|Case Name:||CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation|
|Court:||1st Court of Civil Law (Sweden)|
|Medium Neutral Citation:||4A_318 / 2020|
|Hearing Date(s):||28 February 2020|
|Decision Date:||22 December 2020|
|Before:||Federal Judges, Kiss, president, Hohl, Niquille, Rüedi and May Canellas.
Registrar: MO Carruzzo.
|Decision:||The Federal Tribunal Orders that:
1. The request for review is allowed and the award under appeal is set aside.
2. The challenge against arbitrator Franco Frattini is allowed.
3. Legal costs, set at 7,000 fr., Are charged to the respondent foundation.
4. The respondent foundation will pay the applicant compensation of 8,000 fr. for costs.
5. The securities paid by the applicant are released.
6. This judgment is communicated to the representatives of the parties and to the Court of Arbitration for Sport (CAS).
World Anti-Doping Agency (WADA),
International Swimming Federation (FIN A),
|Representation||Me Fabrice Robert-Tissot and Mes Christopher Boog and Philippe Bärtsch (Counsel for the applicant)
Mes Xavier Favre-Bulle and Marc-Anthony de Boccard (Counsel for the First Respondent)
Me Serge Vittoz (Counsel for the Second Respondent)
International sports arbitration,
request for review of the award rendered on February 28, 2020 by the Court of Arbitration for Sport (CAS 2019 / A / 6148).
Aa Sun Yang (hereafter: swimmer or athlete) is a world-class Chinese swimmer who has won several Olympic medals and world championship titles in various swimming events.
The World Anti-Doping Agency (hereafter: WADA) is a foundation under Swiss law; its headquarters are in Lausanne. Its main purpose is to promote the fight against doping in sport at the international level.
The Fédération Internationale de Natation (hereafter: FINA), an association governed by Swiss law with its headquarters in Lausanne, is the governing body for swimming worldwide.
Ab During the night of September 4, 2018, the athlete was subject to an out-of-competition doping control ordered by FINA, as a “testing authority”, the implementation of which was delegated to International Doping Tests and Management (IDTM), which acts as the “sample collection authority”. The circumstances in which the unannounced athlete test took place are at the heart of this dispute. As the parties’ versions differ on a number of points, the Federal Tribunal will stick to the facts found in the award under appeal.
On September 4, 2018, between 10 p.m. and 11 p.m., the sample collection staff, made up of a doping control officer (hereafter: the DCO), an assistant responsible for carrying out the blood samples (“Blood Collection Assistant”; hereafter: the BCA) and another male assistant (“Doping Control Assistant”; hereafter: the DCA), went to the home of the athlete in Hangzhou, China, to collect blood and urine samples from the swimmer. The three aforementioned persons were accompanied by a driver, who did not take part in the disputed doping control.
The DCO, which the athlete already knew due to a previous doping control in which she had participated, presented himself to him, showing him a copy of his identity card issued by IDTM as well as a document of the FINA intended for IDTM, entitled “Letter of authority”, providing in particular as follows:
“[IDTM] is appointed and authorized by [FINA] to collect urine and blood samples from athletes in the frame of the doping controls organized as part of the FINA Unannounced out-of-Competition Testing Program”.
The DCA presented the athlete with his national identity card, while the BCA presented him with a copy of his junior nurse certificate, entitled “Specialized Technical Qualification Certificate for Junior Nurses” [STQCJN].
The athlete signed the “Doping Control Form” and cooperated by providing two blood samples. These were sealed in glass containers and kept in a storage box.
Shortly thereafter, the athlete discovered that the DCA was taking photographs of him. Deeming this behavior inappropriate, he wished to re-examine more carefully the documents presented by the sample collection staff, in particular the DCA references. The swimmer considered that the information provided by the DCA was insufficient. At the initiative of the DCO, or at least with its agreement, the DCA, whose task was exclusively to supervise the process of taking urine samples, was excluded from the control mission. No urine sample could be collected, as the DCA was the only male on the collection team.
Showing some concerns about the documents presented by the DCO and the BCA, the athlete sought advice by telephone from those around him. Shortly thereafter, his personal physician, Dr B .________, joined him there. The latter telephonically consulted his superior, Dr C .________, as well as D .________, head of the Chinese national swimming team. Dr B .________ and Dr C .________ then discussed with the DCO the accreditations of the sample collection staff as well as the “Letter of authority”. They informed the Athlete and the COD that the documents presented did not meet the required requirements, which is why the blood samples collected could not be taken away by the COD. The athlete thus wanted to recover said samples. The DCO warned the swimmer that this could be seen as a possible failure to comply with doping control which could have serious consequences. After intense discussion and under pressure from the athlete, the COD or BCA removed a glass container from the storage box and returned it to the swimmer.
Following the instructions of his superior, G .________, which were given to him by telephone, the DCO told the athlete to recover the equipment belonging to IDTM. As the glass container could not be opened manually, the athlete then instructed a security guard to break it. The latter destroyed the glass container with a hammer, the athlete assisting him in this task by projecting light through his cell phone. The athlete then collected the blood samples, which remained intact, and returned the fragmented COD container. He also tore up the doping control form he had previously signed.
At the athlete’s request, Dr B .________ transcribed the complainant’s remarks relating to the disputed doping control on a separate sheet of paper. The said document, signed by the DCO, the BCA, the DCA, the athlete and the aforementioned doctor, states the following in its English translation:
“On the night of September 4, 2018, 4 persons of FINA conducted urine test and blood test to Mr. SUN Yang. One of the four persons was the driver who was unrelated. The rest of three persons entered into the room. Among the three persons, the [DCO] (…) possessed and provided and showed the certification of Doping Control Officer. [The Athlete] actively cooperated with the testing. However, in the following process of blood and urine sample collection, [The Athlete ] found that the [BCA], Blood Collection Officer, only provided her Nurse Qualification Certificate (…) but did not provide any other proof of certification for Blood Collection Officer. [The DCA] (classmate of the [DCO]), the Doping Control Officer for urine test, only provided his resident ID card (…) and did not provide any other certification of Doping Control Officer for urine. They were unrelated personnel. Under our repeated inquiries, among them, only [the DCO] (…) provided the certification of Doping Control Officer, and the rest two could not provide Doping Control Officer certification and any other relevant authority. Therefore, the urine test and blood test cannot be completed. (The blood sample that has been collected could not been taken away.) “(The blood sample that has been collected could not been taken away.) “(The blood sample that has been collected could not been taken away.) ”
Ac Denounced for anti-doping rule violation as a result of these facts, the swimmer was cleared on January 3, 2019 by the FINA Anti-Doping Commission.
