Aino-Kaisa Saarinen, Finnish Ski Association (FSA) v. Fédération Internationale de Ski (FIS)

Arbitration CAS 2010/A/2090 Finnish Ski Association & Aino-Kaisa Saarinen v. Fédération Internationale de Ski (FIS), decision on a petition for challenge of 14 June 2010

Cross-country skiing Challenge of an arbitrator Grounds for challenge Participation of an arbitrator in a similar case involving similar parties

1. There are no absolute grounds for challenge. An arbitrator’s independence must be assessed according to the “circumstances” of the case, and thus not on the basis of general or subjective assumptions which are not objectively verified in the case in hand.

2. The participation of an arbitrator in a similar case involving similar parties does not per se jeopardize in any way his independence towards the parties involved in the case and does not create any conflict of interest.

The Finnish Ski Association (the “Appellant 1”) is a member of the International Ski Federation (FIS).

Ms Aino-Kaisa Saarinen (the “Appellant 2”) is a Finnish cross-country competitor and member of the Finnish Ski Cross-country team.

The International Ski Federation (FIS, the “Respondent”) is the international sports federation governing the sport of skiing worldwide. FIS is an association incorporated and existing under the laws of Switzerland. It has its seat in Oberhofen, Switzerland.

On 1 April 2010, the Appellants filed a statement of appeal with the Court of Arbitration for Sport (CAS) against a decision issued on 5 March 2010 by the FIS Court, whereby it confirmed the disqualification imposed on Ms Aino-Kaisa Saarinen by the FIS Appeals Commission.

In their statement of appeal the Appellants appointed Mr Olli Rauste, attorney-at-law in S-Ryhmä, Finland, as an arbitrator in this case.

The statement of appeal was sent to the Respondent by letter dated 7 April 2010.

By letter dated 15 April 2010, the Respondent appointed Mr John Faylor, attorney-at-law in Frankfurt, Germany. Within this letter, the Respondent advised the CAS Court Office “that this

nomination is challenged because Mr Rauste acted as counsel of an athlete in a doping case in which the FIS was the sanctioning party”.

Along with such letter, the Respondent joined a letter for the attention of the ICAS informing it about the request for challenge Mr Olli Rauste “because there are circumstances which give rise to legitimate doubts over Mr Rauste’s independence. In the year 2003, Mr Rauste represented Ms Kaisa Varis as a counsel in a doping case managed by FIS. As a result, a period of two years of ineligibility of the athlete was imposed by the FIS”.

By letter of 16 April 2010, the CAS Court Office acknowledged receipt of the Respondent’s letter and invited the Appellants to submit their observations with respect to such request for challenge by 23 April 2010.

On 22 April 2010, the Appellants stated that “It should be firstly noted that the Respondent has not referred to any procedural basis or provided any other specific grounds for his challenge of the nomination of Mr. Rauste as the arbitrator of the Appellants. The possible grounds for removal of a CAS arbitrator nominated by a party are Article S18 and Article R34 of the Procedural Rules of the CAS. According to Article S18, CAS arbitrators may not act as counsel for a party before the CAS. If a CAS arbitrator nevertheless acts as counsel before the CAS, the International Council of Arbitration for Sport (hereinafter referred as the “ICAS”) will have the power to take particular measures towards him with respect to his function as arbitrator. However, it should be noted that Article S18 came into force on 1 October 2009 and before the said date there was no such restriction in the Procedural Rules of the CAS. Mr Rauste acted as counsel of an athlete before the CAS in a matter in which the award was submitted by the CAS on 13 March 2009, thus before the above mentioned Article S18 came effective. Therefore Mr. Rauste’s nomination cannot be challenged on the basis of Article S18 of the Procedural Rules of the CAS. Furthermore, according to Article R34 of the Procedural Rules of the CAS, an arbitrator may be challenged if the circumstances give legitimate doubts over the independence of the arbitrator. According to Article R33 of the Procedural Rules of the CAS every arbitrator shall be and remain independent of the parties and shall immediately disclose any circumstances likely to affect his independence with respect to any of the parties. Mr. Rauste is not and has not been in connection with the Appellants or communicated with the Appellants in a way that would lessen his independence towards the Appellants. The fact, that Mr. Rauste has acted as a counsel in a matter in which the Respondent was the sanctioning party, does not lessen his independence towards the Respondent (or the Appellants). It should be noted that neither the Finnish Ski Association nor Ms. Aino-Kaisa Saarinen was a party in the case the Respondent refers to in his challenge letter”.

