Module 3

MODULE 3

SPORTS AND DISCIPLINE

3.1 DISCIPLINARY CODES

A ‘good sportsmanship spirit’ is used as the greatest metaphor to encourage and inspire
enthusiastic spirit and behavior in all the industries and their people. The sports world is the
arena that revolves around the spirit of fairness, hard work, inspiration and discipline and stands
ideal to the universe of spectators and the players themselves.
It’s not just the players who are physically seen involved in the game but plethora of other
elements that constitute any sport. Namely, the standard rules of it, player discipline, coaches,
managers, board associations, helpers, expert analysis committees, medical assistants, field
managers and so on. Therefore, apparently it is the comprehensive responsibility of every
individual involved in every sport in order to ensure that their respective sports remain safe,
secure, impartial and as less risky as possible.
A critical component of maintaining quality sports culture is to set standards of acceptable
behavior which must be up held by all involved in the particular sport and participating in any
sport related activities and competitions.1
An important tool for defining and communicating acceptable standards of behavior is a
documented, Code of Conduct. Ideally, the Code of Conduct must apply to all those involved in
the sports and its activities.2
Different groups of people which should be covered by the Code of Conduct include:

Players

Coaches and team officials
Team selectors

Club committee and office holders

1Champion, W.T., 2004. Fundamentals of sports law. Thomson/West.
2Parkhouse, B.L., 1991. The management of sport: Its foundation and application. Mosby-Year Book, Inc..

Parents
Spectators
Users of social media

3.2 CODE OF CONDUCT

Having a well-documented Code of Conduct is very positive. The next significant step is to
ensure that the code is not just read and understandable by everybody, but also has their support
and conformity of their actions. A good Code of Conduct is well written in a very positive
manner, clearly defining the acceptable and desired standards of behavior. It must also highlight
and detail the consequences of behavior unacceptable under the Code of Conduct.3
Every sport has its own code of conduct, prescribing the norms of appropriate behavior for the
players on the field. Apart from merely specifying what is expected as ingredients of a good
behavior, it is more important to describe and thus formulate what shall be considered as
abusive, and unacceptable and thus prescribe the consequences.
Some examples of code of conducts for different sports are:

SPORTS CODE OF CONDUCT / FEDERATIONS
CRICKET International Cricket Council (ICC)
FOOTBALL FIFA Code of Ethics (For Football)
BASKETBALL FIBA Code of Ethics
POLO Federation of International Polo (FIP)

WATER SKIING International Waterski & Wakeboard Federation (IWWF)

TUG-OF-WAR Tug-of-War International Federation (TWIF)
SUMO International Sumo Federation (ISF)

CARROM Union Mondiale de Billard (UMB)

AMERICAN International Federation of American Football (IFAF)

3Parrish, R., 2003. Sports law and policy in the European Union. Manchester University Press.

FOOTBALL World Squash Federation (WSF)
SQUASH World Karate Federation (WKF)
KARATE World Pool-Billiard Association (WPA)
POOL International Billiards and Snooker Federation (IBSF)
SNOOKER

These are the examples of certain international codes on the disciplinary norms of the sports;
every national body has its own code of conduct for the smooth operation and conduct of
sporting activities in the country.4

The particular board/association formulates the requisite code of conduct and implements the
same with authority.

3.3 INTERNAL DISCIPLINARY PROCEDURES

3.3.1 DISCIPLINARY HEARINGS

Disciplinary Hearing are set up according to the procedure as per the respective disciplinary
bodies of the sports, known as domestic tribunals, towards the purpose of interpretation of the
rules and to discipline the players as well as the officials, if found in breach of the rules or any
code of conduct.

Unlike courts of law, they are set up by the sporting organizations, to enforce their rules and
codes of conduct.

The penalties handed out by sporting tribunals can have a very significant effect upon the
individuals. Therefore, it is extremely important that the disciplinary proceedings be conducted
fairly.5

If an individual decides to refuse to accept the decision of a tribunal, and thus decides to fight
against the penalty imposed by the tribunal, they can take recourse for the matter from the court
of law. However, the courts of law are generally reluctant to intervene in such matters, but will
only intervene upon certain exceptional cases when:

4 Supra note at 1.
5Gardiner, Simon, Simon Boyes, Urvasi Naidoo, John O'Leary, and Roger Welch. Sports law. Routledge, 2012.