In essence, the Commission considered that the documents presented to the swimmer by the officers responsible for carrying out the checks did not meet the required requirements. The athlete notification process was flawed. Consequently, the disputed doping control had to be regarded as invalid and void. Therefore, the blood taken during the said test could not be assimilated to a sample within the meaning of the anti-doping regulations. Overabundantly, the Commission pointed out that the totally inappropriate behavior of the DCA (taking photographs of the athlete) constituted a justifiable reason to put an end to the collection of urine samples. As for the BCA, it had not provided the athlete with any document establishing that she had the necessary qualifications to perform a blood test. Finally, as regards the COD, it had not clearly indicated to the swimmer that it considered his behavior as a possible failure to comply with the doping control likely to have serious consequences.
Ba On February 14, 2019, WADA sent the Court of Arbitration for Sport (CAS) a declaration of appeal, in which it requested the suspension of the athlete for a period of eight years.
The appellant amended its notice of appeal dated February 18, 2019, citing FINA as the second respondent.
At WADA’s request, the CAS granted it an extension of 20 days to file its appeal brief.
On April 3, 2019, WADA forwarded its appeal brief to CAS.
On April 16, 2019, the Challenge Commission of the International Council on Sports Arbitration (ICAS) rejected the challenge filed by the athlete against the arbitrator appointed by WADA, Michael J Beloff.
On May 1, 2019, the CAS informed the parties that the Panel would be made up of arbitrators Michael J. Beloff and Philippe Sands, as well as a third person, Franco Frattini, judge in Rome, who would chair it.
The swimmer appealed to the Federal Tribunal against the decision rejecting the challenge request against the arbitrator appointed by WADA.
By judgment of September 25, 2019, the Federal Tribunal struck the case out of the list due to the resignation of the said arbitrator on June 28, 2019 (case 4A_265 / 2019).
On May 9, 2019, the athlete asked the CAS to split the procedure (“Request for bifurcation”) and to examine the question of the admissibility of the appeal and / or its jurisdiction.
On May 19, 2019, the CAS informed the parties that the Panel had rejected the objection of inadmissibility because of the delay in filing the appeal brief. Seized of a new appeal lodged by the athlete against the said decision, the Court hereby declared it inadmissible insofar as it was not without object (judgment 4A_287 / 2019 of January 6, 2020).
During the proceedings, the swimmer and FINA also argued that the appellant’s counsel was in a conflict of interest. On May 29, 2019, the athlete filed a writing at the end of which he concluded that the appellant’s counsel was prohibited from representing her in the proceedings pending before the CAS, to the inadmissibility of the notice of appeal and the appeal brief due to the inability to apply for lawyers and hence the lack of jurisdiction ratione temporis of the CAS to settle the dispute. By incidental decision of July 26, 2019, the CAS rejected the request presented by the athlete. The Federal Court declared inadmissible the appeal lodged by the swimmer against the said decision (judgment 4A_413 / 2019 of October 28, 2019).
On July 5, 2019, WADA chose a new arbitrator in the person of lawyer Romano Subiotto.
The athlete requested the challenge of the aforementioned arbitrator on July 12, 2019. By decision of July 26, 2019, the ICAS Challenge Commission rejected the challenge request.
On August 14, 2019, the athlete and FINA filed their response.
On November 15, 2019, the Panel held a hearing in Montreux, broadcast live on the internet with the agreement of the parties, during which it heard the athlete and eight other people.
Bb The Formation rendered, on February 28, 2020, an arbitration award by which it found the athlete guilty of violation of art. 2.5 of the FINA Doping Control Rules, version 2017 and suspended him for a period of eight years from the date of the sentence. It also rejected WADA’s request for the annulment of the results obtained in competition by the swimmer during the period between September 4, 2018 and February 28, 2020.
In short, the Panel, after having dismissed the procedural objections raised by the athlete, considered that the rules on the notification of the doping control had been respected, the documents presented to the swimmer being sufficient to proceed to the doping test. In addition, there was nothing to justify the conduct adopted by the swimmer, who had ordered the destruction of the container containing the blood samples, tore up the doping control form, and prevented the COD from leaving the premises with the blood samples already taken. The referees further considered that the COD had made the athlete sufficiently attentive to the consequences that could result from his actions. Noting that the athlete had already broken anti-doping rules for the first time in June 2014,they considered that the duration of the athlete’s suspension should be doubled and extended to eight years. For a series of reasons that it is not necessary to state here, the Panel ruled that the annulment of the results obtained by the swimmer between September 4, 2018 and the pronouncement of the sentence was not justified.
On April 28, 2020, the athlete appealed in civil matters to the Federal Tribunal for the purpose of obtaining the annulment of the award rendered on February 28, 2020. He further concluded that the Federal Tribunal declare that the CAS is not competent and that he pronounce the challenge of the referee Romano Subiotto (case 4A_192 / 2020). This case is still pending.
On June 15, 2020, the swimmer (hereafter: the applicant) submitted an application for review of the award rendered on February 28, 2020. There he made submissions tending to the annulment of the award and the recusal of the award. President of the Arbitration Panel, Franco Frattini.
In support of his request for review, based on art. 121 let. a LTF , the applicant argues that he learned, on the occasion of the publication of an article on the website xxx.com dated May 15, 2020, that the arbitrator Franco Frattini had published, on his account Twitter, repeatedly made in 2018 and 2019, unacceptable comments about Chinese nationals, which, according to him, is likely to raise legitimate doubts as to the impartiality of the said referee in the context of this dispute involving an athlete Chinese.
The petitioner responded to the request for security for costs filed by WADA (hereafter: the respondent foundation), by spontaneously paying the sum of 15,000 fr. (under deduction of costs) to the Federal Tribunal Fund, which was noted by order of July 22, 2020.
On September 4, 2020, FINA (hereafter: the respondent association) declared that it was going to court.
