Sun, 16 Jun 2019

CAS has stirred up emotions over Caster decision

News24
22 May 2019, 04:10 GMT+10

London - The Court of Arbitration for Sport (CAS) is headquartered a stone's throw from Switzerland's Lake Geneva, a world away from the bearpit of stadiums - but veteran arbitrator Romano Subiotto says passions can run high.

The 68-year-old Briton, who is a European and national anti-trust lawyer based mostly in Brussels, has been involved in around 150 cases over 12 years.

CAS this month stirred up strong emotions over its decision to uphold the world athletics body's ruling that will oblige gender-row South African athlete Caster Semenya to take medication to reduce her testosterone levels - a case that Subiotto was not involved in.

However, Subiotto saw first hand how passionately fans feel after receiving a string of abusive messages from a supporter of Essendon Football Club, an Australian Rules club.

In 2015, the Australian Football League's anti-doping tribunal cleared 34 past and present Essendon players of taking a prohibited substance, but the World Anti-Doping Agency (WADA) appealed to CAS to overturn the decision.

Subiotto was one of the two arbitrators in the case, in which CAS upheld WADA's appeal and the players were found guilty of doping.

The first expletive-filled message - which Subiotto showed AFP at the London offices of his firm Cleary Gottlieb Steen & Hamilton - arrived within weeks of the January 2016 decision.

"You are not worthy to lick the boots of any of those players, you take the money and ban them for two years," it said. "May you burn in hell."

Subiotto received one from the same fan in January 2018 asking: "Are you dead yet?".

He remains phlegmatic about the abuse and says such a virulent reaction acts as a spur rather than a deterrent.

"Certainly what they do is persuade me to be even more diligent, even more impartial and more steadfast in my conclusions.

"The more people complain the more I feel I have to do my job."

These febrile emotions can even affect the judiciary, Subiotto said, pointing to the case that led to Spain's former world cycling champion Alejandro Valverde being banned for two years in 2009.

The International Cycling Union (UCI) and WADA appealed against the Spanish Cycling Federation's refusal to open a case against the rider.

His DNA sample, taken on a stage of the 2008 Tour de France in Italy, matched plasma seized in Spain in connection with the Operacion Puerto blood doping scandal.

"The Italian authorities tried to get a sample from blood kept by Dr Fuentes in Spain," said Subiotto, referring to the doctor in the case, Eufemiano Fuentes.

"They applied many times to the appropriate judge who was a judge in Valencia.

"He refused access to the Italian crime authorities but then he went on vacation.

"The substitute judge said 'yes, you can come over', so they came over and although the original judge came back and tried to annul it, it was too late."

Such was the pressure exerted in that case that the Spanish authorities threatened the Italians with jail if they came to Valencia. The Spanish arbitrator in the CAS hearing actually withdrew because of the threat and was replaced by an Italian.

"The Valverde case really reflected how national entities, national courts, can be extremely partial to their own athletes," said Subiotto.

"I have never really seen this in any other area. I think sports addresses the emotions of a nation that in a way other activities do not - including judges - which is really very surprising.

"If that can happen in Spain, just imagine how it can work in other jurisdictions ... not to mention Russia.

"Operating as an arbitrator is not risk-free."

However, Subiotto - one of around 400 legal experts CAS uses - is mindful that despite these outside pressures the sports court must remain neutral.

"In all these cases it is very, very important to keep in mind the balance between disciplinary action and the fundamental rights of the defendant," he said.

"I see a lot of knee-jerk reaction, such as 'he is obviously guilty', which has an air of the 16th century heresy trials where people were held guilty for being Protestants and Catholics.

"We cannot go back to those times. We have to have proof up to the level we require of justifying the sentence."

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