TAS xxx - Tribunal Arbitral du Sport / TAS
TAS xxx - Tribunal Arbitral du Sport / TAS TAS xxx - Tribunal Arbitral du Sport / TAS
CAS 2004/A/777ARcycling AG v. UCI,award of 31 January 200564. Art. R58 of the Code specifies that the Panel “shall decide the dispute according to the applicableregulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law ofthe country in which the federation, association or sports-related body which has issued the challenged decision isdomiciled”.5. It follows that the UCI Regulations and Swiss law are applicable to the present case.Procedural motions6. The Appellant filed several procedural motions.7. In particular, the Appellant requested that the Respondent produce the whole file of theLicence Commission related to the Appellant’s case. As announced at the hearing of18 January 2005, the Panel rejects the motion because the Appellant has in fact received theentire file, with the justified exception of a few documents which were already in possessionof the Appellant.8. Then, the Appellant requested that the Respondent produce all files of the LicenceCommission concerning all the other applicants for a UCI ProTour Licence. At the hearing of18 January 2005, the Appellant explained that the motion was justified in order todemonstrate that before the date when the Licence Commission gave its Preliminary Opinion,the Respondent informed other applicants of the inadequacy or incompleteness of theirapplications, thus giving them a chance to complete their files and correct their mistakesbefore the Licence Commission’s preliminary opinion. To support its motion, the Appellantexhibited the decisions of 22 November 2004 of the Licence Commission regarding theapplications of Van der Schueren H.-Sportpromotie ASBL and EUSRL France Cyclisme. Inthe Panel’s view, the two Licence Commission’s decisions were enough evidence to confirmthat, as a matter of fact, other applicants were advised of the inadequacy or incompleteness oftheir applications. As announced at the hearing, the Panel does not need further evidence asfar as this point is concerned and, therefore, it rejects the motion.9. The Panel dismisses the other procedural motions insofar as they are in connection with theabove rejected motions or with rights reserved but thus far not exercised by the Appellant, ordo not require any action from the Panel and are thus of no object.Scope of review of the CAS10. The UCI Regulations provide some special rules with regard to the appeal before the CASagainst a Licence Commission’s final decision concerning a ProTour Licence. With respect tothe scope of review of the CAS, art. 2.15.239 of the Regulations provides as follows:“For the licence application procedures, including those for the transfer of a licence, the Panel will only examinethe compliance of the challenged decision with the provisions of the present section. The Panel shall be bound by,and cannot review such points, considerations or decisions which are at the discretion of the Licence
CAS 2004/A/777ARcycling AG v. UCI,award of 31 January 20057Commission, unless such points, considerations or decisions are materially ungrounded or are evidentlyunjustified”.11. The Panel notes, therefore, that art. 2.15.239 allows the review of the decisions issued by theLicence Commission on 22 November 2004 if it finds that it was adopted without properregard for the applicable articles of section XV of the Regulations.12. Furthermore, art. 2.15.239 obliges the Panel to defer to the discretionary appreciation of theLicence Commission but, at the same time, it allows the Panel to review the AppealedDecision if such appreciation is “materially ungrounded” or “evidently unjustified” and thus, a fortiori,if it is arbitrary. According to the Swiss Federal Court, a decision is arbitrary if it severely failsto consider established rules, a clear and undisputed legal principle or breaches a fundamentalprinciple (ATF 124 IV 86; ATF 106 Ia 7). A decision is arbitrary if it harms in an inadmissibleway the sense of justice or of fairness or if it is based on improper considerations or lacks aplausible explanation of the connection between the facts found and the decision issued. Notonly the decision must be arbitrary in itself to be overruled, but its result must be arbitrary too(ATF 125 I 166 consid. 2a p. 168; 125 II 10 consid. 3a p. 15, 129 consid. 5b p. 134; 124 V 137consid. 2b p. 139; 124 IV 86 consid. 2a p. 88).13. In view of that, the Panel is of the opinion that it must review the Appealed Decision if it is“materially ungrounded or evidently unjustified”, including any case of breach of thefundamental rights of the applicants. Indeed, it would not be logical to consider that byapplying for a UCI ProTour Licence an applicant would waive its fundamental rights.14. Besides, it can be pointed out that the Respondent does not object to the above point of view.In its answer, the Respondent commented and disputed every alleged breach of fundamentalrights put forward by the Appellant on the basis of Swiss law, without shielding itself behindart. 