« As regards Ms [Person 1]' participation at the 2000 Sydney Olympic Games, it is the IAAF's understanding that the IOC Executive Board will decide, in accordance with Rule 23.2.1 of the Olympic Charter, on the measures and sanctions to be taken against Ms [Person 1] and the USA women's 4×100m and 4×400m relay teams in which she competed at the Sydney Games. The IAAF Council's recommendation to the IOC Executive Board in this regard is to disqualify Ms [Person 1] and both relay teams in which she competed and to insist upon the return of all medals and diplomas. I would be grateful if you could inform me of the IOC Executive Board's decision as soon as it is taken ».
« I. The USOC relay teams to be disqualified from the following events in which they competed at the 2000 Sydney Olympic Games in the sport of athletics:
• 4 × 100 meters relay-women-USOC relay team, where the team placed third; and
• 4 × 400 meters relay-women-USOC relay team, where the team placed first.
II. The USOC to be ordered to return to the IOC all medals and diplomas awarded to all members of both USOC relay teams in the above noted events, it being acknowledged that USOC has already returned to the IOC the medals won by Ms [Person 1] in such events.
III. The International Association of Athletics Federations ("IAAF") to be invited to postpone any further adjustment of results until further notice from the IOC.
IV. The issue of awarding new medals and diplomas as a consequence of this decision to be addressed by the IOC Executive Board in due course pending further information ».
« 1. Rule 126.96.36.199 of the Olympic Charter in effect in 2000 did not preclude
the IOC from taking a decision concerning the medals awarded for the women's 4×100 and 4×400 athletics relay races of the Sydney Olympic Games of 2000.
2. The exception submitted by Ms Andrea Anderson, Ms LaTasha Colander Clark, Ms Jearl Miles-Clark, Ms Torri Edwards, Ms Chryste Gaines, Ms Monique Hennagan and Ms Passion Richardson on the basis of Rule 188.8.131.52 of the Olympic Charter in effect in 2000 and of Rule 6.4 of the Olympic Charter in effect in 2008 is dismissed.
3. The CAS retains jurisdiction to adjudicate on the merits the appeal submitted by Ms LaTasha Colander Clark, Ms Jearl Miles-Clark, Ms Torri Edwards, Ms Chryste Gaines, Ms Monique Hennagan and Ms Passion Richardson against the decision of the IOC Executive Board of 10 April 2008.
4. All further decisions are reserved for the subsequent stages of the present appeal arbitration proceedings.
5. The costs connected with the present partial award shall be determined in the final award ».
a) the IOC consistently refused to acquaint the Athletes with the charges and evidence against them;
b) the Athletes were not granted any meaningful opportunity to tender a defence, in writing or in person;
c) the IOC Disciplinary Commission and Executive Board were composed of individuals who had prejudged the matter, as demonstrated by some public statements;
d) the Executive Board never adopted a valid decision.
a) In the case of Jerome Young's teammates, no doping offence of any kind was committed during the 2000 Sydney Olympic Games themselves. The offence was committed by Jerome Young before the Olympic Games; therefore, the results obtained by the men relay team were not affected by a doping offence. On the contrary, [Person 1] admitted to have committed a doping offence " during " the Games, thus affecting the performance of her relay teams.
b) Jerome Young committed the offence prior to the Sydney Olympic Games, thus under the sole sanctioning authority of the IAAF; [Person 1] committed the offence during the Games, thus under the sanctioning authority of the IOC. As a consequence, the fact that at the time of the Games there was no existing IAAF rule providing for possible disqualification of the whole relay team does not deprive the IOC from its right to exercise its own authority and disqualify the whole relay teams pursuant to its own rules, such as the OMAC Explanatory Memorandum.
c) Jerome Young ran only in the qualification heat and in the semi-final but did not run in the final, whereas [Person 1] ran in both finals that allowed the US women relay teams to obtain the medals.
« An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body ».
« Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration ».
« The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision. »
«under Swiss law the prohibition against the retroactive application of Swiss law is well established. In general, it is necessary to apply those laws, regulations or rules that were in force at the time that the facts at issue occurred » (Award CAS 2000/A/274, Susin v. FINA , para. 208);
« as a general rule, transitional or inter-temporal issues are governed by the principle "tempus regit actum", holding that any deed should be regulated in accordance with the law in force at the time it occurred » (Award CAS 2004/A/635 Espanyol de Barcelona v. Club Atlético Velez Sarsfield , para. 44);
« The succession in time of anti-doping regulations poses the problem of the identification of the substantive rule which is relevant for the answer to such question. In this respect the Panel confirms the principle that "tempus regit actum": in order to determine whether an act constitutes an anti-doping rule infringement, it has to be evaluated on the basis of the law in force at the time it was committed. In other words, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future » (Advisory Opinion CAS 2005/C/841 CONI , para. 51).
