No appeal against a decision rejecting a request for interpretation of the award
This decision of the Swiss Supreme Court is the third in the matter of the Spanish cyclist Alejandro Valverde Belmonte.
There was a first decision dated October 29, 2010 (4A_234/2010). The first Belmonte decision was quite interesting because it raised the issue of the degree of independence and impartiality expected from a party-appointed arbitrator.
On January 3, 2011, there was a second decision (4A_386/2010), which raised the interesting issue of the “truncated award”.
As you will see, this decision could have been quite interesting, but it is not. The issue was whether or not an appeal can be made against an “award” by which the Court of Arbitration for Sport – in this case the Deputy of the President of the Appeals Arbitration Division - refuses to accept a request for interpretation and correction of an award.
It will be clear from the short reasoning in paragraph 3 of the opinion that the Federal Tribunal did not decide if such a decision was capable of appeal per se. Instead, the Court resorted to a finding that since the same argument had been raised against the May 31, 2010, award and rejected in the second decision of the Federal Tribunal, Belmonte no longer had a legally-protected interest to obtain the annulment of the decision refusing to address the substance of the request for interpretation and correction even if the matter had been capable of appeal in this respect.
Judgment of January 3, 2011
First Civil Law Court
Federal Judge KLETT (Mrs), Presiding
Federal Judge CORBOZ,
Federal Judge KOLLY,
Clerk of the Court: M. CARRUZZO
Alejandro Valverde Belmonte
Represented by Mr. Sébastien Besson
1.World Anti-Doping Agency (WADA)
Represented by Mr. François Kaiser and Mr. Yvan Henzer.
2. International Cyclist Union (ICU)
Represented by Mr. Philippe Verbiest
3. Real Federación Española de Ciclismo (RFEC)
Represented by Mr. Jorge Ibarrola
In May 2004, a criminal investigation for doping was opened in Spain (“Operation Puerto”). Two years later it led to the arrest of Dr. Fuentes and other people. They were accused of violating Spanish laws on public health.
On August 29, 2007, the International Cycling Union (ICU), which had joined the criminal proceedings next to the World Anti-Doping Agency (WADA), asked the Spanish Cycling Federation, Real Federación Española de Ciclismo (RFEC), to initiate disciplinary proceedings against Alejandro Valverde Belmonte, a professional racing cyclist of Spanish citizenship. To justify its request it relied on the fact that on May 6, 2006, investigators acting in the framework of Operation Puerto had seized a pack containing blood allegedly belonging to Mr. Belmonte in Dr. Fuentes’ laboratory (hereafter: pack nr. 18).
On September 7, 2007, the Comité Nacional de Competición y Disciplina Deportiva (CNCDD), the competent body for doping matters within RFEC, refused to open disciplinary proceedings against Alejandro Valverde Belmonte. The President of RFEC took a decision identical to that of the CNCDD on the same day.
In October 2007, WADA and ICU filed an appeal with the CAS against the decisions taken by CNCDD and the President of the RFEC on September 7, 2007. In their last submissions on the merits, both asked that Alejandro Valverde Belmonte be banned for two years and that all his results since May 4, 2004, be annulled.
Mr. Belmonte submitted that the matters were not capable of appeal and the RFEC that they should be rejected.
A Panel composed of Mr. Otto L.O. De Witt Wijnen, attorney at Bergambacht (Netherlands) (Chairman), Prof. Richard H. McLaren of London (Canada) (arbitrator appointed by the Appellants), and the Spanish law professor Dr. Miguel Angel Fernandez Ballesteros (arbitrator appointed by the Respondents) was constituted on January 28, 2008 (hereafter: the Panel).
After investigating the merits of the case, the Panel issued a majority award on May 31, 2010, partially admitting the appeals, holding Alejandro Valverde Belmonte guilty of a violation of Art. 15.2 of the ICU Anti-Doping Rules (2004 version), and banning him for two years from January 1, 2010. However, it rejected the requests by the ICU and WADA seeking the annulment of the results obtained in competitions by the Mr. Belmonte before January 1, 2010.
