Whose Rules Must the Athlete Obey?

National or international oligations; which should the athletes follow?

See also the PowerPoint presentation

.........................................

Introduction

The Sporting Rule System:

A. The Contract System
B. The Court of Arbitration for Sport
C. The Possibility for Conflict

The Conflicting Rules:

A. International Federations v. International Standards
      i. Hamburger and EPO
      ii. Alain Baxter and the IOC

B. National Sporting Federations v. International Organizations
     i. UCI v. Skelde and UCI v. Moller
     ii. Sandis Prusis
     iii. Kelly Guest and the CCES
     iv. IAAF v. USATF

C. National Courts v. International Organizations
     i. Trent Anthony Bray

Conclusions

.........................................

Introduction

The decisions in Hamburger and Bray of the Court of Arbitration for Sport (CAS) bring to the fore the question with whose laws do the athlete comply? Follow the national law; or, the rules of the International Sporting Federation (IF). Countries and their National Sports Organizations (NSO) frequently use sport as a conduit through which to further political or nationalist agendas. In contrast, to the NSO\'s the athlete simply wants to compete and win. The crucible of their competing objectives is found in what is described in sport as the Rules.

Athletes want an understandable set of Rules under which to compete and need a predictable and consistent method of resolving issues by adjudication. NSO's or IF's want Rules that further their policy objectives. The desires of the athlete; NSO and IF are sometimes in conflict. Whos Rules should athletes and nations follow? Which system of law governs: national or international laws? How are these conflicts resolved?

The Sporting Rule System:

A. The Contract System
In sport, contracts are at the root of the relationship that exists as between athletes, NSO's, IF's, and other sports organizations, such as the International Olympic Organization (IOC) and other games organizers. At the core of the contractual web is the contract relationship between athlete and NSO. In turn the NSOs enter into agreements with their respective IFs. Athletes will also sign athlete entry forms with a game organizer before they enter a competition. This form will create an additional contractual agreement directly between the athlete and the organizer of the event. In addition, IFs and NSOs enter agreements with games organizers for various competitions. Finally, IF\'s will enter into agreements with international organizations for the administration of dispute resolution and doping controls.

Combined these contractual arrangements establish the jurisdiction for athletes to be subjected to drug testing and create an athletes corresponding right to appeal a positive result. The arrangement includes obligations for athletes to comply with the drug testing procedures of their NSOs, IFs and in some instances games organizers. Thus, it is the Rules of the NSOs, IF's and games organizers that determine the obligations and rights of athletes, including how and when drug testing occurs. 

B. The Court of Arbitration for Sport
Most IFs have agreements with the Court of Arbitration for Sport (CAS) to administer dispute resolution. The CAS was established in 1983 at an IOC session in New Delhi. The court provides a forum for the worlds athletes and sports federations to resolve their disputes through a single independent and accomplished sport adjudication body that is capable of consistently applying the rules of different sports organizations.

The CAS has developed a set of rules for arbitrating sports related disputes known as the Code. Through the use of the Code and the CAS a forum has been provided for the worlds athletes and sports federations to resolve their disputes through a single independent sports adjudication body. The CAS functions outside of all sports orgnaizations in order to settle sports-related disputes through arbitration. It applies the rules of these different sports organizations and the worldwide rules of the Olympic Movement Anti-Doping Code {OMAC} in a judicious and evenhanded manner.

C. The Possibility for Conflict
Doping infractions and the application of sporting sanctions and disqualifications have shed light on the conflicts between national courts and IF's, NSO's and national and international doping control bodies. The different agendas and political goals within an NSO and the counterpart IF tend to generate clashes between the Rules at the national level and at the international level. While NSOs and courts attempt to set out Rules, which reflect their national sporting agendas, IFs attempt to take a broader more comprehensive approach free of specific national agendas. The CAS is left trying to harmonize the Rules internationally while still respecting the contractual nature of sport. The juggling act of the CAS is not always successful in escaping from the jaws of the conflicting vice it sometimes finds itself within.

The Conflicting Rules: 

A. International Federations v. International Standards

i. Hamburger and EPO
The CAS case of Bo Hamburger and the International Federation for Cycling (UCI) demonstrates the ambiguities, which can exist for athletes attempting to determine which Rules to follow in order to compete. In order to understand the question on which the case turns it is necessary to first outline the scientific realities, which made this case possible.

