Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Olympic Agenda 2020: The devil is in the implementation!

The 40 recommendations of the Olympic Agenda 2020 are out! First thought: one should not underplay the 40 recommendations, they constitute (on paper at least) a potential leap forward for the IOC. The media will focus on the hot stuff: the Olympic channel, the pluri-localisation of the Games, or their dynamic format. More importantly, and to some extent surprisingly to us, however, the IOC has also fully embraced sustainability and good governance. Nonetheless, the long-term legacy of the Olympic Agenda 2020 will hinge on the IOC’s determination to be true to these fundamental commitments. Indeed, the devil is always in the implementation, and the laudable intents of some recommendations will depend on future political choices by Olympic bureaucrats. 

For those interested in human rights and democracy at (and around) the Olympics, two aspects are crucial: the IOC’s confession that the autonomy of sport is intimately linked to the quality of its governance standards and the central role the concept of sustainability is to play in the bidding process and the host city contract.  More...

UEFA’s tax-free Euro 2016 in France: State aid or no State aid?

Last week, the French newspaper Les Echos broke the story that UEFA (or better said its subsidiary) will be exempted from paying taxes in France on revenues derived from Euro 2016. At a time when International Sporting Federations, most notably FIFA, are facing heavy criticisms for their bidding procedures and the special treatment enjoyed by their officials, this tax exemption was not likely to go unnoticed. The French minister for sport, confronted with an angry public opinion, responded by stating that tax exemptions are common practice regarding international sporting events. The former French government agreed to this exemption. In fact, he stressed that without it “France would never have hosted the competition and the Euro 2016 would have gone elsewhere”. More...

The New Olympic Host City Contract: Human Rights à la carte? by Ryan Gauthier, PhD Researcher (Erasmus University Rotterdam)

Three weeks ago, I gave a talk for a group of visiting researchers at Harvard Law School on the accountability of the IOC for human rights abuses caused by hosting Olympic Games. On the day of that talk, Human Rights Watch announced that the International Olympic Committee (“IOC”) would insert new language into the Host City Contract presumably for the 2022 Olympic Games onwards. The new language apparently requires the parties to the contract to:

“take all necessary measures to ensure that development projects necessary for the organization of the Games comply with local, regional, and national legislation, and international agreements and protocols, applicable in the host country with regard to planning, construction, protection of the environment, health, safety, and labour laws.”More...

The UN and the IOC: Beautiful friendship or Liaison Dangereuse?

The IOC has trumpeted it worldwide as a « historical milestone »: the United Nations has recognised the sacrosanct autonomy of sport. Indeed, the Resolution A/69/L.5 (see the final draft) adopted by the General Assembly on 31 October states that it  “supports the independence and autonomy of sport as well as the mission of the International Olympic Committee in leading the Olympic movement”. This is a logical conclusion to a year that has brought the two organisations closer than ever. In April, UN Secretary General Ban Ki-moon appointed former IOC President, Jacques Rogge, Special Envoy for Youth Refugees and Sport. At this occasion, the current IOC President, Thomas Bach, made an eloquent speech celebrating a “historic step forward to better accomplish our common mission for humanity” and a memorandum understanding was signed between the UN and the IOC. This is all sweet and well, but is there something new under the sun?More...

Image Rights in Professional Basketball (Part I): The ‘in-n-out rimshot’ of the Basketball Arbitral Tribunal to enforce players’ image rights contracts. By Thalia Diathesopoulou

A warning addressed to fans of French teams featuring in the recently launched video game NBA 2K15: Hurry up! The last jump ball for Strasbourg and Nanterre in NBA 2K 15 may occur earlier than expected. The French Labour Union of Basketball (Syndicat National du Basket, SNB) is dissatisfied that Euroleague and 2K Games did not ask (nor paid) for its permission before including the two teams of Pro A in the NBA 2K15 edition. What is at issue? French basketball players’ image rights have been transferred to SNB, which intends to start proceedings before the US Courts against 2K Games requesting 120.000 euros for unauthorized use of the players’ image rights. SNB is clear: it is not about the money, but rather to defend the players’ rights.[1] Strasbourg and Nanterre risk to “warm up” the virtual bench if this litigation goes ahead. 

Source: http://forums.nba-live.com/viewtopic.php?f=149&t=88661&start=250 More...

Sport and EU Competition Law: uncharted territories - (II) Mandatory player release systems with no compensation for clubs. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs and national courts have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

In this second installment of this blog series, we discuss a recent judgment of the regional court (Landgericht) of Dortmund finding that the International Handball Federation (IHF)’s mandatory release system of players for matches of national teams without compensation infringes EU and German competition law.[1] More...