2.15.239 of the Regulations.15. The Panel notes also that art. 2.15.240 of the Regulations provides as follows:“The appeal is judged on basis of the documentation in the possession of the Licence Commission at the datewhen the Licence Commission gave its preliminary opinion. No additional documentation can be added. Thedocuments, statements and written evidence which the appellant intends to raise before the CAS can only referto the same elements as found in the Licence Commission’s file”.16. A parallel must be drawn between art. 2.15.240 and art. 2.15.026 of the Regulations, whichprovides as follows:“The Commission shall judge the request on the basis of the documentation in its possession at the date when itgives its preliminary opinion. There may be no subsequent additions to this documentation”.17. The Panel thus notes that the Regulations set forth an obligation for the Licence Commissionto take into account in its final decision only the documents which were in its file at the dateof the Preliminary Opinion (12 November 2004) and, conversely, not to consider documentsdisclosed after such date. This Panel is allowed to consider the same documents as theLicence Commission; besides, the Panel is allowed to consider the “documents, statements or
- Page 1 and 2: Tribunal Arbitral du SportCourt of
- Page 3 and 4: CAS 2004/A/777ARcycling AG v. UCI,a
- Page 5: CAS 2004/A/777ARcycling AG v. UCI,a
- Page 9 and 10: CAS 2004/A/777ARcycling AG v. UCI,a
- Page 11 and 12: CAS 2004/A/777ARcycling AG v. UCI,a
- Page 13 and 14: CAS 2004/A/777ARcycling AG v. UCI,a
- Page 15 and 16: CAS 2004/A/777ARcycling AG v. UCI,a
- Page 17: CAS 2004/A/777ARcycling AG v. UCI,a
CAS 2004/A/777ARcycling AG v. UCI,award of 31 January 200564. Art. R58 of the Code specifies that the Panel “shall decide the dispute according to the applicableregulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law ofthe country in which the federation, association or sports-related body which has issued the challenged decision isdomiciled”.5. It follows that the UCI Regulations and Swiss law are applicable to the present case.Proce<strong>du</strong>ral motions6. The Appellant filed several proce<strong>du</strong>ral motions.7. In particular, the Appellant requested that the Respondent pro<strong>du</strong>ce the whole file of theLicence Commission related to the Appellant’s case. As announced at the hearing of18 January 2005, the Panel rejects the motion because the Appellant has in fact received theentire file, with the justified exception of a few documents which were already in possessionof the Appellant.8. Then, the Appellant requested that the Respondent pro<strong>du</strong>ce all files of the LicenceCommission concerning all the other applicants for a UCI ProTour Licence. At the hearing of18 January 2005, the Appellant explained that the motion was justified in order todemonstrate that before the date when the Licence Commission gave its Preliminary Opinion,the Respondent informed other applicants of the inadequacy or incompleteness of theirapplications, thus giving them a chance to complete their files and correct their mistakesbefore the Licence Commission’s preliminary opinion. To support its motion, the Appellantexhibited the decisions of 22 November 2004 of the Licence Commission regarding theapplications of Van der Schueren H.-<strong>Sport</strong>promotie ASBL and EUSRL France Cyclisme. Inthe Panel’s view, the two Licence Commission’s decisions were enough evidence to confirmthat, as a matter of fact, other applicants were advised of the inadequacy or incompleteness oftheir applications. As announced at the hearing, the Panel does not need further evidence asfar as this point is concerned and, therefore, it rejects the motion.9. The Panel dismisses the other proce<strong>du</strong>ral motions insofar as they are in connection with theabove rejected motions or with rights reserved but thus far not exercised by the Appellant, ordo not require any action from the Panel and are thus of no object.Scope of review of the CAS10. The UCI Regulations provide some special rules with regard to the appeal before the CASagainst a Licence Commission’s final decision concerning a ProTour Licence. With respect tothe scope of review of the CAS, art. 2.15.239 of the Regulations provides as follows:“For the licence application proce<strong>du</strong>res, including those for the transfer of a licence, the Panel will only examinethe compliance of the challenged decision with the provisions of the present section. The Panel shall be bound by,and cannot review such points, considerations or decisions which are at the discretion of the Licence
Change language