CAS 2011/A/2658 British Olympic Association (BOA) v. World Anti-Doping Agency (WADA)
This Award concerns a Bye-Law that the British Olympic Association (BOA) adopted about twenty years ago and has been amended several times since; the most recent version is in force since 1 January 2009.
The Bye-Law essentially provides that any British athlete
“who has been found guilty of a doping offence … shall not … thereafter be eligible for consideration as a member of a Team GB or be considered eligible by the BOA to receive or to continue to benefit from any accreditation as a member of the Team GB delegation for or in relation to any Olympic Games, any Olympic Winter Games or any European Olympic Youth Festivals”.
WADA challenged the Bye-Law following and on the basis of an award of the Court of Arbitration for Sport (CAS) issued by a panel on 4 October 2011: U.S. Olympic Committee v. International Olympic Committee, CAS 2011/O/2422.
The USOC Award considered the validity of a rule of the International Olympic Committee according to which
“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 the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension”
The USOC Award held that the IOC Regulation was invalid and unenforceable because it violated Article 23.2.2 of the WADA Code, which provides that a Signatory must implement enumerated Articles of the Code. The IOC Regulation was found to have changed the substance of the sanctions imposed in the WADA Code.
On 21 November 2011 the WADA Foundation Board decided that the Bye-Law was not compliant with the WADA Code. Hereafter in December 2011 the BOA appealed the WADA Decision with the Court of Arbitration for Sport (CAS).
The Panel holds that the dispute between the Parties here involves one means of pursuing the fight against doping, not the fight itself. The Bye-Law prevents an athlete who has had a doping offence from being selected to represent the British Olympic Team.
The core issue to be determined here is whether BOA may pursue that policy on its own or whether that policy must be pursued, if at all, through the world-harmonized WADA Code.
Following assessment the Panel finds that the Bye-Law renders an athlete ineligible to compete and does so on the basis of prior undesirable behaviour: the commission of a doping offence under the WADA Code. The fact that the Bye-Law
foresees a possibility of an Appeal Procedure is certainly a good instrument to avoid totally disproportionate decisions.
However, this does not change the nature of the (disciplinary) consequences of the Bye-Law and, accordingly, its non-compliance with the WADA Code: The proportionality of sanctions for anti-doping offences shall be evaluated within the worldwide harmonized system of the WADA Code – and
cannot be the object of an additional disciplinary proceedings triggered by the same offence.
The Panel concludes that the Bye-Law is a doping sanction and is therefore not in compliance with the WADA Code. It
confirms the view of the WADA Foundation Board as indicated in its Decision.
Therefor the Court of Arbitration for Sport decides on 30 April 2012:
1.) The Appeal is dismissed, and the decision of the WADA Foundation Board of 21 November 2011 is confirmed.
2.) The costs of the arbitration, to be determined and served on the Parties by the CAS Court Office, shall be borne by the British Olympic Association.
3.) Each Party shall bear its own legal fees and other expenses in connection with this arbitration.
4.) All further and other claims for relief are dismissed.