« In general, complaints of violation of natural justice or the right to a fair hearing may be cured by virtue of the CAS hearing. Even if the initial "hearing" in a given case may have been insufficient, the deficiency may be remedied in CAS proceedings where the case is heard "de novo" » (para. 50).
« the CAS appeals arbitration allows a full de novo hearing of a case, with all due process guarantees, which can cure any procedural defects or violations of the right to be heard occurred during a federation's (or other sports body's) internal procedure.[...] it is the duty of a CAS panel in an appeals arbitration procedure to make its independent determination of whether the Appellant's and Respondent's contentions are correct on the merits, not limiting itself to assessing the correctness of the previous procedure and decision » (paras. 142, 146).
« le TAS jouit, sur le fondement des dispositions de l'article 57 du Code de l'arbitrage, d'un plein pouvoir d'examen. Ce pouvoir lui permet d'entendre à nouveau les parties sur l'ensemble des circonstances de faits ainsi que sur les arguments juridiques qu'elles souhaitent soulever et de statuer définitivement sur l'affaire en cause ainsi d'ailleurs, que le demande l'appelant en l'espèce. Un tel système, où la Formation examine l'ensemble des griefs de fait et de droit soulevés par les parties permet de considérer comme purgés les vices de procédure ayant éventuellement affecté les instances précédentes. Ce principe a été confirmé par le TAS à de nombreuses reprises » (para. 31).
« In the case of any violation of the Olympic Charter, the World Anti-Doping Code, or any other regulation, as the case may be, the measures or sanctions which may be taken by the[IOC] Session, the IOC Executive Board or the[IOC] disciplinary commission referred to under 2.4 below are:
2. In the context of the Olympic Games, in the case of any violation of the Olympic Charter, of the World Anti-Doping Code, or of any other decision or applicable regulation issued by the IOC or any IF or NOC, including but not limited to the IOC Code of Ethics, or of any applicable public law or regulation, or in case of any form of misbehaviour:
2.1 with regard to individual competitors and teams:
temporary or permanent ineligibility or exclusion from the Olympic Games, disqualification or withdrawal of accreditation; in the case of disqualification or exclusion, the medals and diplomas obtained in relation to the relevant infringement of the Olympic Charter shall be returned to the IOC.[…] ».
- has violated any applicable sports regulation or decision ("[…] in the case of any violation of the Olympic Charter, of the World Anti-Doping Code, or of any other decision or applicable regulation issued by the IOC or any IF or NOC[…]"),
- has violated " any applicable public law or regulation ", or
- has committed " any form of misbehaviour ".
« The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable » (para. 34, emphasis added).
« The Panel recognizes that from an ethical and medical perspective, cannabis consumption is a matter of serious social concern. CAS is not, however, a criminal court and can neither promulgate nor apply penal laws. We must decide within the context of the law of sports, and cannot invent prohibitions or sanctions where none appear .[...] It is clear that the sanctions against Rebagliati lack requisite legal foundation » (para. 26, emphasis added).
« In the present case, the Panel is in no doubt that the sanction imposed was based upon valid provisions of the FISA Rules which were then in force. Those provisions were well-known and predictable to all rowers[…]. In the circumstances, therefore, the Panel has no hesitation in finding that the sanction contained in FISA's Rules satisfied what might be called the "predictability test" ». (para. 17, emphasis added).
« 3. Any case of doping during a competition automatically leads to invalidation of the result obtained (with all its consequences, including forfeit of any medals and prizes), irrespective of any other sanction that may be applied, subject to the provisions of point 4 of this article.
4. In the event that a competitor who is a member of a team is found guilty of doping, the relevant rules of the International Federation concerned shall be applied ».
« For competitors who are members of a team, paragraph 4 refers only to paragraph 3. This means that the rules of the International Federation concerned only govern the question of any invalidation of the result obtained by the team. For everything else, the athlete in question is sanctioned individually, according to the rules of the Code, in the same way as any athlete accused of doping. If the IF concerned has not adopted the implementing provisions of the Code in this area, the events in which the doped athlete has participated are considered lost or the team is disqualified, according to the sports and the competition format. »
« in arbitration there is no stare decisis. Nevertheless, the Panel feels that CAS rulings form a valuable body of case law and can contribute to strengthen legal predictability in international sports law. Therefore, although not binding, previous CAS decisions can, and should, be taken into attentive consideration by subsequent CAS panels, in order to help developing legitimate expectations among sports bodies and athletes » (at para. 40).
