Important Lessons for NSOs in Recent CAS Decision

What can Canadian sport organizations learn from a recent decision of the Court of Arbitration for Sport (CAS)? As it turns out, a lot, at least from one of its most recent decisions rendered on October 4, 2011 (CAS 2011/0/2422 USOC v. IOC). First, a quick discussion of the decision, then a discussion about some of the important principles sport organizations can take from it when dealing with disciplinary issues.

On June 27, 2008 the International Olympic Committee (IOC) passed what became known as the "Osaka Rule" (as it was passed at an IOC Executive meeting held in Osaka, Japan) . The rule dictated that athletes sanctioned for more than 6 months by any anti-doping organization could not participate in the next edition of the Olympic Games. The rule did not affect any athletes for the 2010 Vancouver Winter Olympic Games but it would have affected a number of athletes wishing to participate in the 2012 Summer Olympic Games in London, England. Perhaps more importantly, the rule seems to have affected anti-doping sanctioning decisions being made by a number of countries, such that penalties are being assessed with the rule, and its impact, in mind (i.e., in certain cases penalties seem to have been limited to less than 6 months presumably to avoid the impact of the rule ).

It is interesting to note that the IOC is not the only organization to have passed such a rule. The Canadian Olympic Committee  passed a similar rule stating that any athlete assessed a two year sanction shall be ineligible for inclusion in the subsequent Olympic or Pan American Games, even if the original sanction has expired (Canadian Olympic Committee Policy Statement on Doping, initially adopted April 2003 and last amended June 2004).

First, it should be understood that the IOC, like all international sport federations (and national sport federations by extension) have agreed to abide by the World Anti-Doping Code (the Code) and are, in fact, bound by it. With that said, one view of the "Osaka Rule" was that it was illegal as it violated Article 23.2.2 of the Code), which prohibits sanctions beyond those specified in the Code. This perspective further argued that the rule created a situation of 'double jeopardy' and lacked proportionality to the original anti-doping offense. In other words, the rule was a further disciplinary action to a single anti-doping offense and breached several principles of fairness. The other view of the rule, that taken by the IOC, was that it was not a disciplinary rule, but rather an eligibility criterion and, as such, was completely valid.

Looking at its past decisions, CAS defined eligibility rules as rules that "ensure that the athlete meets the performance ability requirement for the type of competition in question." Such rules do not, and are not, intended to sanction undesirable behaviour by athletes. Disciplinary rules on the other hand "bar an athlete from participating and taking part in a competition due to prior undesirable behaviour..."

The length of a disciplinary sanction for an anti-doping offense is set out in the WADA Code. Based on its reading of the Code, CAS found that the IOC rule did, in fact, impose a further penalty on an athlete having already served a period of suspension under the WADA Code. CAS described the effect of the IOC rule:

... as a disciplinary measure taken because of a prior behaviour, [as opposed to] as a pure condition of eligibility to compete in the Olympic Games. Even if one accepts that the Regulation has elements of both an eligibility rule and a suspension, it nevertheless operates as, and has the effect of, a disciplinary sanction.

While CAS based its decision on a breach of a section of the WADA Code that prohibited sanctions beyond those specified in the Code, it also spoke to, and made a decision based on a violation of a fundamental principle of fairness, known in Latin as 'ne bis in idem', and translated to mean "not twice for the same". That is, no legal action can be instituted twice for the same action. This is the essence of the 'double jeopardy' rule that has been featured in such great movies as  Double Jeopardy (well, I thought it was great), featuring Tommy Lee Jones and Ashley Judd.

Of course, this does not mean another, and different, action cannot be instituted for the same incident (for example in the case of a civil action suing for damages following a criminal action) or even a similar action by another party. But, it does mean in these, and similar instances, that a separate and new action must be brought in order to implement an entirely new and independent sanction from the first sanction.

Here, the IOC wanted to hang its sanction on the coat-tails of the original anti-doping hearing - and have no part in that hearing. In other words, the athlete is twice sanctioned for the single act but is not afforded a second hearing. Again, the IOC said it was not imposing another disciplinary sanction but, rather, was establishing an eligibility requirement, albeit based on the previous disciplinary action. CAS rejected this proposition. CAS found that the exclusion from the next Olympic Games was fundamentally a disciplinary sanction, even if wrapped in eligibility clothes.

