The Court of Arbitration of Sport decision striking down the British Olympic Association's (BOA) lifetime ban on Olympic participation for athletes who have committed doping offenses was fairly predictable, as the result was foreshadowed (and some would say pre-ordained) by last summer's decision in the U.S. Olympic Committee's challenge to the IOC's "Osaka Rule" [see blog posts below). In fact, following the decision, the World Anti-Doping Agency's (WADA) Director General David Howman, had this to say:
"We gave the BOA a chance to review their opinion after the IOC case. The BOA wasted a lot of time and money and got the inevitable result." [http://sports.yahoo.com/news/british-olympic-doping-appeal-waste-time-145827457--spt.html]
The BOA has, rather than accepting the decision as one required by law, upped the ante on rhetoric, calling the decision a "hollow victory" for WADA, and calling for much lengthier sanctions. It would be tempting to fall for this rhetoric, if one believed that those suspended for doping were all "intentional cheaters." Of course, that is not the case. It is comforting to see that the anti-doping agencies recognize that there is really no need to overhaul the rules with lengthier sanctions.
In all of the clamor from the BOA for lengthier sanctions for intentional cheaters, they ignore or are simply unaware that those rules already exist. The WADA Code already provides for a sanction of up to four years for a first offense in the case of "aggravated circumstances."
In addition, the dramatic calls for a lifetime ban for a first offense have been met by WADA with what can only be described as a "reality wake-up call":
"As we go forward we've got to maintain a gentle touch with reality and reality is whatever rules are put in place must be able to sustain a challenge in international law and the appropriate courts, including courts of human rights," [David Howman] explained. "For a first offence, (a four-year ban) [is] totally impossible.
"When you look at lifetime bans they are already in the Code for second, or maybe third offences but for a first offense I would say there would not be one human right lawyer or sport lawyer in the world who would ever suggest that." [http://uk.reuters.com/article/2012/05/01/uk-olympics-doping-wada-idUKBRE8400QL20120501].
Wednesday, May 2, 2012
Wednesday, March 7, 2012
"Dwain Chambers and David Millar will be free to compete for Great Britain at the London Olympics, according to a leading sports lawyer"
Here is an article and part of an interview that I did with the BBC in advance of the March 12 CAS hearing on the validity of the British Olympic Association's "lifetime Olympic ban" for British athletes who have committed doping offenses:
http://www.bbc.co.uk/sport/0/athletics/17280765
http://www.bbc.co.uk/sport/0/athletics/17280765
Wednesday, February 22, 2012
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.
Subscribe to:
Comments (Atom)