The CAS Ad Hoc Division in 2014: Business as usual? – Part.1: The Jurisdiction quandary

The year is coming to an end and it has been a relatively busy one for the CAS Ad Hoc divisions. Indeed, the Ad Hoc division was, as usual now since the Olympic Games in Atlanta in 1996[1], settling  “Olympic” disputes during the Winter Olympics in Sochi. However, it was also, and this is a novelty, present at the Asian Games 2014 in Incheon.  Both divisions have had to deal with seven (published) cases in total (four in Sochi and three in Incheon). The early commentaries available on the web (here, here and there), have been relatively unmoved by this year’s case law. Was it then simply ‘business as usual’, or is there more to learn from the 2014 Ad Hoc awards? Two different dimensions of the 2014 decisions by the Ad Hoc Division seem relevant to elaborate on : the jurisdiction quandary (part. 1) and the selection drama (part. 2). More...

Sports Politics before the CAS II: Where does the freedom of speech of a Karate Official ends? By Thalia Diathesopoulou

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case. More...

The new “Arrangement” between the European Commission and UEFA: A political capitulation of the EU

Yesterday, the European Commission stunned the European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement with UEFA named (creatively): ‘The Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA)’. The press release indicates that this agreement is to “commit the two institutions to working together regularly in a tangible and constructive way on matters of shared interest”. The agreement was negotiated (as far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou and UEFA President Platini, the eventuality of such an outcome was never evoked. It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters Direct etc.) were consulted in the process of drafting this Arrangement. This surprising move by an outgoing Commission will be analysed in a three-ponged approach. First, we will discuss the substance of the Arrangement (I). Thereafter, we will consider its potential legal value under EU law (II). Finally, and maybe more importantly, we will confront the political relevance of the agreement (III).  More...

Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

It took almost six months, a record of 26 witnesses and a 68 pages final award for the CAS to put an end to a long-delayed, continuously acrimonious and highly controversial presidential election for the Football Association of Thailand (FAT). Worawi Makudi can sit easy and safe on the throne of the FAT for his fourth consecutive term, since the CAS has dismissed the appeal filed by the other contender, Virach Chanpanich.[1]

Interestingly enough, it is one of the rare times that the CAS Appeal Division has been called to adjudicate on the fairness and regularity of the electoral process of a sports governing body. Having been established as the supreme judge of sports disputes, by reviewing the electoral process of international and national sports federations the CAS adds to its functions a role akin to the one played by a constitutional court in national legal systems. It seems that members of international and national federations increasingly see the CAS as an ultimate guardian of fairness and validity of internal electoral proceedings. Are these features - without prejudice to the CAS role as an arbitral body- the early sign of the emergence of a Constitutional Court for Sport? More...

Asser International Sports Law Blog | Blog Symposium: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code. By Howard L. Jacobs

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Blog Symposium: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code. By Howard L. Jacobs

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note

Howard Jacobs is solo practitioner in the Los Angeles suburb of Westlake Village, California. Mr. Jacobs has been identified by various national newspapers and publications as one of the leading sports lawyers in the world. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of athletes charged with doping offenses.Mr. Jacobs has represented numerous professional athletes, Olympic athletes, world record holders,  and amateur athletes in disputes involving doping, endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters.  He is at the forefront of many cutting edge legal issues that affect athletes, winning cases that have set precedents that have benefited the athlete community. More information is available at www.athleteslawyer.com.


Introduction

Historically, under the anti-doping rules of most organizations (including the World Anti-Doping Code), the concept of “strict liability” has meant that the proof of intent (or lack thereof) was irrelevant to the issue of whether or not the athlete has violated the anti-doping rules. However, so long as the rules provide for sanction ranges instead of a set sanction for all offenses, the issue of intent to dope has always been somewhat relevant to the issue of sanction length. The 2015 World Anti-Doping Code, with its potential four-year sanctions for a first violation based on whether or not the anti-doping rule violation was intentional, will make the question of intent an important issue in virtually every anti-doping case. This article analyzes these new rules allowing for four-year sanctions for a first violation, in the context of how intent (or lack of intent) will be proven.


I.         Why Intent Matters under the 2015 World Anti-Doping Code

It should be remembered that under the 2015 World Anti-Doping Code (“WADC”). intent is still irrelevant to the issue of whether or not an athlete has committed an anti-doping rule violation.  This is clear from the Comment to Article 2.1.1: “An anti-doping rule violation is committed under this Article without regard to
an Athlete’s Fault. This rule has been referred to in various CAS decisions as “Strict Liability”. An Athlete’s Fault is taken into consideration in determining the Consequences of this anti-doping rule violation under Article 10. This principle has consistently been upheld by CAS.”

