Tag Archives: IOC

Hope for Russia in 2016 Olympic Games: ‘The greatest investigation in the history of WADA’

December 9, 2015

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By Jasmine Dhillon – Thompson Rivers University JD Student
An unprecedented sanction in Olympic movement has befallen. The International Association of Athletics Federation (IAAF) voted 22-1 in favour of suspending the Russian Athletics Federation for alleged ‘state-sponsored doping’. The 323-page WADA Independent Commission report outlined several accusations, which include the Russian doping lab destroying more than 1400 blood and urine samples, and taking money to cover up positive tests.

According to Travis Tygart, CEO of US Anti-Doping Agency (USADA), it’s the greatest investigation in the history of the World Anti-Doping Agency, which formed in 1999. He stated to BBC Sport, “are we going to end up regulating ourselves to be a toothless bureaucracy or are we going to roll up our sleeves and get into the field of play and win this fight for clean athletes? The eyes of the clean athletes are watching.”

Tygart’s concern is for the athletes who may not get the chance they deserve to compete in the 2016 Olympic Games in Brazil. “All my victories are honest, ‘clean’ and deserved,” says Yelena Isinbayeva, the world-record holder in the women’s pole vault and a two-time Olympic champion. “I have always followed and am following all the anti-doping rules precisely. To ban innocent and not connected to that doping scandal athletes from competing in international events and Olympic Games in Rio is not fair.” Athletes like Yelena and dedicated fans across the nation are hopeful that the situation will be resolved in time to see Russia compete in Rio.

But why has the world focused its eyes on Russia alone? Several other countries were found to be ‘non-compliant’ of the WADA code and are also currently suspended from international competition. Argentina, Ukraine and Bolivia were all found to be using non-accredited laboratories and Andorra and Israel lacked having correct rules in place.
Perhaps it’s because Russia is and has always been a major player in sport. Or maybe, to paraphrase Russian President Vladimir Putin, it’s America’s attempt to subdue Russia. The main reason however is due to a German documentary titled “Top-secret Doping: How Russia makes its Winners” that was made public last year. It laid out the institutionalized nature of doping in the country compelling WADA to investigate.

Russia’s Olympic committee pledged to collaborate with IOC, WADA and other national Olympic committees in the drive to “eradicate doping.” Russia’s Sports Minister, Vitaly Mutko said Russian athletics will cooperate in “any way” to prove it’s clean. He is determined to comply with the IAAF rules and states, “we are ready to rebuild our whole anti-doping system.” IOC President Thomas Bach said Russia’s track and field athletes would be eligible for the Olympics only if the country falls into line with all global anti-doping rules and the reforms are verifiable. “The goal has to be Russia being compliant again with all the international anti-doping regulations. That is the important thing, so that we have an even playing field for all the athletes.” Although the IAAF and IOC have cracked down on Russia specifically, who is to say athletes from other countries aren’t doping? The hopes for an even playing field may remain uneven and ironically enough pose a disadvantage to Russian athletes.

If the suspension is not lifted in time for Brazil, there is still hope for clean athletes to participate under the Olympic flag as opposed to the Russian flag. This was an option provided to Indian athletes in last year’s Winter Olympics after their national Olympic committee was suspended for government interference.

Sadly, Bach quashes this hope by stating, “This is mere speculation. I cannot see this situation at the moment.” Even then, would an athlete really want to participate alone? Is the same sensation to win without your country’s flag wrapped warmly around your shoulders? The Olympic Games are unlike any other sporting event. It’s a patriotic phenomenon. In a quest to win an Olympic medal, to fulfill the hopes and dreams of a nation, athletes are put under tremendous pressure to perform, which often leads to succumbing to the use of performing enhancing drugs. In a regime such as Russia, I can only imagine the potential consequences of failing to meet these aspirations.

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FIFA and IOC suspend Kuwait sport for passing domestic law

November 16, 2015

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By Nickolas Rogic – Thompson Rivers University 2L JD Student

FIFA and the IOC have taken reactionary measures against the Kuwaiti Football Association (KFA) and the Kuwaiti Olympic Association (KOC), respectively. Both organizations have been suspended from international participation. Both actions were undertaken as a response to the Kuwaiti government implementing a new “Sports Law” that, as the world governing bodies state, interfere with the autonomy of the KFA and the KOC. Prohibitions against government interference in a nation’s sporting agencies are included in the Olympic Charter. An observer stated that, if the sports law is not amended, the KFA and the KOC would, in effect, be rendered unable to comply with crucial elements of the Court of Arbitration for Sport and the World Anti-Doping Agency.

Sporting organizations within a country are required to be autonomous from the government. The principle of autonomy when it comes to sporting agencies can trace its way back to the 1894 when Pierre de Coubertin, widely regarded to be the father of the IOC, said that the state would be an unwelcome intruder in what he saw as the pure world of sport, a world where people celebrated their humanity through athletics, away from the “dangerous and imprecise figure” of the state. The principle of autonomy took on new life after World War II, when the IOC and Western nations were loath to see the interference of Communist governments into their sporting organizations. It should be added that the threat of doping figured prominently in the reluctance of the IOC to endorse direct state involvement in sport.

It should also be noted that this is not the first time that the Kuwaiti’s have been suspended from participating in international sport. The Kuwaiti Olympic Committee had been suspended in 2010 but the suspension was lifted in 2012 when Kuwait’s ruler, Sheik Sabah Al Ahmad Al Sabah pledged autonomy for the Committee. In response to the question of why the ruler of the small Gulf state would “go back” on his earlier promise, Sheikh Ahmad Al Fahad Al Sabah, himself a Kuwaiti who heads the global association of national Olympic committees, stated that it was likely due to internal politics, as “the sports minister has lost an election to the president of shooting”.

