Court of Arbitration for Sport:- Winter 2016/2017- Case Round Up

This article looks at a number of the decisions made by the Court of Arbitration for Sport (“CAS”) between December 2016 and February 2017. For details of all the decisions made by CAS in this period, please consult their website. A video version of this article can be found via this link :- Youtube:- SportsLawin5

1. An appeal by a Turkish weightlifter was dismissed on 8 December 2016, illustrating the Court’s strict approach to an anti-doping rule violation.

Sibel Ozkan Konak, was originally found guilty by the IOC Disciplinary Committee on 21 July 2016 for an anti-doping rule violation. A substance called Stanozolol (a steroid) had been found in a urine sample taken whilst she was competing in the Beijing Olympics. Konak had her competition results declared void and was ordered to return her silver medal. She subsequently filed an appeal at CAS against the ruling.

The appeal was given short shift by the sole arbitrator Hon. Michael J Beloff QC who described the case as ‘straightforward’. Beloff stated that any arguments about the degrees of fault of the athlete were irrelevant. The presence of Stanozolol in the body is prohibited by the Olympic anti-doping rules, and this drug was discovered in Konak’s sample. As a result there was no other option but to impose a sanction, and the appeal was dismissed.

2. In contrast to the weightlifter case, on 23 January 2017 the Belarus Canoe Association managed to get a ban for an anti-doping rule violation overturned on appeal.

On 15 July 2016, the International Canoe Federation imposed a one-year competition ban on the whole Belarusian men’s canoe/kayak team including coaches, staff and athletes, due to a number of alleged doping violations. The allegations were made after French police raided the Belarusian training camp in April 2016. At the raid a number of doping substances and equipment were confiscated and after the raid five of the athletes subsequently tested positive. After appealing to CAS a panel of arbitrators found there was not enough evidence to justify banning the whole Belarusian canoe team and overturned the ban.

3. On appeal, CAS reduced the sanctions imposed on Real Madrid CF for breaching FIFA rules on the transfer of minors.(20 December 2016)

The FIFA Appeal Committee originally found that Real Madrid had breached a number of articles in FIFA’s regulations on the Status and Transfer of Players. Primarily the breach concerned Article 19, which prohibits the international transfer and first registration of foreign players under the age of 18, except in limited circumstances. After a FIFA appeal, Real Madrid appealed to CAS who amended FIFA’s decision as follows:-

1. Real Madrid were banned from registering any new players (international or national) for one transfer period (previously two); and

2. Real Madrid had to pay a fine of 240,000 Swiss francs (previously 360,000).

The arbitrator explained that Real Madrid’s infractions were less serious than was being argued by FIFA’s judiciary bodies, and as such while the ruling was upheld, the sanctions would be reduced.

While Real Madrid welcomed the sanction reduction they argued CAS should have revoked the ruling entirely. On the other hand, many Catalan commentators argued Madrid received favourable treatment. They point to the fact that Barcelona had an appeal for similar violations dismissed in 2014. Either way, with many top European football clubs increasingly looking to recruit young talent in order to gain a competitive advantage, CAS will inevitably deal with this issue again.

4. On 2 February 2017, CAS decided on an employment law dispute between Turkish footballer Hakan Calhanoglu (the “Player”) and Trabzonspor FC (the “Club”).

In April 2013 the club filed a complaint with the FIFA Dispute Resolution Chamber (“FIFA DRA”) claiming the Player had breached the terms of his employment contract without just cause when he signed for another football team in Germany. In January 2016 the FIFA DRA imposed on four-month period of ineligibility on the player. The Player and the Club appealed, with the Player asking for a stay of the four-month ban pending the outcome of the CAS hearing whilst the Club sought compensation.

The panel of arbitrators found the Player had breach the FIFA regulations on the Status and Transfer of Players and dismissed the Player’s appeal. However CAS allowed the Club’s appeal and ordered the Player to pay 100,00 euros in compensation to the Club.

5. CAS usually acts as a final court of appeal, however in the below case, due to suspension of the All Russia Athletics Federation, it acted as a court of first instance.

The case, decided on 23 December 2016, involved a Russian athlete, Anastasiya Bazdyrera (“Athlete”) and Russian coach Vladimir Mokhnev (“Coach”). The Player was found to have breached Article 32.2 (b) of the IAAF competition rules on use of a prohibited substances/methods and was given a two year ban. The coach was found guilty of violating IAAF rules on the possession, trafficking and administration of banned substances and was banned for 10 years.

 

 

 

 

Anti Doping in Sport

This article will briefly look at the present fight against doping in sport and suggest some alternatives to the current system.

Using the example of Athletics, during the 2012 Olympics, the World Anti-Doping Agency (WADA) carried out a record 6,000 drug tests, yet that still left 4,000 athletes untested. Furthermore those 6,000 tests carried out don’t uncover ‘out of competition’ drug takers, who during tournaments are able to test clean. Their annual budget to police Olympics sports is £17.8 million, a fraction of the budget of national associations (In the year prior to the 2012 Olympics, Great Britain’s budget was approximately £78 million). So because of the lack of resources, WADA’s role is primarily as a guiding organisation with the main enforcement burden falling on national sports associations. This, as has been seen with doping scandals in Kenyan and Russian athletics is difficult because of the poor standards of governance in many national associations. Moreover there are even questions whether in some countries doping is institutional and even government backed.

So are WADA and anti doping bodies up against an impossible task, or is more funding and international co-operation the answer? Arguably this won’t make a difference, as there is a fundamental conflict in world sport, which means it is no ones interest to catch drug cheats. For sports associations in charge of advertising and finances, the last thing they want are drug scandals damaging the appeal and credibility of the sport they are trying to sell. Therefore if we continue with the status quo in anti doping, there must be a move to establish independent regulators in individual countries with total freedom from national federations. Alternatively, there are other options, albeit more radical ones:-

1. Full legalisation of drugs

To many this is accepting the reality (or accepting defeat) that drugs are already prevalent in sport and impossible to control. Legalising performance enhancing drugs would, many argue, level the playing field and allow proper regulation reducing the possible harm drugs can cause to athletes. Furthermore, is access to the best chemist any different from the current system in which access to the best equipment or the best coaches is often the decisive factor? Alternatively there are those who suggest this would reduce competitions to freak shows, determined not by skill but by those willing to take the most risk; and

2. Criminalisation

Making performance enhancing drugs illegal is another option, one which is illustrated by Germany’s recently passed Anti-Doping Bill (which introduced a range of measures designed both at elite athletes and those who supply, administer or are involved in the production of doping). The central tenet to this argument is that making doping a criminal offence would act as a deterrent to those doping or those connected to doping. There are a number of problems with criminalising doping. Firstly, doping is a strict liability offence, namely if you are caught you are assumed guilty not innocent. In England & Wales, criminal prosecutions require the Crown to prove guilt beyond reasonable doubt, a much higher threshold. Secondly, a country-by-country approach is very limited, given that sport is international. For instant taking Germany’s recent legislation, foreign athletes may just avoid German competitions and equally the best German athletes may move abroad. This suggests that for criminalisation of doping to work there has to cross-jurisdictional legislation (ie: like Intellectual Property Regulations).

Realistically, it is likely that the status quo will remain, however if the stream of doping revelations continue it will be interesting to see whether the clamour for alternative approaches will increase.