In its response of September 4, 2020, the CAS concluded that the request for review should be rejected to the extent of its admissibility. He produced, as an annex to his writing, a written statement from arbitrator Franco Frattini, in which he vigorously contested the complaints made against him by the applicant.
On September 4, 2020, the respondent foundation concluded that the request for review should be rejected.
The applicant replied spontaneously, prompting a rejoinder from the respondent foundation and the CAS.
Considering in law:
According to art. 54 para. 1 of the Law on the Federal Tribunal of 17 June 2005 (LTF; RS 173.110), the Federal Tribunal writes its judgment in an official language, generally in the language of the contested decision. When this decision has been rendered in another language (here English), the Federal Tribunal uses the official language chosen by the parties. Before the CAS, they used English, while, in their briefs to the Federal Tribunal, they used French. In accordance with its practice, the Federal Tribunal will therefore issue its judgment in French.
The Federal Tribunal is seized of an appeal in civil matters and a related request for review against the same arbitration award. In such a case, the appeal is in principle treated as a priority ( ATF 129 III 727considering 1 p. 729; judgment 4A_231 / 2014 of September 23, 2014 at. 2). In this case, the request for review relates to only one question since the petitioner calls into question only the impartiality of the President of the Panel who issued the award under appeal. For reasons of procedural economy, it is therefore appropriate to derogate from the rule and examine first the request for review, since if this were allowed, this would entail the annulment of the award and exempt the Federal Tribunal to rule on the numerous complaints made by the person concerned in his appeal brief.
The headquarters of the CAS are in Lausanne. At least one of the parties was not domiciled in Switzerland at the relevant time. The provisions of chapter 12 of the law on private international law (LDIP; RS 291) are therefore applicable ( art. 176 para. 1 LDIP ).
4.1. The LDIP does not contain any provision relating to the review of arbitral awards within the meaning of arts. 176 ff LDIP . The Federal Supreme Court has filled this gap by case law. The Federal Tribunal is the competent judicial authority to hear the request for review of any international arbitration award, whether final, partial or preliminary. If it accepts a request for review, the Federal Tribunal does not itself rule on the merits but refers the case to the arbitral tribunal which ruled or to a new arbitral tribunal to be constituted ( ATF 142 III 521 at 2.1 p. 525; 134 III 286 at 2 p. 287 and the references).
4.2. In his request for review, the complainant argues that he discovered, in May 2020, the existence of circumstances likely to seriously question the impartiality of the President of the Panel who pronounced the award under appeal. He therefore considers himself entitled to invoke, in relation to these circumstances, the specific ground for challenge provided for by law ( art. 121 let. A LTF ).
In several judgments, the Federal Tribunal has considered whether it is necessary to open the way for revision when a reason comparable to that in question is only discovered after the expiry of the time limit for appeal. However, it left the question undecided ( ATF 143 III 589 at 3.1 p. 597; 142 III 521 at 2.3.5 p. 535; judgments 4A_234 / 2008 of August 14, 2008 at 2.1; 4A_528 / 2007 of April 4, 2008 recital 2.5).
In a leading judgment, the First Civil Law Court carried out an in-depth examination of the question, by studying not only the solutions recommended by the doctrine and those adopted in comparative law, but also by examining the preparatory work relating to various laws. It noted in particular that the legislature did not seem to have been concerned with the issue relating to the review of international arbitral awards and that, therefore, nothing was against the Federal Tribunal again filling a gap in the LTF or the LDIP. At the end of its examination, the Federal Tribunal evoked the need to admit that the discovery, after the expiry of the time limit for appealing against an international arbitral award, of a reason which would have required the challenge of the sole arbitrator or one of the members of the arbitral tribunal may give rise to the filing, before the Federal Tribunal, of a request for review of the said award, provided that the requesting party has not been able to discover the reason for the challenge. during the arbitral proceedings, showing the attention required by the circumstances. He left the matter open, however, not only because the request for review submitted for his consideration had to be rejected anyway, but also to take into account what a grooming, if not a recasting, of Chapter 12 of the LDIP was. running (could not discover the ground for challenge during the arbitral proceedings by showing the attention required by the circumstances. He left the matter open, however, not only because the request for review submitted for his consideration had to be rejected anyway, but also to take into account what a grooming, if not a recasting, of Chapter 12 of the LDIP was. running (could not discover the ground for challenge during the arbitral proceedings by showing the attention required by the circumstances. He left the matter open, however, not only because the request for review submitted for his consideration had to be rejected anyway, but also to take into account what a grooming, if not a recasting, of Chapter 12 of the LDIP was. running (execution (execution ( ATF 142 III 521 recital 2.3.5).
Since then, the situation has evolved from a legislative point of view. In its Message of 24 October 2018 concerning the modification of the federal law on private international law (chapter 12: International arbitration), the Federal Council proposed to open the way for revision, when a ground for recusation is not discovered only after the end of the arbitral proceedings (FF 2018 p. 7184). In his opinion, this solution is the only one which is effective. The remedy in civil matters turns out to be useless, when a party becomes aware of a ground for challenge only after the expiry of the period for appeal. The Federal Council also notes that the injured party does not always have the possibility of denouncing such a defect at the stage of the enforcement procedure. Moreover, this does not constitute an effective remedy, since the rejection of the request for exequatur does not lead to the annulment of the sentence (FF 2018 p. 7184).
The new art. 190a LDIP adopted by the federal legislature, the entry into force of which was set for January 1, 2021 (RO 2020 p. 4184), provides, in its para. 1 let. c, that a party may request the review of an award, if, despite having exercised due diligence, a ground for challenge is not discovered until after the conclusion of the arbitral proceedings and no other legal remedy is open.
For all the reasons mentioned in ATF 142 III 521 and in view of the new solution adopted by the legislator, it is necessary to fill the existing gap, by admitting that the discovery, after the expiry of the time limit for appealing against an award international arbitral tribunal, a reason requiring the challenge of an arbitrator may give rise to the filing, before the Federal Tribunal, of a request for review of the said award, provided that the requesting party has not been able to discover the reason challenge during the arbitral proceedings by showing due diligence, i.e. the attention required by the circumstances.
The applicant states that he learned on May 15, 2020, at the earliest, of the existence of the ground for challenge.