Article 10 of the WADC – dealing with length of sanction, has always taken “intent” into account in determining whether or not a sanction should be reduced[1]. In other words, a sanction that would ordinarily be 2 years could be reduced to no sanction where the athlete had no fault or negligence whatsoever, or could be reduced to some degree if the athlete was not significantly at fault or negligent. In this way, intent is indirectly relevant to the issue of how much, if at all, an otherwise applicable sanction (sometimes referred to as the “default sanction”) could be eliminated or reduced. This is because an athlete who can prove that he or she did not intend to violate the anti-doping rules would be much more likely to establish a lack of significant fault or negligence in committing the violation in the first place.

Now, however, the 2015 WADC makes the issue of intent directly relevant to the first issue of the length of the default sanction itself. Therefore, intent is now not only relevant to the issue of reducing the default sanction, but is also relevant to the threshold issue of what the default sanction is in the first place.

Specifically, Art. 10.2.1 of the 2015 WADC provides: 

“The period of Ineligibility shall be four years where:

10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the athlete or other Person can establish that the anti-doping rule violation was not intentional.

10.2.1.2 The anti-doping rule violation involves a Specified Substance and the anti-doping organization can establish that the anti- doping rule violation was intentional.”

Art. 10.2.2 of the 2015 WADC goes on to state that “if Article 10.2.1 does not apply, the period of Ineligibility shall be two years.” Therefore, under the 2015 WADC, the default sanction is determined as follows: 

1.        where the violation does not involve a “Specified Substance,” the default sanction is four years unless the athlete can prove that the violation was “not intentional;” if the athlete meets this burden of proving “lack of intent,” then the default sanction is two years.

2.        where the violation involves a “Specified Substance,” the default sanction is two years unless the National Anti-Doping Organization (“NADO”) or the International Federation (“IF”) can prove that the violation was “intentional;” if the NADO or IF meets this burden of proving “intent,” then the default sanction is four years.

In either case, “intent” is now directly relevant to the length of the default sanction; the only difference is who bears the burden of proving “intent” or “lack of intent,” depending on whether or not the substance involved is a Specified Substance.

 

II.        How will the NADO / IF prove “intent” in cases involving “Specified Substances”?

Many older CAS cases have discussed the difficulty that a NADO or IF faces in proving that an athlete “intended” to use a prohibited substance, in their discussions of the justification of the “strict liability” rule.[2]

While this difficulty in proving that an athlete “intended” to use a prohibited substance to enhance their sport performance has not changed in theory, it has changed in practice with the definitions that WADA provided for proving “intent” within the meaning of Art. 10.2.1 of the 2015 WADC.  Specifically, Art. 10.2.3 now provides the following definition of “intent:” 

“As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those athletes who cheat. The term, therefore, requires that the athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall be rebuttably presumed to be not “intentional” if the substance is a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.”

Therefore, for the purpose of proving “intent” within the meaning of WADC Art. 10.2.1, in the case of Specified Substances, the NADO / IF can meet its burden by proving simply that the athlete engaged in conduct where the athlete “knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk.” However, practical realities of this “proof” must be considered against the following questions:

(i)             How will this definition of “intent” contained in WADC Art. 10.2.3 be read in connection with the seemingly contradictory comment to 2015 WADC Art. 4.2.2 that specified substances are “substances which are more likely to have been consumed by an Athlete for a purpose other than the enhancement of sport performance”?

(ii)           How will an athlete who knowingly takes a “risky supplement” without knowing that the supplement contained a banned “Specified Substance” be viewed in connection with this definition of “intent” contained in WADC Art. 10.2.3?

Furthermore, in cases where an athlete intentionally used a supplement, but the athlete did not know that the supplement contained a prohibited substance (and where the lack of knowledge was reasonable, such as in cases involving misleading ingredient lists), what will the NADO /IF be required to prove? Will the burden be to prove that the athlete knew or should have known that the supplement contained a prohibited substance, or will it be sufficient to prove that the type of supplement or the supplement manufacturer itself could be viewed as risky, such that the athlete’s use of the supplement could be considered as a manifest disregard of a significant risk, for which the athlete should receive a four-year sanction? The manner in which CAS tribunals resolve this use could dramatically impact the applicable “default sanction” in cases involving nutritional supplements.

 

III.       How does the athlete prove “no intent” in cases not involving “Specified Substances”?

In cases that do not involve “Specified Substances,” the athlete carries the burden of proving “no intent” to avoid the application of a four-year default sanction. In many cases, therefore, this burden of proof will mean the difference between a career-ending sanction and one from which an athlete could potentially return. Therefore, the manner in which this burden of proof is applied by the arbitral tribunals will be critical.

