CAS 2013/A/3055-IA

Riis Cycling A/S v. Union Cycliste Internationale (UCI)

June 17, 2013English57 min

Arbitration CAS 2013/A/3055 Riis Cycling A/S v. the Licence Commission of the Union Cycliste Internationale (UCI), preliminary award on jurisdiction and admissibility of 17 June

Panel: Prof. Ulrich Haas (Germany), President; Mr Michele Bernasconi (Switzerland); Mr Georg von Segesser (Switzerland)

Cycling Disciplinary sanction Formal validity of the arbitration agreement Scope of the arbitration clause Interpretation of an arbitration clause Subject matter of the Appeals arbitration procedure Legal interest Waiver of the legal interest

1. As a matter of principle, consent to arbitrate is not sufficient to render the arbitration agreement binding between the parties. Article 178 para. 1 PILA, which governs the formal validity of the arbitration agreement, states that an arbitration agreement is only valid if it is made in writing, by telegram, telex, telecopier, or any other means of communication that establishes the terms of the agreement by text. However, if the only issue that is contested is whether the arbitration clause contained in the applicable regulations covers the dispute at hand, the hearing body is not forced to examine the formal validity of the arbitration agreement.

2. The scope of the arbitration clause must be assessed by interpretation. The law governing the interpretation of an arbitration clause follows from Article 178 para. 2 of the PILA. According thereto, the law applicable to the interpretation of the arbitration agreement is – inter alia – Swiss law. In relation to the determination of the scope ratione materiae of an arbitration agreement, absent any indications to the contrary, a broad interpretation should be followed.

3. Even though the legal character of an arbitration agreement is procedural in nature, the same principles of interpretation apply to arbitration agreements as to ordinary contracts. To determine if there was an agreement between the parties, one must first seek their true and common intention (art. 18 para. 1 CO). The judge must therefore first establish the true will of the parties. If he cannot establish the true will or he finds that one of the parties did not understand the true will expressed by the other party, the judge will seek the meaning that the parties could and should have given to their respective declarations in accordance with the rules of good faith. According thereto, the agreement is given the meaning that any reasonable person would give to the wording in question, taking into account all other relevant circumstances of the case.

4. The provisions of the Appeals Arbitration Procedure are only applicable to disputes in which the subject matter deals with an appeal against a decision. In principle, for this prerequisite to be fulfilled, it suffices that the appellant alleges that there is a decision the legality of which is contested. Whether in fact the act of the sports body in question constitutes a “decision” capable of being appealed (i.e. being set aside or declared null and void) is a question on the merits and not of admissibility.

5. Article 59 para 2 lit. a of the Swiss Code of Civil Procedure requires as a condition of admissibility of a claim that a party initiating the proceedings is vested with a legal interest. The threshold for meeting this condition is rather low. In cases where the action is aimed at enforcing a right, a legal interest is generally accepted, but not in cases in which the filing of the claim amounts to an abuse of rights. A party lacks sufficient legal interests if its requests are aimed at resolving abstract legal questions, rather than a specific dispute in an individual case or if the goal pursued with a particular request can be achieved in a more efficient manner through some other request.

6. In cases of unequal bargaining power, the stronger party cannot force upon the weaker party a waiver to seek judicial redress with a court or an arbitral tribunal. Such a (forced) waiver of access to justice would lack the required voluntariness to stand up before Article 6 para. 1 of the European Convention of Human Rights.

1 THE PARTIES

1.1 Riis Cycling A/S (hereinafter referred to as “Appellant” or “Riis”) is a Danish company that owns a professional cycling team currently named Team Saxo-Tinkoff.

1.2 The Union Cycliste Internationale (hereinafter referred to as the “Respondent” or “UCI”) is an association under Articles 60 et seq. of the Swiss Civil Code (hereinafter referred to as “CC”), having its seat in Aigle, Switzerland. It is the governing international body of the sport of cycling. The Licence Commission (hereinafter referred to as “LC”) is a commission of the International Cycling Union (UCI) whose task it is to issue licences for the participation in the major international cycling competitions.

1.3 Abarca Sports SL is a Spanish company that owns a professional cycling team named Movistar Team and is supporting Riis in this matter.

2 FACTS

2.1 The circumstances stated below are a summary of the main relevant facts, as submitted by the parties in their written pleadings. Additional facts may be set out, where relevant, in connection with the legal discussion which follows.

2.2 In 2004, the UCI created a system under which the teams of professional riders need to obtain a licence or a registration to compete at international and national level. More specifically as to the international level, the UCI Cycling Regulations (hereinafter referred to as the “Regulations”) currently provide for a licence (hereinafter referred to as the “WorldTour licence”: Articles 2.15.001 to 2.15.267 of the Regulations) to take part in the UCI World Tour events, which include the major international competitions (such as the Tour de France, the Giro d’Italia, etc.), and a registration (hereinafter referred to as the “Professional Continental registration”: Articles 2.16.001 to 2.16.054) to participate in the Professional Continental circuit (comprising races of the various continental calendars). In order to obtain a WorldTour licence or a Professional Continental registration, teams need to satisfy sporting, ethical, financial and administrative criteria (Article 2.15.011). The continued fulfilment of the same criteria is verified every year, as teams holding a WorldTour licence or a Professional Continental registration have to register again for the following season.

2.3 The UCI WorldTour and WorldTour licences are regulated in Chapter XV in Part II of the Regulations. The relevant sections are as follows:

“[…] § 1 UCI WorldTour 2.15.001 In the UCI WorldTour a number of high level professional cycling teams holding UCI WorldTour licences compete in a series of high level road events the organisers of which hold a UCI WorldTour licence. 2.15.002 The UCI is the exclusive owner of the UCI WorldTour concept and trademark, without prejudice to the exclusive ownership rights of the organisers.

§ 2 UCI WorldTour Licence 2.15.003 The UCI WorldTour licence is the right conferred by the UCI to take part in the UCI WorldTour, either with a team of professional riders, known as a "UCI ProTeam", or as organiser of a given event. 2.15.004 A UCI WorldTour licence may be issued to a physical person or to a body such as an association, company or public authority. 2.15.005 Applications for UCI WorldTour licences are examined and licences issued by the UCI licence commission. 2.15.006 By applying for a licence, the applicant acknowledges that the UCI alone has the right to issue UCI WorldTour licences and undertakes not to participate in cycle sport competitions, formulas or organisations other than those governed by the UCI's regulations and authorities.

2.15.007 The application for a licence shall imply the applicant's acceptance of the rules and conditions governing the UCI WorldTour and the UCI's regulations in general. […]

§ 3 UCI WorldTour Team Licence […] Application for a licence 2.15.009 A maximum of 18 UCI WorldTour team licences may be issued, where applicable, in accordance with the geographic distribution determined by the Professional Cycling Council. 2.15.010 A licence may be issued to an applicant fulfilling all the conditions set out in the regulations. 2.15.011 The licence commission awards licences on the basis of the following criteria: • sporting • ethical • financial • administrative In order to obtain a UCI WorldTour licence applicants must fulfil each of the four criteria. If more than 18 applicants meet each of these four criteria the licence commission will decide between them on the basis of the same criteria.

