The doping cases and the need for the International Court of Arbitration for Sport (CAS) / Tricia Kavanagh
In: UNSW Law Journal, no. 3 (Vol. 22) p. 721-745
There is a long recorded history of the use by athletes of substances for performance enhancement. The use of substances in the form of drugs was officially recognised after the 1928 Winter Olympics when the International Federation of Sports Mediation (FIMS) was established as a forum to discuss doping in sport. Slowly an awareness grew in the international community that athletes were competing assisted by drugs to enhance performance. This awareness became sharper after the Second World War when amateur sporting events became much more competitive. France enacted anti-doping legislation in 1963, Belgium in 1965. Other countries followed suit. There were attempts to detect drug use at the 1964 Tokyo Olympics but such attempts were not successful. When prominent athlete Tommy Simpson died in the Tour de France and his death was exposed as drug induced, it led to the International Olympic Committee (IOC) establishing a Medical Commission (the IOCMC). Historically this became one of the most significant developments, as through the Medical Commission was published the International Charter Against Doping in Sport (now known as the IOC Medical Code) was published. The Charter included a ‘list’ of banned substances, which was used as the foundation for all drug testing programs in sport around the world. It is now annually reviewed by the IOCMC. Its contents are often challenged. The Charter provides:
- guidelines as to functions and penalties;
- a model national anti-doping program;
- the list of doping classes and methods of doping; the requirements for accreditation of laboratories and laboratory practice; the standard operating procedures for doping control; the rights, responsibilities and status of athletes and their entourages;
- and, principles and guidelines for in and out of competition testing.
Up until the International Charter Against Doping in Sport, anti-doping efforts had been somewhat ad hoc. However, when the preeminent sports organisation, the IOC, set a standard and imposed it upon its sporting federations an imprimatur was given to policies committed to drug free sport. Over the last ten years, international co-operation and initiatives improved as drug testing programs were put in place by National Olympic Committees (NOCs) (for example the Australian Olympic Committee (AOC)), international and national federations (ISFs and NSOs) through their rules and by-laws, and by governments through legislative reform or administrative process (for example the Australian Sports Drug Agency (ASDA)).
However, three impediments to successful anti-doping programs were quickly exposed. There was a lack of harmonisation and consistency of procedures and accountability for the integrity of the urine testing. Secondly, there was a lack of agreement between sports federations internally between national and international organisations and externally between the various sports as to the appropriate sanctions for breaches. Thirdly, when doping disputes went to the sporting tribunals and from the tribunals to domestic courts on appeal, there developed an awareness and appreciation of the need for sound jurisprudential and equitable principles in the hearing of doping disputes. In response to these impediments, the sports organisations have attempted to harmonize sanctions and testing procedures. However, the sports tribunals have met some difficulties as they have traveled through the legal labyrinth revealed by sports appeals, particularly appeals from positive findings of drug use.
In examining the legal complexities and legal principles revealed in the doping cases, this paper traces the steps taken by parties involved in sports law to bring consistency and integrity to international sports law through the establishment by revised rules and procedures of an International Court of Arbitration for Sport (CAS). The role of the CAS was praised by Ms Watt’s Counsel, David Grace QC, as a “terrific way” of settling disputes. He stated: This is a perfect system for settling these disputes in an atmosphere that's much more relaxed, where the procedures are easy to comply with and the dispute can be heardquickly, efficiently and inexpensively.
The Court is an independent forum which allows each side to put its case anyway it likes. The procedures are often moulded to suit the subject matter of the hearing and the ordinary rules of evidence don not necessarily apply.
The fundamental question now is the extent to which national courts will follow the Swiss lead in recognizing and enforcing CAS awards in the face of due process or public order claims. The result will be what Nafziger calls “a blending of national and international institutions into a single process of justice that avoids judicial complexity”. This is the voice of the hopeful, who have been perplexed by the anomalies that have developed in the jurisprudential principles so far enunciated in doping disputes.
Normative trends confirm the growing commitment of national legal systems to the process of international sports law. Adjudication is a last resort. If there should be adjudication it is hoped the CAS provides the final orders.
Nevertheless, as jurisprudential principles flow from the CAS, effective monitoring must be built into the process to protect the interests of all parties. It is imperative that the court promptly publish reasons for any decisions it makes. Gradually through arbitrary decisions a distinctive lex specialis should emerge.
The motivation behind the establishment and recognition of the CAS has been to protect the interests of international sporting competition while giving due recognition to the legal rights of the athletes. The process of refining its procedural rules must be a continuous one. There is no room for complacency.
