By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

According to anti-doping legal regime, the athletes are under strict liability. It means once the positive finding is reported, the athlete is under an obligation to prove the medium through which banned substance has entered into his body, or no banned substance has entered into his body in an unauthorised manner.

INTRODUCTION

Arbitration is one of the forms of alternative dispute resolution. Instead of using a Court, the parties agree to the determination of their dispute by one or more appointed independent arbitrator(s). This decision is usually by an expert in the given field and is legally binding on the parties. Over the years, there have been more resorts to alternative forms of dispute resolution in sport, for disputes on the field of play, cases on ethics, doping, as well as commercial business matters like sponsorship, media rights. Arbitration has served as one of such resort. An independent arbitrator with knowledge of sport is appointed to resolve issues. This enables an informed judgement, since the arbitrator has expert knowledge of the field. It also enables quick resolution of disputes as required by the nature of the sector and lowers the cost of resolving issues. Usually, a resort to arbitration clause is provided in the original contract agreement or as the dispute arises.[1]

Arbitration has been used in the sporting world to address countless issues. For example, the Court of Arbitration for Sport was instrumental in delivering a judgement in the hyperandrogenism case between Caster Semanya and the Olympic committee. Furthermore, the Court of Arbitration for Sport acts as a check on the actions of sport organizations around the world. The Court ensures that the punishment meted out is proportionate and free from bias. For instance, the Court of Arbitration for Sport weighed into the life ban imposed on former Super Eagles Coach, Samson SiaSia, and gave a verdict that saw the life ban reduced to five years only.[2] In most Sporting Competitions, CAS Adhoc tribunals hear and determine disputes within 24 hours.

DOPING ISSUES IN ATHLETES

The concept of doping is indeed not a novel one. In ancient Greece and Rome, athletes did take herbal infusions to enhance their performance.[3] However, the word ‘doping’ is often attributed to the Dutch word ‘doop’ referring to gravy or sauce put on food but later evolved to mean a syrupy or thick substance related to drugs.[4] The United Nations Educational, Scientific and Cultural Organization (UNESCO) referred to the term ‘doping’ as an athlete’s use of prohibited drugs or methods to improve training and sporting results.[5] Doping became a very serious issue in sports as far back as 1928 when the International Association of Athletics Federation (IAAF), the governing body for the sport of track and field, became the first ever International Sports Federation to ban the use of doping products as the substances taken were used to gain an unfair advantage against other competitors thus defeating and undermining the purpose of fair and healthy competition and from a moral standpoint, can be seen as unethical.[6] Take the example of marathon runner, Thomas Hicks who was administered a mixture of brandy and strychnine in the 1904 Olympics by his coach Charles Lucas, to help him finish the race. He won the race as a result but was neither disqualified nor was he stripped of his medal for doping.[7]

In light of this and more, the International Olympic Committee (IOC) medical commission established a list of prohibited substances in 1967 and introduced anti-doping testing of athletes in the 1972 Munich Games. Subsequently, the World Anti-Doping Agency (WADA) was established in 1999 with the aim of leading the fight against doping in sport. Examples of doping substances are Anabolic Drugs (Anabolic steroids), stimulants, hormones, and blood doping (“oxygen transport”). There have been popular cases of doping issues, some include an incidence at the Olympics in 1988 when Canadian sprinter, Ben Johnson failed a drug test when stanozolol, a synthetic anabolic steroid was found in his urine after emerging as the winner of the 100m in a world record of 9.76 seconds.[8] Argentinian soccer player, Diego Maradona, who led his team to victory in 1986’s World Cup tested positive for five different variants of ephedrine at the 1994 World Cup. As a result of laws that have been put in place, it is expected that there would be cases of violation and a suitable means of resolving the dispute would be necessary.

THE SUITABILITY OF ARBITRATION IN RESOLVING DOPING MATTERS

Doping-related issues are very complicated and multi-faceted. The inherent confusion is whether it should be a category of criminal, quasi-criminal or civil nature. Doping proceedings and consequent sanctions contain elements of a criminal proceeding. It is of accusatory nature which requires investigation and evidence, and also follows the principle of strict liability.

On the notion of criminality, it is natural that the dispute be resolved through a procedure which is adjudicatory in nature where the outcome, save for the exceptional circumstances, will be binding on the party facing panel if found guilty. Away from this point, the parties also normally agree in writing that in the event that a dispute arises, it can/should be referred to an arbitral tribunal.

According to anti-doping legal regime, the athletes are under strict liability. It means once the positive finding is reported, the athlete is under an obligation to prove the medium through which banned substance has entered into his body or no banned substance has entered into his body in an unauthorised manner. An arbitration procedure becomes suitable in this instance. The process allows for the athlete to be present in person or represented by a lawyer or assisted by anyone. The parties are allowed to argue and bring evidence to support their stance before an arbitral panel. After the hearings, an arbitral award is given. The law guiding the sport and matters on doping is enforced and legally binding like a litigation in a Court of law.

