Denis Lynch v. Fédération Equestre Internationale (FEI)

Arbitration CAS 2008/A/1655 Denis Lynch v. Fédération Equestre Internationale (FEI),

Panel: Prof. Michael Geistlinger (Austria), President; Mr Lars Halgreen (Denmark); Prof. Christoph Vedder (Germany)

Equestrian (jumping) Horse doping (capsaicin) CAS scope of jurisdiction with regard to a provisional suspension Lack of CAS jurisdiction in absence of violation of the “ordre public” Determination of an official holiday

1. An international federation’s preliminary decision deciding the provisional suspension of an athlete in a case of adverse analytical finding is a decision of a federation in the understanding of article R47 para 1 CAS Code. According to the applicable rules of the federation, the CAS has an exclusive jurisdiction to hear the appeal filed against such decision provided that the appellant has exhausted the legal remedies available to him/her and has also met the deadline to file his/her appeal. However, the CAS jurisdiction in the case of an appeal against a provisional suspension is limited to decide the question, whether the legal grounds and/or procedure laid down by the relevant anti-doping medication control rules have been violated by the federation when imposing the provisional suspension on the athlete. In this respect, if the review of the competent investigating body does not reveal an applicable TUE or departure from the testing procedures or from the standard for laboratories that undermines the validity of the adverse analytical finding, CAS has no jurisdiction.

2. A provisional suspension primarily motivated by the needs of an international federation to suspend an athlete from further participation at competitions and events pending a sanction in order to guarantee a smooth functioning of the sport and which is less than the period of final sanction and is credited against it, does not cause substantial prejudice and cannot give rise to a violation of the procedural or material “ordre public” in the understanding of the Swiss Federal Supreme Court. In the absence of any violation of the Swiss material or procedural “ordre public”, the CAS has no jurisdiction.

3. In adjudicating whether a holiday existing in a specific town of Switzerland, but not generally in Switzerland is to be considered “an official holiday or a non-business day in the country where the notification has been made”, one should apply Swiss civil procedural law which determines an official holiday according to the law of the canton, where the parties need to act/have their seat.

The Appellant, Mr Denis Lynch, a professional show jumping rider for Ireland and no. 18 on the FEI World Ranking, took part, with his horse Lantina 3 (the “Horse”), at the 2008 Beijing Olympic Games. Mr Lynch runs his own training- and showstables in a rented property near Münster, Germany, and rides 9 horses on international level, 7 of them belonging to one of two sponsors, Ms. Flaminia Straumann, 1 horse is owned by Mr. Takamishi Mashayama. Mr Lynch predominantly makes his income from price moneys from shows. As a member of the National equestrian federation of Ireland (Horse Sport Ireland) and as participant he was bound to the FEI rules applicable at the Olympic Games, in particular the Equine Anti-Doping and Medication Control Rules (EAMCR), which are applicable through article 15 IOC Anti-Doping Rules for the 2008 Beijing Olympic Games.

The Respondent, the Fédération Equestre Internationale (FEI), is the sole IOC-recognized international federation for the equestrian sport. The FEI is the governing body for FEI Equestrian Disciplines (Dressage, Jumping, Eventing, Driving, Endurance, Vaulting, Reining, Para-Equestrian and any other forms of equestrian Disciplines approved by the FEI General Assembly) and is the sole representative of Horsesport at the International Olympic Committee.

The Appellant competed at the 2008 Beijing Olympic Games in the Irish team and as single rider. Upon arrival the Appellant used the Post Arrival Equine Testing (PAET). The Horse was tested negative. Before the finals, on 21 August 2008, the Horse was tested another time, this time positive for capsaicin. Both tests were performed by the Racing Laboratory of the Hong Kong Jockey Club however, different tests were used. Only the second test was used for detecting capsaicin.

The Appellant through Mr. Damian McDonald, Secretary General of the Irish equestrian federation, was notified of the positive test in writing on 21 August 2008 at 1:15 pm. The notification consisted of a letter by Mr. Mikael Rentsch, FEI Legal Department, which together with a Notification Form and four Annexes (Annex I: a) FEI Anti-Doping and Medication Control Rules; b) Annex G of the FEI Regulations for Equestrian Events at the Olympic Games (22nd ed), effective for the 2008 Beijing Olympic Games (HongKong); Annex II: Form “Anti-Doping and Medication Control Rules violation”; Annex III: Form “Preliminary Hearing” and Annex IV: Form “B-sample Analysis”) made 47 pages. The FEI Tribunal established in its decision dated 17 October 2008, which was not appealed, that no “request had been made for the use of Capsaicin on the Horse, and no medication form had been supplied for this substance”. There are no indications from any of the parties or any of the evidence submitted to the Panel that the notification was not done after the FEI Investigating Body had reviewed and determined that there was no applicable ETUE granted, no request for use of capsaicin on the Horse made, and no apparent departure from the Testing procedures of the FEI Veterinary Regulations of the FEI Standard for Laboratories that undermined the validity of the Adverse Analytical Finding.