Technology and doping exist in a symbiotic relationship. As technology, or more specifically biotechnology continues to advance, so do the methods and substances which athletes use to attempt to improve their performances. Most of the prohibited substances, their related substances and doping methods can be folded into the doping categories included in the OMAC. Thus, it is not necessary for an IF or for the IOC to outline a new test or procedure for making a finding of doping involving a new substance or prohibited technique.

On occasion, a substance or technique will come along which will make it necessary for these groups to create a new procedure to address a new substance. Thus, the new substance can set the stage for conflict between NSO's, IF's and international governing bodies such as the IOC, regarding the proper method of detection and the proper sanction which should be applied once an athlete has been found to have used the substance or prohibited method.

This is just the conflict that was created at the turn of the millennium in regard to the use of recombinant erythropoietin (rHuEPO) the genetically engineered version of EPO. This substance is used as a synthetic substitute from traditional blood doping and is vastly more effective in increasing the red blood cell count which in turn assists athletes endurance. Endogenous erythropoetin rHuEPO is a glycopeptid hormone made by the kidneys that stimulates bone marrow to make red blood cells. For medical purposes recombinant human erythropoetin {rHuEPO] is normally administered intravenously; it can also be injected. Due to the extremely close correspondence between naturally produced EPO and genetically engineered rHuEPO, it was difficult to clearly detect EPO doping in athletes until just before the Sydney Olympic Games in September 2000.

Currently tests for EPO doping involve either direct or indirect detection. Direct detection attempts to isolate the minute difference between naturally produced EPO and synthetic rHuEPO. It is impractical, however, as it requires a great volume of urine to complete the test. Thus indirect tests which require only small amounts of urine or blood are favored. It is here where the decisions of NSO's, IF's and International Sporting Bodies have come into conflict. The Union Cyclist Internationale (UCI) has in its regulations specified what it considered to be the proper test for the presence of rHuEPO. According to the UCI rules, the finding of rHuEPO in an athletes urine means that a doping offence had been committed. According to the UCI rules Hamburger was found to have committed a doping offense. In a subsequent decision, the Doping Tribunal of the National Olympic Committee and Sports Confederation of Denmark acquitted Hamburger. The UCI appealed this decision to the CAS. The UCI claimed that a national organ would have to comply with the UCI rules and that under these rules the athlete was guilty of a doping offense. In response, Hamburger argued that the UCI test for rHuEPO was flawed. He compared the UCI test to the current IOC test. Under the UCI rules only a urine test is necessary to draw a conclusion that the athlete has doped. In contrast, the IOC requires both a urine and blood test to come to a similar conclusion. The athlete argued that the testing method under the UCI rules was not sufficiently scientifically proven and as such it was not possible to come to a sufficiently definite conclusion as to his conduct.

According to rule 58 of the CAS code, the CAS Panel can apply only the rules and regulations of the IF in question. In this case however, the Panel took the position that the actual findings upon which the rules and regulations of another organization were based could be taken into account.

The Panel held that the standard of proof had not been satisfied and found that there was no doping offense. The Panel was not comfortably satisfied that a doping offense had been committed. Although the UCI rule did not contain a rule or regulation which made a test of both blood and urine necessary it also did not contain a provision whereby a sample could be considered positive only if the level of rHuEPO exceeded a certain threshold. Although it is clear that every federation is free to prescribe its method of testing for the presence of a prohibited substance this test must be reliable.

At the Salt Lake City Winter Olympics the novel erythropoiesis-stimulaitng protein (Aranesp tm; darbepoetin alfa) referred to herein as nesp began to appear in urine samples. In its medical use nesp can achieve clinical responses by administration once a week compared to rHuEPO which must be administered three times a week. In short it is a far more effective substance. It is therefore, not surprising that it appeared in the lab at Salt Lake City. To date it has not been reported in human urine. The case of the two Russian cross-country skiers Larissa Lazutina and Olga Danilova and the Spainish cross-country 50k mens gold medallist Johann Muehlegg were at the time of writing pending before CAS panels.

ii. Alain Baxter and the IOC
No athlete could be said to be more trapped between conflicting rules than the United Kingdoms Alain Baxter. Not only was Baxter caught up in a purely technical violation of the rules of the OMAC but also he was duped by the domestic national drug laws of the country hosting the Olympic Games. Baxter was the Bronze medallist in the slalom at the 2002 Olympic Games in Salt Lake City. He had a long-standing medical condition of nasal congestion and for a number of years had been using a non-prescription Vick\'s Inhaler to relive his symptoms. This inhaler is included on the list of permitted substances issued by the United Kingdoms Sports Council. The domestic drug rules in the United States differ from those of the UK. In the United States, the same Vicks product has a different formulation. The American version of the inhaler contains levmethamfetamine the levo rotation of the stimulant methamphetamine, which is included in the banned substance list of the OMAC.

