Fondation Swiss Sport Integrity v. Yoann Kongolo

At a glance

Parties

Fondation Swiss Sport Integrity (Switzerland's national anti-doping agency) v. Yoann Kongolo (Swiss boxer)

Case no.

CAS 2022/A/9197

Forum and rules

Court of Arbitration for Sport, appeal procedure (CAS Code); Swiss Olympic Doping Statute 2015

Tribunal

Prof. Pascal Pichonnaz (Sole Arbitrator)

Sector

Sport: boxing and kickboxing; doping

Outcome

Appeal dismissed on 17 July 2023. The Swiss Olympic Disciplinary Chamber's decision of 11 July 2022 clearing Kongolo was confirmed in full.

Amount

Sought: a further four-year suspension, annulment of results and a fine of CHF 500. Nothing awarded.

The dispute

On 11 September 2019 the Sanctions Commission of the French anti-doping agency (AFLD) suspended Yoann Kongolo, a Swiss professional boxer and kickboxer, for four years (until 30 July 2023). The suspension followed a positive test for anabolic agents at a kickboxing event in Saint-Tropez in August 2018. The AFLD sent the decision to his Swiss address by international registered mail on 26 September 2019. He did not collect it, and it was returned "non réclamé" on 21 October 2019. Kongolo then fought at "Glory 69 Düsseldorf" on 12 October 2019 and at the "Boxing day" event in Bern on 26 December 2019. Swiss Sport Integrity charged him with breaching the prohibition on participation during a suspension (Article 10.12.3 of the Swiss Olympic Doping Statute 2015). The Swiss Olympic Disciplinary Chamber rejected the charge on 11 July 2022, and Swiss Sport Integrity appealed to CAS. Kongolo argued that the AFLD decision had not been validly notified to him. He also argued that the decision covered only French-sanctioned events, that he acted in good faith, and that the sanction sought was disproportionate.

Key holdings

1. CAS has jurisdiction under Article 13.1(b) of the 2021 Statute and Article 25b of the 2022 Procedural Rules. The appeal and the appeal brief were filed in time. ¶¶ 122–132
2. The authority that relies on a notification bears the burden of proving it and its timing. Notification is construed broadly in doping matters. But whether a French authority validly notified a decision abroad is governed by French law or by a convention binding both States, not by Article 138 of the Swiss Code of Civil Procedure. ¶¶ 162–166
3. The 1977 European Convention on service of administrative documents abroad entered into force for Switzerland only on 1 October 2019, so it did not apply. If the matter is administrative, notification had to go through diplomatic or consular channels. If it is civil or commercial, the 1965 Hague Service Convention applies. ¶¶ 167–175
4. Switzerland has declared its opposition to the channels in Articles 8 and 10 of the Hague Convention. An AFLD suspension decision therefore could not be validly notified in Switzerland by simple registered mail. The notification of 26 September 2019 was irregular, and the decision was never validly notified. ¶¶ 182–188
5. Even a broad reading of notification cannot override the rights of the defence that Article L. 232-5 I no. 16 of the French Code du sport imposes on the AFLD. The defective notification prevented Kongolo from appealing, had he wished to. It made no difference that he was in Switzerland when the postal notice was left and failed to collect the letter. ¶¶ 189–190
6. Kongolo cannot be sanctioned for breaching a decision that was not validly notified to him, and this decides the appeal. The appeal was dismissed and the Disciplinary Chamber's decision was confirmed. The Sole Arbitrator did not reach the territorial scope of the suspension, good faith or proportionality. ¶ 193; operative part

Procedural history

1. 4–5 August 2018Kongolo tests positive for anabolic agents at the "Fight Night" kickboxing event in Saint-Tropez.
2. 25 October 2018The AFLD provisionally suspends him from 30 November 2018 to 30 January 2019.
3. 11 September 2019The AFLD Sanctions Commission imposes a four-year suspension and a EUR 5,000 fine (decision no. CS 2019-54). The decision is sent by registered mail on 26 September 2019 and returned uncollected on 21 October 2019.
4. 12 October and 26 December 2019Kongolo fights in Düsseldorf and in Bern.
5. 25 March 2022Swiss Sport Integrity asks the Swiss Olympic Disciplinary Chamber to open disciplinary proceedings.
6. 11 July 2022The Disciplinary Chamber rejects the request and clears Kongolo.
7. 12 October 2022Swiss Sport Integrity files its statement of appeal with CAS. On 11 November 2022 it withdraws the appeal against SwissBoxing.
8. 29 November 2022Prof. Pascal Pichonnaz is appointed Sole Arbitrator, after the parties had proposed him jointly.
9. 5 April 2023Hearing at CAS in Lausanne.
10. 17 July 2023Award: appeal dismissed.

Tribunal, counsel and experts

Decided by

• Pascal Pichonnaz Sole arbitrator, Court of Arbitration for Sport — appointed by the parties jointly (Proposed jointly by the parties; appointed by the President of the CAS Appeals Arbitration Division)

For the claimant

Swiss Sport Integrity (in-house)

For the respondent

Jorge Ibarrola · Monia Karmass

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Keywords

• doping
• boxing
• kickboxing
• AFLD
• violation of prohibition during suspension
• notification of decision
• Hague Service Convention 1965
• Article 10 reservation Switzerland
• diplomatic or consular channels
• fictitious notification
• rights of the defence
• Swiss Olympic Doping Statute
• World Anti-Doping Code
• Article 138 CPC
• lex mitior
• Glory 69 Düsseldorf

Summary generated with AI from the published documents — refer to the award for the authoritative text.