Criteria 2.15.011a The sporting criteria comprise the sporting level of the UCI ProTeam or applicant team calculated on the basis of a points scale approved by the UCI Professional Cycling council. This scale of points will be applicable to all UCI ProTeams, professional continental teams and teams applying for either of these status and will give rise to a classification of teams on the basis of sporting level. The calculation of the sporting value will be based on a certain number of riders who form part of the team on 20 October of the year prior to the year of registration. […] 2.15.011b A team ranked in the first fifteen places of the classification on the basis of sporting level is by this fact considered to have satisfied the sporting criterion. The sporting value of a team ranked between 16th and 20th places inclusive will be verified by the licence commission via a more detailed assessment. In order to determine whether a team ranked between 16th and 20th satisfies the sporting criterion, the licence commission will inter alia ascertain whether there is a clear gap in the classification or whether particular circumstances have had an effect on the team’s results. Such particular circumstances shall include any injuries to riders, the types of event which the team has ridden and the homogeneity of the team.

A team ranked lower than 20th shall be considered not to have satisfied the sporting criterion. 2.15.011c The ethical criterion takes account inter alia of the respect by the team or its members for: a) the UCI regulations, inter alia as regards anti-doping, sporting conduct and the image of cycling; b) its contractual obligations; c) its legal obligations, particularly as regards payment of taxes, social security and keeping accounts; d) the principles of transparency and good faith. […] 2.15.012 The criteria in article 2.15.011 may also be used to refuse the award of a licence or to reduce its duration, even if the regulatory conditions are otherwise fulfilled. (text modified on 1.04.11). 2.15.013 The application for a licence shall be made by submitting a form drafted by the administration of the UCI with all the information and documents requested. The applicant must obtain the form from the administration of the UCl. 2.15.014 The deadline for submission of applications for the available licences shall be set by the UCI administration. Applications submitted after this date shall not be considered unless the maximum number of licences, has not been reached. […] 2.15.015 On the date indicated on the licence application form, the applicant must pay the UCI an application fee in the sum determined by the Professional Cycling Council. If this payment is not received on time the application shall not be considered. 2.15.016 If a licence is awarded, the application fee shall be deducted from the licence fee. No reimbursement shall be made if the licence is refused or if the applicant withdraws his application. However, if the team is subsequently registered as a UCI Professional Continental Team or UCI Continental Team, no other registration fee is due for the same year of registration. (text modified on 1.04.11).

Examination by the licence commission 2.15.017 The licence commission shall examine the licence application on the basis of documentation consisting of the following elements:

1. the licence application form and its enclosures;

2. the report or any other opinion of the auditor appointed by the UCI;

3. the report drawn up by the UCI;

4. any other document or information provided by the applicant or requested by the UCI or by the licence commission to assess the application. The licence commission may also take account of acknowledged facts.

The documentation must be drawn up in French or in English. Documents produced by third parties and written in another language must be accompanied by a translation into the language of the documentation. The licence applicant has sole responsibility for assuring the quality and complete nature of his documentation. He may not, in particular, invoke the fact that he has not been asked by the UCI, the auditor approved by the UCI or the licence commission to provide information or documents or that his attention has not been called to gaps or other factors which may be regarded as negative when his application comes to be judged by the licence commission. 2.15.018 The UCI and the auditor must forward their opinion or report to the licence commission 15 days before the date of the hearing referred to in Article 2.15.019. At the same time, a copy shall be forwarded to the applicant. […] 2.15.019 The licence applicant will be invited within a time limit of 10 days to explain and defend his application for a licence before the licence commission at a hearing held for this purpose. 2.15.020 The applicant must lodge any statement in support of his application to the commission in four copies, at least 3 days before the date of the hearing, with a copy to the UCI and the auditor. A statement lodged after this deadline shall automatically be disregarded. 2.15.021 At least 3 days before the date of hearing, the applicant shall notify the licence commission and the UCI of the identity of those persons who will represent him or attend the hearing. The licence commission may refuse to hear any persons not notified within this time. 2.15.022 The UCI may participate in the hearing. The auditor appointed by the UCI may be heard at the request of the applicant, the UCI or the licence commission. 2.15.023 The date of the hearing may not be delayed, save where otherwise decided by the president of the licence commission. If a party fails to attend the hearing, the licence commission shall give its ruling in his absence. […] 2.15.025 The commission shall render its decision as rapidly as possible and, as far as possible before 20 November prior to the first year of the licence. 2.15.026 The awarding of a UCI WorldTour licence shall be deemed to constitute registration for the first year of that licence. Every licence shall be granted subject to a possible redistribution of the licences following a decision of the CAS cancelling a refusal to grant a licence pursuant to Article 2.15.241. […]

Duration of validity of the licence 2.15.031 The licence shall be valid for four calendar years. However, at the reasoned request of the applicant, the licence commission may grant a licence for two or three years. This request must be made in the licence application; it will otherwise be inadmissible. (text modified on 1.04.11). 2.15.032 The licence commission may automatically reduce the duration of validity of the licence to 3, 2 or 1 years if, in the opinion of the commission and for the reasons it must provide, such a reduction is justified with regard to the criteria set out in article 2.15.011. The decision of the commission may be appealed to the Court of Arbitration for Sport. The applicant who does not accept a licence of reduced validity may renounce the licence under the conditions set out in article 2.15.016. […] 2.15.071 If the UCI administration decides that it is unable to register the UCI ProTeam, it will notify the licence holder and the paying agent. Unless the holder renounces the licence, the UCI administration will refer the case to the licence commission:

1. The licence commission summons the UCI ProTeam to a hearing with a minimum of 10 days' notice, unless otherwise agreed with the UCI ProTeam;

2. The applicant must lodge any documents in support of his registration application to the commission in three copies, with one copy to the UCI, at least 5 days before the date of the hearing. Documents lodged after this deadline shall be automatically disregarded;

3. At least 5 days before the date of hearing, the UCI ProTeam shall notify the licence commission and the UCI of the identity of those persons who will represent him or attend the hearing. The licence commission may refuse to hear any persons not notified within this time;

4. The UCI may participate in the hearing. The auditor appointed by the UCI may be heard at the request of the UCI ProTeam, the UCI or the licence commission;

5. The licence commission shall apply the assessment criteria set out in article 2.15.011a ff. Should the licence commission refuse the registration, the UCI ProTeam's licence is automatically withdrawn. The decision is subject to appeal to the CAS. Furthermore, the licence commission will pass on the application documentation to the UCI administration so that the latter can assess the possibility of registering the team as a professional continental team. The UCI ProTeam shall be represented before the licence commission by the licence holder or, with the agreement of the latter, by the paying agent. (text modified on 18.06.07; 1.07.10). […]”. 2.4 The sporting criterion is one of the four categories based on which the LC awards UCI WorldTour licences. The sporting criterion of a team is calculated on the basis of Article

2.15.011a. This provision makes reference to “point scale approved by the UCI Professional Cycling Council” (hereinafter referred to as the “PCC”). On 17 March 2011, at the meeting of the PCC in Milan, the point scale used to measure the 2012 sporting value was approved and a proposal for a so-called neutralisation rule with respect to the sporting value of riders returning from a two-year ban for doping violations was presented. The PCC postponed the decision on the neutralisation rule until a legal analysis of the measure was completed.