The notification to the Appellant included the following information: (a) the Adverse Analytical Finding; (b) the rule violated; (c) that the B Sample, based on Annex I b) (Annex G Accelerated Medication Control Procedure during & after the 2008 Olympic Games), which was to be applied at the 2008 Beijing Olympic Games, was mandatory and would be carried out at the same Laboratory

as the A Sample, and that the identification and opening of the B Sample was scheduled for 23 August 2008 at about 10:00 am; (d) the right of the Appellant and/or the Appellant’s representative to be present at the identification and opening of the B Sample and (e) that the Appellant was provisionally suspended and granted the opportunity to be heard at a preliminary hearing before the FEI Tribunal.

The notification of the Appellant did not expressly include a reference to the requirement of article 7.1.3 lit (e) that the Person Responsible has a right to request copies of the A and B sample laboratory reports, but included the following sentence as part of Annex G (“Accelerated Medication Control Procedure during & after the 2008 Olympic Games”, number 3, second paragraph): “When reporting the presence of a Prohibited Substance, the analytical report must include all relevant documentation from instrumental analysis”. Obviously, this provision does not only refer to reports to the Medication Control Administrator and to the FEI General Counsel, but also to such to the Person Responsible, to the respective National Federation, the respective National Olympic Committee and to the relevant Olympic Games body.

According to an explanation of Dr. Paul Farrington, Associate member of the FEI Veterinary Commission Office, referred to by the Appellant in his Statement of Appeal, capsaicin is the active component of chilli-peppers and produces a sensation of burning in any tissues with which it comes into contact. It is not a normal nutrient for horses medicinally it can be used in one of three ways: “- By topical application to reduce the pain of arthritic joints and soft tissues. - By topical application to the digital nerves into the foot to desensitise those nerves in horses with foot pain. - By topical application to the front of the leg(s) to produce a burning sensation to unduly sensitise the limb(s) to touching poles to make the horse more careful in its jumping efforts thus improving performance”.

The first two cases of application are prohibited by the Equine Prohibited List Annex III (Substances and Methods Prohibited In-Competition) as Prohibited Substances (Medication Class A) and would lead to a start prohibition for a horse having been treated in such a way. The third case would come under Prohibited Substances (Doping) as hypersensitising agent and would be regarded as an abuse of the horse.

The Appellant confirmed that he wished the preliminary hearing to be held, but he indicated that he did not wish to be present or represented at the identification and opening of the B Sample. The B Sample Analysis confirmed the presence of capsaicin.

On 21 August 2008 a preliminary hearing was held. The Appellant admitted that he used Equi-Block DT, which he considers a care product, “for many years on the back of the Horse behind the saddle. The only purpose for this was to warm-up the muscles to loosen up the horse. This is exactly the purpose such products for humans, as the above mentioned Dul-X cream are used”. The Appellant stated that he was of the opinion that the substance did not have a therapeutic effect and would therefore not come as Medication Class A under the EADMCR, but was legal, the more, since the product was also sold at all big events and very commonly used by riders.

The Appellant further argues that he felt strengthened in his opinion by the fact that the PAET undergone by the Horse did not show any Prohibited Substance. He admitted that the PAET was limited to certain substances. Considering the fact that “a care product is very commonly used among riders” the Appellant holds that “it was against the principle of good faith to apply a new test at the Olympic competition for the first time. This especially applies, if PAET is offered and this new test is not applied in PAET. Respondent and the laboratory knew in advance that the riders would step right into this trap”. The Appellant was confident that he fully complied with the EADMCR. “The positive test result was just a consequence of the fact that the laboratory applied a new analytical method with a much lower limit of detection than ever before the Olympic Games 2008 in Beijing”.

Based on the preliminary hearing of 21 August 2008, the Appellant was provisionally suspended until the final decision by the FEI Tribunal.

At the preliminary hearing, FEI’s veterinary, Dr. Paul Farrington, in the eyes of the Appellant considered the current matter as a medication offence rather than as a doping offence. He repeated this opinion during the hearing in this matter which took place at the FEI headquarters in Lausanne on 5 September 2008. In the hearing of 5 September 2008 the discussion focussed on the effects of Equi-Block DT, and on the quality of the test performed. In addition the competition schedule of the Appellant for the months of September and October 2008 together with his expectations of making prize money and other reasons why his participation at the competitions was deemed so important for the Appellant were discussed.

