Arbitration is sometimes referred to as the ultimate in forum shopping. This is because the parties get to choose their own arbitrators. Once this happens, the ‘party-appointed arbitrators’ often choose the third ‘presiding arbitrator’ or Chairman. In appeals before the Court of Arbitration for Sport (CAS), however, CAS chooses the third, presiding member of the panel. This person is called the President.
The arbitrators should be neutral, with no financial or other significant ties to any of the parties. The arbitrators should have expertise in the subject matter of the dispute. Beyond that, the parties may choose whomever they like for whatever reasons seem compelling to them. Often parties choose an arbitrator they feel more likely to decide the case in their favour.
In the present case, the World Anti-Doping Agency (WADA) opened the bidding by announcing its appointment of Mr Romano Subiotto QC, a Brussels-based UK solicitor-advocate. A quick glance at Mr Subiotto’s curriculum vitae reveals one of the reasons why he might have been chosen. He has sat as arbitrator in at least five other cases involving WADA appeals to CAS.
That is not to say that Mr Subiotto has decided in WADA’s favour in all those appeals. Rather, by now, WADA probably considers it has a good handle on what makes Mr Subiotto tick, how he works and how he decides. Having heard WADA argue several cases before, he may even understand WADA’s goals when appealing a decision below.
Mr Subiotto has sat in such a long list of CAS arbitrations – his curriculum vitae cites 55 cases – that he would be an expert at managing the procedure and producing enforceable awards. This means that he will have significant credibility among the other members of the panel and likely ability to influence their decisions. Mr Subiotto may be somewhere between ‘God’s gift’ to WADA appeals and the devil that WADA knows.
Next, we have the Hon James Spigelman AC QC appointed by the 34 Essendon players who are respondents to WADA’s appeal. Keeping in mind that Mr Subiotto has great CAS experience in anti-doping appeals, you can see the likely logic of the players appointing a former Chief Justice of the NSW Supreme Court: To counterbalance him. While Mr Subiotto may be on WADA’s wavelength, we can understand the perception that Mr Spigelman is tuned-in to the thinking of the tribunal below, presided over by retired Victorian County Court judge Mr David Jones.
That Mr Spigelman is a former Chief Justice of the NSW Supreme Court is also a reason to appoint him. Looking at the question from a hierarchical perspective, he is a higher-ranking jurist than Mr Subiotto who is a UK solicitor-advocate. The 34 Essendon players will be counting on a former Chief Justice to adopt naturally a leadership role and command the Panel’s respect.
Mr Spigelman’s selection may also have something to do with the players’ desire to have the hearing held in Sydney or Melbourne.
When he was Chief Justice of the NSW Court of Appeal, Mr Spigelman presided over the 2000 NSW Court of Appeal decision of Raguz v Sullivan (with his colleagues Mason P and Priestley JA). This was the case about whether holding a CAS arbitration in Sydney made the decision vulnerable to an appeal against its enforcement. The answer was ‘No’. Symbolically, this is important because it delivers a very simple answer to the question of whether the current WADA appeal hearing should be held in Australia – why not?
A recent Fairfax media report indicates that the appeal hearing is set for Sydney.
Having regard to the already formidable composition of the Panel, CAS has appointed Mr Michael Beloff QC as the third arbitrator, and the Panel’s President. An apparent renaissance man described in Chambers UK 2015 as “one of those advocates who can charm the birds from the trees” and in Legal 500 2014 as “a clear leader”, who is Michael Beloff? Well, the answer is very interesting indeed.
Mr Beloff is a very eminent international sports lawyer and UK barrister, called to the Bar in 1961. He was appointed to International Athletics’ newly created Ethics Commission in 2014, and is the author of the aptly titled tome ‘Sports Law’. One of his many credentials is as the former Chairman of the International Cricket Council’s Code of Conduct Commission. Natalie Hickey mentioned in a previous post that someone affiliated with cricket in this way might be accustomed to the kind of challenges faced by young men in a team sport environment – and therefore, possibly, sympathetic to the 34 Essendon players.
In any event, Mr Beloff was a member of the panel deciding CAS 98/208 N., J., Y., W. v Federation Internationale de Natation (FINA) (award of 22 December 1998) (N’s Case). N’s Case offers something for WADA and something for the 34 Essendon players. It illustrates an even-handed approach to questions not unrelated to what must be considered in the present appeal. The approach taken to N’s Case also demonstrates a strong familiarity and obvious confidence with CAS jurisprudence. This indicates why, in the case of Mr Beloff’s appointment, one expects the Presidency of the Panel will be held in an assured and safe pair of hands.
