By Richard Young and Ulrich Haas |
With the postponement of the 2020 Olympic and Paralympic Games, a number of athletes who have served their doping sanctions by then will become eligible to compete.
The postponement of the Games, thus, may be to their advantage. The question has been raised whether there is a possibility to prevent those athletes from “profiting” from the COVID-19 crisis and the postponement of the Games.
The answer to this question is no, for a variety of reasons:
1. Background of the World Anti-Doping Code: The primary purpose of the Code was to harmonise anti-doping rules across sports and countries.
Before the Code, there was wide disparity in the factors to be considered in sanctioning and how the length of a sanction was measured.
For example, the same anti-doping rule violation could result in a single season ban in one sport and a four-year ban in another. The impact of these disparate sanctioning rules on athletes who competed in multiple sports was particularly confounding.
This lack of harmonisation significantly undermined the confidence of athletes and the public in the anti-doping system.
One of the fundamental decisions made by the stakeholders in adopting the Code was to establish periods of ineligibility in all sports based on a fixed period of time – days, weeks, months or years, instead of seasons or particular events.
2. Wording of the Code: The Code provides for different periods of ineligibility depending on the type of breach in question and – in particular – depending on the degree of fault of the athlete.
Thus, whether or not the athlete is a professional or an amateur, whether the athlete derives his or her livelihood from the sporting activity, or whether the athlete is injured and would not otherwise have been able to compete is immaterial.
The period of ineligibility under the Code must be specified by the competent anti-doping authority in terms of days, weeks, months or years.
During such period of ineligibility, the Code provides for a total ban on any sports-related activity. In addition, the period of ineligibility must be served in one go. The WADC does not offer any possibility to interrupt, stay or pause periods of ineligibility.
Because it is not possible under the WADC to cherry-pick periods of ineligibility, it is equally not possible to ban an athlete for certain competitions after the expiry of the period of ineligibility.
3. Finality of sanction decisions: In all instances in which a final decision relating to the period of ineligibility has been issued, either by the Court of Arbitration for Sport (CAS) or because the decision of an Anti-Doping Organisation has not been appealed, the parties to that proceeding are prevented from extending or modifying such period of ineligibility because of the res judicata effect of the decision.
Code Article 15 also requires signatories who were not parties to the proceeding to recognise the decision.
Thus, a final decision which has established an athlete’s period of ineligibility for a fixed period of time cannot be extended by any signatory to include ineligibility to participate in events beyond the window of time fixed in that decision.
4.Eligibility at the Olympics or Paralympics: The question whether or not an athlete fulfills all requirements to participate in the Olympic Games is a question of eligibility.
A major event organiser such as the International Olympic Committee (IOC) regulates these conditions for entry autonomously. However, the autonomy of international sports organisations does not extend to anti-doping matters.
The latter are exhaustively and mandatorily dealt with in the code. Consequently, an international sports organisation may not characterise a provision as an eligibility rule and claim autonomy, when such rule – effectively – is an anti-doping provision.
The latter must mandatorily comply with the Code. International sports organisations may not trespass this barrier (cf. Code Article 23.2.2).
The CAS has made it clear in the past (in its so-called Osaka-rule decision) that the qualification of a provision as an eligibility or an anti-doping rule must be made based on substance, i.e. by looking at the purpose and the effects of the provision in question.
If the purpose is to sanction a doping-related behaviour of the athlete committed in the past then such rule – necessarily – is an anti-doping provision that must comply with the Code. Thus, an international sport organisation may not undermine the Code by disguising its provision as eligibility rules.
A provision by the IOC declaring athletes who have served their period of ineligibility by the summer of 2021 ineligible for the Olympic Games, because they were not allowed to compete in 2020 does not comply with CAS’s Osaka-rule decision.
Republished with permission from insidethegames.biz.
Richard Young was the lead drafter of the first World Anti-Doping Code in 2003 and has held a similar role in each revision of the Code since then. A partner at Bryan Cave Leighton Paisner law firm in the United States, Mr Young is a hugely experienced litigator with a specialty in sports law, having handled a number of high-profile anti-doping cases on behalf of WADA and other Anti-Doping Organizations.
Ulrich Haas is Professor of Procedural and Private Law, University of Zurich, and co-drafter of the World Anti-Doping Code. He has been an arbitrator on more than 150 tribunals, including at the International Court of Arbitration of the International Chamber of Commerce in Paris, France, the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, and a number of anti-doping tribunals in basketball, cycling and motorsport.