A number of sport organizations have similarly tried to translate disciplinary actions into eligibility criteria: that is, an athlete is sanctioned for some misconduct and that sanction becomes cause to subsequently make the athlete  ineligible to participate in a future event. This is exactly what the IOC tried to do. If the ineligibility/additional discipline is made part of the actual sanction at the time the sanction is imposed (and is part of the permissible sanctioning protocol), the central issue of this case would not arise. One simply cannot use prior misconduct as a subsequent eligibility issue. It constitutes double jeopardy. That is, the person is being punished a second time for the same offense for which an appropriate punishment, or sanction, has already been determined and implemented. To do this is improper.

Can an organization tie a subsequent sanction onto another organization's sanction? Yes, if it has been disclosed as part of the original sanction. But, the second organization must be very sure the first organization was procedurally correct and fair in its process. Typically, we have found no such review of the initial process occurs (and in any event, the second organization certainly cannot interfere in the process of the first organization). If the original process is flawed, appealed and the sanction struck down, then the second organization's sanction has no foundation.

(As an  historical footnote, this was the basis of Ben Johnson's original reinstatement application from a Canadian anti-doping penalty. Adjudicator Mew found the original IAAF penalty in 1988 to have been improperly imposed. Canada had imposed a further penalty based on the IAAF penalty. Once the IAAF process was found to have been flawed, Adjudicator Mew reinstated Johnson.)

The other issue raised in the CAS decision was that of proportionality of the sanction. This was an issue raised by the USOC (the United States Olympic Committee) and, in the final result, not addressed by CAS. But it is worth mentioning here as something sport organizations ought to consider. There is a saying, particularly in the criminal courts, that 'the punishment must meet the crime'. In other words, the sanction must be proportionate to the degree of misconduct. We have written on this before. Our legal system's scheme for sanctioning incidents of misconduct recognizes the principle of proportionality, and, as well, the notion of progressive discipline. The most extreme sanction, i.e., expulsion from the organization, must be kept for the most extreme cases of proven misconduct. As well, people should be given the opportunity to rectify their behaviour. This cannot occur where the most extreme of sanctions has been applied in the first instance (unless, of course, the impugned conduct is so egregious it demands dismissal - but this is an objective standard, not one's own view of the matter). This leads to a dual requirement in sanctioning that requires it to be both proportionate and progressive.

In conclusion, this CAS decision striking down the 'Osaka Rule' carries a number of lessons for sport organizations.

  • Firstly, organizations must follow their own rules and those of any other organization they have, in some way, contracted to follow (i.e., a provincial/territorial organization following a process dictated by a national sport organization).
  • Secondly, organizations cannot simply layer a sanction on top of another organization's sanction. An organization needs to make sure that the disciplinary process from which the original sanction arises is beyond reproach. The second organization is 'coat-tailing' its sanction onto the original process, i.e., it is in effect endorsing the validity of the original process. Should this occur, let''s hope it was done right! Or else the second organization is clearly open to an appeal in applying its sanction on a flawed initial process.
  • Thirdly, and perhaps most importantly from the perspective of this discussion, an organization is susceptible to a claim of 'double jeopardy' if it uses another organization's disciplinary sanction as a basis for its own eligibility criterion.

What we see quite often is that an organization uses its own disciplinary sanction as the basis for its own decision on eligibility. This simply is wrong. Discipline sanctions must be described in their entirety at the time they are imposed. They cannot come back to haunt the individual later as an 'eligibility criterion'. If not being eligible for selection next year is part of the sanction, that is okay as part of the sanction, but it must be stated at the time of the sanction, not applied at the time of selection.

The best way to avoid any problems of this sort is to set out the progression of sanctioning measures for breaches of a conduct policy in the organization's policies. As well, looking to the sanctioning practices of other like organizations will help determine if the purported sanctions are the norm for the sport. In the end, if a selection decision is conditional on some previous disciplinary process, this must be made clear as a part of, and at the time of, the disciplinary process, not as separate eligibility criteria in a subsequent selection process.

Hilary Findlay, haf@sportlaw.ca

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