The fact that the organization of sport can be so tenuous and arbitrary in a country gives credence to the reason that sports authorities require autonomy. Indeed, it is speculated that for many countries without a long history of formal civil society, the danger is that sports organizations may serve as at the personal whim of members of government.
The principle of autonomy of sport then can be seen as a lynchpin of the broader principle against corruption.

Against the backdrop of FIFA’s recent troubles, it may be asked to what extent they have the moral right to levy suspensions against nations for failing to comply with rules. Some have called for an overhaul of the international sporting legal regime in order to combat corruption that is most prevalent in developing countries. Have we drifted too far from de Coubertin’s philosophy of international sport? The case of Kuwait can be seen as a microcosm of the principles under pressure all over the international sporting world.

 

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The Road to the 2022 Winter Olympics – Lip Service to Good Intentions

October 21, 2014

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By Geea Atanase – Thompson Rivers University 3L JD Student

Since the creation of the International Olympic Committee (IOC) in 1894, when 13 nations met at the Congress of Paris to revive the Ancient Greek traditions of unity and diplomacy in organized sport, the modern Olympic Games have purported to represent the harmonious coming together of nations from across the globe in friendly competition and mutual respect. The IOC has codified these values in the Olympic Charter, which states in part that the goal of the Games “is to place sport at the service of the harmonious development of man with a view to promoting the preservation of human dignity.” Additionally, the IOC “opposes any political or commercial abuse of sport and athletes.”

However, the IOC’s apparent lust for luxury has come under fire recently when Oslo, Norway decided to withdraw its bid to host the 2022 Winter Games. This is due to the conservative party of Norway’s refusal to provide a financial guarantee for the Games, partly because of the high costs of hosting the Olympics, and partly because of a list of demands that the IOC put to Oslo as a host.

These demands include separate chauffeur-driven Olympic traffic lanes with ‘priority’ traffic lights, opening and closing ceremonies with gourmet food, a cocktail reception attended by King Harald V and funded by Norway’s royal family, and an entire hotel to be set aside for use by the IOC. Although IOC spokespeople have called these demands mere ‘suggestions,’ the outrage shown by the Norwegian government toward the IOC’s ostentatious requests sheds light on what can only be described as a commercial abuse of sport by the IOC, contrary to the values espoused in its Charter, as well as an abuse of the IOC’s position of power as the governing body of the Olympic Games.

Additionally, bidding for 2022 Winter Games will not be reopened by the IOC, which leaves Beijing, China and Almaty, Kazakhstan as the only host options; however, human rights abuses in both countries are well-documented. The US Department of State’s (DOS) Report for 2014 lists the most significant human rights problems in Kazakhstan as arbitrary and unlawful killings by government agents, government and security force corruption, torture of prisoners and detainees, violence and discrimination against women and LGBT persons, abuse of children and child labor, sex and labor trafficking, and restriction on freedom of speech, press, assembly, religion, and association.

The US DOS Report for 2014 also describes significant human rights abuses in The People’s Republic of China, an authoritarian state ruled by the Communist Party; these issues include harassment and intimidation by the government toward public interest advocates and critics of the regime, extrajudicial killings without due process, torture of detainees and coerced confessions, political control of courts and closed trials, restrictions on freedom of religion, and forced abortions and sterilizations in accordance with a birth limitation policy, to name a few.

If the IOC is truly concerned with ‘promoting the preservation of human dignity,’ as stated in its Charter, it might think twice about choosing to host the Olympics in countries where state sanctioned harassment, torture, and discrimination against its citizens are commonplace abuses, among others. However, given the IOC’s track record when it comes to ignoring blatant human rights violations in nations involved in Olympic bids, its refusal to reopen bidding for the 2022 Winter Games is unsurprising. Despite the obvious human rights violations against Jews perpetuated by Adolf Hitler’s Nazi regime, the IOC refused to reopen the bid for the 1936 Summer Games after awarding the honor of hosting the event to Berlin. In fact, even amid strong opposition from western nations and Jewish athletes who called for a US boycott of the Games, the IOC ejected boycott supporter Ernst Lee Jahncke from the Committee and replaced him with Avery Brundage, who spoke publicly about a ‘Jewish-Communist conspiracy’ to prevent the US from competing in Berlin.

The IOC also failed to respond in any meaningful way to the controversy surrounding its decision to hold the 2014 Winter Games in Sochi, particularly with the law prohibiting the spread of ‘non-traditional sexual arrangements between adolescents,’ which was signed into legislation by Putin in 2013. Despite the IOC paying lip service to its values of anti-discrimination and assuring participants of the Games that it would be a safe environment for athletes, human rights organization RUSA LGBT put it best – “we want to know how they can ensure this in a country with state-sponsored homophobia backed by federal law?”

Perhaps the more pressing question is whether the IOC can dig itself out of the moral conundrum it finds itself in once again with respect to holding the Olympic Games in countries known for human rights violations, this time in direct relation to the unrealistic and exorbitant demands they themselves placed on the only functioning democracy that was in the running. After years of practices that run contrary to the values espoused in the Olympic Charter, it remains to be seen whether the IOC will take a stand regarding the very values it professes to embody.

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Lance Armstrong, the USADA & Quantum Mechanics (Round 3 of the CAS Eligibility rules?)

September 2, 2012

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Some people have suggested that with the now infamous statement that “enough is enough” by Lance Armstrong on 23rd August 2012, that that statement represents a final conclusion to a long-running saga. In reality though, it may be more accurate to view this as a change of ends, or the start of the fourth quarter. As the implications of the various statements and cases are analysed, it is likely that any future legal entanglement will focus on the role of USADA and the legality of their sanctioning process. In a sense, this challenge has the very real potential to become Round 3 of the CAS eligibility rules debate, an exciting prospect given the previous knock-out victories in the earlier cases:

  • Round 1 was between USOC v. IOC (the Osaka Rule)
  • Round 2 was between BOA v. WADA (the Bye-Law))
  • Will Round 3 be between UCI / WADA v. USADA?