The individual suffers a loss of livelihood DID YOU KNOW?
(income)
There is a flagrant and blatant breach of Dean Capobianco the Australian
natural justice. 200m champion was found positive
An association does not comply with its own for an anabolic steroid at an IAAF
rules or interprets rules incorrectly. meet in the Netherlands of May 27.
A decision is made outside the powers of the
association (Ultra Vires).

So, any individual seeking recourse in the court of law, against the decision of a tribunal, will
have to bring their case under the ambit of at least one of the above mentioned circumstances,
and thus invoke the court’s interference in the matter and get it decided in the court of law.

There is an increase in tendency of involvement of courts as the pace of professionalism is
increasing.

It has been quite apparently observed, that the courts now are being increasingly involved in such
matters as in conformity with the increase in the pace of professionalism (the ability to earn
substantial income through sport) these days.

3.3.2 DISCIPLINARY PROCEEDINGS

When a tribunal sits, and decides that an individual has breached a code of conduct or has
contravened (broken) the rules of the association, it will decide whether a penalty will be
imposed on the individual.6

The intensity of the penalties depends upon the nature of the breach or the commission of the act
being adjudged upon, apparently decided by the empowered tribunal appointed for it.

These penalties can be quite drastic, when necessary. For instance:

Exclusion (banning) of a player from a sport for a period, or even permanently.
Fining (financial penalty).
Loss of selection for a representative team.
These penalties are necessarily set as examples to motivate the participants to play within the

6Beloff, M., Kerr, T., Demetriou, M. and Beloff, R., 2012. Sports law. Bloomsbury Publishing.

ambit of fairness and thus abide by the rules of the conduct and to deter unpleasant and
transgressing behavior. Therefore, the offenders are disciplined and a fair play is secured.

3.3.2.1THE LAWS OF NATURAL JUSTICE

It is a general proposition of law that the decisions affecting the rights of citizens must be
reached only after a fair hearing. The laws relating to a fair hearing are known as the laws of
natural Justice. These laws apply to all courts and tribunals, and will also apply to 'domestic
tribunals'.7

The laws of natural justice are basic provisions to ensure fairness and protection for the 'accused',
(or the person who is alleged to have breached the norms in any kind), in following ways:

The person accused of misconduct should know the nature of the accusation made against
him.
The person should be given an opportunity to state his or her case.
The tribunal should act in good faith.
The accused must have a proper hearing.
The hearing must be conducted according to the rules of the association concerned.
Representations must be heard from both sides8.
All the evidence against the accused should be 'on the table'. (presented to him as well).
The accused must know the specific charges against him/her and the rule that has been
breached. Merely being charged with 'bringing the game into disrepute' under a particular
rule is not sufficient.
If the tribunal proceedings bring out evidence suggesting further charges, it is wise to
adjourn until the accused could consider the ramifications of such additional charges.
The accused should be present at the hearing of charges against them. However, this will
not apply where the accused has received proper notifications for the proceedings and thus
has no reason for not attending.

3.3.2.2 NOTIFICATION OF PROCEEDINGS

7Mitten, M.J. and Opie, H., 2010. Sports law: implications for the development of international, comparative, and
national law and global dispute resolution. Tul. L. Rev., 85, p.269.
8 Supra note at 1.

It is important to make sure that the person who is to appear before the disciplinary body is given
every opportunity to attend the same. So, if a person who is to appear is unable to attend the
proceedings for a good reason, and there is no urgency to determine the matter, it would be
considered wise to adjourn the matter until he or she can be present.

Failure to inform a player that they are being investigated upon is seen as a flagrant breach of the
rules of natural justice by the courts.

3.3.2.3THE RIGHT TO REPRESENTATION

Those called before a disciplinary tribunal does not necessarily have the right to be represented

by a lawyer. If the disciplinary proceedings are conducted

in a fair way by the people who have a good knowledge of DID YOU KNOW?
the sport and the rules concerned, the courts may agree
with no right to legal representation.9 Shane Warne and Mark Waugh, cricket's
highest-paid stars, were disciplined by a

If the rules of an association provide for legal or other tribunal of the Australian Cricket Board in
representation, it should of course be allowed; if it is not, a February 1995 for providing information to
breach of the rules will have occurred.10 an Indian Bookmaker.

In deciding whether legal representation should be
allowed, those who draft rules for the tribunal hearings need to strike a balance between the
legalistic complications for the consequences of when lawyers are involved and the ramifications
of the decisions when they are not.

