Rules, scope and jurisdiction of the CAS Ad Hoc and Anti-Doping Divisions at the Olympic GamesDespina Mavromati
In this two-part article, Despina Mavromati, Managing Counsel at Court of Arbitration for Sport (CAS), analyses the specific procedural rules of the CAS Anti-Doping Division (ADD), as the CAS Panels at the Rio Olympic Games interpreted them. The article also compares the ADD rules to the procedural rules of the (general) CAS Ad Hoc Division (AHD) and to the (permanent) CAS in Lausanne, Switzerland. Part one offers an introduction to the ADD and the AHD Rules and examines their general scope and the jurisdiction of both divisions. Part two analyses the structure of the CAS ad hoc offices and the conduct of the ad hoc proceedings, particularly in terms of evidence, applicable law and provisional measures.
This article is essential reading for any sports lawyer who represents or plans to represent clients in sports disputes before the CAS.
The close of the Rio Olympic Games marks an extraordinary Olympic Games for the CAS having registered 28 procedures, a record number of cases, at the Games at during the competition.
The CAS has been adjudicating on a variety of disputes arising on the occasion of the Olympic Games (OG) through its CAS Ad Hoc Divisions (CAS AHD) since 1996 (the Atlanta OG). The CAS AHD has dealt with eligibility, qualification / disqualification matters, doping and other disciplinary issues, primarily as a second instance body.1The main particularity of the CAS AHD is that it provides athletes and federations with free access to justice within very short deadlines (generally within 24 hours from lodging the claim or in accordance with the competition schedule). The expediency of this process is imperative to provide certainty for aforementioned stakeholders.
The Rio Games, however, marked the first time in the history of CAS where the international sports tribunal was in charge of doping-related matters (arising out of the OG) as a first- instance authority, through its newly established CAS (ad hoc) CAS ADD. The International Council of Arbitration for Sport (ICAS), which is the supervising authority of CAS, adopted a new set of procedural rules, which are specific to anti-doping matters, the CAS Arbitration Rules applicable to the CAS Anti-Doping Division (CAS ADD Rules). It also selected the President, the Vice-President and the arbitrators for this division.2
The CAS ADD Rules were ratified in April 2016 in view of the Rio 2016 Olympic Games (the Rio Games). Unlike the substantive law provisions included in the International Olympic Committee Anti-Doping Rules (IOC ADR), the ADD Rules are of procedural nature.3 They follow the same structure as the CAS AHD Rules, which in turn were largely inspired by the CAS Code.4 Therefore, the latter can be used to interpret most of the procedural provisions of both the ADD and the AHD Rules. The creation of the first-instance CAS ADD5 was decided by the IOC in order to delegate to the CAS, as an independent judicial body, the adjudication of alleged anti-doping rule violations during the OG pursuant to Art. 59.2.4 Olympic Charter (OC) and Article 8.2.2 IOC Anti-Doping Rules for Rio 2016 (IOC ADR).6 This was part of the Olympic Agenda 2020 reforms7 and in accordance with the Resolution of the Fourth Olympic Summit with a view to making anti-doping testing procedures independent of sports organizations (like the IOC).8 It must be noted that the drafting of the CAS ADD Rules led to the amendment of specific provisions of the CAS AHD Rules as well as the IOC ADR in order to adapt to the creation of this new division.
Up until the 2016 Rio OG, the IOC had an internal adjudicating instance for first-instance doping disputes during the OG. The IOC practice was based on Rule 21 of the OC, according to which the IOC President can establish an ad hoc Disciplinary Commission (Ad Hoc DC) when necessary: an Ad Hoc DC is appointed prior to the OG in order to examine alleged anti-doping rule violations and make recommendations for action to the IOC Executive Board. The same procedure is also used for disciplinary matters other than doping (e.g. other issues related to the violation of the provisions of the OC).9 The Ad Hoc DCs are appointed prior to the OG and issue recommendations for the IOC Executive Board, which eventually renders the (first-instance) decision. Since the IOC has now delegated its adjudicating power with respect to anti-doping rule violations to the CAS ADD, it will only deal with disciplinary cases other than doping. These decisions can subsequently be appealed before the CAS AHD or the CAS in Lausanne.
