PRESIDENT BRUSSELS COURT OF FIRST INSTANCE (Summary Injunction Proceedings)

Transcription

1 PRESIDENT BRUSSELS COURT OF FIRST INSTANCE (Summary Injunction Proceedings) Case n 09/1747/c of 14 December 2009 Belgium: disciplinary sanctions under Flemish Doping Decree; WADA Code (where about rules); Nature Flemish disciplinary proceedings; Flemish proceedings with appeal proceedings before CAS and review by Swiss Federal Courts Requirements: compliance with article 6 European Convention on Human Rights?; Wada where about Rules compatible with art. 8 European Convention on Human Rights?; 1. Yanina WICKMAYER; 2. Xavier MALISSE Plaintiffs; v. 1. Vlaamse Gemeenschap (Flemish Community); 2. VZW Vlaamse Tennisvereniging ( Flemish Tennis Association ); 3. VZW Vlaams Dopingtribunaal ( Flemish Doping Tribunal Association ); Defendants; Facts: Wickmayer and Malisse are professional tennis players, belonging to the top Belgian players in the ATP ranking. Both players are members of the Flemish Tennis Association. Wickmayer failed to communicate her whereabouts to the Flemish Tennis Association on three occasions. Malisse missed a doping control and had not informed the Association on his whereabouts on two occasions. The public prosecutor of the Disciplinaire Commissie voor Elitesporters ( Disciplinary Committee for Elite Ahletes (hereinafter DCEA ) within the Vlaams Doping Tribunaal ( Flemish Doping Tribunal ) decided to prosecute Wickmayer and Malisse for infringement of article 3 1, sub 4 Flemish Doping Decree (failure by the athlete to communicate his/her whereabouts) and in the case of Malisse also failure to be available for doping tests. Article 3, 1, sub 4 of the Flemish Decree on Medically and Ethically Responsible Practising of Sports of 13 th July 2007, integrates the relevant provisions of the WADA Code on whereabouts in Flemish legislation. 1/5

2 Since the aforementioned infringements are sanctioned in the same manner as doping offences, these are in conformity with the WADA Code subject to a sanction of at least 1 year of exclusion from participation in sports events. By Decision of 5 th November 2009, the DCEA imposed the following sanctions on both Wickmayer and Malisse : suspension of their right to participate in any sports event during a period of 1 year (5 th April 2009 till 4 th November 2010), whilst after this period they would only be re-established in their right to participate in sports events, provided that they would comply with the rules on whereabouts. Summary proceedings before the President of the Brussels Court of First Instance : Wickmayer and Malisse successfully requested the President of the Brussels Court (in summary injunction proceedings) to set suspend the decision of 5 November 2009 rendered by the DCEA. The arguments submitted by the parties : Wickmayer and Malisse submitted the following arguments : 1. The DCEA of the Flemish Doping Tribunal was created by the Flemish authorities as an administrative tribunal. Article 161 of the Belgian Constitution provides that administrative tribunals can in principle only be established under a Federal Act, therefore not by the Flemish Government, unless these administrative courts deal with matters which are specifically related to Flanders. The Decree aimed at implementing the WADA Code in Flemish legislation. The Wada Code can hardly be considered as to deal with matters which specifically relate to Flanders. Therefore, the DCEA in the opinion of plaintiffs lacked jurisdiction to hear the case. 2. The DCEA cannot be regarded as a Court as referred to in article 6 ECHR. The DCEA is, although foreseen in the Flemish Doping Decree, a merely private body, which decides under a mandate of private sports associations. 3. The obligation to communicate his/her whereabouts violates the right of privacy as guaranteed under article 8 ECHR. Even if the rules on whereabouts would be justified under the exceptions provided by article 8 ECHR, the interference with the private life of the athletes is disproportional in relation to the objectives of the whereabout rules. 4. The principal of equality is violated. Elite athletes are subject to discrimination, since they, unlike those who are guilty of traditional criminal offences, cannot invoke mitigating circumstances, leading to conditional sanctions. The minimum sanction under the Flemish Decree would in line with the Wada Code always be suspension of the right to participate in sports events during the term of minimum one year. 5. The obligation to communicate whereabouts violates the principal of freedom of services guaranteed under the EC Treaty. 2/5