3.4 PROCEDURE AT HEARINGS

Unless the relevant rules exclude the provision, both the sides in any proceedings should be
allowed to cross-examine (cross-question) the witnesses of each other.
The adjudicators should not use the materials unavailable to both the sides, while reaching to a
decision.

3.4.1 PROPER PENALTY

Upon concluding the occurrence of any kind of breach to the code of the association, appropriate

9Kaiser, R., 1986. Liability and law in recreation, parks, and sports. Prentice Hall.
10 Supra note at 2.

penalty as provided in the code. The range of penalties should be specified in the rules of an
association. Once a person has been found guilty of a charge, there should be an opportunity to
address the tribunal on penalty.11
When considering the appropriateness of a penalty to a particular offence, the tribunal must
consider fully the full effect of the penalty on the guilty party. A long suspension, for example,
brings a loss of income to those paid by the match.12 Therefore, the consequences of the penalty
must also be thoughtfully considered and calculated upon.

3.4.2 GOOD FAITH: UNBIASED JUDGES

It is pertinent that the adjudicators remain unbiased and have a fair approached while
adjudicating upon the matter in order to maintain the purpose and good faith. Members of a
disciplinary tribunal or committee must enter into the hearing with an open mind. It would be
improper for an adjudicator to give evidence in proceedings or to be the person who made the
accusation.13
If any such bias is suspected, it must be proved, e.g. a committee person of the tribunal told
another person that they were going to 'get even' (with the accused). Upon such suspicion
transgressing the boundaries of good faith, one should bring it before the tribunal and prove the
same to establish concrete grounds to believe so.

3.5 PRINCIPLES INVOLVED IN DECISION-MAKING

Other principles to emerging from the relevant cases are:

Only the members of the committee should be present while the decision making takes
place.
Decisions should be made based on the evidence before the Tribunal – and not upon
considering past reputation.
A tribunal should not surrender its decision-making function to another.

11 Supra note at 4.
12Anderson, J., 2010. Modern Sports Law: A textbook. Bloomsbury Publishing.
13James, M., 2013. Sports law. Palgrave Macmillan. James, M., 2013. Sports law. Palgrave Macmillan.

The Tribunal should not surrender their function to their own legal counsel who had been
called in to assist. However, the committee men of the tribunal are entitled to have legal
representation.
Some interesting examples:

Dean Capobianco, The Australian 200m champion was found positive for an anabolic
steroid - stanozolol - at an IAAF meet in the Netherlands of May 27. However, the
Athletics Australia Doping Tribunal (AADT) decided not to disqualify him because the
investigator, Bob Ellicott QC did not receive the correct and sufficient paper work from
the doping control officer who took the urine sample.
Craig Walton suffered a bike puncture in a selection trial when in the lead. He finished in
34th place and failed to gain selection for World Championships. The tribunal of the
national sporting body ruled its own selectors had erred in excluding Craig Walton from
the world championship team.
Shane Warne and Mark Waugh, two of cricket's highest-paid stars, were disciplined by a
tribunal of the Australian Cricket Board in February 1995, for providing information to an
Indian Bookmaker. There was a great deal of concern that such dealing with a bookmaker
could be evidence of "match fixing".

3.6 ON-FIELD OFFENCES IN SPORTS

There is no specific law which relates to sport and at times already established laws have to be
applied to the sporting context. Specifically, in relation to professional sports in India, the law
has being used as have the essence of contract law and criminal law in relation to the actions of
supporters and certain individuals in selling of tickets for sporting matches.14

However, it’s not just professional sports that comes under the ambit of the law, certain acts
involved with any sport, whether it be amateur or professional, will attract the application of law,
most notably, the criminal law.

3.6.1 OFFENCES AGAINST THE PERSON

The criminal offences of common assault, simple hurt and grievous hurt are governed by the

Indian Penal Code15, and on certain situations can be

applied to the conduct that occurs on the sporting PONDER UPON THIS...
field of play.
In a football match one participant
These days it is much more convenient for the courts committed a horrendous tackle on an
to find whether the conduct on the sporting field of opponent just as the opponent had
play constitutes a criminal offence, developed scored the winning goal of the game.
through case laws rather than establishing a statute to Is this an offence?
develop these offences in the sporting context.

