Article 190(2)(b) of the Private International Law Act (PILA) provides that an award "can be challenged only if the arbitral tribunal wrongly accepted or declined jurisdiction".

Pursuant to Article 190(2)(e) PILA, an award may be set aside if it is incompatible with ordre public.

X is a professional cyclist from Italy. As such, he is affiliated with the International Cycling Union (ICU). On 3 May 2010, the ICU informed the Italian Cycling Union that, based on the results reported in his Athlete Biological Passport, X was suspected of having breached the UCI Anti-Doping Rules (ADR). By a decision of 21 October 2010, the Italian Tribunal for Anti-doping (Tribunale Nazionale Antidoping) (TNA) of the Italian National Olympic Committee (Comitato Olimpico Nazionale) dropped the charges against X, on the ground that the breach of doping rules had not been sufficiently established.

Upon receipt of this decision, the ICU filed an appeal before the Court of Arbitration for Sport (CAS). In an award dated 8 March 2011, the CAS annulled the decision of the TNA and ordered a two-year suspension against X. X challenged the CAS award before the Swiss Supreme Court, alleging, among other things, that since ICU filed its appeal after the time-limit, the CAS did not have jurisdiction to adjudicate the case (Article 190(2)(b) PILA). The petitioner also claimed that the CAS' reliance on the Athlete Biological Passport was incompatible with ordre public in terms of Article 190(2)(e) PILA.

The Supreme Court dismissed the appeal.

Relying on Article 190(2)(b) PILA, the petitioner claimed that, because the appeal was lodged after the prescribed time limit, the agreement to arbitrate had expired and the CAS therefore did not have jurisdiction to annul the decision of the TNA.

According to the Supreme Court, it is not certain in sports-related disputes that this kind of argument can be raised in a challenge based on Article 190(2)(b) PILA. The Supreme Court further submitted that "whether or not an untimely appeal entails the CAS' lack of jurisdiction [ratione temporis] or simply the inadmissibility of the claim or even its dismissal is a delicate question". With respect to "typical" arbitration, such as commercial arbitration, the Supreme Court confirmed existing case law pursuant to which a party may seek to challenge the arbitral award by invoking lack of jurisdiction ratione temporis (based on Article 190(2)(b) PILA), where the arbitral tribunal accepted jurisdiction when the temporal scope of the arbitration agreement had expired. For example, this may be the case when the arbitral agreement is valid only for a limited period of time or when it is subject to prior conciliation or mediation proceedings.

However, the Supreme Court expressed its doubts as to whether this solution may extend to sports arbitration and more specifically to the situation where the appeal before the CAS is filed after the time limit prescribed by Article R49 of the Code of Sports-Related Arbitration. Incidentally, the Supreme Court referred to a recent decision where it submitted that "the issue as to whether a party may challenge a decision rendered by a sport federation triggers the party's standing to initiate proceedings (qualité pour agir) and not the arbitral tribunal's jurisdiction" (Case 4A_428/2011 of 13 February 2012, discussed in Legal update, Swiss Supreme Court on consent in sports arbitration and a non-signatory's standing to bring a claim before the CAS). In any event, in this case, since the appeal had actually been filed within the time limit, the Supreme Court considered it unnecessary to investigate this matter further and dismissed the petition.

The petitioner also sought to challenge the award on the ground that it was incompatible with ordre public, insofar as the CAS relied on X's Athlete Biological Passport to find him guilty of doping. The Athlete Biological Passport is a test that has been introduced by the UCI to detect doping practices. It is based on the monitoring of the athlete's biological variables over time to facilitate indirect detection of doping on a longitudinal basis, rather than on the traditional detection of doping.

According to X, the Athlete Biological Passport is unreliable evidence and it entails a reverse onus. It therefore infringes the in dubio pro reo principle, as the athlete is basically obliged to establish that the adverse analytical finding has a physiological origin, while the anti-doping organisation does not have to show any concrete violation.

The Supreme Court denied the complaint on the ground that it was not within the restricted scope of ordre public. The Supreme Court also reaffirmed existing case law (Case 4A_612/2009 of 10 February 2010, discussed in Legal update, Swiss Federal Tribunal's reasoning in the "Pechstein" case confirms its strict approach to petitions to set aside arbitral awards), pursuant to which the practice of reverse onus in sport disciplinary measures "does not violate public policy but refers to the allocation of the burden of proof and the standard of evidence which, in the area of application of private law cannot be determined from the perspective of criminal law concepts such as the presumption of innocence or the principles of in dubio pro reo". The Supreme Court therefore dismissed the petitioner's pleas on the standard of evidence and the reversal of the burden of proof, considering that these were of an appellate nature and that they did not relate to ordre public.

This decision illustrates once again the peculiarities of sports arbitration. While the decision does not decisively settle the issue as to whether an untimely appeal before the CAS triggers the lack of the ratione temporis jurisdiction of the CAS, it nevertheless provides some interesting indications on how the Supreme Court could rule in the future. Very interestingly, the Supreme Court considered as "prima facie convincing" the view taken by an author (Antonio Rigozzi), that the solution adopted in commercial arbitration should not extend to sports arbitration and, in particular, not to the appeal before the CAS. If this is confirmed, it would be further evidence that within the practice of the Supreme Court, the gap between sports arbitration and commercial arbitration is becoming increasingly wider.

As outlined in this decision, in commercial arbitration, when the temporal validity of the agreement to arbitrate expires, the arbitral tribunal loses its jurisdiction and state courts become competent. In the author's view, to apply this solution in sports-related disputes would contravene the spirit of international sports-arbitration, as the athletes would not to be judged in the same way and according to the same proceedings. Indeed, in cases where the time limit to appeal is complied with, the athlete will be judged by the CAS, whereas they will be heard by a state court if the time-limit to appeal before the CAS has lapsed.

According to Antonio Rigozzi, the time-limit to appeal before the CAS should be considered as a waiver of the petitioner's claim on the merits. As such, where the time-limit is not complied with, the CAS would still admit its jurisdiction but the claim would be dismissed on the merits. If the Supreme Court was to adopt this solution, which it seems inclined to, this would in fact accord with the solutions adopted by Anglo-Saxon courts. Pursuant to English case law, "if the clause stipulates that notice of claim must be within a certain number of days, then the obvious interpretation is that if the notice is not given, the claim is lost" (Smeaton v Sassoon[1953] 2 Lloyd's Rep. 580, [1953] 1 WLR 1468, 1472). Similarly, the American courts consider that "it appears to be a settled practice of courts that when the time expires for initiating arbitration, the party loses all remedies and cannot institute a court action later, since otherwise "the result would be a return to the situation obtaining when agreements to arbitrate were revocable at will of a party thereto" (River Brand Rice Mills v Latrobe Brewery Co. 305 N.Y. 41, 122 N.Y.S.2d 19, 110 N.E.2d 345 (1953)).

The Supreme Court's decision also confirms the specificity of sports arbitration with respect to the reverse burden of proof in doping disputes, which was admitted for the first time by the Supreme Court in the Gundel decision (TF 4P.217/1992, 15.03.1993).