During his time in Salt Lake, Baxter began to suffer from nasal congestion. When he was unhappy with the medication provided by his team doctor he proceeded to buy and use the American version of the Vicks inhaler which appeared to be the same product he used regularly in the UK. Following his medal winning performance he tested positive for the presence of methamphetamine. Methamphetamine is a substance with two rotations, the dextro (methamphetamine) and the levo (levmethamfetamine). Although the IOC refused to order a test to determine which form was present in Baxters sample the CAS panel was sufficiently satisfied that the sample contained levmethamfetamine resulting from the use of the US Vicks inhaler.

Despite the fact that levmethamfetamine is a much weaker stimulant, and that it was agreed by experts on both sides that it did not have a performance enhancing effect, Baxter was found to have committed a doping offense on a strict interpretation of the OMAC. This conclusion reveals a stark contrast between a permissive national law and the International Rules, which are broader and more comprehensive. This conflict between national domestic law and international Rules in this case destroyed the athletes attempt to participate successfully. Had Baxter been competing in the UK or most other countries the non-prescription Vicks inhaler bought at the time of competition would not have resulted in a doping offense.

To make matters even more sympathetic to the athlete, even if Baxter had read the label on the US Vicks Inhaler and found the term levmethamfetamine, he would not have been able to match that term with any of the prohibited substance listed on the OMAC banned list. Thus, the OMAC did not have regard for the fact that the levo rotation, levmethamfetamine, was used in non-prescription over the counter medication in the United States. While it should be remembered that Baxter did take a substance without the permission of his team doctor he was clearly caught in a conflict of international Rules and domestic law which was inconsistent with those Rules. Although these rules were not specifically sporting in nature their effect was to permit an over the counter cold remedy to be sold to an athlete which in a doping context stood to deprive him of his competitive result and serves to illustrate the dilemma elite competitive athletes face today.

B. National Sporting Federations v. International Organizations

i. UCI v. Skelde and UCI v. Moller
The clearest recent example of a NSO attempting to set its own set of rules autonomous of international standards can be found in a number of CAS cases involving Danish Cyclists between 1998 and 2000 which include UCI v. Skelde and UCI v. Moller. Here, the Danish National Olympic Committee (Danish NOC), and the International Federation for Cycling (UCI) came into conflict over the length of suspensions which should be handed down to two Danish cyclists judged to have committed doping offences.

In Denmark, the Danmarks Cykle Union ("DCU") is the exclusive federation for the sport of cycling. The DCU is a member of both the ICU and the National Olympic Committee of Denmark. By virtue of its affiliation with the UCI, it has subscribed to the "Cycling Regulations" and the "Anti-doping Examination Regulations of the UCI" (AER).

Danmarks Idraets-Forbund is the Danish National Olympic Committee (Danish NOC) whose membership consists of representatives of each Olympic sport in Denmark. Like the UCI, the Danish NOC is also recognized by the IOC. The Danish NOC is governed by its Statutes on the basis of which it has created its own Doping Control Regulations.

Under the Rules of the UCI, the UCI's Anti-doping Examination Regulations (AER) apply to all doping infractions. Article 4 of the AER, states that these regulations alone may be applied to doping sanction of athletes and in addition that the AER is "binding on all National Federations".

In contrast, by virtue of Art. 6, para 3.1 of the Statutes of the Danish NOC, the DCU must submit to doping control conducted by the Danish NOC's Doping Control Committee on the basis of its Doping Control Regulations. Using this article the Danish NOC has attempted to set up a system by which the Danish NOC could fix a suspension nationally, while UCI could decide a fixed penalty for international competitions. This would effectively deprive the UCI of any jurisdiction to enforce its AER in regard to Danish Athletes in international competition inside and outside of Denmark.

Michael Skelde and Claus Moller were tested pursuant to the UCIs AER at UCI sanctioned events. The Danish NOC imposed two-year suspensions on both Skelde and Moller for testing over the limit for their Testosterone/ Epistestosterone Ratios. Both of these suspensions handed down by the Danish NOC were considerably longer than what was considered the maximum for the offence committed under the UCI's AER. In addition neither athlete was fined. Under the UCIs AER, the proper sanction for a first time offence should have been one year and should have included a fine of 500.00 Sfr.

