Archive | December 13, 2015

Doping and CAS

December 13, 2015

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By Mario Checchia – Thompson Rivers University JD Student

The World Anti Doping Agency (WADA) Code (the “Code”) provides the Court of Arbitration for Sport (CAS) Appeals division exclusive jurisdiction over doping related appeals. Unless changes are made which remedy the concerns raised in this article, it is the opinion of this author that the CAS is not the appropriate forum for doping related matter. Olympic athletes and other athletes who are members of sport federations that submit themselves to the authority of CAS, such as FIFA, do not have a choice in whether or not to adhere to the jurisdiction of the CAS since the mandatory arbitration clauses are within their contracts. If they refuse to sign they are not permitted to compete.

The mandatory submission of these sports federations to the authority of the CAS and the implications of a finding of the use of a banned substance by the CAS is why the appropriateness of this arbitration body must be addressed. As Maureen Weston has said in her journal article “Doping Control, Mandatory Arbitration and Process Dangers for Accused Athletes in International Sports”, doping violations can impact an athlete’s career and long term reputation. Take for example, the women’s 100m breaststroke world record holder in 2008, Jessica Hardy. Hardy had actively worked to ensure that her supplements did not contain any banned substances by going as far as having a dialogue with the manufacturer along with consulting her coaches. In an unfortunate turn of events, lab technicians claimed Jessica’s nutritional supplements contained clenbuterol without her actually failing a drug test, just weeks before the Olympic Games in Beijing which forced her to withdraw. The CAS would go on to reduce Hardy’s suspension to one year down from two years; however, Hardy was still unable to compete in the 2008 Olympic Games and her reputation will be scarred with that adverse finding against her.

The CAS is not the ideal court for handling doping related charges for a few reasons. These include the CAS’s burden of proof, the rules of evidence, and the unbalanced playing field.

The WADA Code’s burden of proof is termed as ‘comfortable satisfaction” – greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The exact meaning of this standard is still unclear. Although it is WADA that outlines the standard, it was the CAS which developed it and it will be the CAS that will refine it, according to Michael Straubel in “Enhancing the Performance of the Doping Court”.

One may argue that because of the seriousness of the charges of a doping related offence and because the state also punishes this conduct, doping matters should be classified as criminal, and in turn the standard should be that of criminal proceedings. The similarity in penal approach between criminal proceedings and sport doping matters was acknowledged in Demetis v Federation Internationale de Natation (27 May 2003) CAS 2002/A/432; however, the standard in sport doping matters is not ‘proof beyond a reasonable doubt’. This is further evidenced in the case of Pechstein v International Skating Union (25 November 2009) CAS 2009/A/1912 [55] which involved a 2 year ban on the 5 time skating champion. The ISU, without a positive drug test, imposed a ban based on blood passport values that were abnormal. Pechstein argued on appeal that because of the seriousness of the offence the standard should be very close to proof beyond a reasonable doubt, however, the court went with the ‘comfortable satisfaction’ standard.

There are problems with an arbitration body hearing matters which deal with matters that ought to have criminal procedures in force. Arbitration was created in the commercial realm to solve civil type disputes and therefore do not typically hold satisfactory rules of evidence, and the CAS is not an exception to this. The rules of evidence in CAS in relation to adverse findings in the absence of a positive drug test should itself be sufficient to discredit the CAS as the proper appeal body for doping related charges.

Additionally, there are foundational concerns with the CAS handling doping related matters. The structure of arbitration assumes the parties are on a level playing field but this would not be the case in most doping related disputes as the athletes tend not to have access to the level of advocacy or scientific experts as the sports authority.
When the CAS remedies these concerns only then should the arbitration body be considered as the authority for appeals regarding doping related matters.

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Reyes & the MLB Joint Domestic Violence, Sexual Assault and Child Abuse Policy

December 13, 2015

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By Alexandra Del Vecchio – Thompson Rivers University JD Student

In August 2015 Major League Baseball (MLB) and the MLB Players Association proudly introduced their Joint Domestic Violence, Sexual Assault and Child Abuse Policy. The policy provides avenues for the MLB to deal with instances and accusations of domestic violence, sexual assault, and child abuse by its players. It has been widely reported that discussions with respect to this new policy began, and were treated as a priority, in light of the various issues faced by the National Football League in recent years. In particular, the Ray Rice incident and the league’s handling of that situation is said to have accelerated MLB’s discussions of the policy.