On 8 September 2008, the FEI Tribunal rendered the following Interim Decision: “a. The provisional suspension of the PR” (Person Responsible) “is not to be lifted and it will remain in effect until the Tribunal’s final decision is rendered in this case. b. The FEI is to provide the PR by the close of business on 9 September 2008 with items (h), (i) and (j) listed in section 3.2 (7) of the PR’s defence brief contained in a document dated 3 September 2008 and filed by PR’s counsel (the “Document Request List”). c. The PR accepted that responses and testimonies made at the Hearing or other arguments relating to the ability to receive evidence from other cases (which may be subject to confidentiality) no longer require FEI responses to items (f), (g), (k) and (l) on the Document Request List. …”.

On 12 September 2008, the Appellant upon request of the Respondent signed an “undertaking for Non- Disclosure of Confidential Information” and on 16 September 2008 received the internal laboratory documents. On 19 September 2008 the Appellant’s former counsel requested the Respondent to immediately lift the provisional suspension “based on the fact that the Laboratory had obviously violated the minimal scientific standards in the field of substance analysis”.

The Appellant, in his Statement of Appeal to CAS dated 23 September 2008, requested for relief: “1. That the preliminary decision of the FEI Tribunal of 21 August 2008 and the Decision of 8 September 2008 be annulled.

2. That Respondent be ordered to disclose the number of Horses tested at the Event and to disclose all the “Test Reports” the A and the B samples and all the “FEI Medication Control Forms” of all Horses tested at the Event. 3. That a neutral and scientifically reliable expert opinion about the test method and test procedure by a director of a WADA approved laboratory shall be obtained.

4. That Respondent be ordered not to impose provisional suspensions prior to a final decision by the FEI Tribunal in future cases of alleged offences against the Equine Anti-Doping and Medication Control Rules, unless in special circumstances.

5. That Respondent be ordered to publish the decision by the CAS including the reasons therein in the subsequent FEI-NewsLetter and the FEI-Bulletin.

6. That Respondent shall bear the costs of the arbitration and the legal costs of Appellant”.

Further to that, the Appellant raised the following procedural motion: “That the execution of the decision of 8 September 2008 and of the preliminary decision of the FEI Tribunal of 21 August 2008 be stayed, i.e. that the provisional suspension be lifted until a final decision by the FEI Tribunal”.

The Respondent in its Answer dated 29 September 2008 holds that no jurisdiction of the CAS is given to deal with the appeal of Mr Lynch. As far as the appeal refers to the FEI Preliminary Panel Decision of 21 August 2008, which ordered a provisional suspension of the Appellant until a final decision in this case, the Respondent argues that the CAS has jurisdiction to hear an appeal only if that decision is in violation of article 7.2 EADMCR. According to the Respondent the Appellant does not submit any arguments that the decision of 21 August 2008 was made in violation of article 7.2 EADMCR. The Respondent requests the CAS to declare the appeal against the decision of 21 August 2008 as inadmissible and to dismiss the appeal. Should the CAS hold that it has jurisdiction to hear an appeal against the 21 August 2008 decision, the Respondent argues that “the Statement of Appeal was not filed within the applicable time limit” and must therefore be declared inadmissible and must be dismissed. The 30 day time-limit ran from 21 August 2008 (day of receipt of the decision) until 20 September 2008 or until 22 September 2008, if extended until the first business day. According to the Respondent, it was irrelevant that 22 September 2008 was a local public holiday in Lausanne, because both articles 15.7 EADMCR and R32 CAS Code refer to official holidays or a non-business day “in the country where the notification has been made”. The local holiday in Lausanne was not an official public holiday in Switzerland.

As far as the appeal is directed against the FEI Interim Decision of 8 September 2008, the Respondent holds that it is an interim decision which does not set out that it can be appealed, in particular before the CAS. The Respondent states that since the decision of 8 September 2008 is a mere procedural interim order, the CAS has no jurisdiction to hear an appeal against that decision. Further to that the Respondent submits that the application for a stay of the provisional suspension of the Appellant shall be dismissed, because the appeal has no reasonable chance of success, the provisional suspension has a firm legal ground, is not disproportionate, there is no irreparable harm and no violation of the balance of interests. The Respondent shows optimistic that the FEI Final Decision in the case at hands can be made “in the very first days of October (at least in the week of 6 October 2008)”.

The Appellant in his Appeal Brief dated 3 October 2008, where he reacted to the arguments of the Respondent, repeated his arguments from the Statement of Appeal, but directed them against the provisional suspension, whereas he has focussed on the request for stay in his Statement of Appeal.