Tygart’s Cat?

So what do Lance Armstrong, the US Anti-Doping Agency (USADA) and Quantum Mechanics have in common? The answer comes in the form of a thought experiment by Erwin Schrodinger. Schrodinger postulated that the fate of a cat (sealed in a lead box with a flask of poison and a radioactive object) would be unknown until its contents could be observed. Until somebody could actually open the box and confirm its state, the cat would theroretically be both alive and dead. Ironically, the respective statements by Lance Armstrong and Travis Tygart (CEO of USADA) have now set-up a modern day version of this thought-experiment. It would seem from the public documents and court cases that the USADA case is based not on a positive sample (Armstrong has never tested positive for a performance enhancing drug), but rather on secondary evidence produced from statements, testimonies and samples that may be ‘consistent with doping’ that together form a non-analytical violation (see an excellent overview of this area by Richard McLaren in Marquette Sports Law Review). By refuting these charges but not continuing to engage in any future defence, Lance Armstrong has created a state where he is simultaneously innocent (the lack of any killer evidence of a positive sample violation) and guilty (the USADA non-analytical violation) depending on the observation point.

So what are the implications of this position for the USADA and WADA? To understand that, we need to examine the charges against him,

The USADA Letter

On 12th June 2012, USADA notified six people:

  • Lance Armstrong [charges 1-6]
  • Johan Bruyneel (Team Manager: USPS / Discovery/ Astana / Radio Shack teams) [charges 2-6]
  • Dr Pedro Celaya (Team Doctor: USPS / Discovery / Radio Shack teams) [charges 2-6]
  • Dr Luis Garcia del Moral (Team Doctor: USPS team) [charges 2-6]
  • Dr Michele Ferrari (Consultant Doctor to USPS and Discovery Channel Teams) [charges 2-6]
  • Pepe Marti (Team Trainer USPS / Discovery / Astana / Radio Shack teams) [charges 2-6]

that it was opening formal action against them for their alleged roles in a wide-ranging doping conspiracy involving the United States Postal Service (USPS) (1996-2004), Discovery Channel (2005-2007), Astana (2009) and Radio Shack (2010) teams, specifically relating to six charges:

  1. Use and/or attempted use of prohibited substances and/or methods including EPO, blood transfusions, testosterone, corticosteroids and/or saline, plasma or glycerol infusions
  2. Possession of prohibited substances and/or methods including EPO, blood transfusions and related equipment (such as needles, blood bags, storage containers and other transfusion equipment and blood parameters measuring devices), testosterone, corticosteroids and/or saline, plasma or glycerol infusions
  3. Trafficking and/or attempted trafficking of EPO, testosterone, and/or corticosteroids.
  4. Administration and/or attempted administration to others of EPO, testosterone, and/or cortisone.
  5. Assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping rule violations.
  6. Aggravating circumstances justifying a period of ineligibility greater than the standard sanction.

USADA alleged conspirators gave false testimony and statements under oath and in legal proceedings [Page 12, USADA Letter), which may be the reason why media groups may be reconsidering earlier Court defeats: see for example Armstrong v. Times Newspapers Ltd [2006] EWHC 1614 (QB). As of yet though, USADA has not elaborated on what and when the false statements were.

Armstrong challenged the USADA accusations with his own letter and subsequently through the US District Court system (see below). The Court document describes the USADA evidence against Armstrong [page 8]:

  • Testimonies from numerous riders, team personnel and others (based on personal knowledge or apparent admissions from Armstrong to them) that he had used EPO, blood transfusions, and cortisone from 1998 to 2005; and EPO, testosterone and HGH until 1996.
  • Numerous riders will also testify that Lance Armstrong gave to them / encouraged to use and/or assisted them in using doping products and/or methods (including EPO, blood transfusions, testosterone and cortisone) between 1999-2005.
  • Evidence from the Director of the Lausanne Anti-Doping Laboratory (Dr Martial Saugy) that Armstrong’s urine sample from the 2001 Tour of Switzerland was indicative of EPO use which confirmed other witness testimony that a positive test result in 2001 was covered up. (As Lance Armstrong’s counsel later identifies though, this sample no longer exists and in 2011, Dr Saugy was reported as saying that the sample did not constitute a positive test).
  • Data from UCI blood collections in 2009 and 2010 which is fully consistent with blood manipulation including EPO use and/or blood transfusions.

The letter from Robert Luskin (Lance Armstrong’s legal team) also put forward a number of interesting questions:

  • Why has only one rider (Armstrong) from the four teams been charged?
  • How can Armstrong (and effectively the public) overcome concerns over the reliability of the witness evidence? Armstrong perhaps says it best 2/3 down his own statement: “……perverts the system and creates a process where any begrudged ex-teammate can open a USADA case out of spite or for personal gain or a cheating cyclist can cut a sweetheart deal for themselves. It’s an unfair approach, applied selectively, in opposition to all the rules. It’s just not right.”

The WADA Code, Comment to Article 10.5.3 notes that:

“If a portion of the period of Ineligibility is suspended, the decision shall explain the basis for concluding the information provided was credible and was important to discovering or proving the anti-doping rule violation or other offense.”

It will therefore be interesting to see if any ‘reduction in sentences have been applied to previous drug cheats, and if so who.

US Texas District Court (20th August 2012)

Armstrong’s team most recently brought an ultimately unsuccessful challenge to the USADA letter before the District Court. Essentially, the challenges can be summarised into three main themes:

  • USADA lack of authority
  • Violation of his due process rights
  • The USADA process itself

The first theme that USADA lacked authority to bring such charges against him was because of a statute of limitations (8yr), jurisdictional conflict with the UCI (international cycling union), and a failure of any valid arbitration agreement with USADA.

