CAS has reviewed the FIFA “longstanding” hoc division since the fi rst one in Atlanta in 1996. practice regarding the assessment of its jurisdiction towards clubs undergoing restructuring or bankruptcy I wish you a pleasant reading of this new edition of proceedings whereas in Helsingborgs IF v. Parma FC the CAS Bulletin. the CAS contemplates the different aspects of a sell- on clause. In other football related cases, the CAS comes back to the notion of decision and examines the standing to be sued of a club in disciplinary proceedings. Finally, in Khaled Adenon c. FIFA, Matthieu Reeb the CAS considers the jurisdiction of CAS towards a party appealing against a disciplinary sanction and deals specifi cally with the exhaustion of internal remedies prior to the appeal before the CAS. Turning to doping, the key aspect addressed by CAS in the case Andrus Veerpalu v. International Ski Federation concerns laboratory accreditation and test decision limit. In other sporting fi elds, the case Mohammad Asif v. International Cricket Council looks at the issue of match fi xing while the case Croatian Golf Federation v. Croatian Olympic Committee address the meaning of an arbitration agreement. Interestingly, the article of Professor Massimo Coccia included in this issue deals with the jurisprudence of the Swiss Federal Tribunal on challenges against CAS award. The article of Ms Estelle de La Rochefoucauld, counsel to the CAS, is related to the jurisprudence of the CAS regarding the elimination or reduction of the period of ineligibility for specifi ed substances. In 2013 the International Council of Arbitration for Sport (ICAS) has created a new ad hoc Division for the XXII Winter Olympic Games which will take place in Sochi (Russia) from 7 to 23 February 2014. The CAS ad hoc division will be headed by Mr Michael Lenard (USA), President and by Ms Corinne Schmidhauser Message du Secrétaire Général du TAS / Message from the CAS Secretary General - 1 The jurisprudence of the Swiss Federal Tribunal on challenges against CAS awards Prof. Massimo Coccia* I. Introduction ...........................................................................................................................................................................2 II. Grounds for Annulment .....................................................................................................................................................4 III. Irregular Constitution of the Panel ................................................................................................................................5 A. Standards to Assess the Arbitrators’ Independence and Impartiality ......................................................................5 B. Relevance of the Closed List System ............................................................................................................................6 C. Relevance of Friendly Relationship or Common Membership in an Association .................................................6 D. Standard to Be Applied to Party-Appointed Arbitrators ...........................................................................................7 E. Multiple Appointments of an Arbitrator by the Same Party or the Same Counsel ...............................................7 IV. Jurisdiction Wrongly Retained or Declined .................................................................................................................8 A. Challenging an Award Pursuant to Article 190.2(b) PILA ........................................................................................8 B. Jurisdiction or Admissibility ? .........................................................................................................................................9 C. CAS Arbitration Clauses by Reference .........................................................................................................................10 D. Pathological Arbitration Clauses ....................................................................................................................................11 V. Award Ultra, Extra or Infra Petita ...................................................................................................................................12 A. Adjudication Ultra Petita or Extra Petita ........................................................................................................................12 B. Adjudication Infra Petita ...................................................................................................................................................12
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