Bakker v. International Cycling Union (UCI) [Bakker] No. 4A_237/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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Originally from:

Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 38

Bakker v. International Cycling Union (UCI)

[Bakker]

No. 4A_237/2010

Headnote

■ Revocation of an award may be sought only where the

petitioner has discovered a relevant fact or conclusive evidence on

which he was unable to rely in the arbitration, to the exclusion of

facts and evidence which materialised after the award was made

(confirmation of previous decisions).

■ The new fact relied upon in an application for revocation must

be relevant; it must be capable of altering the factual basis on

which the award was made so that such new factual basis could

then lead to a different award (confirmation of previous

decisions).

■ The petitioner must show that he was unable to rely on the new

fact despite having exhausted all procedural remedies available in

order to obtain evidence in support of such fact.

Summary of the Decision

By a CAS award dated 20 April 2006, Mr. Erwin Bakker, a

professional cyclist, was suspended for two years due to a violation

of anti-doping rules. By a second award dated 5 May 2006 made by

a different CAS panel, Mr. Bakker was suspended for life because of

a further doping offence. Mr. Bakker filed an application to have

the second award set aside by the Federal Supreme Court, which

declared the application inadmissible on 14 August 2006.

On 28 April 2010 Mr. Bakker filed an application with the

Federal Supreme Court seeking the revocation of both awards. In

support of his application, the petitioner relied on a report received

almost four years after the first arbitration; that report allegedly

showed that the laboratory in charge of analysing his blood samples

had breached the rules of the International Standard for

Laboratories. In his view, this breach should have led to a finding

that no anti-doping rule had been violated in the first arbitration.

Such a finding should in turn have led to a lesser sanction in the

second arbitration.

The application for revocation was denied.