The statute of limitations can be suspended if there is evidence of a cover-up, but USADA has failed to make public any specific documentation or evidence to support this. By contrast, the latter two challenges are comparatively easier to resolve. Essentially USADA Anti-Doping rules (USADA Protocol for Olympic Movement Testing) effectively govern the implementation of anti-doping policies in USOC national governing bodies (of which USA Cycling implements the UCI rules). As a member of both USA Cycling, and an athlete included within the USADA registered testing pool, Lance Armstrong agreed to be bound by this protocol [Page 26].

Armstrong also alleged that USADA’s charging and arbitration procedures violated his due process rights, specifically:

  • Failure to provide an adequate charging document (see below)
  • No right to cross-examine or confront witnesses against him
  • No right to disclosure of exculpatory evidence
  • No right to disclosure of cooperation agreements or inducements provided by USADA
  • No right to obtain investigative witness statements
  • No right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy

Many of these points relate to the inherent distinction between discovery rules in (civil) arbitration proceedings as opposed to criminal proceedings and the Court rightly commented [Page 17] that the reliability of these results and testimony can and should be challenged by any arbitration panel. While that coupled with a valid arbitration agreement should have been enough to dismiss the case, the Court noted that the high-stakes nature of the arbitration (Armstrong’s career and reputation vs the credibility of the USADA’s anti-doping framework) and the risk of further substantial costs, meant that it was important to fully evaluate Armstrong’s case. Further to McLaren’s comments in his article (see earlier), these findings on the gravity of the case could be used to suggest that the arbitration evidential standard of comfortable satisfaction “could move to a very high standard that can become indistinguishable from beyond a reasonable doubt.” (page 211)

The District Court was also scathing about the USADA in places, suggesting their “woefully inadequate charging letter” [Page 17] was:

“so vague and unhelpful that it would not pass muster in any court in the United States. The Court is assured, however, that Armstrong will be given adequate notice of the specific allegations against him in a timely fashion prior to arbitration, and proceeds under the assumption this will actually occur.” [page 9] and it was “of serious constitutional concern”[Page 17].

At [Page 14] that:

“USADA’s conduct raises serious questions about whether its real interest in charging Armstrong is to combat doping, or if it is acting according to less noble motives.”

And later in footnote 36, [Page 27] that:

“Among the Court’s concerns is the fact that USADA has targeted Armstrong for prosecution many years after his alleged doping violations occurred, and intends to consolidate his case with those of several other alleged offenders, including incredibly–several over whom USA Cycling and USOC apparently have no authority whatsoever. Further, if Armstrong’s allegations are true, and USADA is promising lesser sanctions against other allegedly offending riders in exchange for their testimony against Armstrong, it is difficult to avoid the conclusion that USADA is motivated more by politics and a desire for media attention than faithful adherence to its obligations to USOC.”

Indeed, the Court noted it was only the practical realities of the time and money having to rehear the same case once the USADA had sent Armstrong a more detailed charging letter that ensured that this suit was not struck out.

Armstrong finally challenged the process itself, complaining of a potential lack of impartiality, no guarantee of an arbitration hearing, and no right to pursue a judicial review by a US court [IV]. These challenges in particular seem to display either an ignorance of sporting regulation, attempts to muddy the waters or a shotgun approach to law. Indeed, the speculation that a potential CAS Panel would be biased seems quite insulting.

Ultimately, the Court agreed with the USADA (and I must say that I do too) that the best mechanism for resolving these allegations is to test them in arbitration and exhaust these internal remedies first [Page 23].

Round 3?

The ineligibility rule in this case came from the sanctions imposed by USADA, but have they the authority to do so? As Rounds 1 (USOC) and 2 (BOA) have shown, the WADA Code is absolute and any incompatibility and inconsistency with the Code renders that respective rule void. Indeed, for the purposes of anti-doping, it is irrelevant whether USADA is sovereign in the USA as it effectively surrendered this sovereignty to WADA.

So what does the Code say?

[Comment to 2.2] – “Use or Attempted use may also be established by other reliable means such as admissions by the athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “presence” of a prohibited sample under Article 2.1”

The fact that USADA did not feel able to charge Armstrong with article 2.1 (Presence) only echoes the ‘non-analytical’ nature of the violation. The problem however with this approach is what constitutes reliable? As Robert Luskin’s letter notes, there is an obvious discrepancy between USADA holding that the UCI blood data in the 2009-10 seasons supports doping and the UCI’s own experts that took a contrary view? This area will need much more explanation from USADA.

Perhaps the most telling quote comes from the Texas judgment at [Page 29]:

“As mystifying as USADA’s election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies [USADA, USA Cycling & UCI] are apparently unable to work together to accomplish their shared goal the regulation and promotion of cycling. However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts.”

While strictly speaking, Lance Armstrong can be declared guilty of a doping violation in absentia:

Under Article 8.3: “the right to a hearing may be waived…expressly…by the Athlete’s or other Person’s failure to challenge an Anti-Doping Organization’s assertion that an anti-doping rule violation has occurred within the specific time period provided in the Anti-Doping Organization’s rules.”

The decision does leave a somewhat bad taste in the mouth, particularly since the USADA has not gone through a full hearing process. In particular, it is difficult to reconcile the feeling that the Texas Court had that the USADA charges were inadequate and an hour after the statement, suddenly they are sufficient for a lifetime ban!

Indeed, it is perhaps worth reiterating the most ominous part of the Texas Court’s judgment contained in footnote 27 on [Page 18]:

“….If it should come to pass that Armstrong does not actually receive adequate notice sufficiently in advance of the arbitration hearing, and it is brought to this Court’s attention in an appropriate manner, USADA is unlikely to appreciate the result.”

USADA have subsequently suggested that they will reveal evidence against him, but do not wish to do so for fear of prejudicing on-going cases against Bruyneel, Celaya and Marti. The problem I have is that this also works both ways. What if the cases against all 3 defendants were thrown out, does that mean that just as Lance Armstrong was declared guilty in absentia, so he can also be declared innocent?