As mentioned above, Art. 10.2.3 of the 2015 WADC provides that “an anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.” Therefore, in cases involving non-specified stimulants, an athlete can avoid a “default sanction” of four years by proving that the stimulant was used out-of-Competition in a context unrelated to sport performance. This raises a number of important issues:

            a)         will arbitral tribunals accept a low concentration level of the prohibited stimulant in the anti-doping test, which low levels would be inconsistent with the purposeful use of the stimulant “in Competition,” as sufficient proof of out-of-Competition use?

            b)        will arbitral tribunals accept a polygraph finding that the athlete was truthful in stating that he did not use the prohibited substance at issue on the day of the competition at issue as sufficient proof of out-of-Competition use ? [3]

            c)         how will arbitral tribunals analyze the issue of whether the out-of-Competition use of the stimulant was “in a context unrelated to sport performance?”  As has been seen in past cases, arguments can be made that virtually any substance that an athlete consumes, including food, is done in a context related to sport performance.  Therefore, in order to avoid an analysis that renders this phrase meaningless, arbitral tribunals must apply a common-sense and realistic meaning to the issue of when something is consumed in a context that is actually related to sport performance, as opposed (for example) to consuming a product for general health purposes.

For substances that are banned at all times, such as anabolic agents, the analysis of “in-competition” vs. “out-of-Competition’ use will be unnecessary. In these cases, in order to avoid a “default sanction” of four years, the athlete will be required to prove that he or she did not take the substance intentionally. It is therefore critical to consider what will happen to the athlete who has no idea what caused his or her positive test, and who, despite investigation, is unable to prove the source of the prohibited substance. For these athletes, how will arbitral tribunals analyze this issue, which could mean the difference between a career-ending four-year sanction and a “default sanction” of two years?  Some important questions arise:

            a)         Will the athlete’s failure to prove how the prohibited substance entered his or her system (within the meaning of 2015 WADC Art. 10.4 and Art. 10.5.2) automatically result in a 4-year default sanction? Arbitral tribunals should recognize the difference between (i) proving the source of the prohibited substance as a pre-condition to receiving a reduction in the “default sanction,” and (ii) the requirement of proving “no intent” in order to avoid the application of a “default sanction” of four years. An athlete should be able to prove “no intent” without proving the source of the prohibited substance, at least in the abstract.

            b)        Assuming that the failure to prove how the prohibited substance entered the athlete’s system is not automatically equated with intent to use the prohibited substance, how will the athlete who cannot prove the source of the prohibited substance prove lack of intent? Will it be sufficient, for example, for an athlete to submit a polygraph finding that the he was truthful in stating that he did not knowingly use the prohibited substance at issue, as sufficient proof of lack of intent, such that the applicable “default sanction” is two years instead of four? Or, even in the absence of a polygraph exam, could an athlete establish “no intent” within the meaning of 2015 WADC Art. 10.2.1.1 solely through her own credible testimony that she did not knowingly ingest the prohibited substance at issue? These will be important evidentiary issues for arbitral tribunals to consider, and the manner in which they are determined will have a significant impact on the sanction length for many athletes under the 2015 WADC.

 

IV.       Conclusion

The concept of giving longer sanctions to athletes who intend to cheat, and shorter sanctions to those athletes who do not have such an intent, is certainly laudable, and the 2015 WADC has introduced a number of new legal and evidentiary issues in an effort to further differentiate between intentional and non-intentional “dopers.” However, as is often the case, the 2015 WADC has provided very broad concepts, which the arbitral tribunals will have to interpret and apply to real-world situations. How these general concepts are applied in reality will – for many athletes – mean the difference between a two-year sanction that is “merely” devastating and a four-year sanction that is career ending. In those cases where an athlete has no idea where the prohibited substance came from, the arbitral tribunals must be very careful in how they apply these new concepts.

 These new concepts related to “intent” will change the manner in which arbitral tribunals address the preliminary issue of the applicable “default sanction”. They will not materially affect the manner in which these tribunals address the issues related to the reduction in the “default sanction.” However, because of the limitations in how much the “default sanction can be reduced (in cases of no significant fault, the maximum reduction in the “default sanction” is 50 percent), the determination of this new “intent” issue as related to the “default sanction” will be doubly important in cases where the older “exceptional circumstances” rules are being asserted as a basis for sanction reduction.


[1] See, e.g., 2015 WADC Art. 10.4: “if an athlete or other Person establishes in an individual case that he or she bears no fault or negligence, then the otherwise applicable period of Ineligibility shall be eliminated”; and Art. 10.5 on the Reduction of the Period of Ineligibility based on No Significant Fault or Negligence.

[2] See, e.g., C. v. FINA (CAS 95/141) Digest of CAS Awards, Vol. 1, at p. 220, par. 13: “Indeed, if for each case the sports federations had to prove the intentional nature of the act (desire to dope to enhance one’s performance) in order to be able to give it the force of an offence, the fight against doping would become practically impossible”.

[3] Prior arbitral tribunals have already accepted that polygraph test results are admissible in anti-doping proceedings. See, e.g., UCI v. Contador (CAS 2011/A//2384).

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