The leading case concerning an offence against the person being committed in the sporting
context is concerned with a football match where one participant committed a horrendous tackle
on an opponent just as the opponent had scored the winning goal of the game. The tackle caused
a vast amount of damage to the claimant’s ankle.16

It is often difficult to establish whether an assault or something more serious such as hurt, or
grievous hurt has occurred on the field of play in a sport such as football as fouls and strong
tackles are part of the game often resulting in serious injury.17

14 Supra note at 1.
15 1860.
16 Supra note at 5.
17Jain, T., 2014. The Draft Prevention of Sporting Fraud Bill, 2013: A Violation of Federal Structure?. All Delhi

It was held in this case, that even if the offending conduct is a foul, it is still necessary to
determine whether the conduct could be something partially outside the expected practice or
behavior in the course of a football match.

This means that in order for an offence against the person to be established during the course of a
sporting context each case will need to be looked at on an individual basis. What first must be
established are the requirements for Common Assault or Section 319, of the Indian Penal Code
of Simple Hurt or Grievous Hurt under Section 320 of IPC. Once this has been established there
must be a further requirement to establish whether the conduct was outside what could be
expected from a normal football match.18 Thus, the act or the occurrence is required to be proven
as per the requisites provided by the penal code to establish that it amounts to the alleged crime
and thus arises the penalty as provided.

3.6.2 HOW DO WE ESTABLISH WHETHER THE CONDUCT WAS OUTSIDE REASONABLE
EXPECTATION?

Whether or not any kind of misconduct during a sporting context could be termed as ‘criminal’
depends upon the following factors:

The type of the sport DID YOU KNOW?
The level at which the sport is
participated in Indian cricket players Ajay Sharma, Azharuddin
The nature of the act and Ajay Jadeja, Manoj Prabhakar have been
The degree of force used banned for life and 5 years respectively, in
The amount and extent of the risk of
relation to match-fixing claims against them.

injury

The state of mind of the defendant.

Consequently, it is often difficult to establish that a criminal act has occurred during the course

of a sporting context. This is because, while the sporting context, there may be implied consent

to such inevitable and reasonable physical contact and towards certain minor breaches of the

rules, such as fouls, which are said to be commonplace. However, in case of a serious assault or

battery, such as a head butt or a punch, this approach will not be entertained.

High Court Reports, pp.89-94.
18 Supra note at 4.

Consent to serious injury is seen much more in sports where offences to the person are said to be
commonplace such as boxing or fencing so it may be much more difficult to prove that a
criminal act has taken place in the context of one of these sports.19

In order to establish consent, preceding decisions from the cases involving footballers can be
referred, where it was stated and held that the players participating in the sport, consent to certain
contact, even if it causes through unfortunate accident, injury which may be of a serious nature.
However, footballers do not consent to be deliberately punched or kicked with such actions
constituting an assault.

To establish whether consent has been given for an offence against the person, it is needed to
look at what would usually be consented to in that sport. For example, in boxing, a boxer would
consent to being punched and would even consent to a low blow as often as this happens by
accident during the course of a boxing match. However, what they would not consent to, would
be a head butt or biting of an ear.

3.6.3 MATCH FIXING

As per recent news, corruption and match fixing It is much more convenient for the
charges were thrown up on Indian Cricket, by courts to find whether the conduct
Abhijeet Kale, a player from Maharashtra. It was only on the sporting field of play
about few years back, when players like Ajay Jadeja, constitutes a criminal offence
Azharuddin and Manoj Prabhakar were charged for developed through case laws rather
‘match-fixing’, and thus the racket of 'match fixing' in than from a statute.
Indian cricket came to fore. Although these players

have been banned for life and 5 years respectively,

this issue is still remains in controversy, as no particular Indian law or code specifically

criminalizes Match-Fixing. Currently, the offence of match fixing is controlled through the

latches and loopholes under the Indian legal system.Strange it would sound that 'match fixing'

has not been defined in any law. The only place where one can look into the definition of match

fixing comes from CBI Report on Match Fixing allegations. While inquiring into the matter CBI

19Houlihan, B., 2004. Civil rights, doping control and the world anti-doping code. Sport in society, 7(3), pp.420-
437.

defined 'Match Fixing'20 as:

(i) Instances where an individual player or group of players received money
individually/collectively to underperform;

(ii) Instances where a player placed bets in matches in which he played that would
naturally undermine his performance;

(iii) Instances where players passed on information to a betting syndicate about team
composition, probable result, pitch condition, weather, etc.,

(iv) Instances where the groundsmen were given money to prepare a pitch in a way
which suited the betting syndicate; and

(v) Instances of current and ex-players being used by bookies to gain access to Indian and
foreign players to influence their performance for a monetary consideration.”