The Respondent in its Answer to the Appeal dated 27 October 2008 repeats its statement and arguments from 29 September 2008. It mentions that the FEI Tribunal made its final decision on the merits on 17 October 2008 and imposed a 3-month suspension together with a fine of CHF 1’750 and a contribution of CHF 2’000 towards the costs of the Respondent. The Final Decision made the Interim Decision entirely moot. Thus, the Respondent assumed that the Appellant would withdraw his appeal against the Interim Decision, since it lacks any object. Nevertheless, the Appellant continued his appeal which is deemed by the Respondent completely artificial, purposeless and without any foundation. The Respondent calls the appeal abusive.

The Respondent refers to the Order of the Deputy President of the CAS Appeals Arbitration Division of 29 September 2008, which was notified with grounds on 20 October 2008 and, in particular to the extract below for holding that the CAS has no jurisdiction to hear an appeal against the 21 August 2008 Decision: “Taking into consideration the FEI Rules, the Deputy President considers that the FEI Tribunal has provisionally suspended the Appellant based on an Adverse Analytical Finding from his horse’s A and B samples and in respect of articles 7.1.2 and 7.1.3 EADMCR … Considering that within his statement of appeal, the Appellant also criticises the FEI preliminary decision rendered on 21 August 2008 but did not allege that this decision was made in violation of article 7.2 EADMCR … The Deputy President further takes into account the procedural requirements of the CAS Code with respect to the filing of the appeal, in particular that the Appellant must have exhausted all the legal remedies available to him prior to appeal the challenged decision. Having considered all aspects of the parties’ submissions with respect to the Appellant’s request for stay, the Deputy President concludes that the FEI proceedings have not been completed yet. Additionally, the Deputy President finds that there is no violation of Article 7.2 EADMCR, which could have exceptionally allowed an appeal against the provisional suspension of the Appellant of 21 August 2008, since the final decision is expected to be rendered shortly by the FEI Tribunal. Based on the foregoing, the Deputy President is satisfied that on a prima facie basis CAS does not have jurisdiction to rule on the appeal”. Accordingly, the Deputy President does not further need to examine the above mentioned requirements specific to the CAS case law with respect to requests for stay as it appears that CAS does not have jurisdiction to rule on the application for provisional measures filed by the Appellant. …”.

The Respondent also refers to the Order of the Deputy President of the CAS Appeals Arbitration Division of 29 September 2008 for underlining that the FEI Tribunal’s Interim Decision of 8 September 2008 cannot be appealed to the CAS, because the FEI proceedings have not been completed yet at the moment when the appeal had been raised. Since the Final Decision has been made by the FEI Tribunal, the appeal in the opinion of the Respondent has no longer any object. The

relief sought by the Appellant to have the decision of 21 August 2008 annulled, has no longer any relevance.

With regard to the merits, the Respondent underlines that the provisional suspension rested on article 7.2 EADMCR, that it was allowed by article 7.5 World-Anti-Doping Code 2003 and is mandatory according to article 7.5 World Anti-Doping Code 2009 since 1 January 2009. There was no provision in the FEI General Regulations violated. The provisional suspension did also not violate any other law, provision or legal principle, it was also not disproportionate.

On 29 September 2008, and with grounds on 20 October 2008, the Deputy President of the CAS Appeals Arbitration Division dismissed the request of the Appellant of 23 September 2008 for provisional measures and ruled that the costs of this order shall be determined in the final award.

By letter dated 22 October 2008, in view of the final decision taken by the FEI Tribunal on 17 October 2008, the Respondent proposed to the Appellant to withdraw his appeal in order to avoid additional costs and set a deadline of 23 October 2008. There was no recorded reaction by the Appellant by this deadline, thus, the CAS Court Office continued the proceedings.

The CAS Panel formed on 21 November 2008 decided to feel sufficiently well informed without a hearing and found that a jurisdiction of the CAS is given exclusively on the basis of article 7.2 read together with article 12.2 FEI EADMCR. This jurisdiction is limited to decide the question, whether the legal grounds and/or procedure laid down by article 7.2 EADMCR have been violated by the Respondent when imposing the Provisional Suspension on the Appellant.

The Appellant in his letter dated 23 December 2008 objected the Panel reducing the legal review in the current matter on whether article 7.2 EADMCR has been violated. He only partly dealt with this issue, but preferred to concentrate on the question “does article 7.2 EADMC-R comply with the personal rights and public morality as well as the “ordre public” and the general principles of the law, such as equal treatment and proportionality, which also Respondent as an association under Swiss Law must respect according to CAS jurisdiction?”.

The Appellant argues in this letter that the autarchy of an association under Swiss law does not allow it to act arbitrary. He holds that the immediate suspension was arbitrary because it left to the Appellant only the choice of waiving his rights to defend himself properly and accepting an extension of his provisional suspension. It was further arbitrary because the immediate suspension makes the Appellant’s right to eliminate a sanction obsolete. The provisional suspension violates the Appellant’s right of economic liberty. Thus, according to the Appellant, the public morality and “ordre public” as well as the proportionality as a general principle of law have been violated. The Appellant requests the Panel to consider the fact that the FEI Rules limit the right to appeal “against such a serious encroachment into the athletes’ rights like a provisional suspension … a serious violation of the “ordre public””.