Perhaps the most important question for any legal challenge though, is that assuming the statute of limitations is not activated, what should Armstrong and the others actually be charged and sanctioned with?

10.2: Ineligibility for Presence, Use or Possession (1st offence) – 2yrs

10.3.2: Ineligibility for Trafficking or Administration (1st offence) – 4yrs to lifetime

10.6: For Aggravating circumstances, other than Trafficking or Administration violations, the maximum period of ineligibility to be applied for a standard sanction is 4yrs.

10.7.4: Second anti-violations: “For purposes of imposing sanctions under Article 10.7, an anti-doping rule violation will only be considered a second violation if the Anti-Doping Organization can establish that the Athlete or other Person committed the second antidoping rule violation after the Athlete or other Person received notice pursuant to Article 7 (Results Management), or after the Anti-Doping Organization made reasonable efforts to give notice, of the first anti-doping rule violation; if the Anti-Doping Organization cannot establish this, the violations shall be considered together as one single first violation, and the sanction imposed shall be based on the violation that carries the more severe sanction; however, the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Article 10.6).”

It is therefore critical that USADA prove not just the substance (excuse the pun) of some of the doping violations, but that Armstrong was guilty of Administration or Trafficking charges. At present there is only one vague accusation that he distributed EPO to other riders (p.3 USADA Letter), and administration of olive oil and testosterone mix to other riders (p.4 USADA Letter). If these offences cannot be proved, then under 10.7.4, all the other violations should be taken together and his maximum ban should be capped at 4yrs rather than life.

Let’s hope that the UCI and/or WADA challenge the USADA decision, not because I believe that Lance Armstrong is innocent, but because the deficiencies in the USADA process and their lack of any public, credible underpinning evidence for their charges means that at the moment Armstrong is both innocent and guilty. Schrodinger would be turning in his lead box….

 

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Double Jeopardy: CAS 2011/0/2422 USOC v. IOC

October 17, 2011

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Read the CAS verdictIOC rules; WADA Code

The case of the United States Olympic Committee (USOC) v. International Olympic Committee (IOC) (CAS 2011/O/2422) concerned the validity and enforceability of a particular IOC regulation prohibiting drug violators from competing in the next edition of the Olympic Games following their period of suspension.

The IOC rule was known as the “Osaka rule” and was enacted in Japan on 27 June 2008:

“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

  1. Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
  2. These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.“

While this rule applied to all Olympic athletes, in practice only a certain sub-set of athletes were affected:

  • Athletes not guilty of a doping violation – rule does not apply
  • Athletes guilty of a doping violation (with less than 6 months suspension) – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension) who wish to compete in non-Olympic competitions  – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension), but not selected by their National Olympic Committee (NOC) – rule does not apply
  • Athlete guilty of a doping violation, still serving their suspension – rule has no immediate effect
  • Athlete guilty of a doping violation at an Olympic Games  – rule has no immediate effect
  • Athlete guilty of a doping violation (over 6 months suspension), and selected by their National Olympic Committee (NOC) – RULE APPLIES

The case was brought against the IOC because one of those affected athletes, LaShawn Merritt was prevented by the rule from representing the USA at London 2012. Merritt had previously tested positive in an out-of-competition test for ExtenZe (a ‘male performance’ product containing the banned substance DHEA); and while the doping panel accepted that the substance was used inadvertently and that there was no intention to dope, Merritt still received a ban from competitions.

The crux of the case can be seen from Merritt’s current position. His ban ended earlier this year on 27 July 2011, however despite his eligibility to compete in any other competition, Merritt was still prevented from competing in next summer’s 2012 Olympics Games. He and USOC argue that this additional ban is unfair for two main reasons, because it violated the principle of double jeopardy (ne bis in idem) [7.2] and that the imposition of an additional doping sanction was in contravention of the WADA Code (article 23.2.2). USOC also argued that the rule resulted in unjustifiable discrimination between athletes and that the IOC rule should be “cancelled and declared null and void, or alternatively, that a mechanism be allowed for a case by case review of the appropriateness of the applicability of the Decision to each specific athlete” [2.9]

By contrast, the IOC argued that the rule constituted an eligibility rule [7.4] as to who could qualify as a competitor in the Olympics under Rule 45.2 of the Olympic Charter rather than as an additional sanction, that the rule protected the values of the Olympic Movement from the “scourge of doping” [7.5], that athletes had no automatic right to participate in an Olympic event [7.8] and that the rule did not conflict with double jeopardy (ne bis in idem), as it pursued a wholly different purpose than an anti-doping ineligibility sanction [7.8].

 

THE CAS RULING

All parties recognised that uncertainty surrounding the application of the decision was unhelpful, particularly since CAS had previously provided two Advisory Opinions in this area, one requested by the IOC had concluded that Rule 45.2 was an eligibility rule [8.7], while a Confidential Opinion to an unnamed International Sporting Federation (ISF) held that the application of a similar rule by an ISF was intended to be penal in nature and therefore could not constitute an eligibility rule [8.8].

It was therefore agreed that CAS had the ability to definitively settle the dispute (R27 of the CAS Code) and three arbitrators were chosen to hear the case: Professor Richard H McLaren (Canada), Me. Michele Bernasconi (Switzerland), and David w. Rivkin, Esq. (USA).

Both parties agreed that the applicable regulations of the arbitration (R58 of the CAS Code) should be:

  • Swiss Law (including fundamental principles)
  • the Olympic Charter (OC), in particular, rules 41 (eligibility), 44 (applicability of WADA Code) & 45 (Olympic participation)
  • and the WADA Code, in particular, s.10.2 (sanctions for 1st violation), s20.1.1 (IOC implementation of Code), 23.2.2 (prohibition against substantive changes to the Code) and appendix 1 (definition of ineligibility)

WADA also independently submitted an amicus curiae brief on 13 July 2011 to ensure that the arbitration panel would have as comprehensive a view as possible of the potential issues surrounding the IOC regulation, particularly since there was a suspicion that tribunal doping sanctions were being manipulated to stay under 6 months to avoid being caught by this rule [3.11].