A primary look at this definition gives an impression of being applied only to the players. It
nowhere talks about any instance of passing of information to a betting syndicate by a coach or
selector themselves or any other person related to the cricket team. Do these persons come under
the meaning of ‘player?’21 A player is the one who plays on the ground, not all or any person
related to cricket.

Further, there might be situations where player bets on himself to egg him on to do better. This
may be done with bona fide intention to play better. Whether these situations can be covered by
this definition? Certainly not! Therefore, match fixing should be defined more appropriately like-
"Match Fixing is an instance where a player(s) or official(s), directly or indirectly do/does an
undue favour to somebody, including himself, by harming the basic spirit of the game.22

3.6.4 MATCH FIXING AND THE INDIAN PENAL CODE

It is said that match-fixing is cheating the government and the public, especially the millions of
cricket fans. Deliberate ‘Underplaying’ and concrete nexus with the bookies attract penal
liability as acts of cheating for pecuniary benefits. However, from a legal perspective, section

20Anderson, L., 2009. Writing a new code of ethics for sports physicians: principles and challenges. British journal
of sports medicine, 43(13), pp.1079-1082.
21Hill, D., 2010. A critical mass of corruption: why some football leagues have more match-fixing than others.
International Journal of Sports Marketing and Sponsorship, 11(3), pp.38-52.
22 Supra note at 15.

415 of IPC provides that, “whoever, by deceiving any person, fraudulently, or dishonestly
induces the person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to cheat.”23

An explanation to this section enunciates that- A dishonest concealment of facts is a deception

within the meaning of this Section. For interpreting this section for purposes of match fixing one

has to look into definition of word 'Dishonestly' given in section 24 of IPC which reads as –

“Whoever does anything with the intention of causing wrongful gain to one person, or wrongful

loss to another person is said to do that thing dishonestly.”24 The courts while interpreting section

24 has made it clear that just because someone suffers with a wrongful loss, it would not mean

that the act that caused it was necessarily a dishonest

act. “The origins of doping in sports go
back to the very creation of sport
It was laid down in the case of Ahmed v. State of itself such as ancient usage of
Rajasthan25, that the act becomes a 'dishonest' only substances in chariot racing…”
when there is an intention, irrespective of the result.
Now in case of match fixing whether there is an

element of 'dishonest concealment of fact' and

whether it causes a wrongful loss or wrongful gain to someone. When a player conceals the fact

of receiving money from punters or bookmakers, it can be construed as 'dishonest concealment

of fact'. The fact that they cause wrongful gain to themselves construes wrongful loss to

spectators.26

But to bring this 'dishonest concealment' under Cheating one has to prove the intention to cause
such wrongful loss to the spectators. It is believed that such wrongful loss to the spectators is a
mere consequence of this act and therefore, is only incidental and thus lacks any intention of

23Pollack, J.M., 1998. Take My Arbitrator, Please: Commissioner in Best Interests Disciplinary Authority in
Professional Sports. Fordham L. Rev., 67, p.1645.
24 Section 24, Indian Penal Code, 1860.
25Ahmed v. State of Rajasthan, 1967 Cri L.J. 1053 Raj.
26Haberfeld, M.R. and Sheehan, D., 2014. Match-fixing in International Sports. Springer.

causing wrongful loss. So, who cheated whom? Could those who illegally placed bets be deemed
to have been cheated by a fixed match? But it is not the case. Thus, we come across the finding
that Match-Fixing is in fact not covered under IPC.

3.6.5 PREVENTION OF CORRUPTION ACT, 1988 AND MATCH FIXING

According to section 13 (1) (d) (ii) of the POC Act27 “a public servant is said to commit the
offence of criminal misconduct, if he by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or pecuniary advantage.” So, to bring the act
of match fixing under the ambit for arising penal liability, one has to bring ‘cricketers’ under the
provision for defining ‘public servants’. Section 2 (c) (viii) of the Act defines public servant, as a
person who holds an office by virtue of which he is authorized or required to perform any public
duty. However, in professional cricket, the Cricketers are mere professionals governed by
independent contracts, whose job is to entertain people by playing cricket. They do nothing such
as public duty, and thus, they do not fall under the ambit of Prevention of Corruption Act, 1988.

