Busch v. World Anti-Doping Agency (WADA) [Unannounced Out-of-Competition Doping Control on an Ice Hockey Player] No. 4A_358/2009 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

Page Count: 

26 pages

Media Description: 

1 PDF Download

Published: 

December, 2009

Practice Areas: 

Court Decisions

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Originally from:
Swiss International Arbitration Law Reports - 2009 Vol. 3 Nos. 1 & 2

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Headnote

 

■ If an arbitral tribunal is unable to determine the parties’ actual

mutual intentions with respect to an arbitration clause, it shall

interpret and construe their intentions according to the rules of good

faith (confirmation of previous decisions). According to this

principle, a statement made by a party shall be interpreted and

construed as it could and should have been understood by the other

party according to the rules of good faith, having regard to the

expressions used, their context as well as the circumstances as a

whole (confirmation of previous decisions).

■ If a player signs a so-called Player Entry Form, which is for a

competition that is specific in both time and venue and which

contains an arbitration clause submitting all disputes “in connection

with the IIHF Championship and/or the Statutes, By-laws and

Regulations and decisions made by the IIHF relating thereto” to the

jurisdiction of CAS, the player does not have to expect that the CAS

would have jurisdiction for any disputes including those not even in

connection with the competition under consideration.

 

Summary of the Decision

 

Mr. Florian Busch, a professional German ice hockey player, refused

to undergo an unannounced doping control ordered by the German

national anti-doping agency (NADA). A sample collection was

eventually taken on the same day at the player’s initiative and was

organised by the German Ice Hockey Association (DEB). The sample

was further analysed by a German institute which found no evidence of

prohibited substances or unauthorised methods.

 

NADA informed DEB that refusing a sample collection amounted to a

breach of the applicable anti-doping rules, whereupon DEB sanctioned

the player inter alia by issuing a public warning as it considered that

measure to be sufficient under the circumstances. Mr. Busch was

therefore allowed to participate in the upcoming World Championship.

NADA further informed the World-Anti-Doping Agency (WADA) so

that the latter could take measures.