Further, in UCI v. Skelde, the Court of Arbitration for Sport (CAS) determined that it was clear from Danish NOC's actions that it had no intention of enforcing the rules of the UCI's AER. Instead the Danish NOC was attempting to enforce its own National Doping policy according to its own political strategies and agendas. Clearly this conflict created problems for the athletes attempting to return to competition as soon as possible. In both cases, the athletes were caught in the middle of this rule conflict. As Skelde continued to receive conflicting information from the UCI and the Danish NOC he became increasingly confused and unsure not only of his future but of which set of conflicting guidelines and instructions he should be following in attempting to clear himself of any doping infraction.

Consistently, when both cases appeared before the CAS, the Panel reduced the suspensions imposed in accordance with the AER, taking into consideration the extenuating circumstances and imposed the proper AER fine. The CAS determined that if the Danish NOC continued to insist on exercising its own jurisdiction based upon its own rules, and ignore the jurisdiction of the international federation and the application of their rules in deciding doping cases it was effectively denying the accused Danish athlete his right to be heard before an international tribunal. More seriously it effectively deprived the accused athlete of his right to appeal a decision having international effect. It was determined that if the national federation could not provide the assurance that it would follow the rules of the governing sporting federations, then the international federation must resort to the sanction set forth in its charter to ensure the compliance of its member national federations.

ii. Sandis Prusis
Overzealous suspensions are not the only problem that can occur when NSOs take doping suspensions into their own hands and ignores or chooses to disregard the rules of IF's. On its face it may appear that nations or federations which deal strictly with doping offences may be advancing the political and ethical goals of attempting to eliminate the uneven playing field which plagues athletes. However, any deviation from the agreed to international doping standard opens the door to nations and federations that do not take strict stands against doping and may wish to reduce the sanctions which their athletes face.

This was the case for Latvian Bobsledder Sandis Prusis. At a warm up event prior to the 2002 Salt Lake City Olympic Games, Prusis, the pilot and captain of the Latvian Team tested positive for the banned substance nandrolone. Pursis claimed that his ingestion was unintentional and the result of an over the counter supplements. In response, despite the mandatory two-year penalty for this type of offence, the International Bobsleigh and Tobogganing Federation (FIBT) decided to suspend Pursis for only three months and applied this limited sanction retroactively. The FIBT justified its decision as "fair and just" according to the OMAC. In effect, this reduction made it possible for Pursis to complete his suspension in precisely enough time to race for Latvia in the second week of the Olympic Games. The International Olympic Committee (IOC) sought to bar the athlete from Olympic competition because it disagreed with the IFs application of its doping rules. It asserted that the sanction imposed by the FIBT was simply a device to allow Pursis to compete in the Games.

On hearing the case, the CAS Panel was sympathetic to the IOC's suspicions. Further the CAS believed that the decision of the FIBT struck at the heart of the IOC's Anti-Doping campaign. The Panel stated that the FIBT had ignored a number of CAS awards in which it had been made clear that the nutritional supplement defense could not be seriously invoked by athletes in light of many warnings by the IOC, the World Anti Doping Associate (WADA) and the scientific community. It also agreed that it would be a highly desirable legislative development in the fight against doping if the IOC and or WADA would be able to appeal to an independent body against a perverse anti-doping decisions adopted by an IF.

However, notwithstanding the opinions of both the CAS and the IOC it was determined that under the current FIBT rules, the IOC was not empowered to review the FIBT's decisions and thus could not adjust the suspension to accord with the rules of the FIBT or the IOC. CAS rejected the IOCs decisions on a variety of grounds. In particular, CAS observes that absent a clear IOC rule, the athlete had a legitimate expectations that the IF process fully resolved this case. Despite this final determination it is very probable that if the proper provisions had been in place, CAS would have held the FIBT to its own mandatory suspension of six months. The CAS may not have allowed the Federation to breach its own standards in order to insure that a medal favorite would be eligible to compete in the Olympic Games but required a clear review power in the IOC rules to have done so.

iii. Kelly Guest and the CCES
It is important to note that not all the suspensions and processes of a National Doping Agencies can be held to international standards. If a National Doping Agency has conducted tests pursuant to its own jurisdiction and in accordance with contracts established between the athlete and the NSO, it is possible for a National Doping Agency to follow its own National Standards and Procedures. In Guest v. Commonwealth Games Canada (CGC) and Triathlon Canada (TC) , a CAS ad hoc Division case occurring at the Commonwealth Games in Manchester England, the Court of Arbitration was attempting to establish which rules should be applied in regard to an athletes right to a hearing.

