Publication of CAS awards.

• Position: DOCUMENTS

(per March 2007)

The International Council of Arbitration (ICAS) has given its consent to the publication of summaries of major and non-confidential Court of Arbitration for Sport (CAS) awards in specialised journals like The International Sports Law Journal (ISLJ), while CAS will keep on publishing its awards in its official Digest. (eds)

Arbitration CAS 2004/O/645 United States Anti-Doping Agency (USADA) v/Tim Montgomery & International Association of Athletics Federation (IAAF), award of 13 December 2005 Panel: L. Yves Fortier (Canada), President; Christopher L. Campbell (United States) ; Peter Leaver (United Kingdom)

The Court of Arbitration for Sport (CAS) has upheld the requests for arbitration filed by the United States Anti-Doping Agency (USADA) in July 2004 concerning the case of Tim Montgomery. As a consequence, the athlete has been declared ineligible for a period of two years starting on 6 June 2005. Furthermore, all results and awards obtained by Tim Montgomery since 31 March 2001 will be cancelled.

The Appellant, USADA, is the independent Anti-Doping Agency for Olympic sports in the United States and is responsible for managing the testing and adjudication process for doping control in that country.

The Respondent, Tim Montgomery ("Mr. Montgomery" or the "Athlete"), is an elite and highly successful American track and field athlete.

On 7 June 2004, USADA informed Respondent that it had received evidence which indicated that Mr. Montgomery was a participant in a doping conspiracy involving various elite athletes and coaches as well as the Bay Area Laboratory Cooperative ("BALCO"). On the same date, USADA submitted the matter to its Anti-Doping Review Board (the "Review Board") pursuant to paragraph 9 (a) (i) of the USADA Protocol. In accordance with the provisions of that paragraph, the Athlete also submitted a lengthy and detailed submission on the matter to the Review Board.

By letter dated 22 June 2004 (the so-called "Charging Letter"), the Respondent was charged with violations of the IAAF Anti-Doping Rules. (...) the participation in the BALCO conspiracy, the purpose of which was to trade in doping substances and techniques that were either undetectable or difficult to detect in routine testing, involved the Respondent's violations of the IAAF Rules that strictly forbid doping: Rule 55.2, Rule 56.3, Rule 56.4, Rule 60.1.

USADA and the athlete had agreed to submit their disputes directly to the Court of Arbitration for Sport, acting as sole instance in these matters. USADA requested that a four-year suspension be imposed on Tim Montgomery for his participation in what was described as a wide-ranging doping conspiracy involving BALCO.

The case was initially scheduled to be heard in November 2004. At the request of the parties, a revised timetable was established which provided for three preliminary hearings to deal with the numerous jurisdictional and evidentiary issues raised by the athletes. The hearing on the merits took place from 6 to 10 June 2005.

In its written decision, the Court of Arbitration for Sport (CAS) has decided that:

* It makes little, if indeed any difference, whether a 'beyond reasonable doubt' or 'comfortable satisfaction' standard is applied to determine the claims against the [Respondent] ... Either way, USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes that the [Respondent] committed the doping offences in question.

* UDADA has met this standard. This case did not involve positive doping tests (known as "analytical positives"). The charges against the athlete were substantiated by other types of evidence. Among that evidence was the testimony of Ms. Kelli White, an elite track athlete who had previously admitted to doping with the assistance of BALCO and accepted a sanction as a result. Ms. White testified that, on separate occasions, Montgomery admitted to her their use of a prohibited substance provided by BALCO. The Panel unanimously found that Ms White's testimony was both credible and sufficient to establish that the athlete had indeed admitted to have used prohibited substances in violation of applicable anti-doping rules. The athlete himself decided not to testify at the hearings before CAS, and Ms White's testimony in this regard remained uncontroverted. On this basis, the Tribunal finds Respondent guilty of a doping offence. In particular, the Panel finds Mr. Montgomery guilty of the offence of admitting having used a prohibited substance under IAAF Rules 55.2(iii) and 60.1(iii).

