Facts
The Italian athlete [A.] had been excluded from competitions for four years starting in July 2012 for a positive doping test and for subsequently evading a similar measure. A new analysis by the Cologna laboratory dated 19 April 2016, performed on a urine sample collected during an unannounced test in Italy on 1 January 2016, revealed the use of a substance prohibited by WADA. The analysis of the B sample of 5 July 2016 confirmed the result, and the International Association of Athletics Federations (IAAF) immediately provisionally suspended the athlete.
By reasoned award of 30 January 2017, issued under the expedited procedure pursuant to Art. R52 of the TAS Code (operative part notified on 11 August 2016), the Court of Arbitration for Sport (TAS) (CAS 2016/A/4707) dismissed the athlete's appeal, disqualified him for 8 years and annulled the results obtained from 1 January 2016. The arbitral panel excluded violations of anonymity vis-à-vis the laboratory, held that the alleged irregularities in the chain of custody did not invalidate the entire anti-doping procedure, and found no evidence of tampering with the B sample or of the conspiracy theory.
By application for revision of 4 December 2019, the athlete, who also requested precautionary suspension of the award (rejected ex parte on 6 December 2019), asked the Federal Supreme Court to annul the award and to remit the case to the arbitral panel or to another tribunal. He based the application on the forensic genetic report prepared in the criminal proceedings opened after the test of 1 January 2016 (report dated 29 August 2019) and on the abnormal concentration of DNA detected in the urine. No exchange of submissions was ordered; the opponents are IAAF, NADO Italia, FIDAL and WADA.
Subject matter of the dispute: international arbitration, revision of a TAS award in doping matters.
Considerations
The Federal Supreme Court notes that the dispute falls within international arbitration, since the applicant was domiciled abroad when the arbitration agreement was concluded and the seat of the arbitration is Lausanne, without an exclusion agreement under Art. 176 para. 2 PILA. According to case law, the parties may therefore avail themselves of the extraordinary remedy of revision, which falls within the jurisdiction of the Federal Supreme Court (DTF 142 III 521 consid. 2.1; DTF 134 III 286 consid. 2). The language of the proceedings is Italian, as chosen by the applicant in the application.
As to timeliness, the applicant claims to have learned of the report on 12 September 2019 or at the latest on 16 October 2019, but provides no evidence in support. The question is not examined further, since the application is in any event unfounded.
Under Art. 123 para. 2 let. a FSCA, revision presupposes a relevant fact discovered after the judgment or decisive evidence not adduced in the prior proceedings, excluding facts and evidence subsequent to the judgment. A fact is relevant if it may alter the factual basis and lead to a different outcome; new evidence must serve to prove new facts or facts already known that could not previously be proven (DTF 127 V 353 consid. 5b; DTF 144 V 245 consid. 5.2). The Federal Supreme Court observes that the alleged manipulation of the sample, repeatedly invoked without success before the TAS, is not a new fact but a fact that the applicant had been unable to prove; it remains to be examined whether the criminal expert report may serve as new evidence.
The report was prepared after the award was issued, a circumstance the applicant acknowledges. He argues that the exclusion of subsequent evidence is the result of an oversight by the legislator and that the rule would apply only by analogy. The Federal Supreme Court rejects this argument: the limitation is expressly provided both by Art. 123 para. 2 let. a FSCA and by Art. 328 para. 1 let. a CPC, and is consistent with long-standing practice (DTF 92 II 68 consid. 3; DTF 86 II 385 consid. 1) and with recent case law (judgments 8F_10/2019 and 8F_15/2015), which precludes basing revision on reports postdating the judgment.
The Federal Supreme Court…