Guest, present in Manchester as a member of the Canadian Commonwealth Games team for the sport of Triathlon, had been tested earlier in the summer at an International Triathlon Union (ITU) triathlon event in Edmonton Alberta Canada. The National Doping Agency, the Canadian Centre, conducted the doping test for Ethics in Sport (CCES) pursuant to the Canadian Doping Policy and Canadian Doping Control Regulations. It was not conducted by the ITU. Further, the test was considered a pre-games test and was part of a program traditionally undertaken by the CCES in the six month prior to any major Games. Both Triathlon Canada and the athlete agreed to be bound by the national rules. Pursuant to this test the CCES informed TC, during the period of the Commonwealth Games, that Guest had tested positive for the banned substance nandrolone. In response, Guest was informed of the offence and returned to Canada by the Commonwealth Games Association.

Once it has been determined that the CAS ad hoc Division had the proper jurisdiction to hear the dispute, the question of rules interpretation arose. At first blush it appeared that the Doping Control Rules of the ITU and those of the Canadian Doping in Sport Regulations were in conflict in relation to provisional suspensions and the athletes right to a hearing. Under RR. 5.2 and 5.3 of the ITU it appeared as though an athlete could not be considered ineligible from competition without having first been given a fair hearing. In contrast, pursuant to the interim suspension provisions of the Canadian Doping Control Regulations it was possible to hand down a provisional suspension before a hearing had taken place. Based upon other provisions of the ITU rules, however the Panel determined that there was not necessarily a conflict. Under the ITU rules, national federations were entitled to have their own rules for doping control and these rules did not need to be identical to those of the ITU. Further, there was no provision in the ITU rules which required that there be some form of hearing before an interim suspension was handed down.

It is essential to read the conclusions of the Panel in regard to the agreements between Guest, the ITU and CCES to further the discussion on Rules. In spite of any considerations of construction and interpretation, the Panel decided that: in any event, . . . the Applicant agreed to be bound by the national rules whether or not they were in conflict with the international rules. This is perhaps the clearest statement of what rules an athlete should and must follow. Although it appears a basic reading of this case and those surrounding it, the conclusion is none the less central to the jurisprudence on this topic. Athletes should be bound by the rules they agree to. An athlete who has agreed to be tested by a specific agency in accordance with specific rules should be able to expect that their test and sanction will be in accordance with these rules. Thus, the Danish cyclists who were tested by the UCI at a UCI sanctioned event should be held to the UCI AER. Further, the Canadian Triathlete who was tested by CCES as part of an agreed upon pre-competition regime should be held to the rules of the CCES and the Canadian Doping Regulations. Even the Purvis case can be rationalized under this rubric, the FIBT has set a reasonable suspension for the doping offence in question to which the athlete has agreed.

It was the FIBT Review Board, which then reduced the suspension for obvious but clearly not legitimate reasons. It is the decision of the board to reduce the suspension, which should have been able to be reviewed to ensure that the athlete was receiving the penalty that he had agreed to for the offence, which he committed. Many sporting Federations and National Doping agencies have variable suspension lengths and unique procedural rules. Unless an athlete has clearly agreed to an overarching contract which would bring all doping suspensions into accordance, all review panels should be sensitive to these rules and agreements and ensure that the athlete is dealt with in accordance with the agreements to which they are a party. 

iv. IAAF v. USATF
Before the United States Track and Field trials for the 1992 Olympics in Barcelona, Harry Butch Reynolds, the world record holder at 400m was randomly drug tested at an international competition in Monte Carlo, Monaco. His subsequent positive result lead to a legal odyssey which would prove to test the foundations of international sporting disputes and the jurisdictions of National and International sporting Federations.

The chain of events and legal proceedings in this string of cases are complicated but make perfect sense when the NSOs goal of Olympic success is taken into account. After the positive doping result from Monte Carlo, the International Amateur Athletic Federation (IAAF) as it then was [now the International Association of Athletics Federation (IAAF)], being the IF for the sport of track and field, immediately suspended Reynolds. Rather than take his case before The Athletic Congress of the United States (TAC) , the proper avenue for appeal under the rules , Reynolds opted to attempt to pursue a remedy in the courts of the United States. Originally this avenue did not appear to have been overly successful. The Southern District Court of Ohio found that Reynolds had not exhausted his administrative remedies and the case was stayed and then subsequently dismissed for lack of subject matter jurisdiction.