« In CAS jurisprudence there is no principle of binding precedent, or stare decisis. However, a CAS Panel will obviously try, if the evidence permits, to come to the same conclusion on matters of law as a previous CAS Panel » (at para. 73).
« 15. In the 2000[IAAF] Rules there was still no specific provision for what should happen when a competitor who had been a member of a team (either a relay team or otherwise) was found guilty of doping.[…]
16. For the first time, the 2004-2005 Rules make express provision for what happens when an athlete who is a member of a relay team is found guilty of doping.
17. The 2004-2005 IAAF Rules make it clear that: (i) if an athlete (who is subsequently declared ineligible) tests positive in a relay event, the result of the relay team in which he has competed shall be annulled (Rule 39.2);[…] ».
« If an athlete is found to have committed a doping offence and this is confirmed after a hearing or the athlete waives his right to a hearing, he shall be declared ineligible. In addition, where testing was conducted in a competition, the athlete shall be disqualified from that competition and the result amended accordingly. His ineligibility shall begin from the date of suspension. Performances achieved from the date on which the sample was provided shall be annulled ». (emphasis added)
« If more than two members of a team in a Team Sport are found to have committed an anti-doping rule violation during an Event Period, the ruling body of the Event shall impose an appropriate sanction on the team (e.g., loss of points, Disqualification from a Competition or Event, or other sanction) in addition to any Consequences imposed upon the individual Athletes committing the anti-doping rule violation » (emphasis added).
« In Team Sports, if more than one team member is found to have committed an anti-doping rule violation during the Period of the Olympic Games, the team may be subject to Disqualification or other disciplinary action, as provided in the applicable rules of the relevant International Federation .
In sports which are not Team Sports but where awards are given to teams, if one or more team members have committed an anti-doping rule violation during the Period of the Olympic Games, the team may be subject to Disqualification, and/or other disciplinary action as provided in the applicable rules of the relevant International Federation » (Article 10 of the 2008 Bejing Anti-Doping Rules and Article 9 of the 2010 Vancouver Anti-Doping Rules, emphasis added).
« The rationale for requiring clarity of rules extends beyond enabling athletes in given cases to determine their conduct in such cases by reference to understandable rules. As argued by the Appellants at the hearing, clarity and predictability are required so that the entire sport community are informed of the normative system in which they live, work and compete, which requires at the very least that they be able to understand the meaning of rules and the circumstances in which those rules apply.[…] There was simply no express rule in force at the time of the Sydney Games which provided for the annulment of results obtained by a team, one of whose members later was found to have been ineligible to compete at the time. As became apparent in these proceedings, such a rule could only be said to have been produced by what the Panel in the Quigley case referred to as "an obscure process of accretion" – here, as the IAAF would have it, a process of complementation and inference ».
« R65 Disciplinary cases of an international nature ruled in appeal
R65.1 Subject to Articles R65.2 and R65.4, the proceedings shall be free.
The fees and costs of the arbitrators, calculated in accordance with the CAS fee scale, together with the costs of the CAS are borne by the CAS.
R65.2 Upon submission of the statement of appeal, the Appellant shall pay a minimum Court Office fee of Swiss francs 500.- without which the CAS shall not proceed and the appeal shall be deemed withdrawn. The CAS shall in any event keep this fee.
R65.3 The costs of the parties, witnesses, experts and interpreters shall be advanced by the parties. In the award, the Panel shall decide which party shall bear them or in what proportion the parties shall share them, taking into account the outcome of the proceedings, as well as the conduct and financial resources of the parties ».
1. The appeal filed by the Appellants Ms Andrea Anderson, Ms LaTasha Colander Clark, Ms Jearl Miles-Clark, Ms Torri Edwards, Ms Chryste Gaines, Ms Monique Hennagan and Ms Passion Richardson on 30 April 2008 is upheld.
2. The Decision of the IOC Executive Board dated 10 April 2008 is hereby set aside.
3. On the basis of the IOC and IAAF Rules in force and applicable at the time of the 2000 Sydney Olympic Games, the United States' teams that competed in the women's 4×100m and 4×400m athletics relay events at those Games shall not be disqualified; the medals and diplomas awarded to the above noted Appellants in those events shall not be returned to the IOC.
4. All other requests, motions or prayers for relief are dismissed.
5. The award is pronounced without costs, except for the Court Office fee of CHF 500.-already paid by the Appellants and which is retained by the CAS.
6. The IOC shall pay a global amount of CHF 10'000.- to the above noted Appellants as contribution towards their expenses incurred in this arbitration.
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