2.5 At the seminar for teams in Brussels in April 2011, participants were informed that there could be a modification of the 2012 sporting criteria, should the neutralisation rule be adopted. The rule was ratified by the UCI Management Committee the day after the PCC decided to adopt the rule at a meeting of the PCC in June 2011.

2.6 In a letter dated 29 June 2011, the UCI informed the teams of the above modification and advised them that the modification was “effective immediately”.

2.7 Annexe 10 of the 2013 instruction guide for the registration of first and second division UCI teams (hereinafter referred to as 2013 / UCI / A-10) now reads as follows:

“SPORTING CRITERION CALCULATION OF TEAMS’ SPORTING VALUE […] In order to obtain the most exact sporting value for each team, the sporting criterion has been drawn up in a way that takes account of this characteristic feature. Two aspects are assessed for this purpose:  individual value: sum of the value of the riders who make up the team  collective value: contribution of the team to individual performances The purpose of the individual value is to determine the strength of the riders making up the team in the following year. It is thus based on the riders under contract in the following registration year. Each rider is evaluated on the basis of:  his placings in the various rankings  his wins and podium places This evaluation covers the last 2 seasons (as defined in the UCI Regulations) in order to give as precise and accurate a value as possible for each rider. The best 12 riders are taken into account and their points added give the individual value The collective value is intended to give a value to the collective performances of the team, including its management. To this end, the following are considered:  final team rankings in each circuit  victories, podiums and alternative jerseys  Team-Time-Trial World Championships

The sum of the individual value and the collective value gives the team its sporting value and thus its position in the sporting ranking”. […] SPECIFIC PROVISIONS 1 Neutralisation In the case of a rider who has been sanctioned for a violation of the UCI’s Anti-Doping Rules with a period of ineligibility for two years or more (whether or not a part of this period of ineligibility is suspended), his points, placings, wins, or wearing of a leader’s jersey will not be taken into consideration for a period of two years starting the day after his effective suspension has finished. (Note: this measure has no impact on the team’s result at the team-time-trial World Championships)”.

2.8 On 14 August 2012, Riis applied for a WorldTour licence for the Team Saxo-Tinkoff beginning in January 2013. Among the documents considered by the LC was the “UCI Team Evaluation Report 2013” in accordance with Article 2.15.017 para. 3 of the Regulations. The report notes the team’s position in the sporting hierarchy on 21 October 2012 as 20th, which required further assessment. The detailed report includes a comparison of the riders’ performances in 2011 and 2012, an analysis of which riders accounted for what percent of the earned points and an analysis of the points earned. In particular, the case of Alberto Contador is mentioned: “[...]

Alberto Contador’s points are neutralized during two years, as is the case for all riders returning from a two-year suspension.

For the last two years, the sporting value of the team has been heavily dependant [sic] on Contador’s points, who accounted for more than 65% of the team’s points. While the possibility of a suspension for Contador, and thereby the loss of his points, loomed over the team, practically nothing was done to avert the risk of a sudden and sharp drop in the sporting value of the team”.

2.9 On 21 November 2012, the hearing regarding the application for a UCI WorldTour licence took place with both the Team Saxo-Tinkoff and the UCI being represented. In a letter of 10 December 2012, the LC informed the Team Saxo-Tinkoff that a licence had been granted for two years. In a following letter sent by fax on 21 December 2012 (but dated 7 December 2012), the LC briefly explained its reasons for granting the licence. It noted in particular that the team had followed its recommendations by changing its recruitment strategy so that the team was not solely based on one leader.

2.10 Appeals of the decisions of the LC are regulated in § 7 of Part II of the Regulations:

“§ 7 Appeal before the Court of Arbitration for Sport (CAS)

2.15.226 Unless otherwise specified, the decisions of the licence commission may be appealed solely to the CAS. 2.15.227 Either the failed applicant for a licence or the licence holder shall have the right of appeal.

An applicant or holder of a UCI WorldTour licence or a UCI ProTeam may not appeal against a decision of the licence commission regarding another applicant or UCI WorldTour licence holder or another UCI ProTeam. (text modified on 18.06.07). 2.15.228 The appeal will be heard by the accelerated procedure in accordance with the following provisions. 2.15.229 The time limit for appeal is fifteen days from the day following receipt by fax of the decision challenged. The period of the 25 December to the 2 January inclusive is not included in this time limit. 2.15.230 The appeal must take the form of a reasoned statement of appeal lodged with the CAS comprising the following elements:

1. the full name and address of the appellant and of the UCI;

2. in the case of a decision under articles 2.15.024 or 2.15.164, the full name and address of the other applicants for the licence concerned;

3. a copy of the challenged decision;

4. a copy of the regulatory provisions authorising appeal to the CAS;

5. a description of the facts and legal arguments on which the appeal is based. If the conditions above are not completed when the statement of appeal is lodged, the court office of the CAS may give the appellant a single and brief delay in which to complete the statement, failing which the appeal shall be deemed to have been withdrawn. 2.15.231 The appellant shall append to his statement of appeal all the documents, witness statements and other evidence which he proposes to invoke, subject to article 2.15.240. 2.15.232 The appellant shall indicate in his statement of appeal which witnesses and experts he intends to call at the hearing, failing which these witnesses and experts will not be heard, unless with the agreement of parties or the contrary decision of the panel. […] 2.15.235 Within fifteen days of the day of the receipt, by fax, of the statement of appeal, the UCI and, where applicable, the other applicants or holders of a UCI WorldTour licence, can submit to the CAS an answer containing the following elements:

1. a statement of defence;

2. any defence of lack of jurisdiction;

3. any counterclaim;

4. all documents and evidence which the UCI or the parties wish to present, including the names of witnesses and experts he wishes to be heard;

5. any written witness statement. […] 2.15.236 The parties are not allowed to present further arguments, nor produce new documents, nor offer further evidence after the submission of their notice of appeal or answer. […]

2.15.239 The CAS shall examine only whether the contested decision was arbitrary, i.e. whether it was manifestly unsustainable, in clear contradiction with the facts, or made without objective reasons or subsequent upon a serious breach of a clear and unquestioned rule or legal principle. It may only be overturned if its outcome is found to be arbitrary. (text modified on 21.09.06). 2.15.240 The appeal is judged on basis of the licence application documentation as it stands at the moment when the licence commission has taken its decision. There may be no subsequent additions to this documentation. The documents, statements and written evidence which the appellant intends to raise before the CAS can only refer to the same elements as found in the licence commission’s file or which the commission took into account in its decision. (text modified on 21.09.06; 18.06.07). 2.15.241 Should the contested decision be judged to be arbitrary it shall be annulled and the CAS shall make a new decision that shall replace the contested decision. This decision shall settle the case definitively. No further appeal shall be admitted. However should the annulment of the contested decision open the way to a new allocation of the licences or a new award of a licence for which there is more than one candidate, the case shall be returned to the licence commission. After consulting the parties, the commission may, if it considers that it is in possession of adequate information, renounce any further documentary submissions and/or hearings. The case shall then be adjudged on the basis of the licence application documentation as submitted to the commission on the occasion of its initial decision. (text modified on 21.09.06; 18.06.07). 2.15.242 Unless otherwise specified in the present section, the Code of Sports-related Arbitration shall apply”.

