4 Oct 2011
CAS 2011/O/2422 United States Olympic Committee (USOC) v. International Olympic Committee (IOC)
AAA No. 77 190 00288 08 JENF USADA vs Jessica Hardy - Interim Award
August 1, 2008
AAA No. 77 190 00288 08 USADA vs Jessica Hardy
May 30, 2009
AAA No. 77 190 00293 10 USADA vs Lashawn Merritt
October 15, 2010
CAS 2009_A_1870 WADA vs Jessica Hardy & USADA
May 21, 2010
CAS 2009_O_1824 IOC
June 11, 2009
Validity and enforceability of a rule prohibiting doped athletes from participation in the next Olympic Games
Definition of eligibility rules
Definition of sanctions
Proper characterisation of the rule
Consistency with the WADA Code
Principle of autonomy of the association
Consistency with the Olympic Charter
Principle of double jeopardy or ne bis in idem
1. CAS jurisprudence has indicated 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 requirement for the type of competition in question. A common point in qualifying (eligibility) rules is that they do not sanction undesirable behaviour by athletes. Qualifying rules define certain attributes required of athletes desiring to be eligible to compete and certain formalities that must be met in order to compete.
2. In contrast to qualifying rules are the rules that bar an athlete from participating and taking part in a competition due to prior undesirable behaviour on the part of the athlete. Such a rule, whose objective is to sanction the athlete’s prior behaviour by barring participation in the event because of that behaviour, imposes a sanction. A ban on taking part in a competition can be one of the possible disciplinary measures sanctioning the breach of a rule of behaviour.
3. Having regard to its objective and purpose and to its scope and application, a rule prohibiting doped athletes from participation in the next Olympic Games is more properly characterised as a sanction of ineligibility for a major Competition, i.e. as a disciplinary measure taken because of a prior behaviour, than as a pure condition of eligibility to compete in the Olympic Games. Even if one accepts that the rule has elements of both an eligibility rule and a sanction, it nevertheless operates as, and has the effect of, a disciplinary sanction.
4. A rule prohibiting doped athletes from participation in the next Olympic Games provides for a period of ineligibility (non-participation) that is not provided for under Article 10 of the WADA Code. In so doing, the rule constitutes a substantive change to the WADA Code, which Signatories of the WADA Code have contractually committed themselves not to do and which is prohibited by Article 23.2.2 of the WADA Code.
5. Recognised by the Swiss federal Constitution and anchored in the Swiss law of private associations is the principle of autonomy, which provides an association with a very wide degree of self-sufficiency and independence. The right to regulate and to determine its own affairs is considered essential for an association and is at the heart of the principle of autonomy. One of the expressions of private autonomy of associations is the competence to issue rules relating to their own governance, their membership and their own competitions. However, this autonomy is not absolute.
6. Because the Panel has found that the rule prohibiting doped athletes from participation in the next Olympic Gamesis not in compliance with the WADA Code, and because the WADA Code has been incorporated into the Olympic Charter, the rule is not in compliance with the IOC’s Statutes, i.e. the Olympic Charter.
7. CAS case law has consistently held that the principle of ne bis in idem can apply to sanctions under sports law and academic authorities on the subject have come to the same conclusion. If the ne bis in idem principle is indeed applicable to sanctions imposed under anti-doping regulations, the rule prohibiting doped athletes from participation in the next Olympic Games would contravene this principle. The effective purpose of the sanction is the same (even if the underlying motivations are different); the sanction is attributable to the same behaviour, and the sanction results in the same consequence, ineligibility from Competition.
The IOC Executive Board, at its meeting in Osaka, Japan on 27 June 2008, enacted the following rule which has come to be known as the “Osaka Rule”:
“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”.
The IOC Regulation came into effect in July 2008 but does not appear to have impacted any athletes who applied to attend the Vancouver Winter Olympic Games in February 2010. However, the IOC Regulation will impact a number of athletes around the world for the 2012 Summer Olympic Games in London. The IOC Regulation appears to have also affected doping adjudications since it came into effect.
In one of those athletes’ situations, the IOC Regulation came under scrutiny before AAA/North American Court of Arbitration for Sport in the case USADA v. LaShawn Merritt (referred to as the “Merritt Award”). In the Merritt Award, the AAA Panel was required to determine whether the IOC Regulation could be applied to Mr. Merritt, who had tested positive for the banned substance DHEA in a series of out-of-competition tests.
The enforceability of the IOC Regulation also arose in an arbitration involving another U.S. athlete, Jessica Hardy. Ms. Hardy tested positive for clenbuterol in July of 2008. In light of the positive test, Ms. Hardy withdrew from the 2008 Olympic team. The AAA Panel in the Hardy matter held that Ms. Hardy should be suspended from competition for one year, i.e. the minimum period allowed under the governing rules.
The Panel further determined that it would be manifestly unfair and a grossly disproportionate penalty for Ms. Hardy to be subject to the application of the IOC Regulation, which had come into effect only three (3) days prior to her positive drug sample.
Both parties to this proceeding recognized that there was considerable uncertainty facing the world’s aspiring Olympic athletes and their national Olympic committees because of the IOC Regulation. In recognition of these concerns and to their credit, in April 2011 the parties voluntarily entered into an Arbitration Agreement and submitted this dispute for resolution by the Panel in a CAS Ordinary Arbitration Procedure.
The CAS Panel concludes for the reasons set out in this Award and taking in due consideration all arguments submitted by the parties as well as the amicus curiae briefs filed by third parties, that the IOC Regulation is not in compliance with the WADA Code and violates the IOC’s own Statutes. The Arbitration Agreement provides for this dispute to “be submitted exclusively to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, and settled definitively in accordance with the Code of Sports-related arbitration, under the rules applicable to the Ordinary Arbitration Procedure”. In the exercise of this power conferred upon the Panel by the Arbitration Agreement and in light of these findings, the IOC Regulation is found to be invalid and unenforceable.
Therefore on 4 October 2011 the Court of Arbitration for Sport decides:
1.) The IOC Executive Board’s June 27, 2008 decision prohibiting athletes who have been suspended for more than six months for an anti-doping rule violation from participating in the next Olympic Games following the expiration of their suspension is invalid and unenforceable.