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  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.