 

ELIGIBILITY RULES

Previous CAS Jurisprudence (RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381 [76]) suggested that: “qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability for the type of competition in question.” [8.9]. In particular it was noted that qualifying (eligibility) rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.

Because IOC Rule 44 expressly incorporated the WADA Code as underpinning the Olympic Games, the IOC were bound by WADA’s definition of ineligibility. Unfortunately for them, under Article 10 of the WADA Code, ineligibility was held to be a sanction. In making this decision, the Panel held that the fact that an athlete could participate at other International competitions was irrelevant [8.16].

From this conclusion, the IOC was always going to lose as under Article 23.2.2 of the WADA Code, signatories of the Code could not add any additional provisions “which change the effect of […] the periods of eligibility provided for in Article 10 of the WADA Code.”

Because Rule 44 increased the period of ineligibility from the original doping violation (between 6months to 2 years) to the number of days until the next Olympics Games, the IOC regulation was not in compliance with the WADA Code and as such had to be struck out as invalid [8.44].

The Panel did not state that such an additional sanction could never occur, simply that such a rule needed to be incorporated within Article 10 of the WADA Code when the Code was next reviewed. To satisfy any proportionality requirements, the Panel also recommended that a first instance adjudicatory body should review any appeals [8.27].

 

The British Olympic Association (BOA) By-law

Much of the talk this week has been over whether the BOA by-law is legitimate in the wake of this ruling, and what implications this might have for Dwayne Chambers and David Millar. BOA Bylaw 25 sets out that:

“any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic team”.

Importantly, the bye-law also gives individuals the right to appeal (something that distinguishes the BOA Bye-Law from that of other NOCs).

Taken at face value though, the same issues from the USOC case apply, in that any athlete guilty of a doping violation is ineligible for selection on a British Olympic team. If this USOC decision was extended to the BOA, then it is strongly arguable that this requirement also constitutes a sanction attributable to the same behaviour and resulting in the same consequence (ineligibility from competition) [8.36]. Or more colloquially, If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!

Again, taken at face value, the only significant difference between the two rules would seem to be that the BOA by-law has an inherent appeals process, which would negate any proportionality requirement.

Is this enough though, arguably no.

There is one alternative argument though that may solve the BOA problem. At footnote 11 of the USOC decision, the CAS Panel noted that:

“If the IOC issued a rule that persons convicted of a violent felony were not eligible to participate in the Olympic Games, such a rule would likely not violate the principle of ne bis in idem, because the effective purpose of that sanction would be different from the purpose of the criminal penalty associated with that violent felony.”

Therein might lie a possible defence for the BOA. If the BOA rule was based around a different purpose than simply a sanction associated with taking drugs, but was linked to eligibility, for example an athlete’s role as an ambassador representing their country, then following footnote 11, it could be argued that the by-law had a different purpose and was therefore valid and enforceable. Such a stance echoes the comments of Colin Jackson, interviewed immediately after the judgment by the BBC:

http://news.bbc.co.uk/sport1/hi/olympics/15199159.stm

If the BOA by-law was interpreted as a ‘moral / ethical behaviour clause’, should it be limited to just drugs and doping violations though? Do we want athletes representing our country who were guilty of criminal offences? If the by-law was extended this would also help in removing the WADA ‘consistency’ argument, as different jurisdictions around the world impose different criminal sanctions and offences.

Or should we just fall into line with WADA and the rest of the world and reduce our rules to the lowest common denominator?

http://news.bbc.co.uk/sport1/hi/olympics/15159569.stm

 

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Concussions are a Headache for the NHL and NFL

May 3, 2011

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Sports Litigation Alert (Volume 8 Issue 7) just published an article I wrote entitled, “Concussions are a Headache for the NHL and NFL.”  Here are a few excerpts:

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Brian Burke, Harvard-trained lawyer and General Manager of the Toronto Maple Leafs of the National Hockey League, referred to concussions as the “topic du jour” earlier this year. While Burke may be guilty of not being politically correct in his characterization of brain injuries sustained in the course of playing a game, his colorful comments may properly place the issue into perspective.

The National Football League doesn’t care about intent. It only cares about the harm suffered. If the head shot is deemed dangerous, the offending player is penalized. It doesn’t matter that he didn’t mean to do it.

Even the International Ice Hockey Federation and the NCAA prohibit any hit to the head regardless of whether it was intentional or unintentional.

The International Olympic Committee and World Anti-Doping Agency have the same strict liability approach to doping. WADA holds an athlete strictly liable for substances found in his or her bodily specimen, and that an anti-doping violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a sample, whether or not the athlete intentionally or unintentionally used a prohibited substance.

If the National Hockey League is serious about hits to the head and brain injuries, they should tear a page from the playbooks of the NCAA, the IOC, and WADA and adopt a strict liability approach to hits to the head.

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Playing Catch-Up

April 15, 2011

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The road to hell is paved with good intentions. This expression is just as appropriate now as it was when coined by – depending on whom you believe – either Samuel Johnson (1709-1784) or Saint Bernard of Clairvaux (1091-1153).

It predictably seems that as the tsunami of essays and exams approach with the end of our respective universities’ semesters (plus sundry other projects including working on writing and conference presentations, Kris’s recovery from some unidentified pernicious parasite or amoeba thing, coaching kids’ soccer/football teams, the start of the NHL playoffs, etc.), our pseudo-journalistic responsibilities to The Canary suffers.

Whilst our intent has been to offer educational or informational commentary in response to contemporary events in sports law, I am compelled to play catch-up to clear the backlog and break the bottleneck of events which are fading from view in the rear-view mirror. Accordingly, what follows is a brief synopsis of things from the not-so-distant past.