Conclusively, the provisions of law are not stringent enough to control such offences. It is high
time now for the authorities to swing into action and legislate to tighten the strings for governing
upon such individuals and their sports as it apparently effects a very huge amount of people and
their lives. There is an alarming need to amend present laws to bring 'match fixing' under crimes.
Unless nipped in bud at the earliest, it is very likely to cause turbulence.

3.6.6 DOPING IN SPORTS

In competitive sports, doping refers to the use of banned athletic performance-enhancing drugs
by athletic competitors, where the term doping is widely used by organizations that regulate
sporting competitions. The use of drugs to enhance performance is considered unethical, and
therefore prohibited, by most international sports organizations, including the International
Olympic Committee.28

Historically speaking, the origins of doping in sports go back to the very creation of sport itself.
From ancient usage of substances in chariot racing to more recent controversies in baseball and
cycling, popular views among athletes have varied widely from country to country over the

27 The Prevention of Corruption Act, 1988.
28Thieme, D. and Hemmersbach, P. eds., 2009. Doping in sports (Vol. 195). Springer Science & Business Media.

years. The general trend among authorities and sporting organizations over the past several
decades has been to strictly regulate the use of drugs in sport. The reasons for the ban are mainly
the health risks of performance-enhancing drugs, the equality of opportunity for athletes, and the
exemplary effect of drug-free sport for the public. Anti-doping authorities state that using
performance-enhancing drugs goes against the "spirit of sport".29

Many sports organizations have banned the use of performance-enhancing drugs and have very
strict rules and penalties for people who are caught using them. The International Amateur
Athletic Federation, now the International Association of Athletics Federations, were the first
international governing body of sport to take the situation seriously. In 1928 they banned
participants from doping, but with little in the way of testing available they had to rely on the
word of the athlete that they were clean. It was not until 1966 that FIFA and Union Cycliste
Internationale (cycling) joined the IAAF in the fight against drugs, followed by the International
Olympic Committee the following year.30

Progression in pharmacology has always outstripped the ability of sports federations to
implement rigorous testing procedures but since the creation of the World Anti-Doping Agency
in 1999, it has become more effective to catch athletes who use drugs. The first tests for athletes
were at the 1966 European Championships and two years later the IOC implemented their first
drug tests at both the Summer and Winter Olympics. Anabolic steroids became prevalent during
the 1970s31 and after a method of detection was found they were added to the IOC's prohibited
substances list in 1975.

Over the years, different sporting bodies have evolved differently in the struggle against doping.
Some, such as athletics and cycling, are becoming increasingly vigilant against doping.
However, there has been criticism that sports such as football (soccer) and baseball are doing
nothing about the issue, and letting athletes implicated in doping away unpunished.32

Some commentators maintain that, as outright prevention of doping is an impossibility, all
doping should be legalized. However, most disagree with this, pointing out the claimed harmful
long-term effects of many doping agents. Opponents claim that with doping legal, all

29Lippi, G. and Guidi, G., 1999. [Doping and sports]. Minerva medica, 90(9), pp.345-357.
30Burns, C.N., 2006. Doping in sports. Nova Publishers.
31Jeschke, J., Nekola, J. and Chlumský, J., 1999. [Doping in sports]. Casopis lekaru ceskych, 138(10), pp.291-297.
32 Ibid.

competitive athletes would be compelled to use drugs, and the net effect would be a level playing
field but with widespread health consequences. Considering that anti-doping is largely
ineffective due to both testing limitations and lack of enforcement, this is not markedly different
from the situation already in existence.33

Another point of view is that doping could be legalized to some extent using a drug whitelist and
medical counseling, such that medical safety is ensured, with all usage published. Under such a
system, it is likely that athletes would attempt cheat by exceeding official limits to try to gain an
advantage; this could be considered conjecture as drug amounts do not always correlate linearly
with performance gains.34

3.7 DOPING AND THE ANTI-DOPING CODE

'Doping' refers to an athlete using prohibited drugs or methods to improve training and sporting
results. Doping, other than steroids includes an athlete's use of steroids and other forbidden
drugs, use of forbidden methods (such as blood transfusions or gene doping), and even
the refusal to take a drug test or an attempt to tamper with doping controls. Doping therefore
usually means athletes taking illegal substances to improve their performances.

