NEWSLETTER-2019-metin

350 NEWSLETTER 2019 The provisions of R46 (3) and R59 (4) of the CAS Code, which are controversial and cause differences to athletes, are actually the solidified version of Article 192 of the PILA 12 . However, despite the existence of this provision, in the well-known case of Guilermo Cañas vs. ATP Tour, which came before the Tribunal in 2007 13 , the SFT stated and declared the following: The right to appeal cannot be waived in an indirect manner, and the parties must express their common intentions to exclude the appeal, unquestionably, and Article 192 of PILA is not a provision to be applied in sporting disputes, historically, and an ath- lete who waives his right to appeal against future decisions, generally, does not do this on his own free will and, therefore, Article 192 of the PILA should not be used as a defense against an athlete in principle. For these grounds, the SFT decided that the waiver of the athlete is not lawful and, therefore, there was no reason for the appeal to be rejected 14 . Grounds for Annulment Pursuant to Article 190/2 of the PILA, an action for annulment may be filed against the arbitral awards of the CAS before the SFT using a limited number of grounds, as follows: • Wrongful appointment of sole arbitrator or improper consti- tution of panel (subparagraph a), • Arbitral tribunal’s incorrect decision as to jurisdiction (sub- paragraph b), 12 Mavromati / Reeb : p. 561, http://www.kluwerarbitration.com/document/ KLIKA-Mavromati-2015-R59 (Access date: 17.01.2019). 13 Tennis player, Guillermo Cañas, after a prohibited substance was found in his urine at the Acapulco tournament was suspended by the Association of Tennis Professionals Tour (“ATP”) for which the head office is in Delaware. The ATP Anti-Doping Court sentenced him to a penalty, which was reduced by the CAS, as it was detected that the prohibited substance had been given to Cañas by mistake. The claimant applied to the SFT for annulment of the CAS award on the grounds that both his right to a fair trial and Swiss public order were violated. 14 Erkiner, Kısmet : Uluslararası Spor Tahkim Mahkemesi, XII Levha Yayınları, 2. ed., Istanbul, 2010 p. 239 ff; For the French text for the original language of the award, see: 4P.62/2004 du 1er décembre 2004, ASA Bull. 2005, p. 483.