Striking down the 'Osaka Rule' - an unnecessary departure.

• Author: Orth, Jan F.

The reasoning of the CAS in its decision, which strikes down the "Osaka Rule", consists of 23 single-spaced pages and seems therefore to be well-substantiated. However, a critical review of the reasoning reveals remarkable shortcomings in the argumentation scheme of the competent CAS panel. The author reaches the result that the invalidation of this important anti-doping provision was not compelling at all.

1. Introduction

   1. The sport politics background

      The International Olympic Committee (IOC) itself was faced with more than a few doping incidents during Olympic Games in the past few decades. The public perception of this rising difficulty, even in Olympic sports, likely began with the 1988 Olympic scandal regarding the Canadian sprinter, Ben Johnson, who beat the American sprinter Carl Lewis in 100m final at the Olympics in Seoul. Johnson was subsequently convicted of the use of steroids, which lead to his disqualification only three days later. Further incidents were to follow in the subsequent years regarding both the Olympic Summer and the Olympic Winter Games.

      To confront former offenders-and in so doing preventing potential future offenders from participating in the Olympic Games, the IOC Executive Board enacted - at long last - at its meeting in Osaka (Japan) the following rule which came to be known as the "Osaka Rule" on June 27 2008 (1):

      "The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

   1. Any Person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.

   2. These Regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games."

      This article refers to this regulation as the "Osaka Rule", "IOC Regulation" or "IOC Rule".

   2. Factual background of the case

      The claimant in the case decided by the CAS is the United States Olympic Committee ("USCO"), which is the National Olympic Committee (NOC) of the United States. It is responsible for the US Olympic teams. It is seated in Colorado Springs. (2) The IOC is the respondent in this case. (3)

      After the IOC approving the Osaka Rule as stated above, it came into force in July 2008. However, no case is known where the Regulation had an impact on any athlete who applied to attend the Winter Olympic Games in Vancouver in February 2010. It seemed clear, however, that the IOC Regulation would have actually impacted a number of athletes around the globe for the Olympic Games 2012 in London. (4) Moreover, it came to the attention of the World Anti-Doping Agency (WADA) that the enactment of the regulation influenced doping adjudications since it came into effect: At least one case was shown, involving a US swimmer that tested positive for doping, in which the arbitration panel appeared to have fixed the suspension at exactly six months in order to avoid the application of the IOC Regulation. (5)

      Subsequently, the applicability of the IOC Regulation was subject to arbitration in the United States. In the case of Mr. LaShawn Merritt - an American track and field athlete and 2008 Beijing double gold medalist - the AAA Panel found besides material mitigating circumstances, which allowed reducing the usual suspension, that "the IOC Regulation could not be used to prevent Mr. Merritt from competing in the 2012 Olympic Trials or from having his name submitted from entry to the Olympic Games." (6) In the case of Ms. Jessica Hardy - an American swimmer -, after a national arbitration panel sentenced her to a one-year suspension in shorting an usual minimum suspension of two years and declaring "that it would be manifestly unfair and a grossly disproportionate penalty for Ms. Hardy to be subject to the application of the IOC Regulation, which had come into effect only three (3) days prior to her positive drug sample", the CAS upheld the suspension on appeal of WADA and subsequently of Ms. Hardy. Afterwards, however, the IOC declared that it would not apply the IOC Regulation to Jessica Hardy. (7)

      The legal situation in the Merritt case particularly put the USOC into a dissoluble situation: On the one hand, the competent AAA panel had declared "that Mr. Merritt must be allowed to compete at the 2012 Olympic Trials and, if he qualified, the USOC must assign him to its Olympic Team." On the other hand, it was clear that the IOC would not acknowledge a nomination of Mr. Merritt by the USOC due to the Osaka rule. (8)

      Basically both parties made a commendable decision: They "recognized that there was considerable uncertainty facing the world's aspiring Olympic athletes and their national Olympic committees because of the IOC Regulation. In recognition of these concerns and to their credit, in April 2011 the parties voluntarily entered into an Arbitration Agreement [...]." (9) The main objective of this arbitration agreement was to gain a binding decision of the CAS regarding the enforceability of the IOC Regulation. (10)