The Respondent in its letter dated 8 January 2009 pointed at the opportunity which has been given by the Panel to the Appellant for streamlining his arguments based on article 7.2 read together with article 12.2 EADMCR. The Respondent also pointed at the Order of the Deputy President of the CAS Appeals Arbitration Division which on a prima facie basis held that there was no jurisdiction of

the CAS to hear the appeal. In addition, the Respondent stated having demonstrated that the appeal was inadmissible due to the late filing of the Statement of Appeal. The Respondent finds that the Appellant has entirely missed the opportunity given by the Panel to demonstrate a breach of article 7.2 EADMCR. In the opinion of the Respondent, the Appellant mentioned this article, but did not argue a violation. Instead, the Appellant fought against provisional suspensions in general and in abstract and did not answer the question asked by the Panel.

The Respondent considers in its letter dated 8 January 2009 that the Appellant did not explain why the 21 August 2008 Decision was flawed and what condition of article 7.2 EADMCR has been violated. It proposed to the Panel to disregard the Appellant’s submission and “make its decision in dismissing the appeal for lack of jurisdiction”.

LAW

The Applicable Law

1. Pursuant to article R58 of the Code, the Panel shall decide the dispute according to the applicable rules and regulations. The applicable rules and regulations in the present case are the FEI Statutes, the FEI General Rules and the FEI EADMCR. According to article 34.3 FEI Statutes Swiss law is as the applicable law of the CAS in the absence of other rules.

Jurisdiction of the CAS

2. By letter dated 24 September 2008, the CAS Secretary General informed the Appellant that there is no jurisdiction of the CAS with regard to an appeal against the interim decision of the FEI Tribunal of 8 September 2008.

3. By Order of 29 September 2008, with reasons on 20 October 2008, the Deputy President of the Appeals Arbitration Division of the CAS held on a prima facie basis that there was no violation of article 7.2 EADMCR, which could have exceptionally allowed an appeal against the provisional suspension of the Appellant of 21 August 2008. The Deputy President, thus, was satisfied “that on a prima facie basis CAS does not have jurisdiction to rule on the appeal”.

4. Article 7.2 FEI EADMCR reads as follows: “The FEI may provisionally suspend a Person Responsible and/or his or her horse prior to the opportunity for a full hearing based on (i) an Adverse Analytical Finding from the A Sample or A and B Samples; (ii) the review described in Article 7.1.2; and (iii) the notification described in Article 7.1.3. If a Provisional Suspension is imposed at the discretion of the FEI, either the hearing in accordance with Article 8 shall be advanced to a date which avoids substantial prejudice to the Person Responsible, or the Person Responsible shall be given an

opportunity for a Provisional Hearing either before imposition of the Provisional Suspension or on a timely basis after imposition of the Provisional Suspension”.

5. Article 7.2 EADMCR refers to article 7.1.2 and 7.1.3 which read as follows: “7.1.2 Upon receipt of an A Sample Adverse Analytical Finding, the FEI Investigating Body shall conduct a review to determine whether: (a) an applicable ETUE has been granted, or (b) there is any apparent departure from the Testing procedures of the FEI Veterinary Regulations or the FEI Standard for Laboratories that undermines the validity of the Adverse Analytical Finding. 7.1.3 If the initial review under Article 7.1.2 does not reveal an applicable ETUE or departure from the Testing procedures in the FEI Veterinary Regulations or from the FEI Standard for Laboratories that undermines the validity of the Adverse Analytical Finding, the FEI shall promptly notify the Person Responsible of: (a) the Adverse Analytical Finding; (b) the rule violated; (c) the Person Responsible’s right to promptly request the analysis of the B Sample or, failing such request, that the B Sample analysis may be deemed waived; (d) the right of the Person Responsible and/or the Person Responsible’s representative to be present at the identification and opening of the B Sample if an analysis of the B Sample is requested; (e) the right of the Person Responsible to request copies of the A and B Sample laboratory reports; and (f) if applicable, the Person Responsible’s option to waive certain rights by accepting an administrative penalty”.