  • The US Occupational Safety and Health Administration has just fined Wolf Creek Ski Area $17000 for serious workplace violations following an investigation into the death of the area’s ski patrol director in an avalanche on 22 November 2010 (see story here). The employee was alone was not wearing a helmet as required by state and federal laws. State intervention and regulation into the affairs of adventure activities is not new. California state regulators have fined Mammoth Mountain Ski Area $50,000 for several job safety violations related to the deaths of three ski patrol members on 6 April 2006 (see story here). The Wyoming Department of Employment cited Jackson Hole Mountain Resort in 2009 for failing to protect ski patroller Kathryn Miller with a helmet when she died in a fall in Spacewalk Couloir in 2008. The resort did not require its patrollers or other ski workers to wear helmets (see story here). Not that we needed any more convincing but this is yet further proof that adventure activities are not immune from the long arm of the law.
  • Women’s ski jumping was approved by the International Olympic Committee at its meeting in London on April 6 for inclusion at the 2014 Sochi Winter Olympics. Ski half-pipe, biathlon mixed relay and team events in luge and figure skating were also approved (see story here). As a footnote, Kris and I wrote a piece in 2009 in the International Sports Law Review entitled ‘Ski jumping through Olympic-sized hoops: An analysis of Sagen v Vancouver Organizing Committee (VANOC) for the 2010 Olympic & Paralympic Winter Games.
  • The family of a 17 year old girl killed in a skiing accident in Ontario two years ago filed a $2 million lawsuit last month against the school board, the resort, the superintendent of education, the director of education, the supervising teacher, and employees of the resort. Elisabeth Steel Reurink had received less than one hour of instruction before being permitted to ski at Collingwood’s Blue Mountain Resort. She was skiing in the company of a teacher employed by the London District Catholic School Board at the time of the accident. The trip was part of her school’s physical education curriculum. Permission and consent forms were signed along with a waiver. The lawsuit alleges Elisabeth did not want to ski L-Hill – the run on which she was killed – but was encouraged to ski it by her teacher. The lawsuit does not identify what conditions on the hill were like or its level of difficulty; however, according to Blue Mountain’s website retrieved in March 2011, L-Hill is an intermediate or expert run. Elisabeth lost control, hit a tree and was killed instantly. She was wearing a helmet. The suit basically alleges negligent instruction and evaluation. It is noteworthy that Elisabeth was encouraged to ski L-Hill rather than ski it against her will. There is a world of difference between being coerced or under duress to do something as opposed to being politely pushed or emboldened to ski a run under the supervision of a teacher. None of the allegations have been proven.
  • The Manitoba Junior Hockey League recently suspended a player for 40 games for driving an opposing player into the boards (see story here). Hockey Manitoba past president Brian Sarna was bang on when he said that players who set out to deliberately injure someone don’t belong in the game. The National Hockey League could learn a thing or two and tear a page from the MJHL’s rule book.
  • Also courtesy of my home province comes this unusual lawsuit that’s the first of its kind in Manitoba. The province has filed a civil suit aimed at seizing the Winnipeg home where a soccer coach allegedly abused a preteen girl who played on his team. Under the province’s Criminal Property Forfeiture Act, people can lose their property to the government if a court rules they used it for unlawful activity. The lawsuit says the man’s home was “an instrument of unlawful activity” because on at least two occasions the man allegedly sexually touched the girl while she was there (see story here). Child abuse in sport remains a problem. A 2010 study by the University of Huddersfield found that 52% of abused children were abused in community-based organizations which include sports teams (see story here). Whilst progress has been made, significant work needs to be done. As a small but sad example, USA Swimming, released a list last year which showed 46 people – including former director of the national team Everett Uchiyama – who received lifetime bans or permanently quit the organization, most for sex-related offenses (see story here). Lawsuits are not uncommon (see here for example). In this light, any legal device which aids in the reduction of child abuse in sport ought to be welcomed.
  • Between Georgian lugar Nodar Kumaritashvili’s death and allegations that the Vancouver Organizing Committee (VANOC) may have violated International Olympic Committee (IOC) ethics rules with targeted visits (see story here), the squeaky clean image of John Furlong – who led Vancouver’s winning bid and the 2010 organizing committee – is in dire jeopardy. I wonder if VANOC’s foreknowledge of the luge track’s dangerously high speeds was disclosed to Nodar’s family when they accepted $150,000. On the world stage of the Olympics, VANOC blamed Nodar for his death while conveniently absolving themselves of responsibility. If Mr. Furlong didn’t tell them about VANOC’s and the International Luge Federation’s concerns over “extremely high speeds” that presented an “unreasonable demand” on the athletes and that the main cause was in fact a track that was too fast that they knew about in advance and did nothing about, then Mr. Furlong has some explaining to do. Maybe he’ll get around to that once he’s finished spinning and explaining his questionable behavior to the IOC. It all brings to mind a Sir Walter Scott quote: “Oh what a tangled web we weave … when first we practise to deceive.”
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Extreme sport is no longer the last refuge of scoundrels

February 16, 2011

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For further proof that extreme sport has gone mainstream, look no further than the Olympics. The Olympics have co-opted subculture sport. No longer the last refuge of scoundrels, extreme sport makes millionaires and Olympians.

Sensing ESPN’s success with their first Winter X-Games which showed that big air meant big money, the International Olympic Committee added snowboarding to the Nagano 1998 Winter Olympic Games, BMX racing to the Beijing 2008 Summer Olympic Games, and ski cross to the Vancouver 2010 Winter Olympic Games.

The IOC is now looking favourably at approving ski and snowboard slopestyle, women’s ski jumping and ski halfpipe at the Sochi 2014 Winter Olympics and kiteboarding at the Rio 2016 Summer Olympics.

In its press release, the Executive Board of the IOC said that the criteria used in recommending these extreme sports for inclusion into the Olympics included whether the changes would increase universality, gender equity and youth appeal, and in general add value to the Games plus the cost of infrastructure, and the impact on the overall quota and the number of events.

