Respecting time limits in disciplinary proceedings

One of the key advantages when it comes to disciplinary proceedings that are lodged in front of a sports disciplinary body is that they offer aggrieved parties a quick and efficient remedy to their dispute.

This efficiency will not be the same if an aggrieved party had to instead lodge legal proceedings in an ordinary court of law, which can often drag on for endless months or even years.

Owing to the fast-paced environment in which the majority of sports are played, having the possibility for sports disputes to be heard in a quick and efficient manner is vital.

A sports dispute is usually first heard in front of the applicable board that a Sports Governing Body (SGB) would have in place, with the process and procedure usually emanating out of that SGB’s statute.

Today, many SGBs offer aggrieved parties a final right of appeal to be lodged to the Court of Arbitration for Sport (CAS). There do exist extreme limited circumstances whereby an aggrieved party can lodge a culminating appeal in front of the Swiss Federal Tribunal (SFT), after which the decision that would have been reached by the SFT becomes final and binding.

When it comes to proceedings lodged to the CAS, Rule 59 (para 5) of the CAS Code lays out that “the operative part of the award shall be communicated to the parties within three months after the transfer of the file to the Panel.”

In practice, this means that the appointed CAS Panel has three months, starting from when the panel is given the case file, to hear the complaint of the aggrieved party and any other parties concerned, including experts, and to draw up their findings.

The CAS Code allows an exception to be made to the rule whereby the president of the panel can request the time limit to be extended up to a maximum of four months after the closing of the evidentiary proceedings.

Furthermore, the CAS Code states that failure by the appointed panel to respect the imposed time limit can result in the removal of the panel. At all times, all parties must be kept informed of any allowances granted to the imposed time limit.

Restricting the time limit ensures that the panel works in an efficient manner to ensure that the parties to the dispute are provided with an efficient remedy in the quickest time possible and ensures that disciplinary proceedings do not drag on endlessly.

The imposed time limit and circumstances allowing for an extension to the time limit were analysed by the SFT from a public policy perspective in proceedings lodged before it by a Russian wrestler.

Initially, the athlete concerned was acquitted by the Russian Anti-Doping Authority (RUSADA) Disciplinary Commission of all charges levied against him in relation to anti-doping violations.

However, his acquittal was overruled by the CAS following an appeal lodged by RUSADA and the World Anti-Doping Agency (WADA).

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From the facts of the case, it emerged that the sole arbitrator had received all facts surrounding the case in May 2022 (hence subsequently the imposed time limit commenced) and issued the award in July 2023, nine months later in which eight extensions to the time limit has previously been granted.

It also resulted that the CAS never informed the athlete of the reasons why the extensions were granted, notwithstanding the athlete’s request to be provided with them.

The SFT said that to determine whether an appeal lodged with the CAS has been decided within a reasonable time limit, it is necessary to consider several factors – the totality of circumstances and the legal and factual complexity of the matter, the nature of the procedure and the stakes for the parties as well as their conduct during the proceedings.

With respect to this particular case, there existed a certain level of complexity owing to the circumstances of the case as well as the hearing of several experts.

Furthermore, it emerged that the athlete had himself contributed to the delay of the procedure requesting several extensions himself.

As a result, the SFT ruled that the duration of the proceedings in this case could not be considered excessive and akin to violating procedural public policy as per Article 190 (2) e of the Swiss Private International Law Act (PILA), thus dismissing the athlete’s appeal.

Imposing relatively short time limits and having these respected by disciplinary panels ensures that an effective remedy to a sporting dispute can always be delivered within a short period of time.

This is key to ensure that the sports industry continues to strive forward with the main focus being on the field of play and not off the field of play.

Should for any reason disciplinary proceedings need to be instituted by any sportsperson, they will be comforted by the fact that such proceedings can be dealt with in a swift and efficient manner.

Dr Robert Dingli is a Senior Associate at Dingli & Dingli Law Firm and specialises in sports law.