The new joint policy has many interesting aspects. The MLB commissioner is granted considerable authority under the policy; he is responsible for investigating accusations of this nature, has the ability to put the player on paid administrative leave during the investigation, and the task of setting an appropriate penalty where warranted.

Notably, the commissioner’s imposition of a penalty is not governed by limitations, penalties are not dependent on criminal conviction, and the player’s team is not involved in penalty decisions unless asked. The policy also purports to take a comprehensive approach to addressing these accusations; the MLB has noted that the policy protects the legal rights of players, treats violations seriously, holds players accountable with appropriate means and perhaps most importantly, provides resources, such as a 24-hour helpline, for the intervention and care of victims, families and the players.

While the policy has encountered some criticism, its announcement has generally been met with a great deal of positivity and optimism. The MLB and MLBPA have also been applauded for both their collaboration and proactivity. It cannot be denied that the introduction of this policy is, at minimum, an important step in addressing these issues. It certainly seems as though the MLB is at least prepared to take a strong stance on these matters. That said, thus far the utility of the new policy has remained untested.

On October 31st, Jose Reyes was arrested in the state of Hawaii. It has been reported that Reyes is charged with abuse of a family or household member; he is alleged to have assaulted his wife while the couple was on vacation. Reyes is a shortstop for the Colorado Rockies. And so, we will now see the new measures in action; Reyes will be the first MLB player dealt with under the new joint policy. In reference to this matter, the MLB has commented that it understands the seriousness of the issues and harms of domestic violence, as evidenced by its policy. The MLB’s current commissioner Rob Manfred has indicated that an investigation, pursuant to the policy, is now underway. He has also acknowledged that this will be the policy’s first test and expressed his confidence that it will withstand that test.

It will undoubtedly be interesting and informative to watch this matter unfold. The MLB treatment of Reyes will provide a strong indicator of how seriously they intend to treat these types of issues and it will surely set the tone for its future application. Though the MLB & MLBPA have presented themselves as being serious about the issues and harms of domestic violence by implementing the policy, due to the vagueness of its investigation and penalty procedures there are some concerns.

While the policy and these aspects of it could allow the MLB to take a strong stance on Reyes actions, the opposite is also true. As the policy contains no guarantees or guidelines regarding the investigation, who is to say it will be sufficiently thorough or unbiased? Further, absent guidelines or limitations around penalties, should findings warranting a penalty be made, there is not guarantee it will be met with something truly meaningful.
But with any luck, these concerns will be proven unnecessary. As the Reyes investigation and the commissioner’s response to it unfold, hopefully the positivity regarding this policy will remain intact as the MLB proves it is as serious about these issues as their policy suggests.

 

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‘Comfortable Satisfaction’ – The Issues Inherent in a Middle-Ground Evidentiary Burden

December 13, 2015

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By Callan MacKinlay – Thompson Rivers University JD Student

The World Anti-Doping Code (WADC) has outlined within it many articles on how to make out a doping infraction. Article 3.1 states that the burden of proof on the tribunal for making out an anti-doping rule violation is that it must be satisfied to the ‘comfortable satisfaction’ of the tribunal. This is claimed to be greater in all cases than a ‘balance of probabilities’ but less than ‘beyond a reasonable doubt’. I would argue that while this burden might seem fairer at first glance than a balance of probabilities, it is really just masquerading as a more stringent burden when in practice it operates exactly the same as a balance of probabilities.

Canada has had issues in the past with using different burdens of proof in civil cases. In Sylvan Lake Golf & Tennis Club v. Performance Industries ABQB 1999 479 (CanLii), the court stated that in order for rectification of mistake to be made out, the party claiming it had to establish their evidence by a proof of ‘beyond a fair and reasonable doubt’. This was stated to be above ‘a balance of probabilities’ but below ‘beyond a reasonable doubt’.

However, this was later thrown out in the case of FH v McDougall [2008] 3 SCR 41, where the Supreme Court ruled that there is only one standard of proof in the civil context: ‘a balance of probabilities’. This is likely because other standards or ‘shifting standards’ are uncertain and make the law less clear. The evidence must simply be sufficient to make it more likely than not and the test is made out.