By letter dated 26 April 2010 the CAS Court Office acknowledged receipt of the Appellants’ letter and informed the parties that the request for challenge and the Appellants ’comment would be transferred to the ICAS for decision.

On 27 April 2010, Mr Olli Rauste sent his comments to the CAS Court Office, whereby he explained his role in assisting Ms Varis in a disciplinary procedure before the Finnish Ski Association in 2003. In this procedure, his assistance to Ms Varis was “limited to some telephone conversations with her and her coach, some emails to the laboratory and to the FIS without receiving any answer (other than the message that Ms Lewis was in Holmenkollen), one negotiation with Ms. Varis and her coach and my

participation together with her in the one hour hearing before the Finnish Ski Association. I did not write any written submissions or any other documents on behalf of Ms. Varis”. He further stated that the facts on which the FIS based its request for challenge, according to the Finnish jurisprudence, “would not endanger my independence towards the FIS for the following reasons: Although the doping control made to Ms. Varis in 2003 was organised by the FIS, the disciplinary proceeding where I was involved was conducted by and the sanction was imposed by the Finnish Ski Association. The FIS did not have any role in that proceeding. I personally was not in any contact with the FIS, the exception that after receiving no answer from the laboratory to my requests regarding the A sample documentation, I tried to contact the FIS, but without any success. In Finland the doctrine of public enemy is applied. If it were to be known that I would treat the FIS as my public enemy, I could not act as an arbitrator in a case where the FIS is a party. To my understanding, the circumstances described above cannot be understood so that the FIS were my public enemy. Much more would be required than some unsuccessful attempts to contact the FIS in a single doping case seven years ago. It must also be recognized that the Finnish Ski Association has decided to appoint me as an arbitrator. If the Finnish Ski Association does not see any problems in appointing me, then how could the FIS do so, when in the case of Ms. Varis in 2003 the Finnish Ski Association was the body organising the disciplinary proceeding and imposing the sanction on Ms. Varis. For the above reasons, I personally do not see any reasons for legitimate doubts over my independence with regard to the FIS. If however, the ICAS were to evaluate the circumstances otherwise, I will of course honour their decision”.

On 5 May 2010, Mr John Faylor made the following observations: “In view of the fact that Mr. Rauste represented the Appellant in a 2003 FIS doping case, I would have serious reservations regarding Mr. Rauste’s independence if he were now to act as a member of the Panel in a case now to be decided by CAS in a matter involving the same athlete against FIS”.

LAW

1. Article R34 of the Code of Sports-related Arbitration (CAS Code) provides: “An arbitrator may be challenged if the circumstances give rise to legitimate doubts over his independence. The challenge shall be brought within 7 days after the ground for the challenge has become known. Challenges are in the exclusive power of the ICAS Board which may decide at its discretion to refer a case to the ICAS. The petition setting forth the facts giving rise to the challenge shall be lodged by a party. The ICAS Board or the ICAS shall rule on the challenge after the other party (-ies), the challenged arbitrator and the other arbitrators have been invited to submit written comments. The ICAS Board or the ICAS shall give reasons for its decision and may decide to publish it”.

2. Article S18 of the Code provides: “The personalities who appear on the list of arbitrators may be called upon to serve on Panels constituted by either of the CAS Divisions. Upon their appointment, the CAS arbitrators and mediators sign a declaration undertaking to exercise their functions personally with total objectivity and independence, and in conformity with the provisions of this Code. CAS arbitrators and mediators may not act as counsels for a party before the CAS”.

3. Article 180 of the Swiss Federal Code on Private International Law (the “PIL Act”), provides: “1. An arbitrator may be challenged: a. if he does not possess the qualifications agreed upon by the parties; b. if there exist grounds for challenge in the rules of arbitration adopted by the parties; or c. if the circumstances permit legitimate doubt about his independence. 2. A party may challenge an arbitrator whom he nominated or in whose appointment he participated only on information discovered after the appointment. The arbitral tribunal and the other party must be informed immediately of the grounds for the challenge. 3. In the event of a dispute and if the parties have not agreed upon the procedures for challenge, the judge at the seat of the arbitral tribunal shall make the final decision”.

