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 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code
1 January, a new version of the World Anti-Doping Code (WADC or Code) entered
into force. This blog symposium aims at taking stock of this development and at
offering a preliminary analysis of the key legal changes introduced. The
present blog will put the WADC into a more general historical and political
context. It aims to briefly retrace the emergence of the World Anti-Doping
Agency (WADA) and its Code. It will also reconstruct the legislative process
that led to the adoption of the WADC 2015 and introduce the various
contributions to the blog symposium.More...
It took only days for the de facto immunity of the Court of
Arbitration for Sport (CAS) awards from State court interference to collapse
like a house of cards on the grounds
of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards . On 15 January 2015, the
Munich Court of Appeals signalled an unprecedented turn in the
longstanding legal dispute between the German speed skater, Claudia Pechstein,
and the International Skating Union (ISU). It refused to recognise a CAS
arbitral award, confirming the validity of a doping ban, on the grounds that it
violated a core principle of German cartel law which forms part of the German public
policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to
pay ‘training compensation’, unenforceable for non-compliance with mandatory
European Union law and, thereby, for violation of German ordre public. More...
The Pechstein decision of the
Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”,
name it. It was the outmost duty of a “German-reading” sports lawyer to
translate it as fast as possible in order to make it available for the sports
law community at large (Disclaimer: This is not an official translation and I
am no certified legal translator). Below you will find the rough translation of
the ruling (the full German text is available here), it is omitting solely the parts,
which are of no direct interest to international sports law.
of CAS is in the balance and this ruling should trigger some serious
rethinking of the institutional set-up that underpins it. As you will see, the
ruling is not destructive, the Court is rather favourable to the function of
CAS in the sporting context, but it requires a fundamental institutional
reshuffling. It also offers a fruitful legal strategy to challenge CAS awards
that could be used in front of any national court of the EU as it is based on reasoning
analogically applicable to article 102 TFEU (on abuse of a dominant position),
which is valid across the EU’s territory.
Enjoy the read!
PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297
autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an
adverse analytical finding with regard to human growth hormone (hGH). The timing
was ideal. As the FINADA Supervisory Body in view of the A and B positive
samples initiated disciplinary proceedings against Lalluka for violation of
anti-doping rules, the Veerpalu case was pending before the
CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until
the CAS rendered the award in the Veerpalu
case. Indeed, on 25 March 2013, the CAS
shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule
violation for recombinant hGH (rhGH) on the grounds that the decision limits
set by WADA to define the ratio
beyond which the laboratories should report the presence of rhGH had not proven
Veerpalu precedent has become a
rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed
the road that Veerpalu paved and sought to overturn their doping ban by
alleging the scientific unreliability of the hGH decisions limits. Without
success, however. With the full text of the CAS award on the Lallukka case released
a few weeks ago
and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on
the validity of the hGH test. In short: Should the Veerpalu case and its claim that
doping sanctions should rely on scientifically well founded assessments be
considered as a fundamental precedent or as a mere exception? More...
Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!
On 15 January 2015, the earth must
have been shaking under the offices of the Court of Arbitration for Sport (CAS)
in Lausanne when the Oberlandesgericht München announced its decision in the
Pechstein case. If not entirely unpredictable, the decision went very far
(further than the first instance) in eroding the legal foundations on which
sports arbitration rests. It is improbable (though not impossible) that the
highest German civil court, the Bundesgerichtshof (BGH), which will most likely
be called to pronounce itself in the matter, will entirely dismiss the
reasoning of the Oberlandesgericht. This blogpost is a first examination of the
legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in
the coming months).More...
The summer saga surrounding Luis
Suarez’s vampire instincts is long forgotten, even though it might still play a
role in his surprisingly muted football debut in FC Barcelona’s magic triangle.
However, the full text of the CAS award in the Suarez
case has recently be made available on CAS’s website and we want to grasp this
opportunity to offer a close reading of its holdings. In this regard, one has
to keep in mind that “the object of the appeal is not to request the complete
annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and
Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the
four-month ban handed out by FIFA extending to all football-related activities
and to the access to football stadiums was excessive and disproportionate. Accordingly,
the case offered a great opportunity for CAS to discuss and analyse the
proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC). More...
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,
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,
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...
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.
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...
The Court of Arbitration for Sport
(CAS) registers approximately 300 cases every year. Recently, the Swiss Federal Supreme Court – which is the sole
judicial authority to review arbitral awards rendered in Switzerland – reminded
in the Matuzalém Case (Case 4A_558/2011) that CAS awards may be enforced in other States that are parties to
the New York
Convention on the recognition and enforcement of foreign arbitral awards.More...
The International Sports Law Digest will be a bi-annual post gathering recent material on International and European Sports Law. This is an attempt at providing a useful overview of the new, relevant, academic contributions, cases, awards and disciplinary decisions in the field of European and International Sports Law. If you feel we have overlooked something please do let us know (we will update the post).
Antoine Duval More...