Thibaut Fauconnet, International Skating Union (ISU) v. International Skating Union (ISU), Thibaut Fauconnet

Arbitration CAS 2011/A/2615 Thibaut Fauconnet v. International Skating Union (ISU) & CAS 2011/A/2618 International Skating Union (ISU) v. Thibaut Fauconnet, order of 28 November 2011

Short track speed skating Stay of the decision Irreparable harm

It is not sufficient that a professional athlete is prevented from competing in sports events to justify a stay in itself. However, it must be admitted that if the athlete would not be able to take part in the next World cups competitions, and thus be excluded from all the world championships of the 2011-2012 season, because the challenged decision is not stayed, then the athlete would suffer irreparable harm.

In view of the decision issued by the ISU Disciplinary Commission on 10 October 2011 and by which Mr Thibaut Fauconnet was inter alia imposed a 18 month period of ineligibility, beginning on 27 December 2010;

In view of the statement of appeal filed on 21 October 2011 by Mr Thibaut Fauconnet against this decision;

In view of the statement of appeal, which shall be considered as appeal brief, filed on 31 October 2011 by the ISU against the same decision;

In view of the request for stay filed by Mr Thibaut Fauconnet within his statement of appeal arguing, inter alia, that i) the chances of success of his appeal are high, since he has established how the prohibited substance entered his body; ii) he has suffered a considerable harm, since he already missed two world cups, which are important competitions in view of a potential selection for the next Olympic Winter Games 2014; and finally iii) considering the unfounded legal foundation of the challenged decision, Mr Thibaut Fauconnet’s interests are clearly outweighing the ones from the ISU;

In view of the letter sent on 23 November 2011 by Counsel for Mr Thibaut Fauconnet, whereby he insisted to have in a short deadline a decision on provisional measures and reminding Mr Fauconnet’s sports career will be “definitely damaged” in the event he would also be excluded from the two next World cup competitions of 2-4 and 9-11 December 2011, since “in this case, Mister Fauconnet will have been excluded from all the world championships of the season 2011-2012, and his world rating will be permanently affected. Even if his appeal succeeds, the permanent sport prejudice will be extremely important, and it will be very difficult to recover, even if he asks for a financial compensation”;

Thibaut Fauconnet v. ISU ISU v. Thibaut Fauconnet, order of 28 November 2011

In view of the observations filed by Counsel for the ISU on 24 November 2011, namely i) that Mr Fauconnet’s appeal is unlikely to succeed, since even if the Athlete did not contest having committed an anti-doping rule violation but rather challenged the sanction imposed on him, such sanction was applied in accordance with the Anti-doping rules of the ISU; ii) does not contest that “in case the Appellant should prevail after all, there is a risk of irreparable harm in the sense that due to the currently running suspension period he might miss to participate in competitions which can, by the nature of the things, not be made undone”; iii) however, in the event the suspensive effect should be granted and the challenged decision would be confirmed at the end of these proceedings, “the end of the suspension period will by necessity be after the date according to the appealed decision. This might, especially in view of the 2014 Sotchi Olmypic Winter Games, be to the detriment of Appellant”; and concluded iv) that it will left it to the CAS to decide the outcome of the balance of interests between the parties;

LAW

1. In view of Article 183 of the Swiss Private International Law Act, according to which an international arbitral tribunal sitting in Switzerland is empowered to order provisional or conservatory measures at the request of one party;

2. In view of Article R37 of the Code of Sports-related Arbitration (hereafter “the Code”) that expressly entitles the President of the CAS Appeals Arbitration Division, or his Deputy, (the “Deputy President”) to decide on an application for provisional measures;

3. In view of Article R47 of the Code as well as of Article 24 para. 12 and Article 25 of the ISU Statues;

4. In view of CAS jurisprudence, according to which, as a general rule, when deciding whether to grant a provisional measure, CAS considers the three below mentioned factors that are, in (a) whether the measure is useful to protect the applicant from irreparable harm (“irreparable harm” test): “The Appellant must demonstrate that the requested measures are necessary in order to protect his position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage” (CAS 2010/A/2113 and quoted references). (b) whether the action is not deprived of any chance of success on the merits (“likelihood of success” test): “The Appellant must make at least a plausible case that the facts relied upon by him and the rights which he seeks to enforce exist and that the material criteria for a cause of action are fulfilled” (CAS 2010/A/2113 and quoted references). (c) whether the interests of the applicant outweigh those of the opposite party and of third parties (“balance of interest” test): “It is then necessary to compare the disadvantage to the

Thibaut Fauconnet v. ISU ISU v. Thibaut Fauconnet, order of 28 November 2011

Appellant of immediate execution of the decision with the disadvantages for the Respondent in being deprived such execution” (CAS 2010/A/2113 and quoted references).

5. Considering that prima facie CAS jurisdiction results in casu from Article R47 of the Code as well as from Article 24 para. 12 and Article 25 of the ISU Statutes;

Irreparable harm

6. Considering that according to the jurisprudence of the Swiss Federal Tribunal, there is irreparable harm when a final decision, even favourable to the applicant, would not completely remedy such harm (see ATF 126 I 207). The Swiss doctrine considers that “the conservatory measure shall avoid a damage which shall be difficult to remedy if it was not ordered immediately” (see HOHL F., Procédure civile, T. II, Berne 2002, p. 234).

7. Considering that in principle, according to CAS’ case law, it is not sufficient that a professional athlete is prevented from competing in sports events to justify a stay in itself (CAS

8. Considering however that the ISU did not contest that in the event Mr Fauconnet would prevail in his appeal and cannot participate in the next World cups which will take part on 2-4 and 9- 11 December 2011, he would suffer an irreparable harm;

9. Considering that the Applicant would definitely suffer irreparable harm if the challenged decision is not stayed, as he would not be able to take part in the next World cups competitions and thus excluding from all the world championships of the 2011-2012 season;

10. The Deputy President considers therefore that the first criterion, i.e. whether the measure is useful to protect the Applicant from substantial damage would be difficult to remedy at a later stage, is met in the present case;

Likelihood of success of the appeal

11. Considering that, on a prima facie basis, the Deputy President is of the view that the Applicant makes at least plausible case that the facts relied upon by him and the rights which he seeks to enforce exist and that the material criteria for a cause of action are fulfilled;

Thibaut Fauconnet v. ISU ISU v. Thibaut Fauconnet, order of 28 November 2011

Balance of interests

12. Considering that Mr Fauconnet’s risk of damage to which he may be exposed, i.e. not being able to participate in the next two World Cups of the 2011-2012 season outweighs the interests of ISU;

13. Considering the above, the Deputy President deems that Mr Thibaut Fauconnet’s request for a stay shall be granted.

The Deputy President of the CAS Appeals Arbitration Division hereby rules:

The request for a stay filed by Mr Thibaut Fauconnet on 21 October 2011 is granted.