On June 29, 2010, Alejandro Valverde Belmonte filed a civil law appeal with the Federal Tribunal with a view to obtaining the annulment of the May 31, 2010, award and seeking a finding that the CAS had no jurisdiction on the merits.
On June 29, 2010, the Appellant filed a request for interpretation and correction of the May 31, 2010, award with the CAS. On July 9, 2010, the Deputy of the President of the Appeals Arbitration Division of the CAS refused to address the merits of the request.
The Appellant also filed a civil law appeal with the Federal Tribunal against the aforesaid decision on July 28, 2010 (Case 4A_420/2010). He requested that the case be joined with case 4A_386/2010. The Presiding Judge rejected the request on October 4, 2010, as well as the CAS requests of September 17 and 20, 2010, seeking a stay in case 4A_420/2010 until a decision on the merits in case 4A_386/2010.
In their respective answers, WADA, ICU, and the CAS all submit that the appeal should be rejected. The RFEC did not submit an answer within the time limit it had been given.
According to Art. 54 (LTF)2 the Federal Tribunal issues its decision in an official language3, as a rule in the language of the decision under appeal. When that decision is in another language (in this case English), the Federal Tribunal resorts to the official language chosen by the parties. In front of the CAS they used English. In the brief sent to the Federal Tribunal the Appellant used French. According to its practice, the Federal Tribunal will resort to the language of the appeal and consequently issue its decision in French.
The issue as to whether or not the decision challenged was capable of a civil law appeal to the Federal Tribunal needs not be decided, as in any event the matter is not capable of appeal for the following reasons.
The admissibility of a civil law appeal requires among other conditions that the Appellant should have a legally-protected interest to the annulment or the modification of the decision under appeal (Art. 76 (1) (b) LTF).
In his appeal seeking the annulment of a decision refusing to address the merits of his request for interpretation, the Appellant really seeks to obtain an interpretation and, as the case may be, a rectification by the Panel of the award issued on May 31, 2010. He emphasizes in this respect that his appeal raises the same issue, yet under different perspective, as that which he raised in this respect in his appeal against the aforesaid award (July 28, 2010, brief at 62). However, in the judgment issued today as to that other appeal, the specific language of which (i.e. the language at 8.3.2) is deemed to be reproduced here in extenso, the Federal Tribunal, after reviewing the Appellant’s argument, reached the conclusion that the award itself did not at all contradict the reasons of the award.
Consequently, the Appellant may no longer claim a present and legally-protected interest to obtain the annulment of the decision refusing to address the substance of a request for interpretation, of which it was moreover held that it would be bound to fail anyway because the alleged incoherence between the reasons and the award did not exist.
Consequently, the matter is not capable of appeal.
The Appellant shall pay the judicial costs (Art. 66 (1) LTF) and compensate WADA and the ICU for the federal judicial proceedings (Art. 68 (1) and (2) LTF). The RFEC did not file an answer and is not entitled to compensation.
Therefore the Federal Tribunal pronounces:
1. The matter is not capable of appeal.
2. The judicial costs set at CHF 2,000 shall be borne by the Appellant.
3. The Appellant shall pay to the World Anti-Doping Agency (WADA) an amount of CHF 2,500 for the federal judicial proceedings. He shall pay the same amount to the International Cyclist Union (ICU) for the same reason.
4. This judgment shall be notified to the representatives of the Parties and to the Court of Arbitration for Sport (CAS).
Lausanne, January 3, 2011
In the name of the First Civil Law Court of the Swiss Federal Tribunal
The Presiding Judge: The Clerk:
KLETT (Mrs) CARRUZZO
- 1. Translator’s note : Quote as Alejandro Valverde Belmonte v. AMA, UCI and RFEC, 4A_420/2010. The original of the decision is in French. The text is available on the website of the Federal Tribunal www.bger.ch.
- 2. Translator’s note : LTF is the French abbreviation for the Federal Statute of June 17, 2005 organizing the Federal Tribunal, RS 173 110.
- 3. Translator’s note : The official languages of Switzerland are German, French, and Italian.