For the reason based on the violation of the rules on recusation, the request for review must be filed with the Federal Tribunal, on pain of forfeiture, within 30 days of the discovery of the ground for review ( art. 124 para. 1 let. . a LTF ). This is a question of admissibility, not of the merits. It is up to the applicant to establish the determining circumstances for verifying that the deadline has been met (judgments 4A_247 / 2014 of 23 September 2014 at 2.3; 4A_570 / 2011 of 23 July 2012 at 4.1).
In this case, the award under appeal was notified to the applicant on March 2, 2020. The 30-day appeal period, set out in Art. 100 LTF, suspended from March 21 to April 19, 2020 inclusive by virtue of the order of March 20, 2020 of the Federal Council on the suspension of deadlines in civil and administrative proceedings to ensure the maintenance of justice in connection with the coronavirus, expired on 1 May 2020. However, the applicant states that he learned on 15 May 2020, at the earliest, of the existence of the ground for challenge. By submitting his request for review on June 15, 2020 to the Federal Tribunal, the applicant acted in good time. The question whether the claimant could and should have discovered the ground for the challenge during the arbitral proceedings by showing the attention required by the circumstances will be examined below.
5.1. In support of his request for review, the applicant alleges that an article entitled “…”, written by a named E .________, published on May 15, 2020 on the website xxx.com, reported on various messages published by arbitrator Franco Frattini on his Twitter account between May 28, 2018 and June 9, 2019, i.e. before and during the arbitral proceedings conducted before the CAS.
The tweets, short messages of 140 characters maximum, posted by the offending arbitrator read as follows:
– tweet of May 28, 2018:
“Show the HORROR
THIS IS CHINA TODAY !! I’m sure nobody will ha e the courage to respond to me !!! Ambassador of China to Italy, where are you ??? Are you silent on the tortures on dogs in Yulin ??? ”
– tweet of May 28, 2018:
“Let’s multiply our messages! Invade in China with our protest against horror and torture on stray dogs and cats, as they try to invade our markets with fake products !! Raise our voice, otherwise we are in complicity !,”
– tweet of July 3, 2018:
“Hell forever for those bastard sadic chinese who brutally killed dogs and cats in Yulin, with the complicity of the chinese authorities !!!”
– tweet of May 28, 2019:
“This yellow face chinese monster smiling while torturing a small dog, deserves the worst of the hell !!! Shame on China, pretending to be a superpower and tolerating these horrors !!”
– tweet of May 28, 2019:
“Racist ???? Me ?? ehi guy, I repeat: those horrible sadics are CHINESE! Not French or Italian or polish! And I think they deserve a worse hell than the one in which they torture innocent animals !! Chinese is Yulin !!! do you want to defend !! come on, shame !!! ”
– tweet of June 2, 2019:
“Old yellow-face sadic trying to kill and torture a small dog: this is China’s picture !!! Westerners doing rich business with China bear in mind these atrocities” [response to a post by another user of the social network Twitter]
– tweet of June 9, 2019
“Torturing innocent animal is a flag of chinese! Sadics, inhumans with the protection of chinese authorities and the tolerance of western powers focusing on more business with China, regardless any massive violence! Shame on china and their protectors!” chopping animal carcasses].
5.2. As a preliminary point, the respondent foundation argues that the request for review is based on new evidence, either the article published on May 15, 2020, aimed at establishing old facts, or the tweets published between 2018 and 2019 by the referee involved. Referring to an unpublished judgment (4P.76 / 1997 of 9 July 1997, reproduced in Bulletin ASA 1997 p. 511), it notes that the Federal Tribunal left the question of the admissibility of a well-founded request for review undecided. on evidence which did not yet exist at the time the decision to be reviewed was rendered but which is intended to establish facts prior to that decision. According to the respondent foundation, such a process would be inadmissible. The request for review should therefore be dismissed, since the applicant does not/is unable to demonstrate the content of the tweets without post-sentencing evidence.
Such an argument does not stand up to scrutiny. Indeed, the applicant bases his request for review on the various tweets published by the arbitrator in 2018 and 2019, which he moreover annexed separately to his writing, and not on the article published on the internet on May 15. 2020. The respondent foundation is therefore wrong to claim that the applicant would not be able to establish the tweets and their content without the new means of proof. If the person concerned produced the article, it was only to establish the date on which he claims to have discovered the tweets on which his request for review is based. However, the presentation of new facts and new documents subsequent to the contested decision making it possible to determine the admissibility of an act submitted to the Federal Supreme Court is admissible ( ATF 136 III 123 recital 4.4.3; judgments 4F_6 / 2019 of March 18, 2020 rec. 2.1; 4A_705 / 2014 of May 8, 2015 consid. 2.1). The complaint is therefore ill-founded.
The respondent foundation and the CAS argue that the applicant could have discovered during the arbitration proceedings, by showing a little diligence, the facts on which he based his request for review.
6.1. The party who intends to challenge an arbitrator must invoke the ground for challenge as soon as it becomes aware of it. This jurisprudential rule, expressly reproduced in art. R34 of the Code of Arbitration in Sports Matters (hereafter: the Code), covers both the grounds for challenge that the interested party actually knew and those that it could have known by showing due attention ( ATF 129 III 445 at 22.214.171.124 p. 465 and the references), it being specified that choosing to remain in the dark may be regarded, depending on the case, as an abusive maneuver comparable to postponing the announcement of a challenge request ( ATF 136 III 605considering 3.2.2 p. 609; judgments 4A_110 / 2012 of October 9, 2012 rec. 2.1.2; 4A_506 / 2007 of March 20, 2008 rec. 3.1.2). The rule in question constitutes an application to the field of arbitral proceedings of the principle of good faith. By virtue of this principle, the right to invoke the plea based on the irregular composition of the arbitral tribunal expires if the party does not immediately assert it, because the party cannot keep it in reserve and only invoke it. In the event of an unfavorable outcome of the arbitral proceedings (judgment 4A_506 / 2007, cited above, recital 3.1.2 and the cases cited). A request for review based on the alleged bias of an arbitrator can therefore only be considered with regard to a ground for challenge that the applicant could not discover during the arbitral proceedings by showing proof of the attention required by the circumstances (judgments 4A_234 / 2008, cited above, recital 2.2.1; 4A_528 / 2007, cited above, recital 2.5.1).