In the case of ADRV, disqualification is mandatory. In addition to the disqualification, disciplinary sanctions are also imposed on the athletes, which results in their suspension. All of these possible outcomes, for the effect they are likely to have on the individual athlete or the host team, make arbitration a very suitable option for the resolution of the dispute, in addition to how promptly the outcome of doping cases can be known.

What is more, litigation as a dispute resolution mechanism has opened litigants to various unfavourable outcomes such as delay in judgment delivery, loss of evidence, time consumption, and forfeiture of necessary just cause, to name a few. In dispute such as a doping case, all of these are factors that must be considered as a result of the nature of sport. Arbitration as a dispute resolution mechanism eases the stress of parties having to go to Courtrooms and spend long periods of time in proceedings. It makes it possible for parties in dispute under reference to have access to a fast and fair (arbitral) verdict.

As a result of the confidential manner in which the proceedings are held in private, certain private information about a person involved in the doping matters can be preserved, unlike open Court sessions which give room for public observations.

In the same vein, the use of arbitration in resolving doping issues also makes it possible for the dispute to be handled by those armed with the requisite knowledge of the dispute— seeing as, by the workings of arbitration as a dispute resolution mechanism, experts within the field wherefrom the disputes arise are the ones who get to arbitrate between the concerned parties. This, to a very large extent, touches on the quality and fairness of the outcome of the proceedings.

THE ROLE OF THE COURT OF ARBITRATION FOR SPORT PLAYS IN DOPING DISPUTES

The Court of Arbitration for Sport (CAS) has played and keeps playing a key role in resolving doping disputes. This goes to show the suitability of arbitration in doping matters as it relates to athletes. The Court has a specialised division known as the CAS Anti-doping Division for hearing and deciding anti-doping cases at the first instance. For example, in the case of CAS Decision in IOC v Valieva.[9] Kamila Valieva, a 15-year-old Russian figure skater, had been provisionally suspended from competition due to a positive drug test, but on February 14, 2022, a panel of the Court of Arbitration for Sport (CAS) announced that it had decided to allow her to compete at the 2022 Olympics. The Valieva case arbitration panel’s ruling serves as a good illustration of CAS’s power and crucial institutional function in scrutinising the sport regulations’ actual provisions using external legal standards.

As it is increasingly requested by athletes and other stakeholders to resolve human rights disputes in sport, CAS should be encouraged to exercise these legal and necessary arbitral activities rather than being accused of engaging in arbitral activism and going beyond its authority as a judicial body.

CONCLUSION

In conclusion, the benefits and suitability of arbitration as an alternative means of dispute resolution in sport, in relation to doping issues in athletes, goes without saying. Arbitration allows for an expert in doping to determine the issues and give an arbitral award that is legally binding. It is also suitable as doping issues most times require a prompt decision that would affect the outcome of a competition, where a winner is to be chosen or whether an athlete would be permitted to go in a competition. The promptness with which a resolution is required is catered for under arbitration. Some Ad-hoc arbitration tribunals hear and determine disputes within 24 hours.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of International Sports Law and Arbitration and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Jedidiah F. Akpata.

Jedidiah is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Sports Law.

He can be reached at jedidiah.akpata@omaplex.com.ng.

[1] Espen Auberg, ‘Dispute resolution and sport arbitration’, <https://www.easportslaw.com/news/sports-arbitration> accessed 22 August, 2022.

[2] Sportstar, ‘Coach Samson Siasia’s life ban cut to 5 years in fixing case’, <https://www.google.com/amp/s/sportstar.thehindu.com/football/coach-samson-siasias-life-ban-cut-to-5-years-in-fixing-case-football-news/article34888578.ece/amp/> accessed 22 August, 2022.

[3] EVS Translations, ‘Doping’ (EVS, 27 March 2019) <https://evs-translations.com/blog/doping/> accessed 23 August, 2022.

[4] Ross Reynolds, ‘From Gravy To Drugs: Ben Zimmer On The Origin Of “Dope”’ (KUOW, 3 September 2013) <https://kuow.org/stories/gravy-drugs-ben-zimmer-origin-dope/> accessed 23 August, 2022.

[5] Pharma’s almanac, ‘DOPING- Famous Cases, Substances & Values in Sports’ (29 May, 2018) <https://www.pharmasalmanac.com/articles/doping-famous-cases-substances-and-values-in-sports> accessed 23 August, 2022.

[6] ‘A Piece of Anti-Doping History: IAAF Handbook 1927-1928’ World Athletics (Monaco, 15 May 2006) <https://worldathletics.org/news/news/a-piece-of-anti-doping-history-iaaf-handbook> accessed 23 August, 2022.

[7] David Baron and others, ‘Doping in sports and its spread to at-risk populations: An international review’ WPA (2007) 6(2) https://www.researchgate.net/publication/5615867_Doping_in_sports_and_its_spread_to_at-risk_populations_An_international_review accessed 23 August, 2022.

[8] Ibid.

[9] ‘The Court of Arbitration for Sport’s Decision in IOC v. Valieva: An Example of Arbitral Activism or Necessary Arbitral Activity?’ https://www.frontiersin.org/articles/10.3389/fspor.2022.924916/full> accessed 22 August, 2022.

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