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/
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