6.2. The applicant claims to have discovered the offending tweets when the article by E .________ was posted on May 15, 2020. He states that one of his counsel carried out research to ensure the impartiality of the arbitrator Franco Frattini, when the latter was appointed president of the Arbitration Panel on May 1, 2019. According to his explanations, no contentious tweet appeared when the said council introduced, into the Google search engine, the words “Franco + Frattini”, “Franco + Frattini + sport”, or “Franco + Frattini + Court of Arbitration for Sport”. In this regard, he also refers to a report of June 12, 2020 drawn up at his request by a named F .________, an independent forensic expert, confirming that no suspicious tweet was produced. Displayed when performing a search in the aforementioned search engine with the keywords “Franco + Frattini”. The complainant emphasizes, moreover, that he had no reason to suspect that the arbitrator might have made inadmissible comments in tweets concerning the protection of animals. He cannot therefore be criticized for not having been able to identify the said tweets, which are objectively difficult to find.
6.3. In its response, the CAS notes that the offending tweets were posted online between May 28 and July 3, 2018 (recte: June 9, 2019). These were visible as soon as they were published and are still visible today. He argues that the complainant could easily have detected them when appointing the arbitrator in question, if he had undertaken somewhat serious research. In his opinion, it is not enough to enter the name of the arbitrator in the Google search engine. Another occurrence should be added, in order to establish a possible link between the arbitrator and another person or a third party. Also, in the opinion of the CAS, it would not have been absurd to use, for example, the words “Frattini” and “China”, which would have been enough to make certain contentious tweets appear on the first page of the list of search results carried out using the aforementioned search engine.
According to the CAS, the levity displayed by the applicant when looking for elements likely to call into question the impartiality of arbitrator Franco Frattini contrasts with the great care, even determination, shown by the applicant in with a view to obtaining the challenge of the arbitrators appointed by the respondent foundation. If the applicant had acted meticulously, he would have easily spotted the contentious tweets.
The CAS further emphasizes that the website on which the article was posted on May 15, 2020 is managed by a law firm specializing in the defense of athletes suspected of doping. The author of the said article, E .________, describes himself as a retired freelance journalist and engineer. He also took up the case for the applicant, openly defending the Chinese athlete in another article published on March 19, 2020 on the same website. According to the CAS, if a retired journalist was able to discover the contentious tweets in 2020, it is reasonable to think that any other person could have discovered them before the end of the procedure conducted by the CAS.
6.4. The respondent foundation argues that the applicant has not demonstrated that it was impossible for him, at the time when the accused arbitrator was appointed, and until the award of the award, to have access to the disputed tweets, whereas the burden of proof is on the athlete. It notes that by entering the first and last name of the arbitrator concerned, with or without quotation marks, into the Google search engine, the said arbitrator’s Twitter account appears on the first page of the list of search results. It also emphasizes that the Twitter account of the offending arbitrator is “public”, that is to say accessible to anyone with internet access, without necessarily having to hold an account on the same network. social. According to the respondent foundation, one could legitimately expect from an athlete risking eight years of suspension and the cancellation of his sports results that he browses, when appointing a referee, the latter’s Twitter account, accessible to all, by performing, at the very least, a simple search using a search engine. The applicant could in fact be required to examine “flagship social networks such as Facebook, Twitter, Instagram”. The applicant’s lack of curiosity is inexcusable, the search for an athlete risking such a heavy suspension must be up to the stakes of the case. Moreover, the applicant is not credible when he claims that it was difficult to detect the disputed tweets on the arbitrator’s account.
6.5. In the present case, the applicant states that he discovered the existence of the ground for challenge on May 15, 2020, at the earliest, the date of publication of the article by E .________. It should be noted from the outset that the publication of the said article by a person who seems to have taken up the cause of the defense of the athlete sanctioned, some two and a half months after the notification of the sentence, but especially close to ‘a year after the last of the offending tweets was posted online, it appears to say the least singular, if not welcome. However, it has not been established, on the basis of the elements provided by the parties to the present Court, that the applicant would have been aware of the elements on which he bases his request for disqualification before the publication of the said article respectively before the sentence is rendered or the time limit for appeal to the Federal Tribunal expires. The respondent foundation and the CAS do not claim the contrary, moreover, but argue that the applicant could and should have discovered the ground for challenge during the arbitral proceedings by showing the attention required by the circumstances.
Contrary to what the respondent foundation maintains, the question which arises at this stage is not whether or not it was possible for the applicant to have access to the disputed tweets during the arbitral proceedings but only to determine whether it was possible to may reproach him for not having shown the attention required by the circumstances when seeking the elements likely to call into question the impartiality of the arbitrator. In this regard, whatever the CAS thinks, it should be noted that the circumstance according to which the journalist E .________ was able to access the incriminated tweets, in 2020, is not, in itself, decisive. .