The IOC Anti-Doping Rules
The IOC ADR for the 2016 Rio OG is a set of 17 articles adopted in accordance with the WADC and complemented by other IOC and World Anti-Doping Agency (WADA) documents.10 The Rules include mainly substantive provisions but also some procedural provisions, which will be highlighted where appropriate below. The rules enclose e.g. important information on the definition of “in-competition” or “out-of-competition” testing,11 general provisions defining doping, testing, investigations, analysis of samples, results management,12 sanctions and consequences to teams,13 but also provisions related to the right to be heard,14 the appeals15 and other procedural issues.16
In essence, the IOC notifies the Adverse Analytical Finding (AAF)
General Scope of the CAS ADD and the AHD Rules
The parties to an ADD procedure may be individual athletes (or members of the athlete’s entourage), IFs, the IOC, NOCs and WADA. The typical disputes brought before the ADD are anti-doping rule violations committed during the OG, therefore the application (that will be further examined in Part two of the article) is always filed by the IOC, as soon as the latter asserts an anti-doping rule violation. The sanctions determined by the CAS ADD are limited to the OG (i.e. disqualification from a sports event, withdrawal of medals, exclusion from the OG), and all further sanctions are then determined by the relevant IFs.22
The ADD Rules apply in case of violations of the World Anti-doping Code (WADC) arising upon the occasion of the OG. The jurisdiction of the CAS ADD is established in the first article of the ADD Rules and includes “cases of alleged doping violations linked with any subsequent re-analysis of samples collected on the occasion of the OG”. The referral to the (permanent) CAS (in Lausanne) is possible (only) upon agreement of the “parties concerned”.23 The narrow scope of the ADD Rules is juxtaposed to the broader scope of the AHD Rules, which includes “any disputes covered by Rule 61'Dispute Resolution' of the Olympic Charter, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games”.24 The temporal scope of jurisdiction of the AHD Rules is systematically examined by CAS Ad Hoc Panels25 and this is also the case for the ADD Rules.26 However, in cases where all parties agree, they may waive their objections to the admissibility of the application and agree to have the matter heard by the AHD Panel.27
In the first case brought before the CAS ADD in Rio, the Panel dealt precisely with the jurisdictional scope of the CAS ADD.28 The Panel found that it is an essential condition of the CAS ADD jurisdiction “that an alleged anti-doping rule violation (“ADRV”) has been asserted and referred to it under the IOC ADR.” The Panel therefore denied jurisdiction since the case at hand involved a decision of World Sailing to reject the applicant’s entry for Rio 2016. As to the second challenged decision in the same case, the Panel held that it related to the conditions of eligibility that had to be satisfied by the Russian athletes who wished to compete in Rio, and was addressed to IFs and the ROC, and not to the CAS ADD.29 Furthermore, the Panel held that Article 1 of the CAS ADD Rules should be read “as coherent whole and in the context of the IOC ADR”: in this respect, the IOC ADR apply only to doping controls “over which the IOC has jurisdiction in connection with the Olympic Games Rio 2016” the alleged ADRV must have occurred “on the occasion of the OG”.30 As to the phrase “doping-related matters” it should not mean all “doping-related matters” but specifically the ones complying with the identified criteria that have to be satisfied in order to accept CAS ADD jurisdiction.31
The main procedural difference between the CAS ADD and the AHD Rules is that the former acts as the first instance authority for doping-related matters, responsible for the conduct of the proceedings and the rendering of decisions under the IOC ADR. As seen above, all these cases were so far decided by the IOC Executive Board upon recommendations by the Ad Hoc DC of the IOC. As held by the CAS ADD in its first case, there is no overlap of the ADD and the AHD’s first instance jurisdiction.32>