In response, Reynolds participated in an expedited AAA arbitration. This arbitration panel exonerated him. As this arbitration was not the proper process for adjudication of disputes of this nature under IAAF Rule 59, both TAC and the IAAF refused to honor the decision. As the United States Olympic Trials were quickly approaching, Reynolds agreed to a hearing before a TAC panel who also exonerated him of any wrong doing in the doping matter. The IAAF was still not satisfied that the NSO had made an impartial decision and pursuant to IAAF rule 20 ordered an arbitration of the TAC decision before its own in house tribunal which found Reynolds to be guilty beyond doubt.

According to the rules of the IAAF this is where the case should have remained. Instead Reynolds returned to the US Courts and obtained a temporary restraining order impeding the IAAF from interfering with his participation in all amateur track and field competitions including the upcoming U.S. Olympic Trials in connection with the Monte Carlo test. In addition, the District Court granted Reynolds request to compete in the Olympic Trials. At the Olympic Trials in New Orleans, Reynolds did not qualify as an individual runner in the 400 meters but was selected as an alternate for the 400m relay team. Although a substantially successful result, this placing made it clear that Reynolds would not have been a serious medal contender in the upcoming games.

Following the Trials, the IAAF banned Reynolds from participation in the Olympic Games and as such Reynolds did not compete in Barcelona. It is at this point that the string of Reynolds cases took a strange turn. The Ohio District Court decided that the IAAF was amenable to suit in Ohio pursuant to Ohios long arm statute. More specifically, the court decided that:

It [was] simply an unacceptable position that the courts of [the United States] could not protect the individual right of United States citizens where those rights are threatened by an association which has significant contact in that country, which exercises significant control over both athletes and athletic events in this country, which acts through organizations in this county and which gains significant revenue from its contracts with United States Companies.

When the IAAF failed to respond to Reynolds complaints, the district court entered a default judgment and issued an opinion awarding Reynolds over twenty seven million dollars in damages the majority of which were for punitive damages. In addition to finding jurisdiction under the Ohio long arm statute, the district court also found that it had jurisdiction to overturn the IAAFs international arbitration decision despite the United States participation in the United Nations Convention on the Recognition of Enforcement of Foreign Arbitral Awards (New York Convention). The district court found that as this agreement to arbitrate was not in writing and signed by both parties the preconditions were not met and the New York Convention did not apply.

Clearly this decision posed a problem for the IAAF, now facing a multi-million dollar damages award; but it was also a problem for TAC. A decision such as this which could quickly lead to a string of decisions that could bankrupt the IAAF would rob the United States of a forum under which it repeatedly showed its world sporting superiority at Olympic Games. In the next chapter of the case the United States Court of Appeal for the Sixth Circuit found that the Ohio District Court did not have jurisdiction over the IAAF. The court decided that:

In short, the IAAF is based in England, owns no property and transacts no business in Ohio, and does not supervise U.S. athletes in Ohio or elsewhere. Its contacts with Reynolds in Ohio are superficial, and are not sufficient to create the requisite minimum contacts for personal jurisdiction.

The IAAF rules were found to be the proper rules that should have been followed. The Court of Appeal found that the district count had abused its discretion by denying the IAAFs rule 60(b)(4) motion for relief.

In the end, despite International Rules that governed this process the NSO was able to get exactly what it wanted. First, Reynolds was able to participate in sufficient events to qualify and compete at the Olympic trials. Then when his trials campaign was unsuccessful, TAC no longer had an interest in his participation in the Games where two Americans subsequently won his event. When the Ohio District court went on to award a hefty settlement in Reynolds favor that jeopardized the IAAFs financial position, the United States Court of Appeal was quick to remedy the situation. Clearly, this early case presents the way in which a Nation can work around international rules to ensure that their interests are served even if those interests are not necessarily always the same as those of their athletes.

A doping case involving infamous long distance runner Mary Decker Slaneys illustrates the extent to which the rules and decisions of both NSO, IF, National Courts and International Tribunals have evolved since the Reynolds series. 
Slaney was originally tested at the United States of America Track and Field (USATF) Olympic Trial in Atlanta Georgia in June of 1996. She had provided a sample that produced a positive analytical result with a T/E ratio of over 11:1. A subsequent investigation conducted by IAAF found her specimen positive for the prohibited substance testosterone. Pursuant to this finding the IAAF suspended Slaney on an interim basis and invoked the contamination rule. 

Meanwhile, in the United States a concurrent hearing was taking place. After the original finding the USATFs custodial board had suspended Slaney pending a hearing. At this hearing the USATF Doping Board unanimously determined that no doping violation had occurred and exonerated Slaney. The IAAF appealed this decision to its Arbitration Panel which ruled that Slaney had in fact committed a doping offence. 