For the WADC, the ‘comfortable satisfaction’ burden is just as uncertain as any other standard that claims to be a middle ground between the civil and the criminal standard. For example, if you are leaving your house and you think that it might rain, what standard do you use to determine if you should take your umbrella? Do you use beyond a reasonable doubt? Unlikely, because, depending on the local climate, you could always have a reasonable doubt that it might rain, thus you would always take your umbrella with you. Do you use a balance of probabilities? It is much more likely that this is the standard the average person uses in their everyday lives. If you check the traffic and it says that there is a 51% chance that your usual route will be slower, you will take your backup route. If it says 30% or 20%, then you probably won’t take your backup route. Where does comfortable satisfaction lie? Do you take your backup route if you are comfortably satisfied that it will be slower during your commute? How is that different from a balance of probabilities? If the traffic report says there is a 51% chance of traffic on your usual route, I could easily take my backup route with the justification that I am comfortably satisfied that it will be faster than my usual. If the report says it has a 20% or 30% chance of being slower, could I still claim to take my backup route with comfortable satisfaction?

In summary, ‘comfortable satisfaction’ is a problematic burden to use. While the WADC claims that the burden is higher than ‘a balance of probabilities’ I am not sure that its plain usage really fits that description or that the case law makes it out. If anything can be shown from the case law, especially for those cases involving innocent anti-doping violations, ‘comfortable satisfaction’ is not much different from a balance of probabilities in the ease with which the WADC can make out the violation. Unless the World Anti-Doping Association wants to change its burden to the criminal standard of ‘beyond a reasonable doubt’ I suggest they stick with the well-established civil standard and not make up new ones.

 

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The Death-Sentence of Amateurism in the NCAA?

December 13, 2015

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By Kyle Sandulescu – Thompson Rivers University JD Student

When the NCAA was established in 1906, it was designed to entrench the principal of “a sound mind in a sound body” at institutions of higher learning in America. The bargain was that NCAA agreed to protect the health and well-being of its student-athletes, on the agreement that the student-athletes withdraw their right to profit from their athletic endeavours in any way. In short, the NCAA was established under the belief that men and women could enrich their lives through the amateur student-athlete experience.

Over 100 years later, the NCAA has become an oft-criticized figure of manipulation and a far-cry from an ambassador of amateurism in sport. The NCAA is an apparent hoax; a regulatory body designed to protect student-athletes while dealing at arm’s length with commercial enterprises who profit from their marketability.

The late Myles Brand, director of the NCAA from 2002-2009, defended the economics of college sports by claiming that they were simply the result of a smoothly functioning free market. However, the market is not free because there is unequal bargaining power between the NCAA and the athletes who provide the NCAA with its product.

The argument to be made is that the NCAA has clearly been overcome by the commercial forces that surround college sports to the detriment of the student-athlete. Lawsuits have exploited the NCAA’s unwillingness to protect student-athletes who suffer from long term injury, while the NCAA throws its rulebook at its athletes for even the most minor infractions resulting in a “profit” from their college athletic careers. Evidently, the NCAA has balked on protecting athletes from commercial exploitation because they are afraid to bite the hand that is their sole source of authority – the member institutions.

Section 2.9 of the Division I Manual of the NCAA states the principle of amateurism rather amiably: “student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” However, it is hard to understand the rationale for the principal of amateurism when the NCAA signs mega-broadcasting deals worth over half a billion dollars for NCAA football and basketball while major sponsors hammer on the doors of member institutions to ensure that the top programs and players are hyping their brand.

The outspoken Taylor Branch once said in his now infamous article, The Shame of College Sports: “The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.”
Adopting Branch’s position, it is hard to make a straight-faced argument that the principal of amateurism is being abused to serve a commercial purpose. In recent memory the courts have been more willing to confront this issue head on. The US Court of Appeals for the Ninth Circuit in O’Bannon v NCAA upheld a district court’s decision that NCAA amateurism rules violate antitrust laws saying that “the NCAA’s rules had significant anti-competitive effects within the college education market.”

O’Bannon makes it clear that the NCAA’s principle of amateurism is being used to regulate a commercial activity, while the NCAA has continued to rely on the decision in NCAA v Board of Regents of the University of Oklahoma, which stated that “to preserve the character and quality of the product, athletes must not be paid.”

Criticizing the NCAA’s principal of amateurism should make us uneasy because it largely epitomizes a departure from the ideal that the outcome of the sport was determined by the skill of players and not the cheque books of their institutions. Given the evolution of college sports into the mega-industry it is today, the NCAA would be wise to take advantage of the opportunity to legitimize the concept of amateurism in the wake of commercial realities.

At stake for the NCAA are billions of dollars in revenues and licensing fees if the NCAA cannot demonstrate that it is capable and willing to protect the health and well-being of student athletes. The principal of amateurism can therefore be re-tooled to reflect the need to protect athlete’s from injury, perhaps deflecting the accusations that the NCAA has essentially sold out the health of their athletes for the commercial interests of member institutions.

 

 

 

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