Olympus Sàrl v. Gusev [Russian Cyclist Terminated on a Suspicion of Doping II] No. 4A_368/2009 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ Revocation of an award based on article 123(2) FSCA may be

justified only upon facts which materialised while allegations of fact

were still admissible in the arbitration which gave rise to the award

sought to be revoked, but of which the petitioner had no knowledge

in spite of its diligence, and which were discovered by the petitioner

only after the making of the award sought to be revoked. Such facts

must be capable of modifying the set of facts underlying the decision

sought to be revoked and calling for a different outcome. The same

is true of newly uncovered evidence, mutatis mutandis (confirmation

of previous decisions).

Summary of the Decision

Olympus Sàrl, a company acting as the financial manager of the

professional cycling team Astana, hired Mr. Vladimir Gusev, a

professional cyclist. Olympus Sàrl terminated this contract forthwith on

the ground that a medical report showed anomalous values in urine and

blood samples taken from the cyclist. According to Olympus Sàrl, there

were serious signs of a stimulation of bone marrow further to the

administration of exogenous EPO. Mr. Gusev filed a request for

arbitration against Olympus Sàrl with the Court of Arbitration for Sport

(CAS). The CAS panel found for Mr. Gusev in part, holding that the

employer had terminated the employment contract in an unjustified

manner, on the simple suspicion of doping and without prior

implementation of the procedure provided under the terms of the

contract.

Olympus Sàrl filed an application for revocation against the award

with the Swiss Federal Supreme Court, arguing that under the new

technical guidelines of the World Anti-Doping Agency the respondent’s

bone marrow stimulation had to be considered as proven and that it

sufficed to justify after the fact the validity of the cyclist’s immediate

termination. Olympus Sàrl also filed an application to set aside against

the same award which was denied by a separate decision [No.

4A_352/2009 of 13 October 2009 (= 3 Swiss Int’l Arb. L. Rep. 441

(2009)].