As a general rule, the CAS AHD hears appeals against decisions33 rendered by the IOC, an NOC, an IF or an Organizing Committee for the Olympic Games.34 Under Article 12.2 of the IOC ADR, all doping-related decisions may be appealed exclusively to the CAS. Although the scope of jurisdiction of the AHD is very broad, the AHD has established a policy of not interfering with the so-called “field of play” decisions rendered by officials (since they are best placed to determine their case) as well as technical decisions, with some exceptions for a limited review in case of e.g. bad faith, arbitrariness, illegality, excessive sanction etc.35
Exhaustion of legal remedies and legal interest
A further condition of jurisdiction for the CAS AHD (which is logically not to be found in the CAS ADD Rules) is that the claimant must have exhausted all internal remedies prior to the appeal to the CAS.36 Only exceptionally, for reasons of extreme urgency, can a claimant seize the CAS before exhausting the available internal remedies, particularly in case the time needed to exhaust the internal remedies could render the appeal to the AHD ineffective.37 CAS AHD Panels seem to interpret the rule rather strictly in order to avoid abusive applications. An example from the Rio OG was an athlete who had two weeks to bring her appeal to the competent appeal tribunal, however she chose to wait and bring the case to the CAS AHD. The Panel held that the non-exhaustion of legal remedies should be reserved for urgent cases, where the urgency is “outside of the control of the parties” (and not where the athlete remained inactive for two weeks).38
Apart from the exhaustion of legal remedies, and even if this is not explicitly required by the AHD Rules, the applicant must establish her /his legal interest.39
Transfer from the ADD to the AHD
In the first case of the CAS ADD at the Rio OG, the Panel dealt with the question of whether it is possible to have a file transferred from the CAS ADD to the CAS AHD in case of lack of jurisdiction of the former. The Panel found that this is not provided in the rules and that each division has its own requirements, in terms of filing, deadlines, etc.40 It also found that the existing procedure of the CAS Code, whereby an arbitration case (submitted before CAS in Lausanne) can be transferred to the from the CAS Ordinary Division to the CAS Appeals Division and vice-versa (under S20 of the CAS Code). Although this cannot be applied by analogy in the case of the CAS ADD and the CAS AHD, nothing prevents an applicant whose application to the CAS ADD was rejected for lack of jurisdiction to file the same application to the CAS AHD, or even file two applications before both Ad Hoc Divisions simultaneously.41
Part two analyses the specific procedural rules and shows how the proceedings are conducted, particularly in terms of evidence, applicable law and provisional measures.
Annexes – Indicative Statistics on the CAS AHD procedures during the OG – including the Rio OG
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- Tags: Anti-Doping | Court of Arbitration for Sport (CAS) | Court of Arbitration for Sport Ad Hoc Division (CAS AHD) | Dispute Resolution | Governance | Litigation | Olympic | Regulation
- Activities of the CAS Divisions at the Olympic Games Rio 2016
- CAS Rio: The CAS ad hoc division in Rio closes with a total of 28 procedures registered
- Key CAS Ad Hoc Division cases handed down at the Olympic Games
- The legal framework of the CAS Ad Hoc Division at the Rio Olympic Games
About the Author
Despina is a qualified lawyer with many years of experience in international sports law and arbitration and the founder of SportLegis, a highly specialized international sports law practice based in Lausanne (Switzerland). She is an Accredited Mediator and a Fellow of the Chartered Institute of Arbitrators (FCIArb). She sits as arbitrator in international arbitrations administered by Sport Resolutions (UK) and is a member of the Doping Hearing Panel of the International Powerlifting Federation. Despina served as Managing Counsel at the Court of Arbitration for Sport (CAS) for nine years, where she was responsible for the drafting of legal opinions, mediation proceedings, the scrutinizing of CAS awards and appeals to the Swiss Federal Tribunal.