CAS 2016_A_4502 Patrick Leeper vs IPC

CAS 2016/A/4502 Patrick Leeper v. International Paralympic Committee (IPC)

Paralympic athletics (track and field)
Doping (benzoylecgonine)
Relationship between the right of appeal against decisions and the recognition of decisions
Right of appeal against settlement agreements
Right of appeal against first instance settlement agreements only
Parties bound by the settlement agreement
Applicability of recognition under Article 15.1 IPC Code to settlement agreements
Application of Article 10.5.2 IPC Code/WADC to social/recreational drugs

1. The IPC Code provides some provisions in order to prevent the IPC to be bound by a decision that it does not want to be bound by: (a) a right to appeal against (certain) decisions under Article 13 of the IPC Code and (b) the rules of Article 15 regarding recognition of decisions. From the wording and structure of Article 15 of the IPC Code (according to which (non-)recognition of decisions is “subject to the right of appeal”) and from the fact that Article 15 of the IPC Code only refers to “final adjudications” (i.e. adjudications that – because of their finality – are no longer subject to a right of appeal) it follows that under the IPC Code appeals take precedence over recognition of decisions, and that both articles are mutually exclusive. However, in circumstances where the requirements for recognition of decisions of Article 15.1 of the IPC Code are not met the IPC is not necessarily obliged to appeal the decision in question. Lastly, whatever can be the object of an appeal under Article 13.2 of the IPC Code must also be the object of (non-)recognition; this is because both provisions (Article 13.2 and Article 15.1 IPC Code) pursue a similar goal, i.e. to review decisions taken by an anti-doping organization in light of the principles of the IPC Code/WADC and squash the effects of such decision in case of non-compliance.

2. Given that Article 7.10 of the IPC Code, which addresses “notification of Results Management Decisions”, stipulates that an anti-doping organization which has agreed with an athlete to the imposition of a sanction without a hearing, shall give notice thereof to other anti-doping organizations with a right to appeal, it can be concluded that the term “Results Management Decisions” in Article 7.10 of the IPC Code has to be understood in a broad sense. It follows from the above that also in the context of appeals under Article 13.2 of the IPC Code, the term “appealable decision” must, in principle, be construed in a broad sense, encompassing also agreements between an anti-doping organization and an athlete with respect to consequences in relation to an alleged anti-doping rule violation.

3. The structure of the IPC Code allows the conclusion that the IPC Code intends to differentiate between a results management stage, including results management hearings, and an appeal stage, and that the right of appeal is only applicable to decisions emanating from the results management stage. Consequently, any decision taken at the appeal stage – e.g. a settlement agreement concluded between an athlete and an anti-doping organization which is designed to terminate pending CAS appeal proceedings and therefore to substitute for the appeal decision before the CAS (rather than to substitute the first instance results management decision) – is not subject to appeals within the meaning of Article 13 or Article 15.1 of the IPC Code.

4. There are no procedural reasons for which a third party would be bound by a private agreement reached outside state or arbitration proceedings, e.g. a settlement agreement.

5. Article 15.1 of the WADC/IPC Code obliges the signatories of the WADC to recognise “testing, hearing results or other final adjudications” of other signatories. Whereas the term “adjudication” used in Article 15.1 of the IPC Code is not a defined term within the meaning of the IPC Code or the WADC, when looking at the language used, the grammar and the syntax as well as taking into account the intentions of the IPC in drafting the provision it first can be noted that Article 15.1 of the IPC Code does not refer to “decisions” as the object of recognition. Instead, the provision refers to parts of the decision-making process, such as “Testing” and “hearing results”. The provision, thus, makes it clear that the term “adjudication” must be construed in a broad sense and not only the final outcome of the results-management process or specific forms of decision-making may be the object of recognition, but also separate parts thereof. E.g. also a private agreement between an athlete and an anti-doping organization has to be considered as a “final adjudication” and the IPC cannot refuse recognition of the settlement agreement on the pure fact that the decision takes the form of an agreement.

6. The 2015 WADC does not advocate a dual approach when dealing with the consequences of social/recreational drug use depending on the kind of drug consumed by the athlete (e.g. cannabinoids or cocaine). To the contrary in principle there are good reasons to also apply Article 10.5.2 of the IPC Code/WADC regarding reduction of the period of ineligibility based on No Significant Fault or Negligence to cases where an athlete has knowingly ingested cocaine outside competition (but tested positive in-competition), thereby taking a harmonized approach with respect to recreational drug use. However, in circumstances where the use of cocaine was influenced by an athlete’s addiction to alcohol and happened while the athlete was drunk it is not right to say that the degree of fault displayed by the athlete was “light” or “minimal”. Instead, the degree of negligence displayed would have to be qualified as “normal”.