Case law imposes on the parties a duty of curiosity as to the existence of possible grounds for challenge likely to affect the composition of the arbitral tribunal ( ATF 136 III 605considering 3.4.2 p. 618; judgments 4A_110 / 2012, cited above, recital. 2.2.2; 4A_763 / 2011 of April 30, 2012 at. 3.3.2; 4A_234 / 2008, cited above, rec. 2.2.2; 4A_528 / 2007, cited above, rec. 2.5.3; 4A_506 / 2007, cited above, rec. 3.2). A party cannot therefore be satisfied with the general declaration of independence made by each arbitrator but must, on the contrary, carry out certain investigations to ensure that the arbitrator offers sufficient guarantees of independence and impartiality. The Federal Tribunal thus noted an inexcusable lack of curiosity on the part of a party who ignored certain data, accessible at all times, on the CAS website (judgments 4A_234 / 2008, cited above, recital 2.2.2; 4A_506 / 2007, cited above, recital 3.2). On the other hand, he never defined the exact extent of the duty of curiosity. It is indeed difficult to define the outlines of this duty which depend on the circumstances of each specific case. Be that as it may, this duty of curiosity is not unlimited. The parties are certainly required to carry out certain investigations, in particular on the internet (MAVROMATI / REEB, The Code of the Court of Arbitration for Sport, 2015, no 68 ad art. R34 of the Code; KAUFMANN – KOHLER / RIGOZZI, International Arbitration – Law and Practice in Switzerland, 2015, n. 8.138 et seq). If we can certainly require them to use the main computer search engines and consult sources likely to provide, a priori, elements allowing to reveal a possible risk of partiality of an arbitrator, for example the sites internet of the main arbitration institutions, parties, of their advice and of the studies in which they practice, that of the law firms in which certain arbitrators officiate, and in the field of sports arbitration, those of the respondent foundation and the sports institutions concerned, we cannot, however, expect from them that they engage in a systematic and in-depth analysis of all the sources relating to a determined arbitrator (cf. in this sense, KARIM EL CHAZLI, The impartiality of the arbitrator, Study of the implementation of the requirement of impartiality of the arbitrator, 2020, p. 325 and 330 f., which refers to French case law). Moreover, while it is true that it is possible to easily access the data appearing on free access websites, thanks to a single click, this does not mean, however, that the information in question is always easily identifiable. Indeed, as one author points out, while all information can be presumed to be freely accessible from a material point of view, it is not necessarily easily accessible from an intellectual point of view (EL CHAZLI, op. Cit. , p. 329). A party may thus, depending on the circumstances, need clues alerting it to the existence of a possible conflict of interest, requiring it to carry out more in-depth research, in particular when the reason for the risk of bias is a priori unsuspected (EL CHAZLI, op. cit., p. 329). So the mere fact that information is freely accessible on the internet does not mean the information in question is always easily identifiable.
A party may thus, depending on the circumstances, need clues alerting it to the existence of a possible conflict of interest, requiring it to carry out more in-depth research, in particular when the reason for the risk of bias is a priori unsuspected (EL CHAZLI, op. cit., p. 329). So the mere fact that information is freely accessible on the internet does not mean ipso facto that the party, which would not have been aware of it notwithstanding its research, would necessarily have failed in its duty of curiosity. In this regard, the circumstances of the concrete case will always remain decisive.
In this case, no one doubts that the Twitter account of the offending referee is accessible to everyone. No one further disputes that a link to the said account appears, in the first results, when the first and last name of the said arbitrator is entered into the Google search engine. It must therefore be admitted that the applicant could, in theory, have had access to the disputed tweets during the arbitration proceedings. However, it has not been established that the use of the Franco Frattini keywords in the aforementioned search engine, during the arbitration procedure, would have enabled the disputed tweets to appear. Contrary to what the CAS maintains, the applicant cannot be criticized for not having carried out research by also introducing the word “China”, because that would amount to admitting that the applicant should have speculated from the outset on a possible lack of impartiality on the part of the arbitrator by reason of the sole criterion of nationality, even though there was no evidence that could lead him to believe that the arbitrator The referee would, by hypothesis, have preconceived ideas with regard to athletes having the same nationality as him.
It remains to be seen whether, as the respondent foundation maintains, the applicant could and should have browsed the “flagship social networks” and, in particular, the Twitter account of the accused arbitrator. Of course, it does not appear to be excluded, prima facie., that a party may be required, depending on the circumstances, to verify, by virtue of its duty of curiosity, the existence of possible grounds for challenge, by examining, within certain limits at least, various social networks. However, this is not without its specific problems, as the world of social networks is fluctuating and evolving rapidly. In addition, these have tended to multiply in recent years. Even assuming that we can qualify, once and for all, some of them as “flagship social networks”, it would still be necessary to circumscribe the extent of the duty of curiosity over time. At a time when some people frequently use or even abuse certain social networks, in particular by publishing countless messages on their Twitter account, it would be appropriate, where appropriate, not to be too demanding of the parties, under penalty of transforming the duty of curiosity into an obligation to carry out very extensive, if not almost unlimited, investigations requiring considerable time. There is, however, no need to examine this question further since the circumstances of the present case must lead to the denial of an inexcusable lack of curiosity on the part of the applicant.to examine this question further since the circumstances of the present case must lead to the denial of an inexcusable lack of curiosity on the part of the applicant. To examine this question further since the circumstances of the present case must lead to the denial of an inexcusable lack of curiosity on the part of the applicant.
In this case, the arbitrator in question was appointed on May 1, 2019. In accordance with art. R34 of the Code, the parties had a period of seven days to request its challenge. The applicant claims to have carried out certain investigations on the internet and consulted the CAS awards database to verify the cases in which the accused arbitrator had sat. If we can certainly possibly admit that the person concerned should have consulted, if only briefly, the Twitter account of the arbitrator in question, we cannot, on the other hand, consider, in the absence of any other alarming circumstance on the existence of a potential risk of partiality, which the interested party would have failed in his duty of curiosity, by not detecting the presence of tweets published nearly ten months (May 28, 2018 and July 3, 2018) before the appointment of the arbitrator (May 1, 2019), moreover drowned in the mass of messages from a Twitter account of a referee, it seems very active on the social network in question. In any event, and assuming that it should be remembered that the applicant could and should have discovered the first three disputed tweets published by the arbitrator, all prior to the latter’s appointment, such a conclusion would not apply in with regard to other messages posted by the referee. Indeed, a party cannot be required to continue its research on the Internet throughout the arbitral proceedings, nor, a fortiori, that it scrutinizes the messages published on social networks by the arbitrators during the arbitration proceedings.
The objection raised by the respondent foundation and the CAS must therefore be rejected.
The respondent foundation and the CAS dispute that the facts alleged by the applicant are capable of calling into question the impartiality of the arbitrator in question and can justify pronouncing his challenge.
7.1. An arbitrator must, like a state judge, present sufficient guarantees of independence and impartiality. Failure to comply with this rule leads to an irregular designation falling under Art. 190 para. 2 let. a LDIP in international arbitration. To say whether an arbitrator presents such guarantees, it is necessary to refer to the constitutional principles developed on the subject of state courts, having regard, however, to the specificities of arbitration – especially in the field of international arbitration – during the ‘examination of the circumstances of the concrete case ( ATF 142 III 521 at 3.1.1; 136 III 605considering 3.2.1 p. 608 and the cited precedents; judgments 4A_292 / 2019 of October 16, 2019 rec. 3.1; 4A_236 / 2017 of 24 November 2017 consid. 3.1.1).