4. In the present case, the Respondent, has raised the following grounds upon which it seeks to challenge the independence of Mr Olli Rauste: (i) Lack of Independence and impartiality – based upon Mr Olli Rauste’s involvement as a legal counsel for another Finnish athlete, Ms Kaisa Varis, in a previous procedure before the Finnish Ski Association several years ago.

5. The purported ground upon which the Respondent seeks to challenge the appointment of Mr Olli Rauste is based on the alleged lack of independence and impartiality. The requirement of independence so embodied in the PIL Act is based essentially on the decisions of the Swiss Federal Tribunal (TF) in relation to art. 30 al. 1 of the Federal Constitution (cf. Swiss legal compilation RS 101), and art. 19 of the Intercantonal Arbitration Convention, which was the law applicable prior to the entry into force of the PIL Act (see decision of the Swiss Federal Tribunal [“ATF”] 118 II 361; PATOCCHI/GEISINGER, Code DIP annoté, Lausanne 1995, p. 455; BUCHER/TSCHANZ, International Arbitration in Switzerland, Basle 1988, n. 123; MULLER C., International Arbitration, A Guide to the Complete Swiss Case Law (Unreported and Reported), Zurich et al. 2004, p. 73).

6. In fact, there are no absolute grounds for challenge (see ATF 129 III 445 [466]; MULLER, op. cit., p. 75; KAUFMANN-KOHLER/RIGOZZI, Arbitrage international, Droit et pratique à la lumière de la LDIP, Bern et al. 2006, p. 130; LALIVE/POUDRET/REYMOND, Le droit de l’arbitrage interne et international en Suisse, Lausanne 1989, ad art. 180 n. 5). Art. 180 para. 1 lit. c) PIL Act provides that an arbitrator’s independence must be assessed according to the “circumstances” of the case, and thus not on the basis of general or subjective assumptions which are not objectively verified in the case in hand. “The purely subjective impression of a party

cannot be taken into account. On the contrary, the mistrust with regard to partiality has to appear as objectively founded. Therefore, such a subjective impression can only be taken into account if it is based on concrete facts and if these facts are by themselves susceptible to justify objectively and reasonably such an impression by a person acting normally” (MULLER, op. cit., p. 74; BERGER/KELLERHALS, Internationale und interne Schiedsgerichtsbarkeit in der Schweiz, Bern 2006, p. 282; LALIVE/POUDRET/REYMOND, op. cit., ad art. 180 n. 5; PATTOCHI/GEISINGER, op. cit., p. 455; RÜEDE/HADENFELDT, Schweizerisches Schiedsgerichtsrecht, Zurich 1993, p. 176; ATF

7. In first place it has to be stressed that, as already confirmed by the ICAS in previous decisions (see Challenge Order CAS 2008/A/1644), the participation of an arbitrator in a similar case involving similar parties does not per se “jeopardize in any way his independence towards the parties involved in the case and does not create any conflict of interest”. In accordance to that, and also considering the case at stake and the request for challenge brought forward by the FIS, the ICAS Board considers that, in view of the comments provided by Mr Olli Rauste, his participation as a counsel for Ms Varis in a previous proceeding before the Finnish Ski Association in 2003 had no implications on his independence and on the evaluation of the case at hand.

8. In the “Varis case”, Mr Rauste represented the athlete Kaisa Varis against the Finnish ski Association in a doping dispute related to the sport of biathlon, where the FIS was not involved. In the present case, the athlete in question is not the same as the one in the proceedings alleged in the request for challenge. Furthermore, the present arbitration CAS 2010/A/2090 is not related to a doping case. Finally, contrary to the opinion of the applicant, Article S18 in the new version of the Code, which prohibits the double mandate of an arbitrator and counsel, entered into force on 1 January 2010 and does not have a retroactive effect. In any event, such provision does not give any particular right to a party to request the removal of an arbitrator.

9. The ICAS Board therefore concludes that the petition filed by the Respondent, challenging the appointment of Mr Olli Rauste as member of the Panel in the present arbitration, must be rejected.

The Board of the International Council of Arbitration for Sport hereby rules:

1. The petition for challenge to the appointment of Mr Olli Rauste as arbitrator, filed on 15 April 2010 by the FIS, is rejected.

2. The present decision is pronounced without costs.

3. The present decision is not subject to appeal.