From a small cede a mighty Code may grow: an analysis of CAS 2011/A/2658 BOA v. WADA

September 1, 2012

ADR, disciplinary, Doping

Read the full transcript at: CAS 2011/A/2658 British Olympic Association (BOA) v. World Anti-Doping Agency (WADA)

Although this case was decided on 30 April 2012, it is worth recapping and analysing it here in light of the recent Lance Armstrong decision. It is perhaps easiest to think of the decision less as a one-off and instead as Round 2 of the legalities of ‘eligibility’ and ‘sanctioning’ clauses, with Round 1 being the 2011 CAS decision on the eligibility of LaShawn Merritt to compete despite the IOC ‘Osaka’ rule (the USOC case).

Effectively this case revolves around the interpretation and legality of the 2009 BOA Byelaw “Bye-law of the National Olympic Committee: Eligibility for Membership of Team GB of Persons Found Guilty of a Doping Offence”

Whereas

(i)  the British Olympic Association (the “BOA”) is responsible for the selection of athletes and other support personnel to represent Great Britain and other territories as specified by the International Olympic Committee (“Team GB”);

(ii) the BOA strongly disapproves of doping in sport and does not regard it as appropriate that Team GB should include athletes or other individuals (including but not limited to coaches, medical and administrative staff) who have doped or been found guilty of a doping offence including but not limited to the supply or trafficking of prohibited substances;

(iii) the BOA, in compliance with the World Anti-Doping Code (“the WADC”), recognizes adjudication of competent authorities under the WADC by not selecting athletes or other individuals for accreditation to Team GB while they are subject to a ban from competition under such adjudications;

(iv) the BOA does not regard it as appropriate to select athletes or other individuals for accreditation to Team GB who have at any point committed a serious doping offence involving fault or negligence and without any mitigating factors;

(v) the BOA regards it as appropriate to take as a starting point that any athlete or individual guilty of a doping offence at any point should be ineligible for selection for Team GB, but to provide that an athlete or individual who can establish before an Appeals Panel that on the balance of probabilities his or her offence was minor or committed without fault or negligence or that there were mitigating circumstances for it, may be declared eligible for selection;

(vi) the BOA has accordingly adopted this byelaw.

1.Any person who has been found guilty of a doping offence either

(i) by the National Governing Body of his/her sport in the United Kingdom; or

(ii) by any sporting authority inside or outside the United Kingdom whose decision is recognised by the World shall not, subject as provided below, thereafter be eligible for consideration as a member of a Team GB or be considered eligible by the BOA to receive or to continue to benefit from any accreditation as a member of the Team GB delegation for or in relation to any Olympic Games, any Olympic Winter Games or any European Olympic Youth Festivals.

2. The Executive Board of the BOA shall establish an Appeals Panel made up of

(iii) three individuals………. [the remainder of the byelaw then goes on to discuss the establishment of the Appeals Panel (AP) and the procedures to be followed in the event of an appeal….]

It is a condition of the World Anti-Doping Agency (WADA) Code 2009 that all the rules of all National Olympic Committees (NOCs) are in compliance with the Code (article 20.4.1). WADA had previously confirmed to the BOA that this byelaw was in compliance with the Code via a letter dated 3 March 2009. Following the USOC ruling, WADA again wrote to the BOA, to suggest that the new CAS interpretation meant that the BOA Byelaw was now non-compliant. On 12 December, the BOA filed an appeal with CAS asking for a declaration that this decision was incorrect.

 The fact that both WADA and the BOA requested the same arbitration team (Professor Richard McLaren, Me. Michele Bernasconi and David Rivkin) as the USOC decision, only serves to reinforce the idea of a rematch/round 2. As with the USOC case:

  • both parties agreed that CAS has jurisdiction under issues concerning Articles 13.5 and 23.4.4 of the WADA Code
  • while Article R57 of the CAS Code provided that a CAS Panel “shall have full power to review the facts and the law”

  

Two Key Questions

While many commentators in the media dressed this decision up as a heroic British fight against doping, where WADA was soft on drugs, against the much harder BOA stance; sadly, the judgment itself was much more mundane and procedural, with Professor McLaren’s analysis focusing on the interpretation of the law, indeed almost disappointingly so. (I wonder if this trend of analysing the merits of the law rather than rhetoric will catch on?)

The case essentially boiled down to two key questions:

  1. Was the BOA bound by the provisions of the WADA Code?
  2. Was the BOA byelaw a selection (exempt from the Code) or sanctioning policy (bound by the Code)?