6. Articles 12.2 and 12.3 EADMCR read as follows: “12.2 Appeals from Decisions Regarding Anti-Doping and Medication Control Rule Violations, Consequences, and Provisional Suspensions A decision that (a) a rule violation was committed;(b) a decision imposing consequences for a rule violation; (c) a decision that no rule violation was committed; (d) a decision that the FEI or its National Federation lacks jurisdiction to rule on an alleged rule violation or its consequences; and (e) a decision to impose a Provisional Suspension in violation of Article 7.2 may be appealed exclusively as provided in this Article 12.2. Notwithstanding any other provision herein, the only Person that may appeal from a Provisional Suspension is the Person Responsible upon whom the Provisional Suspension is imposed. 12.2.1 In cases arising from competition in an International Event the decision may be appealed exclusively to the Court of Arbitration for Sport (“CAS”) in accordance with the provisions applicable before such court. Subject to these provisions, evidence that should have been readily available at the hearing held before the FEI Hearing Body and had not been presented to such Hearing Body shall be inadmissible on appeal. 12.2.2 In cases under Article 12.2.1, the following parties shall have the right to appeal to CAS: 12.3 Time for Filing Appeals The time to file an appeal to CAS shall be thirty (30) days from the date of dispatch of the decision to the appealing party…”.

7. The Panel refers to article R47 para 1 CAS Code which reads as follows: “Appeal An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body. …”.

8. The Preliminary Decision dated 21 August 2008 has been issued by the Preliminary Panel consisting of one member of the FEI Tribunal (Mr Erik Elstad). The Panel is considered as duly composed at the discretion of the Panel Chair according to article 10.2 Internal Regulations of the FEI Tribunal and acting as FEI Tribunal according to article 10.1 Internal Regulations of the FEI Tribunal and article 34 FEI Statutes.

9. Article 34 FEI Statutes reads as follows: “FEI Tribunal 34.1 Subject to Articles 34.2 and 34.4, the FEI Tribunal shall decide all cases submitted to it by or through the Secretary general, whether Appeals from or matters not otherwise under the jurisdiction of the Ground Jury or Appeal Committee. These cases may be: (i) Any infringement of the Statutes, General regulations, Sport Rules, or Procedural Regulations of the General Assembly or of violation of the common principles of behaviour, fairness, and accepted standards of sportsmanship, whether or not arising during a FEI meeting or Event; … 34.5 The FEI Tribunal shall issue Internal Regulations setting forth its organization and processes compatible with established principles of procedural fairness. …”.

10. Articles 10.1 and 10.2 Internal Regulations of the FEI Tribunal read as follows: “10.1 The FEI Legal Department shall nominate a panel of members of the Tribunal to adjudicate each single case referred to the Tribunal (the “Panel”). The Panel is appointed by the Tribunal Chair. 10.2 A Panel shall, ordinarily, be composed of three members of the Tribunal. One of them shall be nominated by the FEI Legal Department to act as Chairman of the Panel (the “Panel Chair”). The Tribunal Chair, or his designee, shall however, in any case and at his discretion, be entitled to appoint a Panel of such number as considered appropriate, up to a maximum of seven and a minimum of one provided each such Panel has an odd number of members (including the Panel Chair)”.

11. The CAS Panel, thus, finds that the Preliminary Decision dated 21 August 2008 is an FEI decision and therefore a decision of a federation in the understanding of article R47 para 1 CAS Code. Article 35 FEI Statutes read together with article 12.2 FEI EADMCR provide for the

exclusive jurisdiction of the CAS against such decision and fulfil the further requirements of article R47 para 1 CAS Code. Article 35 FEI Statutes reads as follows: “35.1 The Court of Arbitration for Sport (CAS) shall judge all Appeals properly submitted to it against Decisions of the FEI Tribunal, as provided in the Statutes and General Regulations. …”.

12. Article 12.2 EADMCR read together with articles 12.2.1 and 12.2.2 EADMCR leave no doubt that there is no internal remedy under FEI rules and regulations against a provisional suspension which the FEI Tribunal is competent to impose according to article 165 FEI General Regulations (“suspension of individuals and Horses for any period …”). The Appellant, thus, has exhausted the legal remedies available to him and has also met the deadline of 30 days according to article 12.3 EADMCR.

13. The Panel finds, however, that the CAS jurisdiction in the case of an appeal against a Provisional Suspension is limited by the text of article 12.2 EADMCR to the case of an alleged violation of article 7.2 EADMCR.

14. Article 7.2 EADMCR requires for a provisional suspension that an Adverse Analytical Finding from the A sample or A and B samples is given. From the Test Report of the Hong Kong Jockey Club Racing Laboratory dated 21 August 2008 it becomes clear that there was an Adverse Analytical Finding from the A sample for the presence of Capsaicin in the Horse when the provisional suspension was imposed and that this finding was the reason for imposing the provisional suspension.