In response, Slaney filed suit in the District Court for the Southern District of Indiana. This court dismissed her claims. The District court of Indiana determined that the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. sec. 201 ("New York Convention"), barred Slaney's claims against the IAAF, as those claims had been the subject of a valid arbitration decision. This is the same convention that the Southern District Court of Ohio chose to disregard in the Reynolds case as there was no agreement to arbitrate between Reynolds and the IAAF in writing.

Slaney proceeded to appeal to the United States Court of Appeals for the Seventh Circuit. In dismissing this appeal the Seventh Circuit Court did not feel the need to decide whether the agreement between the IAAF and Slaney was an agreement in writing. Instead the court focused on whether Slaney had been a party to the arbitration. The court determined that Slaney was indeed a participant as Slaney\'s counsel appeared before and presented arguments, and called expert witnesses. As the Court of Appeal considered Slaney a party, the New York Convention was applicable and Slaneys claims against the IAAF were barred.

The decision to bar Slaneys claims in this manner emphasized the importance of an international tribunals set of rules for the governance of its particular sport. National courts are increasingly avoiding making changes to final decision of Arbitration Panels such as this and the CAS.

The saga of the relationship between the IAAF and USATF continues to this day. An Independent International Review Commission on Doping Control- U.S.A. Track & Field reported that one US athlete who had recorded a positive doping result competed in Sydney.

The tension of this and other cases like Butch Reynolds and the Mary Decker Slaney case have resulted in the two parties making an application under the ordinary procedure of the CAS for a ruling. At the center of the arbitration proceeding is the issue of whether the USATF has been failing in its obligation to support the IAAFs Anti-Doping Program and has taken decisions, or engaged in practices, which have led commentators to believe, that USATF was failing in its duty to disclose the results of positive drug tests to the IAAF despite exonerations by domestic arbitration. The case had only been argued at the beginning of November and the outcome is unknown at the time of writing.

C. National Courts v. International Organizations

i. Trent Anthony Bray
The CAS was faced with an interesting delimna in a doping case from New Zealand involving elite class swimmer Trent Anthony Bray. Here the case had already proceeded through the complete national court system and had been decided by the Court of Appeal for New Zealand before it reached the CAS. Bray was found to have commited a doping offense, following an out of competition test, by the New Zealand Sports Drug Agency (NZ-SDA). Unsatisfied with this determination, he appealed this finding to the Auckland District Court. In response the District Court quashed the decision of the NZ-SDA based on a violation of the New Zealand Sports Drug Agency Act 1994 and the Sports Drug (Urine Testing) Regulations 1994 (NZ-SDA Regulations).

In a related action, the FINA Doping Control Review Board, in accordance with Article 18.5 of the FINA Constitution, reviewed the decision of the District Court and issued an expert opinion to the FINA Bureau which recommended a suspension as the Board felt that a doping offence had occurred. A provisional suspension was handed down by FINA until the time when the Bureau could conduct a proper hearing.

Concurrent to these proceedings, the case was also moving through the New Zealand National Courts. The New Zealand High Court reversed the decision of the District Court holding that the facts did not materially affect the results of the sample analysis and thus there was no violation of the NZ-SDA and a doping offence had in fact occurred. This decision was subsequently overturned at the next level. The Court of Appeal of New Zealand applied a narrow reading of the NZ-SDA and determined that there was a material flaw, which prevented the NZ-SDA from relying on the results of the laboratory analysis. Without the ability to rely on the analysis there could be no finding of a doping offence and thus no suspension. Following the decisions of the Court of Appeal, the national swimming federation of New Zealand declined to institute or continue further proceedings against Bray
Despite the above, the case was still proceeding inside FINA.

In accordance with Article C19.7 of the FINA Constitution, the case was referred from the FINA Bureau to the FINA Doping Panel. This Panel decided in favour of a doping offence being committed and issued a decision suspending the athlete for four years. It is from this decision pursuant to FINA Rule 10.8.3 the applicant appealed to the CAS.

