Doping Appeals at the Court of Arbitration for Sport: Lessons from Essendon

By Mahoney, David | Boston College Law Review, January 1, 2018 | Go to article overview

Doping Appeals at the Court of Arbitration for Sport: Lessons from Essendon


Mahoney, David, Boston College Law Review


Introduction

Traditionally, sport has brought cultures together, acting as a diplomatic tool to mitigate the effects of inter-state conflicts and transcend religious, linguistic, and social differences.1 Recent events, however, have hampered the efficacy of sport as a means to bring societies together to promote peace, and have highlighted the need for strict oversight of sport governing bodies.2 These changes in the world of sport over the past twenty years have created other new challenges.3 Specifically, as sport transforms into a worldwide industry, individual athletes are often disadvantaged.4 For example, top Olympic officials enjoy the fruits of lucrative media and sponsorship agreements from the Olympic Games at the expense of Olympic athletes, who may only receive a fraction of this money.5 Moreover, the issues faced by modern athletes raise the broader question of how to better promote both the rights of individual athletes as well as the rights of sporting organizations.6

One reform involves an alteration to the balance of power between individual athletes and sport governing bodies, especially in international sport arbitration.7 In particular, the Court of Arbitration for Sport ("CAS")- regarded as the highest court for international sport disputes-could play an important role in such reform.8 Reform of the CAS could have a particularly beneficial effect on athletes accused of doping violations under the World Antiperma.cc/JQ63-KGW5] Doping Agency ("WADA") code.9 Moreover, improving the independence of the CAS could also improve its functioning and its image.10 The recent supplement scandal at the Essendon Football Club ("Essendon") in the Australian Football League ("AFL"), resulting in the suspension of thirty-four of the club's players, exemplifies the need for reform.11

Part I of this note summarizes the structural, procedural, and jurisdictional aspects of the CAS, provides an overview of WADA, and summarizes the interaction between the two bodies.12 Additionally, Part I stresses the historical and current need for global sport governing bodies.13 Part II engages in a discussion of the past issues faced by the CAS as well as WADA, the reforms made by CAS and WADA, and concludes with a synopsis of recent appeals at the CAS, which involve WADA and doping violations.14 Part III of this note affirms the advantages and importance of the CAS and WADA, but argues that the balance of power between athletes should be adjusted to better represent athletes' interests in doping appeals at the CAS.15 In particular, Part III of this note explores whether a more customized approach between athletes and sports organizations would be effective, and also considers whether specific amendments to the CAS Code could alleviate some of the tensions discussed in Part II.16

I. An Overview of the Court of Arbitration for Sport and the World Anti-Doping Agency

This part provides a historical overview of both the CAS and the WADA, as well as examines the interplay between these two bodies.17 Specifically, Section A examines the history, structure, and jurisdiction of the CAS.18 Section B turns to the history ofWADA.19 Finally, Section C discusses the interaction between the CAS and WADA.20

A.The History, Structure, and Jurisdiction of the Court of Arbitration for Sport

During the 1980s, it became apparent that there was a need for a single, global sport arbitration body.21 This need was due to the increase in sportrelated arbitration, the lack of a tribunal specialized in sport disputes, the lack of a sufficiently cost-effective manner of resolving such disputes, and the lack of binding, uniform decisions.22 To address these deficiencies, Judge Kéba Mbaye, then-member of both the International Olympic Committee ("IOC") and the International Court of Justice ("ICJ"), formed a committee to formulate the founding statutes of the CAS.23 As a result of this effort, the IOC ratified the statutes, and the CAS was established in 1984. …

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