The BOA argued that because they were a National Organizing Committee (NOC) rather than a National Anti-Doping Organization (NADO), they were unaffected by the provisions of the WADA Code [5.10]. By contrast, WADA had two rebuttal arguments. The first was a very interesting assertion that it didn’t matter what the BOA were on paper as they were actually an anti-doping organization because they cooperated with the relevant NADO (UK Anti-Doping) both directly and indirectly by initiating, implementing, imposing and enforcing sanctions [5.44]. From the definition of an anti-doping organization (ADO) in article 1 of the Code though, it is unclear as to whether the BOA actually fits within this collective list. Indeed, a strong case could be made that as the BOA does not have any specific anti-doping responsibilities and NOCs were not specifically mentioned by name, it is not actually an ADO. Unfortunately, this point was not specifically addressed in the judgment. Instead, the far-easier means to the same end-point was reached via the second point that as the BOA were a signature of the WADA Code (art. 20.4.1), then they were bound by its provisions [8.12].

  

Natural selection, ducks and speeches

There are a number of interesting points to come from the judgment in relation to selection rules, the first is that CAS confirmed that Eligibility rules are generally exempt from the WADA Code [8.11]

On the face of it, this should mean that answering the second question, ‘was the byelaw a selection policy’ would be a comparatively difficult process. Unfortunately, the reality of the BOA byelaw means that this debate will need to happen in another time and place. While the BOA byelaw might call itself an ‘eligibility for membership rule of Team GB’ that defines the nature of the people selected for the team, this is not enough to save it. Instead the byelaw crumbled under two devastating arguments: the duck test and the sound-bite test.

  • Although the BOA tried to distinguish their bye-law from the IOC Osaka rule by suggesting that it concerned selection to the GB team rather than accreditation to an event, this was rejected as irrelevant by the Panel. Instead the panel looked at what was the foundation behind the bye-law and saw that it was underpinned by reference to the WADA Code [recitals 2,3,5,6,7]. (The duck test: if it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!). The Panel also noted that the ineligibility was triggered by a doping violation under the Code and resulted in an automatic ban (a sanction very similar to that in the USOC decision).
  • The BOA argument was further weakened by the comments made by supporters and its own members (the sound-bite test).
    • The CAS Panel heard at [8.32] that in the 2007 Ohuruogu case, the BOA’s own Appeals Panel “rejected the BOA submission that the BOA Byelaw is a selection rule and not an anti-doping rule. We see no value in any such distinction. It is clearly an anti-doping rule.”
    • WADA also produced evidence that the BOA Chairman and other members had made speeches praising the deterrent and punishment value of such a byelaw [5.55-5.57]. (Perhaps this emphasises the need for governing bodies to have a consistent, clear brand and strategic direction?)

From here, it was then a simple procedural matter of stating that the BOA byelaw was a doping sanction. Under article 23.2.2 of the WADA Code the BOA as a signatory to the Code had previously agreed to give up its sovereignty in the area of anti-doping, in particular its ability to impose additional sanctions:

“The following Articles (and corresponding Comments) as applicable to the scope of the anti-doping activity which the Anti-Doping Organization performs must be implemented by Signatories without substantive change (allowing for any non- substantive changes to the language in order to refer to the organization’s name, sport, section numbers, etc.):

  • Article 1 (Definition of Doping)
  • Article 2 (Anti-Doping Rule Violations)
  • Article 3 (Proof of Doping)
  • Article 4.2.2 (Specified Substances)
  • Article 4.3.3 (WADA’s Determination of the Prohibited List)
  • Article 7.6 (Retirement from Sport)
  • Article 9 (Automatic Disqualification of Individual Results)
  • Article 10 (Sanctions on Individuals)
  • Article 11 (Consequences to Teams)
  • Article 13 (Appeals) with the exception of 13.2.2 and 13.5
  • Article 15.4 (Mutual Recognition)
  • Article 17 (Statute of Limitations)
  • Article 24 (Interpretation of the Code)
  • Appendix 1 – Definitions

No additional provision may be added to a Signatory’s rules which changes the effect of the Articles enumerated in this Article.”

It must therefore come as no surprise that the BOA Bye-Law had to be scrapped. We can ultimately draw two conclusions from this judgment.

Either the BOA genuinely felt that their bye-law should be about ensuring only athletes of appropriate character represent Team GB. If so, what could they have done differently? The Panel perceptively noted at:

[8.28] While the BOA claims this selection policy is part of a greater policy that the BOA will select only athletes of good character, the fact is that the only behaviour that is explicitly referred to in the Bye-Law and that renders one ineligible to compete is the commission of a doping violation under the WADA Code.

If the BOA were serious about ensuring that Team GB only contained athletic role-models, criminal sanctions, sexual misconduct and behaviour likely to bring the sport into disrepute should also make athletes ineligible for selection. Although the BOA argued in their brief that this was already the case [5.19], to my knowledge, there is no public documentation of cases where the BOA has considered non-selection for misconduct other than doping?

