Valverde submitted that prior to the CAS award, the party-appointed arbitrator Miguel Angel Fernández Ballesteros had withdrawn from his office and had not participated in the deliberations leading to the award of 31 May 2010. Relying on Supreme Court case law, Valverde argued that the right to a correct constitution of the tribunal was violated if its members, despite the (even unjustified) resignation of an arbitrator, continued the proceedings without being authorised accordingly. Valverde therefore requested the annulment of the award based on Article 190(2)(a) PILA or, in the alternative, based on Article 190(2)(d) or (e) PILA.

The Supreme Court referred to its 1991 decision (BGE 117 Ia 166), in which it had examined the case of an arbitrator who had resigned without good cause. The Supreme Court had found that, unless the parties had agreed otherwise, the proceedings could not be continued by the remaining members of the tribunal until a new arbitrator had been appointed. In the absence of authorisation by the parties, the tribunal which had purported to continue the proceedings despite the resignation of one of its members was deemed to be irregularly constituted. In a subsequent 2002 decision (BGE 128 III 234), the Supreme Court had, however, clarified that the above situation was to be distinguished from the case in which an arbitrator nominated by a party did not formally withdraw from his office, but refused to co-operate or obstructed the proceedings, in particular by refusing to participate in the deliberations of the arbitral tribunal without a valid ground. The Supreme Court had held that, in such a case, the arbitral tribunal continued to be properly constituted and the recalcitrant arbitrator could not block the tribunal's decision making if the majority of its members decided to continue the proceedings and to render an award, if necessary by way of circulation.

The Supreme Court pointed out that legal authors are divided on the problem of "truncated arbitral tribunals", that is, on how to proceed if one of the arbitrators resigns. Whereas some commentators consider that the arbitral tribunal may validly deliberate without the participation of the arbitrator who has declared his unjustified resignation, other authors take the view that a replacement of the resigned arbitrator is inevitable, unless the parties have agreed otherwise or are subject to rules which allow for the continuation of the proceedings in these circumstances.

While acknowledging that the issue of "truncated arbitral tribunals" was a delicate one, the Supreme Court did not consider it necessary to examine the problem any further given that the alleged resignation of the arbitrator, Fernández Ballesteros, had not been established in the case at issue. In a written statement filed by the CAS with its response to the Supreme Court, Fernández Ballesteros had in fact confirmed that he had offered his resignation from the arbitral tribunal, which had however been refused by the secretary general of the CAS, and that he had not opposed this refusal. The Supreme Court therefore inferred that Fernández Ballesteros had always been a member of the arbitral tribunal and the award had therefore not, in fact, been rendered by a "truncated arbitral tribunal". The Supreme Court also emphasised that there was no indication that Fernández Ballesteros had not had the opportunity to regularly participate in the deliberations of the arbitral tribunal.

Valverde argued that he had been punished twice for the same infringement, namely once by the CONI in the Italian proceedings and once in the proceedings under discussion. He argued that this violated the principles of ne bis in idem or res judicata. He therefore requested the Supreme Court to set aside the award of 31 May 2008 on the basis of a violation of public policy (Article 190(2)(e) PILA).

The Supreme Court confirmed the established rules that the principle of res judicata is part of Swiss procedural public policy within the meaning of Article 190(2)(e) PILA and that the principle of ne bis in idem is the corollary or the negative aspect of the principle of res judicata. In criminal law, the principle of ne bis in idem precludes a second prosecution against the same person for the same offence (double jeopardy). The principle is enshrined both in international and in Swiss law and was recently codified in the new Swiss Code of Criminal Procedure. The Supreme Court considered that the importance and proliferation of the principle of ne bis in idem were such that the principle must be included within the scope of public policy for the purposes of Article 190(2)(e) PILA. However, the Supreme Court left open whether the principle of ne bis in idem forms part of procedural or substantive public policy.

Furthermore, the Supreme Court did not decide whether disciplinary sports law is generally subject to the principle of ne bis in idem. It only stated that the CAS itself had found that the principle was, at least by analogy, to apply in the case at hand due to the severity of the disciplinary sanction imposed on Valverde. Therefore, the Supreme Court deemed it sufficient to review the application of the principle by the CAS in concreto.

According to the Supreme Court, the application of the principle of ne bis in idem pre-supposes that the protected interest be identical in both prosecutions (identity of object). However, the principle does not prevent the initiation of a second set of proceedings against the same person, if the latter's behaviour entails not only penal consequences, but also consequences of a civil, administrative or disciplinary nature.

The Supreme Court found that the CAS had rightly found that there was no identity of object. The suspension ordered in the Italian proceedings by CONI had essentially been of a preventative nature aimed at protecting sporting competitions on Italian territory from the participation of persons convicted of violating anti-doping rules. By contrast, the suspension imposed on Valverde by the CAS award of 31 May 2010 was of a punitive nature, having the purpose of sanctioning a professional athlete with worldwide effect.

For the above reason, the Supreme Court concluded that there had been no violation of the principle of ne bis in idem and consequently no violation of public policy for the purposes of Article 190(2)(e) PILA.

Valverde further submitted that the award at issue contained a contradiction between the reasoning and the operative part of the award. He argued that the award violated public policy in the sense of Article 190(2)(e) PILA.

The Supreme Court confirmed the established principle that intrinsic contradictions in the reasoning or in the operative part of an award do not render the award contrary to substantive public policy such as to justify the annulment of the award under Article 190(2)(e) PILA. The Supreme Court clarified that this principle applied if the award contained a contradiction between the reasoning of the award on the one hand and the operative part on the other.

In any event, the Supreme Court concluded that, on the facts, the operative part of the CAS award did not contradict its reasoning. On this ground, the Supreme Court denied that there was any legally protected interest on the part of Valverde in the annulment of the CAS' decision not to enter into the merits of his request for interpretation of the award. As a consequence, the Supreme Court refused to admit Valverde's second setting aside petition filed on 28 July 2010 and left open whether the decision at issue was subject to a challenge to the Supreme Court.

The Supreme Court confirmed its practice with respect to a number of further issues: