Saturday, December 10, 2011
Thursday, October 6, 2011
COURT OF ARBITRATION FOR SPORT RULES IOC’S “6-MONTH RULE” INVALID AND UNENFORCEABLE
Today the Court of Arbitration for Sport (“CAS”) announced that it has found that the IOC rule that banned athletes who were suspended for more than 6 months from competing in the next Olympic Games after their suspension ended was invalid and unenforceable. The full decision can be found at http://www.tas-cas.org/d2wfiles/document/5314/5048/0/Final20award202422.pdf.
The decision of CAS is a good decision on a number of different fronts. It definitively rejects the notion that an athlete can receive an additional sanction under the false pretense of an “eligibility rule.” It settles once and for all an issue that has been raised in virtually every doping case in which I have been involved since the rule was first enacted in July 2008. It provides certainty to all athletes. It reinforces the World Anti-Doping Agency as the leader of the anti-doping movement in the Olympic movement. It reinforces CAS as the “Supreme Court of Sport,” and further solidifies the independence of CAS.
It was a pleasure for me to present this case to CAS on behalf of the USOC with my Swiss colleague Antonio Rigozzi, and with the USOC’s General Counsel Rana Dershowitz, but there are many who deserve credit. The USOC and IOC certainly should be credited with recognizing that this issue needed to be resolved now, and agreeing to submit this case to CAS a full year before the 2012 Olympic Games. The AAA arbitration panels in the cases of LaShawn Merritt and Jessica Hardy should be credited with addressing this Rule when they could have easily sidestepped it. USADA and the many other national anti-doping organizations that submitted briefs in support of the USOC’s position should be credited for standing up and taking a firm and unwavering position that this rule was actually hindering their ability to do their jobs. Significantly, Jessica Hardy and LaShawn Merritt should be credited for handling themselves with dignity, and for reminding us that sport is about the incredible athletes who inspire us.
The decision of CAS is a good decision on a number of different fronts. It definitively rejects the notion that an athlete can receive an additional sanction under the false pretense of an “eligibility rule.” It settles once and for all an issue that has been raised in virtually every doping case in which I have been involved since the rule was first enacted in July 2008. It provides certainty to all athletes. It reinforces the World Anti-Doping Agency as the leader of the anti-doping movement in the Olympic movement. It reinforces CAS as the “Supreme Court of Sport,” and further solidifies the independence of CAS.
It was a pleasure for me to present this case to CAS on behalf of the USOC with my Swiss colleague Antonio Rigozzi, and with the USOC’s General Counsel Rana Dershowitz, but there are many who deserve credit. The USOC and IOC certainly should be credited with recognizing that this issue needed to be resolved now, and agreeing to submit this case to CAS a full year before the 2012 Olympic Games. The AAA arbitration panels in the cases of LaShawn Merritt and Jessica Hardy should be credited with addressing this Rule when they could have easily sidestepped it. USADA and the many other national anti-doping organizations that submitted briefs in support of the USOC’s position should be credited for standing up and taking a firm and unwavering position that this rule was actually hindering their ability to do their jobs. Significantly, Jessica Hardy and LaShawn Merritt should be credited for handling themselves with dignity, and for reminding us that sport is about the incredible athletes who inspire us.
Friday, September 9, 2011
Monday, August 1, 2011
FINA Executive Director: If You Test Positive, Hire A Good Lawyer
In criticizing the large range of sanctions for certain types of positive tests [see http://www.thepeninsulaqatar.com/international-sport/160552-fina-chief-marculescu-criticises-doping-rules.html], FINA's Executive Director (unintentionally) provides advice that is not always followed by athletes and their agents - hire a good lawyer:
“You are in a civil court, you have a good lawyer, you have a good argument, that influences the panel. The range is too huge. I think it’s too much ... Today the new [WADA] code is like going to the civil court: you have a good lawyer and you are out. You have a bad lawyer, you are in.”
I disagree with the sentiment expressed here regarding the wide sanction ranges in certain cases under the World Anti-Doping Code: they should properly be viewed as providing arbitrators with the latitude to distinguish between cases of intentional doping and cases of inadvertence (as was the case for swimmer Cesar Cielo, among others), which is a good thing. Of course, this wide discretion means that the athlete's lawyer has to be even more persuasive and convincing, in cases of inadvertence.
Of course, I do agree with the unintended message that is conveyed in the linked article quoted above: if you test positive, and your career is on the line, then having the best athlete's lawyer on your side seems like an easy decision to make.
“You are in a civil court, you have a good lawyer, you have a good argument, that influences the panel. The range is too huge. I think it’s too much ... Today the new [WADA] code is like going to the civil court: you have a good lawyer and you are out. You have a bad lawyer, you are in.”
I disagree with the sentiment expressed here regarding the wide sanction ranges in certain cases under the World Anti-Doping Code: they should properly be viewed as providing arbitrators with the latitude to distinguish between cases of intentional doping and cases of inadvertence (as was the case for swimmer Cesar Cielo, among others), which is a good thing. Of course, this wide discretion means that the athlete's lawyer has to be even more persuasive and convincing, in cases of inadvertence.
Of course, I do agree with the unintended message that is conveyed in the linked article quoted above: if you test positive, and your career is on the line, then having the best athlete's lawyer on your side seems like an easy decision to make.
Saturday, July 23, 2011
A Big Win For Cesar Cielo
Changes to the World Anti-Doping Code over the last several years have been advertised as trying to distinguish between intentional dopers and inadvertent positive tests. Common sense supports the notion that if an athlete can prove that a positive test was inadvertent, with no intent to enhance performance, and where there was no performance enhancement, then there should be no sanction. Now, at least in this case, the Court of Arbitration for Sport has agreed - see http://sports.espn.go.com/oly/swimming/news/story?id=6789577.
Bravo.
Thursday, June 9, 2011
Thursday, April 28, 2011
Some Recent Developments in the Olympic World - the "Osaka Rule"
Two recent developments regarding the same controversial rule that would sanction any athlete who is suspended for more than 6 months for a doping offense with a ban from the next Olympics after their suspension ends: (1) the International Olympic Committee and the U.S. Olympic Committee have agreed to have the Court of Arbitration for Sport decide the validity or invalidity of the rule; and (2) the International Olympic Committee has determined that the rule does not apply to Jessica Hardy, therefore clearing her way to the 2012 Olympic Games. Both developments are recent, and here is a sampling of some of the commentary from three reporters who have closely followed the issue - Phil Hersh, Bonnie Ford, and Alan Abrahamson
http://newsblogs.chicagotribune.com/sports_globetrotting/2011/04/ioc-usoc-make-nice-to-seek-ruling-on-merritt-doping-case.html
http://espn.go.com/blog/olympics/post/_/id/728/jessica-hardy-ruling-is-the-right-one
http://3wiresports.com/2011/04/28/a-win-for-jessica-hardy-and-common-sense/
http://newsblogs.chicagotribune.com/sports_globetrotting/2011/04/ioc-usoc-make-nice-to-seek-ruling-on-merritt-doping-case.html
http://espn.go.com/blog/olympics/post/_/id/728/jessica-hardy-ruling-is-the-right-one
http://3wiresports.com/2011/04/28/a-win-for-jessica-hardy-and-common-sense/
Thursday, April 14, 2011
Barry Bonds Convicted For Talking About Fishing
In a bizarre verdict that seems unlikely to survive the certain legal challenges to come, the jury in the Bonds case did not convict on any counts of perjury, but convicted based on a finding of "obstruction of justice." So the jury did not find that Bonds lied to the grand jury, but did find that he obstructed justice through his grand jury testimony. How was this possible?
Here are the relevant portions of the jury instruction on "obstruction of justice" that led to the conviction:
"OBSTRUCTION OF JUSTICE
(18 U.S.C. § 1503)
The defendant is charged in Count Five with obstruction of justice in violation of 18 U.S.C. § 1503. In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:
1. The defendant corruptly, that is, for the purpose of obstructing justice,
2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,
3. by knowingly giving material testimony that was intentionally evasive, false, or misleading.
A statement was material if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.
The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of Count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify ...
Statement C:
Q: Did Greg ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t – we don’t sit around and talk baseball, because he knows I don’t want – don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you
come around talking about baseball, you go on. I don’t talk about his business. You know what I mean? …
Q: Right.
A: That’s what keeps our friendship. You know, I am sorry, but that – you know, that – I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see… "
So, was the U.S. Attorney incapable of asking a follow-up question to get an answer as to whether or not Anderson ever injected him? No, there was a specific denial that Anderson injected Bonds in a different portion of the grand jury testimony. Did Bonds' rambling answer prevent the government from obtaining the information that they needed? No. Did Bonds' answer prevent the government from obtaining any convictions in the BALCO case? No. So how exactly is this "obstruction of justice"?
This is certainly far from over. My prediction? This single count on which the jury convicted Bonds will not survive the upcoming legal challenges.