* The Panel finds that Mr. Montgomery's admission of his use of prohibited substances merits a period of ineligibility under IAAF Rules of two years. This period of ineligibility shall commence to run as of 6 June 2005, being the first day of Mr. Montgomery's hearing. The Panel is of the view that this date of commencement of the sanction is fair and appropriate in the particular circumstances of this case in view of the numerous delays in the hearing process unattributable to the Athlete. In addition, the Panel orders the retroactive cancellation of all of Mr. Montgomery's results, rankings, awards and winnings as of the date of admission of the use of prohibited substances (31 March 2001).

Arbitration CAS 2004/A/757 Finish Ice Hockey Association v/ International Ice Hockey Federation (IIHF), award of 25 October 2005

Panel: Mr Francois Carrard (Switzerland), Sole Arbitrator

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeal filed by the Finish Ice Hockey Association against the decision issued by the IIHF Council on 22 September 2004 whereby the latter confirmed a previous decision taken by the IIHF legal committee, regarding the calculation and payment of the applicable fees to the Jokerit Club in the case of the player Sean Bergenheim. The decision denied the allocation of an amount of USD 103,687 claimed by the Finish Ice Hockey Association from IIHF.

The player Sean Bergenheim played with the Finnish team of Jokerit Helsinki during the seasons 2001/2002 (twenty-eight games) and 2002/2003 (forty games). He was a first draft of the NHL Team New York Islanders at the 2002 NHL entry drafts. On 15 July 2003, he executed with the New York Islanders a NHL player's contract under which the New York Islanders agreed in particular to employ the player for a term of three years commencing on 1 October 2003.

An addendum "A" to the NHL player's contract, also executed on 15 July 2003 between the player and the New York Islanders, included a clause entitled "European Assignment", specifying the conditions under which, "subject to the terms of any agreement between the IIHF and NHL", the New York Islanders agreed "to loan the player to a European Hockey Club...".

While under contract with his NHL club, Sean Bergenheim played for the AHL club of Bridgeport. He then went back to Finland in mid-December 2003, where he played with the Finnish National Team during the 'World under 20 Championships'. Before 15 January 2004, he went back to his previous Finnish team, Jokerit, with which he played twenty-three games during the remainder of the 2003-2004 season which he completed with Jokerit before going back to New York in March 2004.

For each of the transfers, the standard printed "NHL Player Transfer to/from minors form" was filled in. Such form includes a printed section entitled "loaned to minor league club", providing for the characterization of the transfer as "regular transfer", or "termination of emergency conditions", or "emergency conditions not terminated, loaned", or "conditioning purposes", or "reassignment (minor to minor)" or "other (details)". The transfer of the player from the New York Islanders to Bridgeport was characterized, under the section "Loan to a minor League Club" as "regular transfer". On the other hand, the transfer of the player from the New York Islanders to Jokerit was characterized, under the same section (Loan to a minor League club) as "other (details)" with the following characterization "Reassigned after World JR to Jokerit (Finnish League)".

Through a network of intertwined agreements, the IIHF, the NHL and a number of national associations, including Finland, have established, beginning in 1994, a system under which, in short, the NHL Clubs have the right to hire players from IIHF Clubs by paying, through the NHL, a lump sum by way of a relief fee to be annually paid to the IIHF, which lump sum is to be distributed in accordance with agreements entered into between the IIHF and the National Associations.

The contractual network concerned currently in force consists of a Memorandum of Agreement entered into on 9 June 2001 between the NHL and the IIHF ("the IIHF/NHL Agreement") and a series of Memoranda of agreement between IIHF and the IIHF National Associations regarding transfers of players to/from the National Hockey League (including the Memorandum concerning Finland "the Memorandum" -) entered into in September and October 2001 between the IIHF and the National Associations, such Memoranda being practically all identical.

In November 2003, the Finish Ice Hockey Association, for the benefit of Jokerit, was awarded by the IIHF a payment in the amount of USD 103,687, corresponding to one half of the payment due by the IIHF to the Finish Ice Hockey Association pursuant to the distribution model and payments schedule provided in article 3 of the Memorandum, more particularly in article 3.1.2, which states the following:

"If the player returns to his previous IIHF Team between 2 October and January 15 of the player's first season under which he was under a player's contract to a NHL Team the IIHF Team/Teams shall immediately reimburse 50% of the IIHF payment attributable to the respective IIHF Team/Teams. The repayment should be distributed according to the distribution model in article 3.2 and be paid out as an extra payment in March as specified in article 3.4 ..."...