2. The decision of The Court of Arbitration for Sport

   On October 4 2011, the competent CAS Panel rendered its decision in the arbitration case. It declared "[t]he IOC Executive Board's June 27, 2008 decision prohibiting athletes who have been suspended for more than six months for an anti-doping rule violation from participating in the next Olympic Games following the expiration of their suspension [...] invalid and unenforceable." The Panel presented its reasoning in 23 single-spaced pages, which superficially looked like a well-substantiated opinion. After introducing the Parties (1.), the Court retells the Factual Background (2.), gives an overview on the Proceedings before itself (3.), states the Constitution of the Panel and the Hearing (4.) and the Jurisdiction of the CAS (5.), identifies the Applicable Law (6.), comes finally to the Substantive Arguments (7.) and ultimately to the Panel's Findings on the Merits (8.). The last topic deals with the Costs (9.). The Court structured its "Findings on the Merits" - as a matter of course the most important section of the decision - like this: (i) Scope and Application of the IOC Regulation, (ii) Proper Characterization of the IOC Regulation as an eligibility rule or a sanction, (iii) Is the IOC Regulation consistent with the WADA Code and the OC?, (iv) Other Arguments raised by the USOC, (v) Conclusion.

   As the factual background is presented in this article to the extent required for understanding the reasoning of the court, this analysis will particularly focus on the actual legal reasoning of the Court as presented under "8. The Panel's Findings on the Merits". As far as the "Substantive Arguments" are addressed, their objective will be presented directly in accordance with the legal analysis.

   Essentially, the Court holds that the Osaka Rule imposes a sanction on the athlete and is not an eligibility rule (11). It further holds that the imposition of another sanction for the same doping offense is inconsistent with and contrary to the WADA code (12). As the inconsistency of a separate anti-doping sanction of the IOC as allegedly imposed by the Osaka Rule with the WADA code cannot be disputed (as the list of actual sanctions for doping offenses is clearly conclusive and the imposition of an actual additional sanction would violate the ne bis in idem-principle), this analysis shall focus on the findings of the Court that the Osaka Rule actually imposes an (additional) sanction on the athletes and does not enacts an "eligibility rule" for participants of Olympic Games.

   To justify this finding, the Court first defines the "Scope and Application of the IOC Regulation" (13). After describing the impact of the regulation on certain athletes, it holds an interim result important for its argumentation scheme: "The effects of a suspension under the WADA Code that overlaps with an Olympic Games or the qualification for that Games and the application of the IOC Regulation are identical." (14) The Panel then stresses the necessity to "determine whether IOC Regulation is a sanction, as the USOC argues, or is an eligibility rule, as the IOC submits[,]" "[i]n order to asses some of [the USOC's] arguments."

   This leads to the core of the decision: The paragraphs on the "Proper Characterization of the IOC Regulation as an eligibility rule or a sanction" (15). Here the Court gives a surprising start: It states that a CAS Advisory Opinion (16), requested by the IOC, concluded that the now disputed IOC Regulation was an eligibility rule. However, it is true that the proceedings leading to such an Advisory Opinion are not adversarial and the now deciding Panel "was benefitted by extensive arguments made by both parties and numerous Amicus Curiae Briefs." (17)

   After briefly mentioning another confidential CAS Advisory Opinion, which reasons are said to be inapplicable in the current case (18), the Panel points to other CAS jurisprudence (19): "A CAS Panel noted in RFEC & Alejandro Valverde v. UCI (CAS 2007/O/1381 at paragraph 76) (20) [...] that a common point in qualifying (eligibility) rules is that they do not sanction undesirable behavior by athletes. Qualifying rules define certain attributes required of athletes desiring to be eligible to compete and certain formalities that must be met in order to compete." (21)

   From this prior CAS jurisprudence the Panel derives an important conclusion for its argumentation: "In contrast to qualifying rules are the rules that bar an athlete from participating and taking part in a competition due to prior undesirable behavior on the part...