7.2. The guarantee of an independent and impartial tribunal flowing from art. 30 para. 1 Cst.allows the challenge of a judge whose situation or behavior is likely to raise doubts as to his impartiality. It aims to prevent circumstances external to the case from influencing the judgment in favor or to the detriment of a party. It does not impose the challenge only when an effective prevention of the judge is established, because a provision falling within the internal forum can hardly be proved; it suffices that the circumstances give the appearance of prevention and give rise to fear of a partial activity of the magistrate. However, only the circumstances observed objectively need to be taken into account; the purely individual impressions of one of the parties to the trial are not decisive ( ATF 144 I 159 at 4. 3;142 III 521 rec. 3.1.1; 140 III 221 rec. 4.1 and the cases cited).
7.3. In the case of Mutu and Pechstein against Switzerland (judgment of October 2, 2018), the European Court of Human Rights (hereafter: the Court of Human Rights) was called upon to rule on the alleged lack of independence and impartiality of two CAS arbitrators. On this occasion, she underlined that impartiality is usually defined by the absence of prejudice or prejudice (§ 141). It also recalled that, according to its settled case-law, impartiality must be assessed not only from a subjective point of view, taking into account the personal conviction and behavior of the person called upon to rule on a given occasion, but also by following an objective approach, consisting in asking whether the tribunal offered, irrespective of the personal conduct of a judge, sufficient guarantees to exclude any legitimate doubt as to his impartiality (§ 141).Thus, in cases where it may be difficult to provide evidence to rebut the presumption of subjective impartiality of the judge, the condition of objective impartiality provides an additional important safeguard (§ 142). In this regard, the decisive factor is whether the apprehensions of a party concerning the lack of impartiality of an arbitrator can be regarded as objectively justifiable. In this regard, the Court likes to quote the English adage “justice must not only be done: it must also be seen to be done” (§ 143), which leads it to stress the importance that appearances same can coat.
7.4. To verify the independence of the sole arbitrator or members of an arbitration panel, the parties may also refer to the guidelines on conflicts of interest in international arbitration, issued by the International Bar Association (IBA Guidelines on Conflicts of Interest in International Arbitration, approved May 22, 2004 and revised October 23, 2014 [hereinafter: the Guidelines]). These guidelines, which could be compared to the ethical rules used to interpret and clarify professional rules ( ATF 140 III 6 at 3.1 p. 9; 136 III 296considering 2.1 p. 300), of course do not have the force of law and it is always the circumstances of the concrete case which are decisive; they are nonetheless a useful working instrument, capable of contributing to the harmonization and unification of the standards applied in the field of international arbitration for the settlement of conflicts of interest, which instrument should not fail to influence the practice of arbitration institutions and courts ( ATF 142 III 521considering 3.1.2). One of the principles of the guidelines is that an arbitrator must refuse to sit or resign when there are or arise after his appointment, facts or circumstances which, in the view of a reasonable third party having knowledge of the facts and relevant circumstances, would give rise to legitimate doubts as to the impartiality or independence of the arbitrator (point 2 (b) of the guidelines). Doubts are legitimate if a reasonable third party, having knowledge of the relevant facts and circumstances, would consider it likely that the arbitrator would be influenced in his decision-making by factors other than the merits of the case as presented in the claims. of the parts (point 2 c) of the guidelines).
7.5. In support of his request for review, the complainant maintains that the tweets published by the accused arbitrator between May 28, 2018 and June 9, 2019, even if they were broadcast in a context other than that of the arbitral proceedings concerning him, highlight manifest prejudices against Chinese nationals and objectively raise doubts as to the impartiality of arbitrator Franco Frattini.
According to the petitioner, the incriminated tweets reveal an unconscious bias or, at the very least, create an appearance of bias on the part of the challenged arbitrator towards any Chinese national. According to him, the terms used by the arbitrator are degrading, offensive and discriminatory against Chinese citizens. The punctuation used as well as the use of capital letters accentuate the virulence of the statements. In addition, the reference made to ethnic origin or skin color would betray the existence of stereotypes, synonymous with bias.
The complainant further maintains that the contested sentence contains inappropriate value judgments about his personality and hurtful comments about him. These passages, read in the light of the incriminated tweets, would thus suggest that the Panel, chaired by arbitrator Frattini, was animated by a form of resentment and bias unrelated to the case it was to decide.
7.6. In his written statement of September 3, 2020, annexed to the CAS response, the challenged arbitrator insists that he has taken up the defense of animals for many years and that he is opposed to any form of cruelty towards them. He points out that he published the offending tweets in a very specific context, in reaction to the “slaughter of animals committed each year in the city of Yulin in China on the occasion of the disastrous traditional Dog Meat Festival”, having for object “the slaughter of dogs and cats, which are then roasted and sold at a fair “. He admits having reacted in a very emotional way, discovering some videos where we see dogs “being tortured with sadism by some people” and concedes that his words have sometimes gone beyond his thought. The arbitrator notes, however, that his criticisms were in no way directed against the Chinese nation or the Chinese people in general. In this regard, he specifies that in his capacity as former foreign minister of the Italian government, he has always maintained excellent relations with China. Rejecting against the fact that the applicant could make the amalgam between his personal convictions and his function of judge, he affirms that the sentence under appeal, rendered unanimously, was not influenced by elements external to the case. to be decided. He specifies that in his capacity as former minister of foreign affairs in the Italian government, he has always maintained excellent relations with China. Protesting against the fact that the applicant could make the amalgam between his personal convictions and his function of judge, he affirms that the sentence under appeal, rendered unanimously, was not influenced by elements external to the case. to be decided. He specifies that in his capacity as former minister of foreign affairs in the Italian government, he has always maintained excellent relations with China. Rejecting against the fact that the applicant could make the amalgam between his personal convictions and his function of judge, he affirms that the sentence under appeal, rendered unanimously, was not influenced by elements external to the case to be decided.
7.7. In its response, the CAS recalls that the offending arbitrator is a fervent defender of the animal cause and that the statements made by him in the various tweets were aimed exclusively at the “animal killers” rampant within the framework of the Dog Meat Festival. in Yulin, and not the applicant, his entourage, or the Chinese population in general. Also these tweets do not justify the challenge of the arbitrator concerned.
