TAS xxx - Tribunal Arbitral du Sport / TAS

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