At this point CAS was faced with making a ruling upon a case that had already been determined by the highest court of the country from which it had originated. The first order of business for the CAS was to determine whether FINA had the jurisdiction to impose a sanction at all, since the state court of New Zealand had declared the doping charges against Bray void. Pursuant to FINA Rule DC 12.4 the Doping Panel was considered competent to impose sanctions for violations of the Anti-Doping Rules if the FINA Bureau believed that a Member Federation had not followed the FINA Rules. Most importantly the CAS clearly determined that FINA had the jurisdiction to impose a sanction despite the decisions of the National Court in two ways. First, in CAS 96/156 Foschi v. FINA it had already been determined that an international federation may impose a sanction independent from the outcome of a proceedings over sanctions on a national level. Second, the CAS determined that it was the purpose of DC. 12.4 of the FINA Rules to ensure coherent application of FINA Anti-Doping Rules on a worldwide level and that an international federation cannot be bound by decisions of state courts issued in proceedings to which this federation was not a party.

Finally it was emphasized that the decisions of FINA are then subject to the control of the CAS. In deference to the Judges of the New Zealand Court of Appeals, the CAS Panel also made sure to emphasize the importance of looking at the substance of the decisions of the learned Judges of the Court of Appeal before making any determination of the merits of the case.

Despite these clear rationales, the CAS also differentiated its decision from that of the Court of Appeal by taking into account the scientific evidence that the Court rejected. The Panel determined that the appeal came to the CAS on a different procedure, which made the review of the scientific evidence imperative.

In proceeding through this case and effectually reversing the decision of the Court of Appeal of New Zealand, the CAS differentiated its determination as to conflict with the Court of Appeals as little as possible. In addition, the CAS clearly set the groundwork outlining that the decisions of national courts as to the suspensions of athletes under an International Federation cannot be upheld against the determination of the CAS or the International Federation.

Athough the determination of the jurisdiction of the CAS and FINA over the National Courts in New Zealand is essential it is what this case does not spend a great deal of time discussing that is most troubling. Buried in an intercate discussion of scientific evidence, the Panel manages to unilaterally reduce the suspension that FINA has determined for the offense the athlete committed. DC 9 of the FINA Rules state that minimum sanction for a doping offense involving nandrolone is a four year suspension and a retroactive sanction cancelling all results obtained in the six months prior to the date of the collection of the positive sample. This is the sanction which Bray was faced with following a determination by the Panel that he had commited a doping offense.

The CAS Panel reduced the sanction to a two year suspension. Pursuant to DC.9.10 of the FINA rules, a suspension may be reduced if a competitor can "clearly establish how the prohibited substances got into the competitors body and that the prohibited substance did not get there as a direct or indirect result of any negligence on the part of the competitor In this case, however, Bray did not attempt to use this defense. The Panel acknowledges that the athlete did not raise the defense that the prohibited substance got into his body by the ingestion of nutrituional supplements, nor did he attempt to present any explanation as to how the substance came to be in his body.

In addition, the Panel also noted that the substance at least arrived in the athletes body as a result of negligence, something which FINA has clearly decided will not mitigate the length of any possible suspension. Despite these absenses, the CAS panel decided to cut Brays suspension in half. In support of this decision the Panel relies of a number of previous CAS decisions which have reduced FINA suspensions and reiterates that according to CAS 2001/A/301 A. v. FILA the Panel would enjoy the discretion to reduce the suspension event if there were "no extenuating circumstances. The Panel judges that a four, or in their estimation a four and a half year suspension, is inappropirately excessive in this case. In effect the Panel has decided that the suspension length which FINA has determined and to which all athletes under the FINA umbrella have agreed to is not the proper sanction.

Instead the Panel has decided to hold FINA to the Rules of the Olympic Movement Anti-Doping Code which fixes maximum sentences for doping offenses for first time offenders at two years. This positive test however has not occurred at the Olympic Games, nor does it fit under the extenuating circumstances which are comtemplated in the FINA Rules. The Panel instead has taken it upon itself to make a statement about the severity of FINAs four year suspension rule despite clear guidines concerning the minimum penalty for a offence of this type. This creates a situation in which an athlete can no longer predict what the penalty will be for an offense or what the mitigating cirumstances may be under an agreement to which they are a party. In effect, an athlete will be encouraged to take their cases to arbtiration in the hope that the Panel will hold the suspension or mitigating conditions as in someway unfair or extreme compared to other policies or rules. 

Conclusions

1. Should be a system, which assures athletes that they will be treated according to the agreement, which they have signed.
   
   
2. If an International Standard is something which is desired it should be completed through contract with all the necessary parties. Arbitration Panels and Tribunals should not be able to assert their opinions on question, which have already been determined in the rules of National Federations.
   
   
3. Move toward international arbitral tribunals having the final say in sporting cases and national courts respecting these decisions.
   
   
4. Move toward National and International Sporting Agencies having their decisions judged on an International scale.
   
   
5. Move toward creating one international set of rules for each new substance.