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Back to Contador, explícanos qué es eso del TAS

Nicolás Zambrana, Professor of International Private Law, University of Navarra

Contador, explain to us what is this CAS thing?

Thu, 15 Dec 2011 11:56:04 +0000 Published in Navarra Newspaper

CAS is an arbitral tribunal that resolves questions of a sporting nature. The CAS also resolves appeals made against decisions of national federations. When the Spanish cycling federation exonerated Contador for the positive result in the Tour, the World Anti-Doping Agency and the International Cycling Union appealed that decision to the CAS, which will judge Contador by applying, most likely, the World Anti-Doping Code. In the press and on the street, nobody seems to be very surprised by this scenario: something that happened in France, was later referred to a Spanish public body and the decision taken by the latter will be finally approved or rejected by a series of gentlemen who do not represent anyone, sitting in a hotel room in Geneva and behind closed doors, applying rules that will not be those of France, Spain or Switzerland, but a document drafted privately but, yes, backed by many governments. Doesn't it sound strange?

Our secular outline of how to do justice is falling apart. In the early 19th century, Spain was a hotchpotch of jurisdictions and you had to be careful if you wanted to sue someone, to sue them in the right court. Then came the hierarchical outline of courts that we still have today: at the base, the courts of first instance written request and at the top of the pyramid, the Supreme Court. However, throughout the 20th century and so far in the 21st century, that pyramid has been partially crumbling.

First we have the constitutional courts, which can make amends to the supreme courts. In addition, alternative dispute resolution methods are flourishing: commercial arbitration, mediation (commercial, family, criminal), etc. Some players on the economic scene are trying by all means to escape the national courts and international arbitration tribunals are being created, where a panel of three university professors can condemn a Latin American country to pay two hundred million dollars by hook or by crook and without journalists even being allowed to enter and interview them.

For the most horrible crimes - genocide, war crimes and crimes against humanity - international courts are created because nobody trusts that certain countries will really do justice, but nobody thinks of calling this "judicial imperialism", suspecting that Gaddafi's son will be treated worse in his own country than in The Hague. And finally, we have the case of Contador who, as an athlete, seems to be one of the first professions to have his own particular jurisdiction, independent of the State where he was born, where he lives or where he works as an athlete.

Returning to the CAS, properly speaking, we can say that it is an arbitral tribunal, but only in that way. What is proper to arbitration is that the parties to the dispute submit to the tribunal voluntarily and that is difficult to prove in the case of our cyclist. Both the UCI and the Spanish federation may have submitted to the CAS for appeals, as mentioned above; however, Contador would only be subject to the CAS because he was federated in Spain, which, on the other hand, he had to do if he wanted to participate in official competitions and earn a living.

On the other hand, the rules that the CAS will apply to judge Contador are largely private rules, which no parliament, least of all the Spanish one, has C . And they are rules that are just as onerous as the presumption of guilt, once the positive for doping has been proven, after which it is up to the athlete to demonstrate how the substance entered his body and whether it was intentional, negligent or an inevitable coincidence. Isn't it intriguing, to say the least, that something that could cost him his degree program sporting career, his honor and his fortune, should be decided in this way? Around the arbitration between States and investors, a multitude of outraged groups have been born, protesting against what they understand to be the injustices of the system, in a matter of so much public interest, but... who will be outraged for the sportsmen, who will be outraged for Contador?