Fair enough.

However, the IOC has mandated all international sports federations to re-evaluate the marketability of their events. Christophe Dubi, sports director for the IOC, said, ‘The IOC has moved from using a quantitative list to select events to an overall value-added selection process. The criteria could be provenance or universality. It’s an issue of maximizing the platform we offer at the Olympics.

So there we have it. The IOC’s business model accommodates adding value through the maximizing of revenue streams across multiple media platforms. Perhaps the IOC should add ROI to its Fundamental Principles of Olympism!

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Sagen & Others v. VANOC 2010 (case report)

July 22, 2009

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Sources: see an interesting blog account of the trial: http://vanessapierce.wordpress.com/ or read the full case report here: http://www.vancouver2010.com/dl/00/69/78/-/69784/prop=data/1y2401t/69784.pdf

The facts of the case of Sagen & Others v. Vancouver Organizing Committee for the 2010 Olympic & Paralympic Winter Games (VANOC) has been reported in brief earlier on the blog. Here is the full case report.

The case was brought by 16 highly-ranked (current and retired) female ski jumpers who all claim that female ski jumpers are being excluded from competing at the 2010 Winter Olympic Games because of their sex, in violation of their equality rights under s.15 of the Canadian Charter of Rights and Freedoms. [1]

They argued in the Supreme Court of British Columbia that as the VANOC is a federally incorporated organisation, it had duties under the Charter to make provision for women’s events if it is also hosting male ski jumping competitions. The claimants therefore wanted VANOC to stage a female ski-jumping event, or alternatively to remove the male ski-jumping event (although the claimants suggest at [6] that the IOC would authorize VANOC to host a female event rather than cancel the male event).

By contrast, VANOC suggested that the claimants were suing the wrong defendants and that they were sympathetic to female ski jumping (and indeed remained ready to host an event), but their hands were effectively tied by the IOC [4].

Although the Court ruled that the exclusion of women’s ski jumping from the Winter Olympic was discriminatory and was for no other reason than their gender [7], her Honorable Madam Justice Fenlon then went on to state that as not every discrimination is actionable, and given the degree of IOC control, VANOC was not in breach of the Charter.

The main arguments of the case can be summarised by the following two questions:

1)       Does the Charter apply to VANOC?

Broadly speaking, the Charter only applies to government responsibilities [10]. For the claimants to succeed, they therefore had to argue that VANOC was either controlled by government, or carrying out a governmental program.

The problem for the claimants was that although the Canadian, British Columbia, Vancouver and Whistler governments were all represented on VANOC, there was no evidence of any governmental day to day governance [24] or control over VANOC finances [29], and indeed VANOC operated ‘more like a franchisee of the IOC, than a purchaser of a product’ [39]. Even the degree of control operating under s9 of the Trade Marks Act was not conclusive evidence [48].

However the claimants did succeed on the latter argument, and at [58] the Supreme Court held that staging the 2010 Winter Games was a governmental activity, even though it had created a private entity (VANOC) to deliver the actual event.

 

2)       Is VANOC in breach of s15 of the Charter?

Having established this, the next problem to be overcome was whether VANOC was in breach of the Charter. In doing this, the Court considered three issues:

i)                     What was the benefit at issue? – the opportunity to participate in the 2010 Winter Games at an Olympic Ski Jump Event [75]

ii)                   What is the appropriate comparator group? – Male ski jumpers [75], indeed the court held that Lindsey Van holds the facility record at Whistler [66]

iii)                  What is the discrimination? That the claimants are being treated less favourably on account of their gender [75]

Having established that this discrimination exists, it is then important to understand why and this effectively is the crux of the claimant’s case. The IOC criteria for the inclusion of new events were governed by rule 47 of the Olympic Charter (which effectively laid down certain criteria regarding participation and standards of competition). The problem is not that the rule itself is discriminatory (if anything while it applies equally to men and women, the rule sets a lower standard for participation in women’s events), but rather that its application to ski jumping is discriminatory. This is because while women’s ski jumping does not meet the criteria, neither does the men’s events [86], but they are still included under a ‘grandfather clause’ because they had previously been an Olympic event. As women’s ski jumping had not historically been included, this event was not eligible and therefore constituted discrimination.

The problem with this argument is that the claimants were not asking for a women’s ski jumping exhibition event, but rather an Olympic event [108] and this was beyond VANOC’s capacity. Indeed, the claimants agreed at [116] that VANOC does not have the authority to stage an Olympic Event without the consent of the IOC (while VANOC itself could stage a women’s ski jumping event at the venue, without IOC approval it would not be an Olympic event. Similarly, both the International Ski Federation (FIS) and many National Olympic Committees (NOCs) have stated that they will only participate in IOC sanctioned events during the Olympics).

Given this conclusion, and the IOC’s degree of control, VANOC was not therefore in breach of s15 of the Charter by implementing the IOC Programme of events.

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New EPO test confirmed

March 5, 2009

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Source: http://sports.theglobeandmail.com/servlet/story/RTGAM.20090227.wsptepo0227/GSStory/GlobeSportsOther/?page=rss&id=RTGAM.20090227.wsptepo0227

Olivier Rabin (Science Director for WADA) has announced last month that it now has a new test for erythropoietin (EPO), a cancer and kidney drug that boosts red blood cell production allowing athletes to compete for longer periods of time.

Although WADA has been testing for EPO since 2000, the drug is difficult to detect as traces of the substance do not stay in urine for long. The new test will not just test for EPO, but will also detect biosimilar substances which create the same effects but are not easily detectable.

Suspicious samples that had previously been stored in freezers will now be able to be retested with the new test, although neither the IOC or WADA will confirm how many or which competition’s samples will be retested.

Brace yourselves then for a new set of drugs scandals in May / June……….

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