There are five classes of banned drugs, the most common of which are stimulants and hormones.
There are health risks involved in taking them and they are banned by sports' governing bodies.
Substances and doping methods are banned when they meet at least two of the three following
criteria: they enhance performance, pose a threat to athlete health, or violate the spirit of sport.35
The use of stimulants and strength-building substances in sport is held to date back as far as
Ancient Greece, but it was during the 1920s that restrictions about drug use in sport were first
thought necessary. In 1928 the International Association of Athletics Federations (IAAF) -
athletics' world governing body - became the first international sports federation to ban doping.36

3.7.1 HISTORY

33 Supra note at 29. at
34Pirnay, F., 2001. [Doping in sports]. Revue medicale de Liege, 56(4), pp.265-268.
35http://www.ukad.org.uk/assets/uploads/Files/2012/06/Substances_and_methods_explained_Fact_sheet.pdf
36Doping in sport: What is it and how is it being tackled?, August 20, 2015. [Available
http://www.bbc.com/sport/athletics/33997246, last accessed on January 13, 2013, 18:10]

When humans compete against one another, either in war, in business, or in sport, the
competitors, by definition, seek to achieve an advantage over their opponent. Frequently they use
drugs and other substances to gain the upper hand. Furthermore, there have always been
individuals who in the pursuit of victory have transcended such social norms.

The use of drugs to enhance performance in sports has certainly occurred since the time of the
original Olympic Games [from 776 to 393 BC]. The origin of the word 'doping' is attributed to
the Dutch word 'doop,' which is a viscous opium juice, the drug of choice of the ancient
Greeks.37 By 1933 the word doping had become part of the English language38. While Rieser and
others continued to speak out against doping, it was not until 1967 that the International Olympic
Committee (IOC) voted to adopt a drug-testing policy banning the use of specific drugs39.

Doping in modern sports has been reported since the middle of the 19th Century, including the
death of an English cyclist in 1896 after he used ephedrine during the Paris-Bordeaux cycle race.

A dramatic increase in doping in sport was registered from the 1960s onwards and the first
doping controls were introduced at the 1976 Olympic Games in Montreal. Two weightlifters had
to return their gold medals at those Olympics after they were found to have doped.

In 1974, reliable testing methods were discovered for testosterone and anabolic steroids, which
were added to the International Olympic Committee’s list of Prohibited Substances in 1976.
This led to a number of doping-related disqualifications in the late 1970s. However, such strong
suspicions regarding state-sponsored doping practices in some countries, such as the German
Democratic Republic, persisted.

At the 1983 Pan-American Games in Caracas, Venezuela, many athletes withdrew after they had
learned of a new and more rigorous testing regime had been introduced. However, it was in 1988
Seoul Olympic Games that really brought doping in sport to the world’s attention when Canadian
sprinter, Ben Johnson was stripped of his 100m gold medal after testing positive for anabolic
steroid use. In the 1990s, there was a shift from the use of stimulants and anabolic steroids to
blood doping with EPO and human growth hormone. This period of time also saw the

37Larry D. Bowers, PhD "Athletic Drug Testing," Clinics in Sports Medicine, Apr. 1, 1998
38Prokop, 1970
39Todd & Todd, 2001

introduction of Athlete Whereabouts Programmes to track athletes’ movements to enable out-of-
competition testing.40
In 1966, the world governing bodies for cycling and football were the first to introduce doping
tests in their respective world championships, with the first Olympic testing coming in 1968, at
the Winter Games in Grenoble and Summer Games in Mexico. By the 1970s, most international
federations had introduced drug-testing. A major drug scandal at the 1998 Tour de France
underlined the need for an independent international agency to set standards in anti-doping work.
The World Anti-Doping Agency (WADA) was thereafter established in the following year.
In January 2013, the retired American cyclist Lance Armstrong admitted to doping in an
interview with Oprah Winfrey, and was stripped of his seven Tour de France wins and banned
from sport for life.

3.7.2 DRUGS MOST COMMONLY USED IN DOPING

1. The most commonly used substances in sport doping include androgenic agents
such as anabolic steroids. They allow the athletes to:
train harder,
recover more quickly; and
build more muscle.
However, they have high potential to lead to kidney damage and increased
aggression. Anabolic steroids are usually taken either in tablet form or injected
into muscles. Some can even be applied to the skin in creams or gels.