3 PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

3.1 On 9 January 2013, the Appellant filed a “Petition” with the Court of Arbitration for Sport (hereinafter referred to as “CAS”). The “Petition” contained the Statement of Appeal as well as the Appeal Brief.

3.2 By letter of 14 January 2013, the CAS Court Office initiated the procedure CAS 2011/A/3055 Riis Cycling A/S v. The Licence Commission of the UCI and inter alia invited the Respondent submit its Answer within 20 days.

3.3 By letter of 24 January 2013, the Respondent requested that the panel allow an Answer limited to “procedural issues related in particular to the admissibility of the appeal filed by the Appellant and the ability and interest of Riis Cycling A/S to appeal”.

3.4 On 24 January 2013, the CAS Court Office invited the Appellant to file its observation on the Respondent’s request to limit its answer to procedural issues by 28 January 2013. It also noted

that the Respondent’s deadline to file an answer would be suspended until the matter concerning the limitation of the Answer is settled.

3.5 On 25 January 2013, the CAS Court Office granted the Appellant an extension until 4 February 2013 in order to consult with a Swiss lawyer.

3.6 On 4 February 2013, the Appellant submitted its observation on the question of admissibility and jurisdiction and objected to a separation of the formal and merits proceedings. As a final point, the Appellant requested that the suspension of the Respondent’s deadline to submit an Answer be lifted.

3.7 By letter of 4 February 2013, the CAS Court Office acknowledged the Appellant’s response and confirmed that the Panel would decide on the issue when it is constituted. In the meantime, the deadline for the Respondent’s answer remained suspended.

3.8 On 18 February 2013, the Respondent sent a letter in response to the Appellant’s objections of 4 February 2013.

3.9 On 22 February 2013, the CAS Court Office informed the parties that the Panel appointed to decide the case was constituted as follows:

President: Prof Dr Ulrich Haas, Professor of Law in Zurich, Switzerland

Arbitrators: Mr Michele Bernasconi, Attorney-at-law in Zurich, Switzerland Dr Georg von Segesser, Attorney-at-law in Zurich, Switzerland.

3.10 By letter of 27 February 2013, following a letter from the Appellant dated 26 February 2013 indicating that it would answer to Respondent’s observations of 18 February 2013, the CAS Court Office reminded the Appellant that the Panel would decide on the Respondent’s request to limit its answer to procedural issues and that no further comments or arguments should be filed.

3.11 By letter of 1 March 2013, following a reply from the Appellant to the Respondent’s submission of 18 February 2013 dated 27 February 2013 notwithstanding the content of the CAS letter of 27 February 2013, the CAS Court Office again asked that no further submissions regarding the Respondent’s limitation request be submitted.

3.12 On 5 March 2013, the CAS Court Office informed the parties that the submissions of 18 February 2013 by the Respondent and of 27 February 2013 by the Appellant, though unsolicited, would be allowed by the Panel. Further, the exchange of submissions with regard to the procedural issues were deemed closed and the parties were informed that no hearing will take place unless a formal objection was made within three days. Finally, the deadline for the filing of the Respondent’s answer remained suspended.

3.13 By letter of 7 March 2013, the Appellant objected to the Panel deciding on the formal issues only, referring to its letter of 4 February 2013, but accepted that the Panel may decide whether there should be a hearing or not.

3.14 The CAS Court Office informed the parties by letter of 11 March 2013 that the only unresolved issue was whether further submissions should be made on the procedural issues, but as none of the parties made such a request, the Panel would not hold a hearing on those issues. The Panel will render a preliminary award on the procedural issues of admissibility and jurisdiction on the basis of the submissions received.

4 PARTIES’ RESPECTIVE REQUESTS FOR RELIEF AND BASIC POSITIONS

This section of the award does not contain an exhaustive list of the parties’ contentions on the interlocutory procedural issues, its aim being to provide a summary of the substance of the parties’ main arguments in this respect. In considering and deciding upon the parties’ procedural preliminary claims in this award, the Panel has accounted for and carefully considered all of the submissions made and evidence adduced by the parties, including allegations, witnesses’ statements and arguments not mentioned in this section of the award or in the discussion of the claims below.

4.1 The Respondent

4.1.1 In its letters dated 24 January 2013 and 18 February 2013, the Respondent – inter alia – requested that the Panel dismiss the appeal filed by the Appellant for lack of admissibility.

4.1.2 The Respondent’s submissions in support of its request can be summarized in essence as follows:

- (1) The CAS has no jurisdiction in this case because only a “failed applicant” has the right of appeal according to Article 2.15.227 UCI Cycling Regulations. The second part of said provision “refers to different situations than the present one and must be understood in the light of Art. 2.15.032 and 2.15.071 of the Regulations”.

- (2) The Respondent submits that the appeal is inadmissible because the Appellant has suffered no harm and therefore lacks a legal interest in the appeal. The Appellant insofar refers to a decision of the Swiss Federal Tribunal (ATF 86 II 383).

- (3) According to the Respondent “only the operative part – and not the reasoning – of the decision can be appealed” in accordance with the principle laid down in the Swiss Federal Court case of 15 March 2010, 9C_105/2010, § 2.2.2. The operative part of the LC decision, however, makes no reference to the ranking of the Team Saxo-Tinkoff.

- (4) The Respondent points out that the Appellant’s main aim is to challenge the validity of the neutralization rule. As the Appellant is not a member of the UCI, it is “not allowed

to contest the way a private association organizes its activities”. The Respondent further notes that the only way to challenge a decision of an association is under the strict conditions of Article 75 CC, which are not met here. Finally, the Respondent notes that the Appellant applied for a WorldTour licence and by doing so indicated compliance and consent with the neutralisation rule.

4.2 The Appellant

4.2.1 In its Statement of Appeal dated 9 January 2013, the Appellant submitted the following requests:

“- to set aside the argument of the License Commission in its reasons from December 21 2012 that Team Saxo-Tinkoff is ranked 20th in the sports evaluation as part of calculating teams Sporting Value according to Art. 2.15.11a of the UCI rules and confirms that Team Saxo-Tinkoff is rightfully ranked 19th in the sports evaluation. - To ask the License Commission to set aside the practice of the License Commission (based on the request of the UCI WorldTour) to use the neutralisation rule in connection with riders, who have committed their doping offense on or before June 29, 2011. - To condemn the License Commission of the UCI to pay all the arbitration costs, if any, and to pay a substantial contribution towards the legal fees of Riis Cycling A/S”.