Here are the relevant portions of the jury instruction on "obstruction of justice" that led to the conviction:
"OBSTRUCTION OF JUSTICE
(18 U.S.C. § 1503)
The defendant is charged in Count Five with obstruction of justice in violation of 18 U.S.C. § 1503. In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:
1. The defendant corruptly, that is, for the purpose of obstructing justice,
2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,
3. by knowingly giving material testimony that was intentionally evasive, false, or misleading.
A statement was material if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.
The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of Count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify ...
Statement C:
Q: Did Greg ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t – we don’t sit around and talk baseball, because he knows I don’t want – don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you
come around talking about baseball, you go on. I don’t talk about his business. You know what I mean? …
Q: Right.
A: That’s what keeps our friendship. You know, I am sorry, but that – you know, that – I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see… "
So, was the U.S. Attorney incapable of asking a follow-up question to get an answer as to whether or not Anderson ever injected him? No, there was a specific denial that Anderson injected Bonds in a different portion of the grand jury testimony. Did Bonds' rambling answer prevent the government from obtaining the information that they needed? No. Did Bonds' answer prevent the government from obtaining any convictions in the BALCO case? No. So how exactly is this "obstruction of justice"?
This is certainly far from over. My prediction? This single count on which the jury convicted Bonds will not survive the upcoming legal challenges.
Wednesday, February 16, 2011
DIANA TAURASI CLEARED, LABORATORY RETRACTS POSITIVE TEST REPORT AFTER EXAMINING HER LEGAL DEFENSE
There was a good editorial piece today in the Hartford newspaper (online) - http://www.courant.com/sports/hockey/hc-jacobs-taurasi-column-0217-20110217,0,6640928.column. The Arizona Republic also had a comprehensive story - http://tucsoncitizen.com/sports-news/2011/02/16/turkey-lifts-provisional-doping-ban-on-diana-taurasi/
Aside from the fact that this case should never have been brought in the first place, it certainly should never have been publicized prior to any legal review taking place. The mere accusation of doping is damaging by itself, and being publicly charged and then later cleared never fully restores the athlete.
In Diana Taurasi's case, look what happened when her case was reported by the media. Her team terminated her, likely costing the team the European championships. Bloggers immediately jumped on the story with all of their own prejudices and personal motivations (for example, some sports lawyers used the case for their own social media marketing, getting the facts wrong in the process). Most traditional journalists wrote the standard "doping story," some relating the case to the modafinil positives that arose from the BALCO scandal. Shaun Assael at ESPN wrote a good piece about the scientific and legal issues that ultimately led to her being cleared (http://sports.espn.go.com/wnba/news/story?id=6089810).
I am honored that Diana Taurasi entrusted me with the difficult task of proving her innocence.
Aside from the fact that this case should never have been brought in the first place, it certainly should never have been publicized prior to any legal review taking place. The mere accusation of doping is damaging by itself, and being publicly charged and then later cleared never fully restores the athlete.
In Diana Taurasi's case, look what happened when her case was reported by the media. Her team terminated her, likely costing the team the European championships. Bloggers immediately jumped on the story with all of their own prejudices and personal motivations (for example, some sports lawyers used the case for their own social media marketing, getting the facts wrong in the process). Most traditional journalists wrote the standard "doping story," some relating the case to the modafinil positives that arose from the BALCO scandal. Shaun Assael at ESPN wrote a good piece about the scientific and legal issues that ultimately led to her being cleared (http://sports.espn.go.com/wnba/news/story?id=6089810).
I am honored that Diana Taurasi entrusted me with the difficult task of proving her innocence.
Tuesday, February 15, 2011
2 INTERESTING ARTICLES IN TODAY'S NEW YORK TIMES (ONLINE)
While there will certainly be much more to come, the NY Times so far has the best summary of the recent Contador exoneration in Spain - http://www.nytimes.com/2011/02/16/sports/cycling/16contador.html.
NY Times also posts a summary of a recent evidentiary ruling in the Barry Bonds case, which is set to start trial in just over one month-http://www.nytimes.com/aponline/2011/02/15/sports/baseball/AP-BBO-Bonds-Steroids.html?_r=1&ref=sports.
NY Times also posts a summary of a recent evidentiary ruling in the Barry Bonds case, which is set to start trial in just over one month-http://www.nytimes.com/aponline/2011/02/15/sports/baseball/AP-BBO-Bonds-Steroids.html?_r=1&ref=sports.
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