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Nicolás Zambrana, Professor of Law School

Contador's options

Fri, 10 Feb 2012 09:36:05 +0000 Published in La Razón

The answer final to the "Contador case" is not easy and will not be known until the courts speak, to which it seems that the cyclist wants to appeal. However, several hypotheses can be formulated about the actions that his lawyers would be prepared to undertake.

The arbitration procedure before the CAS and its decision are final, but the arbitration laws provide for the possibility of applying for the annulment of the award, on very specific grounds which, in general, relate to the procedural guarantees to be provided by the arbitration: when the arbitrators of the tribunal have been appointed in an irregular manner, when the parties had not submitted to the tribunal the issues on which the tribunal decided, when a party has not been given sufficient opportunity to defend itself, etc....

This application of nullity of the award must be made before an ordinary court of the country where the arbitral tribunal had its seat. In this case, this is the Swiss Federal Court. If this court declares the CAS award null and void, the arbitration would have to be repeated. What must be clear is that in this procedure of nullity, the Swiss judge will not go into the question of doping or the responsibility of Contador. Also, if permitted by Swiss law, the Swiss judge could, if Contador so requests, issue an order to leave compliance with the arbitration decision at Fail , which would allow Contador to race the next Giro and Tour (God willing).

The Swiss judge could probably only issue such an interim injunction if he were to initially assess that the arbitration decision is probably null and void and that, moreover, there would be serious prejudice to Contador if he had to comply with the decision immediately.
As for the fine to which the arbitration sentence condemns Contador, and if he does not pay it of his own free will, the UCI will have to initiate another procedure, called exequatur, by which it will have to take the sentence to Spain or other countries where it understands that Contador has assets, and there it will have to apply for that the arbitration sentence is transformed into a national sentence, and then begin a procedure of execution and seizure.

The problems do not end here, because for some, the arbitration before the CAS is a compulsory arbitration, to which Contador must submit, and given that arbitration is by nature voluntary, for these experts the way would remain open, for Contador or the UCI, to go before ordinary judges and appeal the various sanctions that have been imposed: that of the Federation or that of the CAS.