4.2.2 The Appellant is of the view that the CAS has jurisdiction to decide upon the above requests and that they are admissible. Its submissions dated 4 February 2013 and 27 February 2013 in support thereof can be summarized in essence as follows:

- (1) As to the jurisdiction of the CAS, the Appellant refers to the wording of Article 2.15.227 of the Regulations which provides for the right to appeal for “[E]ither the failed applicant for a licence or the licence holder”. The Appellant holds that it is “nowhere written or stated that the licence holder can appeal only in those particular cases, and not in general against a decision of the Licence Commission”.

- (2) The Appellant submits that it has a legal interest to appeal the decision of the LC. According to it, the ranking of its Team in the sport evaluation represents a decision within the appealed decision. The legal interest or the harm suffered results directly from the use of an “illegal rule”, i.e. the application of the Neutralization Rule. Furthermore, the Appellant points out that it was issued a licence only for two years. When it applies for the “license for 2015 the neutralization rule will lead to a result whereby any points earned in 2014 by Mr Contador until the beginning of August 2014 will not be taken into consideration, when the ranking of the Appellant is set. Since Mr Contador most likely will be the rider having the most points of all riders in the team, the neutralization rule will cause serious harm to the Appellant”. The Appellant acknowledges that it cannot challenge the validity of the neutralization rule as such and that, therefore, its second request is aimed at setting “aside the practice to apply this illegal rule” because it contradicts the WADA Code and general principles of law. The Appellant

further acknowledges that it is not a member of the UCI, so Article 75 CC does not apply. However, the Appellant submits that as the paying agent of Team Saxo Tinkoff “it has submitted to the rules” and “is therefore able to dispute the use of a rule that violates general principles of law and affects the Appellants business”.

- (3) Finally, the Appellant submits that the admissibility of its appeal is not restricted by the jurisprudence of the Swiss Federal tribunal according to which only the operative part and not the reasoning of a decision may be appealed. According to the Appellant, the circumstances of the case in which the Swiss Federal Tribunal established this principle are very different from the present case, reducing the relevance of the case law of the Swiss Federal Tribunal significantly. The Appellant notes that because it is the reasoning of the decision which causes “severe and irrecoverable damage”, it need not limit the appeal to the operative part of the decision.

5 MANDATE

5.1 According to Article 186 para. 1 of the Swiss Private International Law Act (hereinafter referred to as “PILA”), the arbitral tribunal shall rule on its own jurisdiction. The provision provides for a “competence-competence” of the arbitral tribunal. According thereto, if a party objects to the arbitral tribunal’s competence, the tribunal may – at its discretion – either issue a preliminary award on jurisdiction or decide the jurisdictional question in a partial award or a final award. Therefore, despite the Appellant’s objection, the Panel has the power and mandate to decide on its jurisdiction (together with the questions on admissibility of the appeal) in a first phase of the arbitration and to issue a preliminary award (“Vor- bzw. Zwischenentscheid”, cf. also Swiss Federal Tribunal, decision dated 18 September 2003, 4P.74/2003/mks, E. 3.1.3) addressing the issues.

6 CAS JURISDICTION

6.1 As Switzerland is the seat of the arbitration and the Appellant is not domiciled in Switzerland, the provisions of the PILA apply, pursuant to its Article 176 para. 1. In accordance with Article 186 of the PILA, the CAS has the power to decide upon its own jurisdiction.

6.2 Article R27 of the Code of Sports-related Arbitration (hereinafter referred to as the “Code”) provides that the Code applies whenever the parties have agreed to refer a sports-related dispute to the CAS. Such disputes may arise out of a contract containing an arbitration clause, or be the subject of an arbitration agreement, or involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of these bodies, or a specific agreement provide for an appeal to the CAS.

a) Consent

6.3 In the case at hand, the Appellant has applied with the UCI for a WorldTour licence on 14 August 2012. Article 2.15.007 provides that the “application for a licence shall imply the applicant’s acceptance of the rules and conditions governing the UCI WorldTour and the UCI’s regulations in general”. By filing its application, thus, the Appellant has submitted to the Regulations of the Respondent. The Respondent in turn has accepted to be bound by its Regulations vis-à-vis the Appellant by initiating a procedure in accordance with Part II chapter XV of the Regulations. Therefore, both parties have agreed that their relationship is governed by the Regulations. The Regulations contain in § 7 a section on “Appeal before the Court of Arbitration for Sport (CAS)”. Accordingly, by submitting to the Regulations, the parties have also submitted themselves to the arbitration clause contained therein.

b) Formal validity

6.4 As a matter of principle, consent to arbitrate is not sufficient to render the arbitration agreement binding between the parties. Moreover, Article 178 para. 1 PILA, which governs the formal validity of the arbitration agreement, states that an arbitration agreement is only valid if it is made in writing, by telegram, telex, telecopier, or any other means of communication that establishes the terms of the agreement by text. However, the Panel has no reason to clarify the formal validity of the arbitration agreement in this case since it is not contested here. The only issue that is contested is whether the arbitration clause contained in the Regulations covers the dispute at hand. This, however, does not force the Panel to examine the formal validity of the arbitration agreement as is evidenced by a decision of the Swiss Federal Tribunal (Swiss Federal Tribunal, Judgement dated 18 April 2011, 4A_640/2010, E. 3.3.3) in which the following was stated:

“When the Appellant argues in his reply with reference to the formal requirement of Art 178 (1) PILA that nowhere in the award did the CAS find that he would have issued a written statement joining the CFA or submitting to the CFA statutes, he does not show the violation of any jurisdictional provisions. The Arbitral tribunal held that it was proved that the Appellant as trainer of football club Y.________ was registered with the CFA and in the framework of that registration had agreed to comply with the Statutes and regulations (including the Anti-Doping provisions) of the CFA. It is true that the award under appeal does not go into the details of that registration. However the Arbitral tribunal had no reason to clarify these circumstances any further as the Appellant did not factually dispute in the arbitral proceedings that there was a formally valid declaration of intent to be bound but merely – and wrongly as was shown – took the view that the reference contained in the pertinent CFA rules to the FIFA Statutes was not sufficient but that it was necessary for the CFA statutes to contain an explicit right to appeal the decision of the Judicial Committee to the CAS. In view of this lack of contestation the Arbitral tribunal did not violate Art. 178 (1) PILA when it found that the registration met the necessary requirement of written form”.

c) Scope of the arbitration clause

6.5 The parties disagree as to whether the dispute in the case at hand is covered by the arbitration clause contained in the Regulations. The scope of the arbitration clause must be assessed by interpretation. The law governing the interpretation of an arbitration clause follows from Article 178 para. 2 of the PILA (POUDRET/BESSON, Comparative Law of International Arbitration, 2nd ed. 2007, no. 305). According thereto, the law applicable to the interpretation of the arbitration agreement is – inter alia – Swiss law (KAUFMANN-KOHLER/RIGOZZI, Arbitrage International, 2nd ed. 2010, no. 255).

aa) The (Swiss) standards applicable to the interpretation of an arbitration clause

6.6 Even though the legal character of an arbitration agreement is qualified by the majority opinion to be procedural in nature, jurisprudence and legal scholars apply the same principles of interpretation to arbitration agreements as to ordinary contracts, i.e. Article 18 of the Swiss Code of Obligations (hereinafter referred to as “CO”; cf. ATF 130 III 66 E. 3.2; MÜLLER, International Arbitration, 2004, p. 36; KAUFMANN-KOHLER/RIGOZZI, Arbitrage International, 2nd ed. 2010, no. 245 et seq.).