15. Article 7.2 EADMCR by referring to article 7.1.2 EADMCR provides for a provisional suspension, further, that it can be based on a review of the FEI Investigating Body upon receipt of an A sample Adverse Analytical Finding that determined that no applicable TUE had been granted, and that no apparent departure from the Testing procedures of the FEI Veterinary Regulations, or from the FEI Standard for Laboratories, that undermines the validity of the Adverse Analytical Finding, has taken place. The parties did not provide the Panel with any indications that this review had not been done properly by the FEI Investigating Body which according to Appendix 1 to the EADMCR is a panel of at least three persons, from time to time designated by the FEI Secretary General composed of persons from the FEI Legal Department and the FEI Veterinary Department, under the chairmanship of the Head of the FEI Legal Department or his or her deputy. The factual background as established by the FEI Tribunal in its decision dated 17 October 2008 and not appealed from mentions that no request has been made for the use of capsaicin on the Horse and no medication form had been supplied for this substance.

16. The Appellant also does not argue any apparent departure from the Testing procedures of the FEI Veterinary Regulations or from the FEI Standard for Laboratories that undermines the validity of the Adverse Analytical Finding. He argues that the test method has flaws and that the “quality and reliability of the analysis method rests unclear, because the quality of validated reference material

is not proven”. The Appellant holds in general that “the FEI laboratories apply different rules on the burden of proof and for establishing the presence of the substance than WADA laboratories” and that they “apply less strict quality rules than the WADA laboratories”. All these and further arguments of the Appellant with regard to the test method relate to the details of the applied test method(s) and as such to the FEI Veterinary Regulations as well as the FEI Standard for Laboratories themselves, but do not contain any indication of “an apparent departure” from these regulations. Thus, the Panel finds that also the second requirement of article 7.2 EADMCR has been fulfilled.

17. Finally, article 7.2 EADMCR requires that a notification as prescribed by article 7.1.3 EADMCR took place. The applicable rules for the 2008 Beijing Olympic Games which have been notified to the Appellant show that article 7.1.3 EADMCR has been partly overruled by Annex G (Accelerated Medication Control Procedure during & after the 2008 Olympic Games). This accelerated procedure made a B sample analysis mandatory and accelerated the analysis and reporting procedure. The Panel could establish, therefore, that the requirements of article 7.1.3 lit a – d EADMCR have been fulfilled. The requirement of lit f (“if applicable, the Person Responsible’s option to waive certain rights by accepting an administrative penalty”) was not applicable during the 2008 Olympic Games in Beijing and, thus, was not to be considered. The requirement of lit e (“the right of the Person Responsible to request copies of the A and B Sample laboratory reports”) was replaced by article 3 read together with article 2.3 of Annex G (Accelerated Medication Control Procedure during & after the 2008 Olympic Games). Apart from this, the facts as described by the Appellant in his Statement of Appeal and Appeal Brief show, that the Appellant was fully aware of his rights under Annex G seen in the context of articles 7.1.3 and 7.2 EADMCR. In his letter dated 3 September 2008, the Appellant referring to Annex G, article 4.1, asked, inter alia, for “Entire data on the A sample testing (if data submitted on 27 August was not complete)” and for “Entire data on B sample testing (if data submitted on 27 August was not complete)”. Even if the notification should have had to inform the Appellant of his right to request copies according to article 7.1.3 lit e expressly this defect had perfectly been cured.

18. The Panel, therefore, finds that no violation of article 7.2 EADMCR took place.

19. The Appellant having been asked to streamline its arguments from the Statement of Appeal and Appeal Brief in order to answer the question whether he holds that there was such violation argued no such violation, but submitted on 23 December 2008 that the CAS jurisdiction cannot be understood as restricted to a review whether article 7.2 EADMCR has been violated. According to the Appellant the CAS Panel is also bound to address whether article 7.2 EADMCR complies “with the personal rights and public morality as well as the “ordre public” and the general principles of the law, such as equal treatment and proportionality, which also Respondent as an association under Swiss Law must respect according to the CAS jurisdiction”.

20. The Panel holds that, indeed, based on chapter 12 of the Switzerland’s Code on Private International Law and, in particular, its articles 182 and 190 as applied by the Swiss Federal Supreme Court a CAS award can be appealed before the Swiss Federal Supreme Court when it violates Swiss “ordre public” (public policy). The Swiss Federal Supreme Court has developed a jurisprudence to confirm arbitration awards rendered by arbitration courts as e.g. the CAS as

final and binding, as long as such decisions comply amongst other with the procedural and the material “ordre public”.