On 6 November 2015 the American Arbitration Association (AAA) decided to impose a 2 year period of ineligibility on the Paralympic Athlete Patrick Leeper after his sample tested positive for the prohibited substance cocaine.

Hereafter in November 2015 the Athlete appealed the AAA decision with the Court of Arbitration for Sport (CAS) case CAS 2015/A/4323. Here the Athlete requested a stay of the proceedings to allow the him and USADA the opportunity to attempt to negotiate a settlement agreement concerning the Sanction.

Thereafter, the Athlete and USADA settled their dispute and agreed – among other things – that USADA would impose a 1 year period of ineligibility on the Athlete and that the he would accept 1 year ban, and withdraw his appeal. USADA and the Athlete executed the settlement agreement on 15 January 2016.

On 16 February 2016, the Athlete informed the CAS of the Settlement Agreement and requested that CAS terminate the arbitration. On the other hand when informed the International Paralympic Committee (IPC) decided on 22 February to reject this Settlement Agreement.

Hereafter in March 2016 the Athlete filed an appeal against the IPC decision with CAS (case CAS 2016/A/4502). The Athlete requested the Panel to set aside the IPC decision of 22 February 2016 and to recognize the Settlement Agreement of 15 January 2016.

The IPC contended that the Athlete has changed his explanation for his positive test, now accepting that the explanation provided to the AAA panel was entirely false and fabricated. Instead, the Athlete stated that he had in fact used cocaine intentionally a few days before his positive test, while drunk, and that his behaviour had been caused by his longstanding alcoholism. The IPC argued that aside from the Athlete’s own account, no supporting evidence was provided for his new explanation.

The IPC had and continues to have grave concerns as to the highly unorthodox procedure adopted in the Athlete’s case (for which no explanation has ever been forthcoming, either from USADA or the Athlete). As a result on 22 February 2016 the IPC rejected the Settlement Agreement and confirmed that it would recognise only the undisturbed AAA Decision and not the later Settlement Agreement.

The Panel is of the view that there was no right to appeal the Settlement Agreement. In coming to this conclusion the Panel first and foremost looked at Article 13.2 IPC Code. This provision establish whether decisions are subject to appeal before CAS or not. Agreements executed between an ADO and an athlete at the appeal stage before the CAS are not expressly mentioned in Article 13.2 IPC Code.

The Panel finds that the Settlement Agreement is not the outcome of an arbitration agreement or a consent award, but of a private agreement reached outside state or arbitration proceedings. Consequently, the Panel sees no reason on what procedural ground the Settlement Agreement could bind also the IPC. This is all the more true, since the IPC was not a party involved in the previous proceedings before the CAS (CAS 2015/A/4323) which was withdrawn by the Athlete.

In the case at hand it is undisputed between the Parties that the cocaine consumption by the Athlete was not intentional within the meaning of Article 10.2.3 IPC Code/WADC. Consequently, the maximum period of ineligibility in the case at hand is two years. However, it is disputed between the Parties if and to what extent a further reduction of the otherwise applicable period of ineligibility applies in light of the circumstances of this case.

Establishing the Athlete’s degree of fault in this case the Panel holds that the period of ineligibility imposed on the Athlete in the Settlement Agreement was clearly dictated first and foremost by the (understandable, however not justifiable) desire to allow the Athlete to compete at the Paralympics.
Considering all aspects of this case the Panel finds that the IPC was in its right according to Article 15.1 IPC Code/WADC not to recognize the Settlement Agreement.

Therefore the Court of Arbitration for Sport decides on 12 August 2016 that:

1.) The appeal filed by Mr Patrick Leeper against the International Paralympic Committee on 14 March 2016 is dismissed.
2.) The International Paralympic Committee has no obligation to recognize the Settlement Agreement between Mr Patrick Leeper and the United States Anti-Doping Agency dated 15 January 2016.
(…)
5.) All other motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
12 August 2016
Arbitrator
Argand, Luc
Haas, Ulrich
Jörneklint, Conny
Original Source
Court of Arbitration for Sport (CAS)
Country
United States of America
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
Case law / jurisprudence
No intention to enhance performance
No standing to appeal
Period of ineligibility
Res judicata
Right to appeal
Rules & regulations International Sports Federations
Settlement
WADA Code, Guidelines, Protocols, Rules & Regulations
Sport/IFs
Athletics (WA) - World Athletics
Paralympic (IPC) - International Paralympic Committee
Other organisations
International Paralympic Committee (IPC)
United States Anti-Doping Agency (USADA)
Doping classes
S6. Stimulants
Substances
Cocaine
Medical terms
Addiction / dependence
Attention Deficit Hyperactivity Disorder (ADHD)
Dyslexia and related developmental disorders
Various
Athlete support personnel
Lying / false statement
Out-of-competition use / Substances of Abuse
Parathlete / Parasports
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Date generated
2 August 2018
Date of last modification
23 May 2019
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