6.7 The various steps foreseen in Article 18 para. 1 CO to ascertain the will of the parties are best described in the following decision by the Swiss Federal Tribunal (ATF 127 III 444 E. 1b), which states – inter alia – as follows:

“Pour déterminer s’il y a eu effectivement accord entre parties, il y a lieu de rechercher, tout d’abord, leur réelle et commune intention (art. 18 al. 1 CO). Il incombe donc au juge d’établir, dans un premier temps, la volonté réelle des parties, le cas échéant empiriquement, sur la base d’indices. S’il ne parvient pas à déterminer cette volonté réelle, ou s’il constate qu’une partie n’a pas compris la volonté réelle manifestée par l’autre, le juge recherchera quel sens les parties pouvaient et devaient donner, selon les règles de la bonne foi, à leurs manifestations de volonté réciproques (application du principe de la confiance). A cet égard, la jurisprudence récente a nuancé le principe selon lequel il y aurait lieu de recourir à des règles d’interprétation uniquement si les termes de l’accord passé entre parties laissent planer un doute ou sont peu clairs. On ne peut ériger en principe qu’en présence d’un “texte clair”, on doit exclure d’emblée le recours à d’autres moyens d’interprétation. Il ressort de l’art. 18 al. 1 CO que le sens d’un texte, même clair, n’est pas forcément déterminant et que l’interprétation purement littérale est au contraire prohibée. Même si la teneur d’une clause contractuelle paraît claire à première vue, il peut résulter d’autres conditions du contrat, du but poursuivi par les parties ou d’autres circonstances que le texte de ladite clause ne restitue pas exactement le sens de l’accord conclu.

[free translation: “To determine if there was an agreement between the parties one must first seek their true and common intention (art. 18 para. 1 CO). The judge must therefore first establish the true will of the parties, empirically as the case may be, based on circumstances. If he cannot establish the true will or he finds that one of the parties did not understand the true will expressed by the other party, the judge will seek the meaning that the parties could and should have given to their respective declarations in accordance with the rules of good faith (application of the principle of trust). In this respect, recent case law has modified the principle according to which the rules of interpretation should apply only if the terms of the agreement between the parties leave room for doubt or are unclear. One cannot state that in the presence of a “clear text” one must exclude all other means of

interpretation. It derives from Article 18 para. 1 CO that the meaning of a text, even a clear one, is not necessarily determinative and that the purely literal interpretation is on the contrary prohibited. Even if a contractual clause appears clear at first view, it can result from the conditions of the contract, from the objectives sought by the parties or from other circumstances that the text of such contractual clause does not convey exactly the content of the agreement that was concluded”.]

6.8 Finally, it is to be noted that in relation to the determination of the scope ratione materiae of an arbitration agreement the predominant view holds that, absent any indications to the contrary, a broad interpretation should be followed (ATF 121 III 495 E. 5a; 129 III 675 E. 2.3; KAUFMANN-KOHLER/RIGOZZI, Arbitrage International, 2nd ed. 2010, no. 257; BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2nd ed. 2010, no. 422 et seq.). A broad interpretation of the competence of CAS follows also from the UCI statutes (i.e. the UCI Constitution), which constitute in relation to the Regulations the higher ranking norms. Article 74 of the UCI Constitution reads as follows:

“The Court of Arbitration for Sport in Lausanne, Switzerland, is the sole competent authority to deal with and judge appeals, in cases stipulated by the rules established by the Management Committee, against sporting, disciplinary and administrative decisions taken in accordance with the UCI rules”.

bb) Interpretation according to the rules of good faith

6.9 Since the parties have not submitted what their subjective will was at the time of the conclusion of the arbitration agreement, the Panel must determine the contents of the agreement in question in accordance with the rules of good faith (ATF 129 III 118 E. 2.5; ATF 128 III 265 E. 3a). According thereto, the agreement is given the meaning that any reasonable person would give to the wording in question, taking into account all other relevant circumstances of the case (ATF 129 III 118 E. 2.5; ATF 128 III 265 E. 3a; WIEGAND, in: HONSELL (Ed.), Obligationenrecht, Art. 1-529, 2008, Art. 18 no. 12).

6.10 The arbitration clause in the case at hand is to be found in Article 2.15.226 of the Regulations which provides:

“Unless otherwise specified, the decision of the license commission may be appealed solely to the CAS”.

6.11 The wording of this provision is rather broad. According thereto – absent any provision to the contrary – the CAS is competent to hear (any) appeals against (any) decisions of the LC.

(1) The view held by Respondent

6.12 The Respondent is of the view that the CAS is not competent to hear the dispute at stake. The Respondent justifies its conclusion by submitting that the jurisdiction of the CAS is limited by Article 2.15.227 of the Regulations. The latter provision reads as follows:

“Either the failed applicant for a licence or the licence holder shall have the right of appeal.

6.13 Furthermore, the Respondent submits that the Appellant is not a “licence holder” within the meaning of Article 2.15.227 (1st paragraph) of the Regulations. According to the Respondent the term “licence holder” in said provision must be interpreted restrictively, i.e. in light of Articles 2.15.032 and 2.15.071 of the Regulations. According to the Respondent, it follows from this that only in cases the LC reduces the duration of validity of the licence or refuses registration is the licence holder entitled to lodge a claim with the CAS. Since the matter in dispute at hand concerns neither the reduction of the duration of the validity of the licence nor the refusal of the registration of the licence holder, the dispute is – according to the Respondent – not covered by the arbitration clause.