21. By decision of 21 February 2008 (decision 4A.370/2007) the Swiss Federal Supreme Court has defined the “ordre public” as follows (para 5.1): “5.1 Une sentence est incompatible avec l’ordre public si elle méconnaît les valeurs essentielles et largement reconnues qui, selon les conceptions prévalent en Suisse, devraient constituer le fondement de tout ordre juridique. … On distingue un ordre public matériel et un ordre public procédural. Dans sa jurisprudence la plus récente, le Tribunal fédéral a donné de cette double notion la définition rappelée ci-après …. L’ordre public procédural garantit aux parties le droit à un jugement indépendant sur les conclusions et l’état de fait soumis au Tribunal arbitral d’une manière conforme au droit de procédure applicable; il y a violation de l’ordre public procédural lorsque des principes fondamentaux et généralement reconnus ont été violés, ce qui conduit à une contradiction insupportable avec le sentiment de la justice, de telle sorte que la décision apparaît incompatible avec les valeurs reconnues dans un Etat de droit. Une sentence est contraire à l’ordre public matériel lorsqu’elle viole des principes fondamentaux du droit de fond au point de ne plus être conciliable avec l’ordre juridique et le système de valeurs déterminants; au nombre de ces principes figurant, notamment, la fidélité contractuelle, le respect des règles de la bonne foi, l’interdiction de l’abus de droit, la prohibition des mesures discriminatoires ou spoliatrices, ainsi que la protection des personnes civilement incapables”.

22. The Appellant in his letter dated 23 December 2008 considers the measure of “Provisional Suspension” as arbitrary, as well as a violation of personal rights, public morality, “ordre public”, economic liberty and the general principles of the law, such as equal treatment and proportionality. The Appellant holds that the provisional suspension causes substantial prejudice in most of the cases. The Respondent is held correct by the Panel in pointing at article 7.5 World Anti-Doping Code 2003 which authorised the international sport federations to introduce a “Provisional Suspension”. Under the revised World-Anti-Doping Code 2009, which entered into force on 1 January 2009, the provisional suspension became mandatory. The Respondent lists 18 international sports federations, which had introduced the provisional suspension under the World Anti-Doping Code 2003 and lists also 8 CAS cases, where the CAS dealt with provisional suspensions without having found or even addressed that this measure might violate Swiss law and the autarchy of an international federation under Swiss law.

23. The Panel finds that, indeed, the arguments raised by the Appellant, if at all, could be discussed relating to a final sanction, but not with regard to a provisional suspension which is primarily motivated by the needs of an international federation to suspend an athlete from further participation at competitions and events pending a sanction in order to guarantee a smooth functioning of the sport. In this period of suspension, the participation of such an athlete would have an impact on a level play ground between athletes and would cause turmoil in start and result as well as ranking lists, once the final sanction will have entered into effect. Since in general and also in particular in the case at hand the provisional suspension period (57 days until receipt of the final decision) is less than the period of final sanction (92 days) and is credited against it does not cause substantial prejudice. The Panel, thus, does not see any specific facts or particulars based on the arguments of the Appellant that could give rise to finding a violation

of the procedural or material “ordre public” in the understanding of the Swiss Federal Supreme Court.

24. The Panel, thus, rules that it has no jurisdiction because there was neither a violation of article 7.2 EADMCR nor a violation of the Swiss material or procedural “ordre public”.

25. Given this result, it is of no legal relevance in this matter that the Panel finds that the deadline of 30 days according to article 12.3 EADMCR read together with articles R49 and R 32 para 1 CAS Code and article 15.7 EADMCR has been met.

26. Article 15.7 EADMCR which fully reflects the text of article 32 para 1 CAS Code reads as follows: “The time limits fixed under the present Rules shall begin from the day after that on which notification by the FEI is received. Official holidays and non-working days are included in the calculation of time limits. The time limits fixed under the present Rules are respected if the communications by the parties are sent before midnight on the last day on which such time limits expire. If the last day of the time limit is an official holiday or a non- business day in the country where the notification has been made, the time limit shall expire at the end of the first subsequent business day”.

27. In adjudicating whether 22 September 2008, which was a holiday in Lausanne, but not generally in Switzerland is to be considered “an official holiday or a non-business day in the country where the notification has been made”, the Panel, based on standing CAS jurisprudence (see reference at RIGOZZI A., L’arbitrage international en matière de sport, Helbing & Lichtenhahn, 2005, para 1034) feels bound to apply Swiss civil procedural law (articles 32 – 34 OJ before 2007 and article 45 Law on the Swiss Federal Court since 2007). Article 32 OJ and article 45 Law on the Swiss Federal Court determine an official holiday according to the law of the canton, where the parties need to act/have their seat (see HOHL F., Procédure civile, Tome II, Organisation judiciaire, compétence, procédures et voies de recours, Ed. Staempfli, 2002, number 2109). Thus, the deadline was prolonged by the holiday in Lausanne, which was a cantonal holiday in the Canton of Waadt, until 23 September 2008.

The Court of Arbitration for Sport rules:

1. The CAS has no jurisdiction to rule on the appeal filed by Mr Denis Lynch on 23 September 2008 against the provisional suspension imposed by the FEI Tribunal on 21 August 2008.

(…)

4. Any and all other prayers for relief are dismissed.