N’s Case concerned four members of the Chinese swimming team under the age of 20 who had each tested positive for very low levels of a prohibited diuretic often used as a masking agent. They argued that the presence of the positive test could be explained by their use of another substance they did not know contained trace elements of the prohibited substance. They were found to have committed an anti-doping rule violation and appealed. They lost the appeal.
Relevantly, the decision concerned the basis upon which one should assess the comfortable satisfaction test. At the heart of the decision were also questions about how one should evaluate equivocal test results, including the evaluation of expert evidence.
Representatives of the 34 Essendon players would take heart from the discussion about the ‘comfortable satisfaction’ test and the need for an even-handed approach.
The comments about the public perception of Chinese swimmers are interesting and reassuring in this context:
“The Panel starts with a recognition of the seriousness of the matter from the Appellants’ point of view. The fight against doping is no excuse for the conviction of innocent persons (see CAS 92/70 N. v. FEI). It starts too with a recognition that there exists a predisposition in some quarters to assume that Chinese swimmers are guilty of systematic drug taking. FINA’s constitution states at C2 “FINA shall not allow any discrimination against … individuals … on grounds of race … or political affiliations”. It may be unnecessary to say that, even without reference to that provision, the Panel would, as an international arbitral tribunal, not only be, but trust that it appears to be, free from any taint of such predisposition or discrimination. The Panel considers only the evidence before it: it pays no heed to media hyperbole.” (at para 7)
As for the comfortable satisfaction test, the Panel noted that the standard of proof is high: less than the criminal standard, but more than the ordinary civil standard. The Panel adopted the test set out in K. and G. v. IOC (CAS OG 96/003-004) (“K.”): “ingredients must be established to the comfortable satisfaction of the Court having in mind the seriousness of the allegation which is made” (at para 13).
As it happens, the AFL Anti-Doping Rules cite N’s Case to illustrate the meaning to be given to clause 15.1 – Burden and Standard of Proof. See footnote 30 on page 33 of the 2013 version of the AFL Anti – Doping Code.
The Panel was also “in no doubt” that the burden of proof lay upon FINA (in that case) to establish that an offence had been committed. The presumption of innocence operated in favour of the swimmers until FINA discharged that burden.
Of course, N’s Case is different in a number of ways from the WADA / Essendon case.
WADA can take heart from the fact that, despite the Panel’s articulation of relevant principles, the swimmers ultimately lost the case, despite there being a range of technical issues about testing processes which the swimmers had sought to rely upon.
Additionally, the Panel was not prepared to consider questions of ‘intent’ (i.e. whether the swimmers meant to take the prohibited substance) when assessing contravention. It was only at the level of sanction, not in finding innocence or guilt, that questions of intent become relevant.
Of particular interest to the 34 Essendon players is that, had the Panel identified Actovegin as the culprit for the positive results (the substance the swimmers said they had taken), “then it would have given serious consideration as to whether or not the maximum sanction should have been applied and even (which we do not need to decide) whether such finding opened up the possibility that the Appellant could be completely exculpated” (‘exculpated’ means ‘exonerated’). The Panel further stated that “lack of intent should be a powerful mitigating feature” and that this is “a consistent theme of all the CAS jurisprudence”.
Further, the Panel stated:
“…the Panel is not oblivious to the submission made on behalf of FINA that … “it is a competitor’s duty to ensure that no banned substance enters his body …. Competitors are responsible for any substance detected in samples given by them”. Nonetheless if the persons responsible for team management have analysed a particular food product and cleared it of containing prohibited substances, it is not easy to see how much more could reasonably be required of competitors.” (at para 43)
In other words, the Panel rebuffed FINA’s submission essentially arguing that the athletes should be subject to strict liability on the question of sanctions. Its words seem friendly to athletes accused of anti-doping rule violations in an environment where they are at the bottom rung of an organised team hierarchy.
On the other hand, we can assume that Mr Beloff will be sympathetic to WADA’s goals as well. Surely one of the reasons why WADA is pursuing its appeal against the AFL Tribunal decision is to make sure that the case is decided consistently with all other international sports, not just in a way that is acceptable in the AFL or the Australian domestic context.
Mr Beloff was recently interviewed by the international bar association and spoke about the absence of proper regulation of sporting bodies and the need for consistent international rules to govern their behaviour.
The interview can be found here
Mr Beloff will clearly try to ensure that the decision in WADA v 34 players is not an outlier among international anti-doping cases, particularly where athletes are in an organised team environment as distinct from a solo athletic pursuit.