(2) Discussion

6.14 The Panel cannot follow Respondent’s reasoning: Article 2.15.227 of the Regulations regulates the “right to appeal”, i.e. the question of standing to sue (“Aktivlegitimation”) and, thus, a question related to the merits. Contrary to what Respondent suggests, the provision is not designed to limit the kinds of disputes for which CAS is competent. This is evidenced by the wording of the provisions. Article 2.15.227 of the Regulations – contrary to Article 2.15.226 of the Regulations – does not mention the competent forum in which an action can be brought. However, one would expect such a reference if Article 2.15.227 of the Regulations were an arbitration clause or a provision regulating the scope of the arbitration clause. Also, an analysis of para. 1 together with para. 2 of Article 2.15.227 of the Regulations demonstrates that the provision does not deal with questions of competence. The Panel is satisfied that the rationale of Article 2.15.227 is clearly to limit the “right of appeal” of other teams and other license holders. In particular, Article 2.15.227 wants to avoid that a team may appeal against a decision granting a license to another team, and so abuse of the licensing process as a mean of “fighting” against competing teams. A reading of para. 2 together with para. 1, therefore, reinforces the conclusion held here that Article 2.15.227 of the Regulations deals solely with the question of standing to sue and, thus, is not designed to limit the scope of the arbitration clause contained in Article 2.15.226 of the Regulations. The view held here is reinforced when looking at Article 75 CC, which (also) deals with appeals against decisions of an association. According thereto – depending on the kind of decision of the association – the “right to appeal” is dependent upon whether or not the respective person is “affected” by said decision (cf. BK-ZGB/RIEMER, 1990, Art. 75 N. 20). However, the right of appeal is not an issue a state court would look at (in the context of Article 75 CC) when deciding on its competence or the admissibility of the appeal. The “right of appeal” in the context of Article 75 only comes into play at the stage of the merits of the case. This Panel sees no reason to treat the issue of “right to appeal” any differently in the present case than in Article 75 CC. Whether, therefore, Article 2.15.227 of the Regulations is to be interpreted restrictively – as suggested by Respondent – is irrelevant in the context of this award on jurisdiction and admissibility.

6.15 The Panel concludes therefore that the scope ratione materiae of the arbitration clause contained in the Regulations follows solely from Article 2.15.226 of the Regulations according to which the CAS is competent to hear (any) appeal against (any) decisions of the LC.

cc) Are the requests filed by Appellant covered by Article 2.15.226 of the Regulations?

6.16 The Appellant has filed two requests that read as follows:

(1) to set aside the argument of the License Commission in its reasons from December 21 2012 that Team Saxo-Tinkoff is ranked 20th in the sports evaluation as part of calculating teams Sporting Value according to Art. 2.15.11a of the UCI rules and confirms that Team Saxo-Tinkoff is rightfully ranked 19th in the sports evaluation. (2) To ask the License Commission to set aside the practice of the License Commission (based on the request of the UCI WorldTour) to use the neutralisation rule in connection with riders, who have committed their doping offense on or before June 29, 2011

(1) Jurisdiction in relation to the first request 6.17 In the view of the Panel, the Appellant’s first motion is covered by the objective scope of the arbitration clause contained in Article 2.15.226 of the Regulations. The word “appeal” and the word “decision” in Article 2.15.226 of the Regulations have to be construed broadly. The purpose of the provision is to submit any (possible) claims (by a person concerned) against a decision of the LC to the CAS. In the case at hand, the Appellant’s first request is aimed at amending (parts of the) decision of the LC. Thus, this dispute is covered by the objective scope of the arbitration clause.

(2) Contents of the second request 6.18 Before deciding whether or not the second request is covered by the arbitration clause, the Panel must ascertain what the content of the second request is. In this respect there seems to be some dispute between the Parties. The Respondent submits that “[o]bviously, Appellant’s main aim is to challenge the validity of this [neutralization] rule in itself”. The Appellant, however, makes clear that it is not appealing the validity of the “neutralization rule” as such. The Appellant’s request is not aimed at seeking to nullify the neutralization rule with erga omnes effect or to declare the rule null and void. Appellant expressly does not file a claim within the meaning of Article 75 CC because the Appellant is well aware that such request – at least in application of Swiss law – would only be successful on the merits if it were made by a member of the Respondent (quod non). This Panel, therefore, does not need to examine the Respondent’s objections raised in relation to Article 75 CC (which – in addition – are not related to jurisdiction or admissibility). What the Appellant seeks and requests is a decision by this Panel that the Respondent is prohibited from applying the neutralization rule to the Appellant. The Appellant has clarified that its second request is only aimed at “setting aside a practice [of the LC] to apply this illegal rule”.

6.19 It is true that the question whether or not the Respondent is entitled to apply the neutralization rule to the Appellant is already – somewhat – covered by its first request. Assuming the Panel entered into the merits related to the first request it would have to examine whether or not the LC was correct in applying the neutralization rule to the Appellant. The legality of the application of the neutralization rule is, thus, a so-called preliminary question in the context of the first request. Assuming again the Panel came to the conclusion – when deciding on Appellant’s first request - that the neutralization rule could not be applied to the Appellant, this conclusion of the Panel would, however, not have any res iudicata effect because decisions by the Panel in relation to preliminary questions are not binding upon the Parties. It follows from this that the Respondent – in the case that the Panel granted the Appellant’s first request – would not be prevented from applying the neutralization rule to the Appellant in the future. Appellant’s second request seeks to prevent exactly this. The second request is intended to establish with res iudicata effect that Respondent is not (i.e. not in the case at hand and not in all future cases) allowed to apply the neutralization rule to the Appellant. In the end what Appellant seeks before this Panel with the second request corresponds to a request for a declaratory judgement, providing that Respondent is not allowed to apply the neutralization rule to Appellant.

(3) Jurisdiction in relation to the second request 6.20 Article 2.15.226 of the Regulations submits all “appeals” against decisions of the LC to the jurisdiction of the CAS. The Panel holds that the second request of Appellant complies with the prerequisites in this article. The second request is directed against (aspects of) the decision of the LC that forms the matter in dispute in the present case. Furthermore, under Article R47 of the Code (to which Article 2.15.242 of the Regulations refers) the CAS is competent to hear all disputes relating to “the decisions of federations, associations …” as long as the statutes or regulations of the sports-related bodies so provide. In view of the very broad scope of this provision and Article R57 of the Code which entrusts the Panel with full power to review, the Panel holds that there is no valid reason why a declaratory award on the legality of the application of a provision in the Regulations to the Appellant and, thus, on a preliminary question regarding the legality of the decision under appeal should not be within the authority of the CAS. To conclude, therefore, the Panel finds that it also has jurisdiction to decide upon the second request of Appellant.

7 ADMISSIBILITY

7.1 The prerequisites for the admissibility of an appeal are, in principle, to be found in Articles R47 and R49 of the Code.

a) Subject matter of the Appeal Arbitration Procedure

7.2 The provisions of the Appeals Arbitration Procedure are only applicable to disputes in which the subject matter deals with an appeal against a decision. In principle, for this prerequisite to

be fulfilled, it suffices that the Appellant alleges that there is a decision the legality of which is contested. Whether in fact the act of the sports body in question constitutes a “decision” capable of being appealed (i.e. being set aside or declared null and void) is a question on the merits and not of admissibility (cf. HAAS/KÖPPEL, Abwehransprüche des Sportlers gegen (angeblich rechtswidriges) Verbandsverhalten vor dem Court of Arbitration for Sport, in: Jusletter 16.7.2012, no. 30 et seq.).

b) Exhaustion of internal remedies

7.3 Finally, Article R47 of the Code requires that all legal remedies must be exhausted in order for the appeal to be admissible. According to Article 2.15.226 of the Regulations, an appeal to the CAS is the only remedy available to the Appellant to challenge a decision of the LC.

c) Timeliness of the Appeal

7.4 As for the time limit for Appeal Article R49 of the Code provides as follows: “In the absence of a time limit set in the … regulations of the federation … the time limit shall be twenty-one days from receipt of the decision appealed against. …”.