7.8. The respondent foundation, for its part, argues that the arbitrator in question, did not hesitate, on the one hand, to denounce, on his Twitter account, the cruelties against animals committed in other countries and in particular his, but also, on the other hand, to congratulate people of Chinese nationality who have taken up the cause of the defense of animals. She stresses that the statements made must be interpreted taking into account the context in which they were made, either on a social network, in reaction to images deemed violent towards animals. According to her, the accused arbitrator, who does not speak in his capacity as arbitrator on his Twitter account, has every right to have a political opinion and to defend his convictions on social networks. If the respondent foundation concedes that certain words of the challenged arbitrator may seem “awkward”, it maintains that these are not sufficient to call into question his impartiality.
7.9. With regard to the ground for challenge based on the allegedly derogatory and inappropriate remarks made in the award under appeal, it should be noted from the outset that the applicant should have invoked it within thirty days of notification of the award, which he did not do. The person concerned is therefore barred from basing his request for review on certain passages of the award under appeal, highlighted by him, which cannot, in any case, justify the challenge of the arbitrator in question.
As for the other reason advanced by the interested party to obtain the challenge of the arbitrator concerned, it should be noted, with the respondent foundation, that an arbitrator can perfectly defend his convictions on the various social networks. This does not mean, however, that the referee can express on the internet everything he thinks, in extremely strong terms, without risking arousing certain fears, even if they are unfounded, as to his impartiality, and this even if he does not act under his referee “cap”.
In this case, it is clear that the arbitrator, who has obviously taken up the cause for the defense of animals, heard, through his various tweets, castigate a Chinese practice in terms of slaughtering dogs, assimilated by him to torture, as well as the large-scale tasting, on the occasion of an annual local gastronomic festival, of the flesh of sacrificed animals and denouncing people whom the arbitrator considers to be executioners. The arbitrator also did not hesitate to denounce acts of cruelty to animals committed in other countries and to support people of Chinese nationality who have taken steps to put an end to the practice denounced by him. His violent criticisms were thus clearly not directed against all Chinese nationals. Considered in the abstract, the fact that the arbitrator severely criticizes the consumption of canine meat during the annual Yulin festival and denounces certain Chinese nationals guilty according to him of torturing animals could not, in itself, constitute a circumstance allowing for infer the existence of a bias of the arbitrator in question against any Chinese national. In this regard, if we wanted to try a comparison, we could take the example of an arbitrator of Indian nationality who would protest, on social networks, in severe terms, against the practice of bullfighting that is going on. in parts of Spain. Supposing that this person sits on a CAS Panel called upon to rule on an appeal against a disciplinary sanction inflicted on a Spanish athlete, would she be recusable on account of the statements made by her to denounce the cruelty committed according to her towards animals? The answer should probably be resolved in the negative, in the absence of other corroborating circumstances.
However, it must be understood that it is not so much the cause defended by the arbitrator that appears problematic in this case but rather certain terms used by him. Indeed, the arbitrator did not hesitate to use extremely violent terms, repeatedly, and several messages were published even while the present case was under investigation before the CAS. He used the following terms in particular: “those bastard sadic chinese who brutally killed dogs and cats in Yulin”, “This yellow face chinese monster smiling while torturing a small dog, deserves the worst of the hell”, “those horrible sadics are CHINESE ! “,” Old yellow-face sadic trying to kill and torture a small dog “,” Torturing innocent animal is a flag of chinese! Sadics, inhumans “. Among these, the words” yellow face “, used twice by the referee, after his appointment as President of the Formation, are undoubtedly the most questionable. Of course, the referee concedes him – even that certain words have sometimes gone beyond his thought. To say that the terms “yellow face” are “awkward”, as the respondent foundation maintains, is nevertheless an understatement. If we put them in their context, these words, used in the singular, which may have been pronounced under the influence of the emotion provided by images considered as revolting by the interested party, certainly target each time a specific person that the arbitrator has individualized on a video and / or a photograph and that he also calls a sadist because she is, according to him, torturing a small dog. However, these terms clearly refer to the skin color of certain Chinese individuals and are not intended to qualify their behavior considered cruel, unlike other incisive or even hurtful terms used by the referee, such as “sadistic”. Such qualifiers, even though they have been used in a particular context, have absolutely nothing to do with the acts of cruelty alleged against certain Chinese nationals and are, whatever the context, inadmissible. If we add to this the fact that the arbitrator made such remarks, not only on two occasions, but also after his appointment as president of a Panel called to rule on the appeal lodged by a Chinese national ,even while the proceedings were pending, it must be admitted that the appellant’s apprehensions as to the possible bias of the arbitrator in question may be regarded as objectively justified. In this regard, it matters little whether the offending arbitrator is, subjectively, aware or not of the fact that his statements appear objectionable from an objective point of view. Only the objective assessment of the circumstances alleged in support of a request for disqualification is in fact decisive. However, in the present case, the aforementioned circumstances, considered from the point of view of a reasonable third party having knowledge of it, are such as to cast doubt on the impartiality of the arbitrator in question and to create an appearance of prevention. Accept that the applicant’s apprehensions as to the possible bias of the referee in question may be regarded as objectively justified.
In the present case, the appellant succeeds since the judgment challenged by him is set aside. The respondent foundation, which succumbs once it has concluded that the request for review has been rejected, will bear the costs of the federal proceedings ( art. 66 para. 1 LTF ). It will also pay the applicant compensation for costs ( Art. 68 (2) LTF). As for the respondent association, having declared that it was going to court, it could not be considered as the unsuccessful party. Moreover, the decision undertaken was not annulled to its detriment. In these conditions, the legal costs could not be charged to the respondent association, the latter not being able to claim compensation for costs either. Finally, the security paid by the applicant must be returned to him.
For these reasons, the Federal Tribunal pronounces:
The request for review is allowed and the award under appeal is set aside.
The challenge against arbitrator Franco Frattini is allowed.
Legal costs, set at 7,000 fr., Are charged to the respondent foundation.
The respondent foundation will pay the applicant compensation of 8,000 fr. for costs.
The securities paid by the applicant are released.
This judgment is communicated to the representatives of the parties and to the Court of Arbitration for Sport (CAS).
Lausanne, December 22, 2020
On behalf of the 1st Court of Civil Law
of the Swiss Federal Court
The President: Kiss
The Registrar: O. Carruzzo