3 The arguments presented by the defendants : The DCEA is a disciplinary body validly created under the Flemish Doping Decree. Article 6 ECHR does not require that the disciplinary body shall conform with all safeguards provided under article 6 ECHR, provided that review is possible before a Court, having full jurisdiction and offering all safeguards under article 6 ECHR. This review is available. The whereabout rules do not violate art. 8 ECHR. Considerations by the President of the Brussels Court : The various bodies, which decide on the infringements of which Wickmayer and Malisse are accused prima facie do not provide for a minimum of fundamental safeguards, as required under article 6 ECHR. The case was in first instance brought before the DCEA, instituted within the Flemish Doping Tribunal which decided on 5 November Appeal proceedings have to be initiated before the Court of Arbitration for Sport (CAS). The President rules that the DCEA is not a mere disciplinary body, which takes decisions on a mandate given by a private sports association. The Flemish community itself does not consider the DCEA as a mere disciplinary body, but as a body which also shows the characteristics of an administrative judicial body, since it was provided for in the Flemish Doping Decree. However, the Flemish authorities left it to the private sports associations to set up a private system under which doping offences by elite athletes would be judged. Consequently the association of the Flemish Doping Committee was incorporated by private sports associations. The DCEA adapted his own rules without further involvement nor control by the Flemish authorities. Under these circumstances, there are serious doubts as to whether the DCEA, when deciding on doping offences, guarantees that the principles laid down in article 6 ECHR are respected. The president of the Brussels Court also expresses serious doubts as to whether the appeal proceedings before CAS as a private organisation, are in conformity with article 6 ECHR. The decisions by CAS are only subject to review by the Swiss Federal Courts and not by the Belgian Courts. The CAS decisions therefore are not subject to review under articles 1676 e.f. Belgian Code on Civil Procedure, dealing with arbitration. Under article 72 of the Flemish Resolution of 20 June 2008 (implementing the Flemish Doping Decree), the Flemish Community only recognises disciplinary proceedings on doping practices if the proceedings are conducted in the Dutch language. The CAS proceedings are conducted in either the English or the French language. The President also expresses criticism on the possibility that Wada would have the right to intervene in appeal proceedings before CAS, which would make the position of the defendants more burdensome in appeal. The President considers that prima facie nor the proceedings before DCEA nor the appeal proceedings before CAS do comply with the requirements of article 6 ECHR. By disqualifying the proceedings before the DCEA/TAS as provided in the Flemish Doping Decree as court proceedings under art. 6 ECHR the President did not have enter any more into the substance of the matter: compatibility of the where about rules with art. 8 of the ECHR. 3/5

4 The President ordered the defendants to refrain from executing the decision of the DCEA of 5 November 2009 provided that plaintiffs would start main proceedings before the Court of First Instance of Brussels within a period of three months starting from the date of the judgement. Comments : At this moment the following proceedings are in pending: summary proceedings in appeal before the Court of Appeal of Brussels, review proceedings before the Belgian Council of State (highest administrative review), proceedings before the Belgian Constitutional Court, appeal proceedings before CAS and proceedings with the European Commission. The complexity of the case is partly related to questions on the powers of the regional authorities in Belgium on the sanctioning of doping practices and the manner in which the Flemish authorities outsourced the enforcement of Flemish regional doping regulations to private disciplinary bodies, without further interference nor control by the public authorities (see also ISLR issue 4/09 on p , case 62/2008 by the Belgian Constitutional Court on the Flemish doping decree of 13 th July 2007). The Belgian Council of State, which also issues opinions on draft legislation had already expressed its concerns on whether proceedings before the Disciplinary Committee for Elite Athletes with appeal before CAS and limited review by the Swiss Federal Courts could be regarded as proceedings by a court as referred to in art. 6 ECHR 1. Inspired by the arguments developed by the Council of State in its opinion of 20 February 2007 on the proposals of the Flemish authorities to introduce the aforementioned proceedings, the President expresses serious doubts whether the disciplinary proceedings applicable to elite athletes comply with article 6 ECHR. Since the Flemish doping decree itself requires to use of the Dutch language in the proceedings, appeal proceedings before CAS (which are conducted either in English or French) would already for this reason be unacceptable since they would not meet the requirements of the Flemish Doping Decree itself. Because of his prima facie opinion that neither the proceedings before the Flemish Disciplinary Committee nor the appeal proceedings before CAS would offer sufficient guarantees that the principles of article 6 ECHR would be respected, the President could grant the injunction requested by Wickmayer and Malmisse and did not have to express any views on the compatibility of the WADA whereabouts rules themselves with article 8 of the European Convention on Human Rights, which makes the interference with private life subject to strict conditions. According to Wickmayer and Malisse the conditions required for possible exceptions on the prohibition to interfere with one s private life were not fulfilled and the obligations imposed on the athletes disproportionate and in any case not necessary in order to enforce anti-doping rules. 1 Advice dated 20 February 2007 by the «Raad van State ( Council of State), Division on Legislation, on the draft Flemish Doping Decree. 4/5

5 This case may result in a number of conflicting decisions by various instances. It is not clear how these decisions will relate to each other and how they can be enforced. It is however certain, that it will take considerable time before we will know whether Wickmayer and Malisse can be sanctioned under the Flemish Doping Decree, incorporating the WADA whereabouts rules and if so under which jurisdiction. If all these issues will ever be clarified, Wickmayer and Malisse probably since long will have ended their professional tennis career. 23 March 2010 Marinus Vromans Vanden Eynde Legal Brussels ( Contact: mv@vdelegal.be 5/5