7.5 Article 2.15.229 of the Regulations provides that the time limit for appeal is “fifteen days from the day following the receipt by fax of the decision challenged”. Furthermore, the provision states that the period of 25 December to 2 January inclusive is not to be included in the calculation of the time limit. In the case at hand, the first letter informing the Appellant of the decision of the LC was received on 10 December 2012. The letter entitled “decision” containing the reasons and dated 7 December 2012 was received by the Appellant on 21 December 2012. The Appellant’s appeal was submitted on 10 January 2013 and has therefore been filed in time.

d) Legal interest

7.6 In order for the requests of the Appellant to be admissible, the latter must – in addition to the conditions stated above – have a legal interest in relation to the requests.

aa) The principle

7.7 The threshold for meeting this condition is rather low. Article 59 para 2 lit. a of the Swiss Code of Civil Procedure requires as a condition of admissibility of a claim that a party initiating the proceedings is vested with a legal interest. The significance of this procedural prerequisite differs – according to the predominant view in legal literature – depending on the action in question. In cases where the action is aimed at enforcing a right, a legal interest is generally accepted, but not in cases in which the filing of the claim amounts to an abuse of rights (cf. MEIER, Schweizerisches Zivilprozessrecht, 2010, p. 208 et seq.; SUTTER-SOMM, Schweizerisches Zivilprozessrecht, 2nd ed. 2012, no. 587). Furthermore, a party lacks sufficient legal interests if

its requests are aimed at resolving abstract legal questions, rather than a specific dispute in an individual case or if the goal pursued with a particular request can be achieved in a more efficient manner through some other request.

7.8 In applying the above principles the Panel finds that the requests filed by the Appellant meet the required threshold. The Appellant has submitted to the rules and the “jurisdiction” of the competent bodies of the UCI by applying for a licence (Article 2.15.007 of the Regulations). In return the UCI is under the obligation to apply its rules and regulations correctly to the Appellant. The latter claims that the Respondent breached this duty by issuing a decision that is not in line with the applicable rules and regulations. Whether this is true, is a matter to be decided on the merits. At the stage of admissibility it suffices that the Appellant demonstrates sufficient legal interest to claim access to justice for its requests to be assessed by this Panel. In the Panel’s view this prerequisite is fulfilled as there is no obvious abuse of rights here.

7.9 It is true that the issue whether or not the neutralization rule may be applied to the Appellant is already covered somewhat by the first request. One could, therefore, at least at first sight question whether there is a legal interest for the second request. However, it is to be noted that there is a tendency in international arbitration to admit declaratory relief next to relief for performance or damages. In addition, the first request – even if it were admitted – cannot prevent the LC from applying the neutralization rule to the Appellant in the future. In view of the fact that the LC has applied already the neutralization rule to the Appellant, the Panel finds that the Appellant has a sufficient legal interest to request this Panel to clarify the uncertainty (at this stage) in relation to the applicability of the neutralization to the (contractual) relationship between the Parties.

bb) Are there exceptions to the above principle?

7.10 The Respondent claims that the notion of legal interest must be construed more restrictively than stated above and bases its approach on general legal principles.

(1) Second Instance?

7.11 The Respondent submits that the notion of legal interest must be interpreted narrowly in cases where a party seeks access to a 2nd instance. In this respect the Respondent refers to the jurisprudence of the Swiss Federal Tribunal (9C_105/2010 para. 2.2.2) according to which only the operative part of a decision can be appealed and not its reasoning. In view of the Panel, this jurisprudence is not applicable to the case at hand because the underlying facts and circumstances differ considerably. The decision of the Swiss Federal Tribunal is based on the assumption that an “appeal” is lodged against a court decision with a higher court instance. In fact, what the decision of the Swiss federal Tribunal presupposes is that there are different court instances and that – therefore – access to the second instance can be subjected to certain (i.e. more restrictive) conditions. The circumstances are completely different in the case at hand. Access to justice is only guaranteed here at one instance, i.e. at the level of the CAS. The LC – even though described as a “first instance” – is in fact only an organ of a sports federation that does not provide for any of the fundamental judicial guarantees provided for by state courts or

arbitral tribunals. If, however, the LC for obvious reasons cannot be assimilated to a court of first instance, then there is no room for the application of the above jurisprudence to the case at hand.

(2) Waiver?

7.12 The Respondent furthermore submits that the Appellant has waived its right to appeal the application of the neutralization rule and, thus, lacks legal interest to pursue its claims. By applying for a WorldTour licence – according to the Respondent – the Appellant indicated compliance and consent with the provisions contained in the Regulations and cannot therefore claim a legal interest in the action filed against the decision of the LC. The Panel does not follow this reasoning. First, there is no provision in the Regulations according to which a person applying for a licence waives his or her right to access to justice against an (allegedly) unlawful decision of the LC. On the contrary, it is the exact opposite that follows from the Regulations, which specifically provide for judicial recourse to the CAS against decisions of the LC. Second, as a subsidiary point, the Panel notes that in cases of unequal bargaining power – as in the case at hand – the stronger party cannot force upon the weaker party a waiver to seek judicial redress with a court (or an arbitral tribunal). Such a (forced) waiver of access to justice would lack the required voluntariness to stand up before Article 6 para. 1 of the European Convention of Human Rights.

(3) No Harm?

7.13 Finally, the Respondent submits that Appellant lacks a legal interest because it is not harmed. In this respect, the Respondent refers to the decision of the Swiss Federal Court (ATF 86 II 375, 383). The Panel notes that the decision cited by the Respondent refers to a set of circumstances that differ from the case at hand. In that decision, the Swiss Federal Tribunal examined the prerequisites of Article 679 CC. The provision provides as follows: “(free translation) Where a landowner temporarily causes excessive and unavoidable disadvantages to a neighbour while managing his or her parcel of land lawfully, in particular by building and thus causes loss or damage, the neighbour may only claim damages from the landowner”.

7.14 The Swiss Federal Tribunal in this decision concluded – based on the individual facts and circumstances of the case – that the level of disadvantage suffered by the “neighbour” was excessive and that, therefore, the latter could claim from the landowner damages based on Article 679 CC. Hence, the decision cited by the Respondent deals purely with a question on the merits, i.e. the substantive prerequisites of a claim of a neighbour against the landowner and not with the procedural concept of legal interest.

8 CONCLUSION

In conclusion, the Panel finds that it has jurisdiction to hear the case and that the requests filed by the Appellant are admissible.

ON THESE GROUNDS

The Court of Arbitration for Sport rules:

1. The CAS retains jurisdiction to adjudicate on the merits the appeal submitted by Riis Cycling A/S against the decision dated 7 January 2013 of the Union Cycliste Internationale.

2. The objections filed by the Union Cycliste Internationale with respect to the admissibility of the appeal are dismissed.

3. The costs connected with the objections of the Union Cycliste Internationale related to the jurisdiction and the admissibility of the appeal shall be determined in the final award.