Sentence Construction – Recent case on doping bans
By Roshan Gopalakrishna
Case review: United States Olympic Committee v. International Olympic Committee (CAS 2011/O/2422)
On October 6 2011, the Court of Arbitration for Sport (‘CAS’) held that the International Olympic Committee (‘IOC’) rule prohibiting athletes suspended for more than six months for doping related violations from participating in the next Olympic Games following the expiration of their suspension was invalid and unenforceable.
The IOC defines ‘Doping’ as “the administration of or use by a competing athlete of any substance foreign to the body or any physiological substance taken in abnormal quantity or taken by an abnormal route of entry into the body with the sole purpose of increasing, in an artificial and unfair manner, his/her performance in the competition.” Following the expulsion of the Team Festina from the Tour de France in July 1998 after criminal investigators uncovered evidence of systematic drug use, the IOC organised the World Anti-Doping Conference at Lausanne in February, 1999 to identify ways and means for a regulatory response to a new level of co-ordination and effectiveness. The conference resulted in the establishment of the World Anti-Doping Agency (‘WADA’). WADA’s key activities include monitoring of the World Anti-Doping Code (‘Code’) – a document that internationally harmonises regulations regarding anti-doping across sports and keeps track of the development of technology in sports to revise the Code and update its list of prohibited substances in sports. Sportspersons and sports governing bodies are bound to adhere to the Code. A participant, when agreeing to participate in any international or national event of a body affiliated to the WADA, undertakes to conform to the norms of WADA, and submits to the testing conducted by it. Anti-doping provisions and rules have now become mandatory in the athlete participation forms and the rules of membership for the various sports governing bodies.
On 27 June 2008, the IOC enacted the now infamous ‘Osaka Rule’ as a way to strengthen the fight against doping, through the following resolution:
“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 Committees and to all Organizing Committees for the Olympic Games.”
Therefore, the Osaka Rule would, in effect, apply only to athletes guilty of a doping violation (over 6 months suspension) who were selected to represent their country for the subsequent Summer Olympics or Winter Olympics
LaShawn Merritt, the reigning Olympic and World Champion in 400 m sprint and 4 x 400 m relay, failed three drugs tests in the winter of 2009–2010. Merritt tested positive for the banned steroid Dehydroepiandrosterone. He was subsequently banned for a period of two years from the first violation, which was subsequently reduced to 21 months, ending on July 27, 2011. As a result, Merritt was cleared to represent the USA at the 2011 World Championships in Daegu where he claimed the silver medal. However, as a result of the Osaka Rule, he remained ineligible to compete at the 2012 Summer Olympic Games in London.
The validity and enforceability of the Osaka Rule was hence challenged in the CAS by the United States Olympic Committee (USOC). The USOC contended that:
a. contrary to the IOC’s position, the Osaka Rule constituted a sanction and not an eligibility rule, as it formed an impermissible substantive change to the Code in violation of Article 23.2.2., was not enacted in compliance with the provisions of the Code and was a violation of the principle of double jeopardy; and
b. the Osaka Rule was not consistent with the Olympic Charter, because it violated certain specific provisions of the Olympic Charter. In addition, the application of the Osaka Rule would inevitably result in unjustifiable discrimination between athletes and affect the dignity of athletes in a manner contradictory to the fundamental principles of the Olympic Charter.
WADA independently submitted a brief, in an effort to ensure that the CAS arbitration panel would have a comprehensive view of the potential issues surrounding the Osaka Rule.
On the other hand, the IOC argued that the Osaka Rule constituted an eligibility rule in relation to qualification for the Olympics rather than as an additional sanction. The IOC further argued that the Osaka Rule protected the values of the Olympic Movement from the “scourge of doping”, that athletes had no automatic right to participate in an Olympic event and that the rule did not conflict with double jeopardy as it was not an anti-doping ineligibility sanction.
Previously, in Prusis v. IOC (CAS OG 02/001), the CAS had first addressed the issue of whether the IOC could refuse entry into the Olympic Games to an athlete who had already served an anti-doping related sanction. The CAS arbitration panel had held that the aim of such a sanction was to impose a further sanction on the athlete for the same offense. CAS jurisprudence in RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381  ) has indicated that qualifying or eligibility rules that serve to facilitate the organisation of an event and to ensure that the athlete meets the performance ability requirement for the type of event in question. In particular, the panel held that eligibility rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.
In addition, the CAS had provided advisory opinion on substantially the same question to the IOC and an anonymous international sports federation. In its advisory opinion to the IOC, the CAS had held that the Osaka Rule was an eligibility rule. In the present matter however, the CAS held that the manner in which the query had been previously posed by the IOC and the lack of adversarial proceedings had prevented the advisory panel from considering all possible issues. As regards the confidential advisory opinion provided to the international sports federation, the CAS panel opined that a rule which had similar effect to the Osaka Rule was penal in nature and not an eligibility rule as the panel found intent to sanction the athlete.
In discussing the scope of the Osaka Rule, the CAS held that the Osaka Rule does not have an immediate effect on an athlete suspended under the Code that prevents him from participating in a qualifying competition. However, even though the IOC claimed that an athlete could participate in any other elite competition, the conclusion, under the Osaka Rule, was that it still holds the athlete ineligible as regards the Olympic Games which comes under the definition of ‘competition’ under the Code. It was also stated that the Osaka Rule amounted to double jeopardy as it prevented an athlete from participating in the Olympic Games after serving a period of suspension. The main reason that the Osaka Rule was held to be a sanction was that the IOC adopted its own anti-doping rules with the Code as reference model. Rule 44 of the Olympic Charter expressly incorporates the Code as being keystone to the conduct of the Olympic Games. Therefore, the IOC is bound by WADA’s definition of the term ‘ineligibility’. Under Article 10 of the Code, ineligibility constitutes a sanction, thereby rendering the fact that an athlete could participate at other international competitions redundant. As Rule 44 served to increase the period of ineligibility from the original doping violation (i.e., from between 6-24 months until the next Olympic Games), the Osaka Rule was invalid.
Additionally, under Article 23.2.2 of the Code, signatories to the Code could not add any additional provisions to their documents of eligibility/charters which could change the effect of the period of ineligibility under the Code. The CAS arbitration panel stated that such a rule needed to be incorporated within Article 10 of the Code when it was next reviewed.
The fact that IOC cannot make any substantive changes to or deviate from the Code seems fair on the basis of equity and the legal rule book. The larger issue however, especially in light of the London Olympics 2012, is that a number of national sports organisations and event organisers impose additional sanctions (or eligibility criteria) on athletes found guilty of doping. By way of illustration, the British Olympic Association prevented star athlete Dwain Chambers from being selected for Team GB in the 2008 Beijing Olympics after he had served his drugs ban. The present judgment potentially paves the way for similarly placed athletes to challenge their life bans from the Olympic Games. It does seem to bring an end to a never ending debate of morality and regulations versus rights of an athlete by providing for just one sanction to athletes who test positive.