The CAS Panel also noted the ban was triggered automatically by the inappropriate behaviour, in this instance doping. The BOA may have had more success had this ineligibility been based on a discretionary judgment. The problem with that approach though is that this discretion would surely have been open to challenge and considerable uncertainty.

It seems a minor point, but the CAS Panel also seems contradictory regarding the subject of Appeals. It initially seems to suggest that:

[8.29] If the selection policy were purely designed as a means by which the BOA could have only the athletes of the best character, it would be unnecessary to have an appeals process to assess the “proportionality” of the application of the Bye-Law. In other words, the only thing that matters in a proportionality determination is the behaviour of the individual. Whether the punishment fits the crime is purely an analysis of an individual’s character and prior behaviour.

But then several paragraphs later seems to change its mind:

[8.33]… The fact that the Bye-Law forsees a possibility of an Appeal Procedure is certainly a good instrument to avoid totally disproportionate decisions…..”

Where the two paragraphs cannot be reconciled, the latter is perhaps the more accurate interpretation.

  

Alternatively, the BOA knew, or should have known, that as a signatory to the Code it was unable to make alterations to the anti-doping framework. If so, the judgement owed more to politics and a means of rallying support under introducing life-bans in the new 2013 Code, than any legal uncertainty.

Either way, the judgment shows that the WADA Code is now definitively the dominant force in anti-doping and while organisations and countries may bemoan their lack of sovereignty, for once there is a level playing field.

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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2 Comments on “From a small cede a mighty Code may grow: an analysis of CAS 2011/A/2658 BOA v. WADA”

  1. Gary W.Pitts Says:

    Dear sirs:
    Regarding this above-captioned decision.. Did the BOA not have jurisdiction over their athletes ( anti-doping ) before the birth of WADA ?Did BOA ever explicitly and succinctly give up those rights? It is unclear that they did, either in fact or in law.
    Under the principles of of Natural Justice, the principle of acquired rights should have been applied by the CAS panel, and taken precedence.
    With all due deference, I disagreee with the CAS panel’s decision. Both bodies may have concurrent powers..(anti-doping.) Acquired rights trump new rules and/or regulations No governing body should not be deprived of its fundamental rights, exercised for a long time with the stroke of a pen. .. in the circumstances, who had the PRIOR right? With respect for the Panel- the BOA should have retained their powers under a previously existing Bye-law which had been applied much before WADA was born or wanted to apply the same or similar rules.. Acquired rights cannot be taken away with the stroke of the pen. This was not a case a bye-law which contravened WADA, but rather which came first- the chicken or the egg.
    For these reasons, I respectfully submit that is not a case for an application of the “duck test”, but rather a decision which failed to address the fundamental rights of a country to regulate their own athletes rights to compete BECAUSE the British had this prior legal right—and they have never relinquished it. The issue of “selection vs. anti-doping ” is and was a red herring.. Also, any doubt should have been resolved in favour of BOA.-Both BOA and WADA are on the same Olympic team- are they not?
    Justice must not only be done- it must be seen to be done.
    Respectfully,
    Gary W. Pitts,
    January 3,2013.

    Reply

    • Kris Says:

      While I agree with your broad sentiment, the question over fundamental rights really boils down to the purpose of the BOA.

      The BOA is a NOC (National Olympic Committee) and its overarching purpose is therefore to act as GB’s Olympic representative within the Olympic Movement and to manage a team at Summer and Winter Games to that effect.

      In order to maintain its NOC status, it has to be appropriately constituted and recognised by the IOC. Under Rule 27.2.6 (Mission and Role of NOCs) within the Olympic Charter, it states that all NOCs have to agree to and abide by the WADA Code.

      Therefore prior rights or not, the BOA explicitly signed these away when it recommitted to the Olympic Movement. Given the power and authority of the IOC, there is very little room for negotiation on this issue (see the recent example of the Indian NOC). Either the BOA agrees to the Olympic Charter in which case, the BOA gave up its independent anti-doping rights, or it retains them but ceases to be recognised by the IOC as a NOC and GB loses Olympic recognition.

      If the BOA agrees to incorporate the WADA Code, again, the whole purpose of the WADA Code is to harmonise anti-doping efforts and whether you agree with this (or the specifics of the Code) is irrelevant, there cannot be any additional anti-doping sanctions not contained within the Code.

      You can argue that the BOA should have retained its rights under first the IOC and then WADA but both of these are incompatible with that principle. If the BOA wishes to be a part of these bodies, then it agrees that either that its rules are read in such a way as to be compatible, or it explicitly enacts byelaws to relinquish this incompatible power. Either way the result is the same.

      K.

      Reply

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