2. Then there are stimulants, which make athletes more alert and can overcome the
effects of fatigue by increasing heart-rate and blood flow. But they are addictive,
and in extreme cases, can lead to heart failure.

40http://drugfreesport.org.nz/what-we-do/about-doping-in-sport/history

3. Diuretics and masking agents are used to remove fluid from the body, which can
hide other drug use or, in sports such as boxing and horse racing, help competitors
"make the weight".

4. Narcotic analgesics and Cannabinoids are used to mask the pain caused by injury
or fatigue - but in practice can make injuries worse. They are also addictive.
Products such as morphine and oxycodone are banned but the opiate-derived
painkiller codeine is allowed.

5. Peptide hormones are substances such as EPO (erythropoietin) – which increases
bulk, strength and red blood cell count and gives athletes more energy - and HGH
(human growth hormone), which builds muscle.

6. Blood doping which is less common is where blood is removed from the body and
injected back in later to boost oxygen levels. This practice, which can lead to
kidney and heart failure, is banned.

7. Glucocorticoids mask serious injury because they are anti-inflammatories and
affect the metabolism of carbohydrates, fat and proteins, and regulate glycogen
and blood pressure levels.

8. Beta blockers, meanwhile, which may be prescribed for heart attack prevention
and high blood pressure, are banned in sports such as archery and shooting
because they keep the heart-rate low and reduce trembling in the hands.

3.7.3 WORLD ANTI-DOPING CODE

The World Anti-Doping Code (Code) is the core document that harmonizes anti-doping policies,
rules and regulations within sport organizations and among public authorities around the world.
It works in conjunction with five International Standards which aim to foster consistency among
anti-doping organizations in various areas: testing; laboratories; Therapeutic Use Exemptions
(TUEs); the List of Prohibited Substances and Methods; and the protection of privacy and
personal information.41

The five international standards are:

41https://www.wada-ama.org/en/what-we-do/the-code

1. The Prohibited List
The prohibited list outlines the substances and methods prohibited in sport. It is known as the
corner-stone of the WADA code, and also the key of harmonization. Since, 2004, WADA
annually publishes the list. The substances and methods which are not mentioned in the list are
kept under supervision. The Monitoring systems have been established to supervise the usage of
those unlisted substances.42

2. International Standard for Testing & Investigations
Testing is an extremely crucial piece of any anti-doping program. The purpose of the
International Standard for Testing & Investigations (ISTI) is to plan for effective testing and to
maintain the integrity and identity of samples, from notifying the athlete to transporting samples
for analysis.

3. International Standard for Therapeutic Use Exemptions
The purpose of the International Standard for Therapeutic Use Exemptions (ISTUE) is to
harmonize the process of granting TUEs across sports and countries. The WADA TUE process
ensures athletes can get access to important medication when appropriate while ensuring clean
athletes a level playing field.

4. International Standard for Laboratories
The purpose of the International Standard for Laboratories (ISL) is to ensure the production of
valid test results and evidentiary data and also to achieve uniform and harmonized results and
reports from all the accredited laboratories. Anti-doping and other sport organizations which are
signatories to the Code are in agreement to have all the samples analyzed at WADA accredited
laboratories.

5. International for Protection of Privacy and Personal Information

42Prohibited List, World Anti-Doping Agency website. [Available at https://www.wada-ama.org/en/what-we-
do/prohibited-list, last accessed at 13th January, 05:34 pm].

The purpose of the International Standard for the Protection of Privacy and Personal Information
(ISPPPI) is to ensure that all relevant parties involved in anti-doping in sport adhere to a set of
minimum privacy protections when collecting and using athlete personal information, such as
information relating to whereabouts, doping controls, and Therapeutic Use Exemptions.

This unified approach addresses problems that previously arose from disjointed and
uncoordinated anti-doping efforts, including, among others: a scarcity and splintering of
resources required to conduct research and testing; a lack of knowledge about specific substances
and procedures being used and to what degree; and an inconsistent approach to sanctions for
those athletes found guilty of doping.43

In 2004, the World Anti-Doping Code was implemented by sports organizations prior to
the Olympic Games in Athens, Greece. In November 2007, more than 600 sports organizations
(international sports federations, national anti-doping organizations, the International Olympic
Committee, the International Paralympic Committee, and a number of professional leagues in
various countries of the world) unanimously adopted a revised Code at the Third World
Conference on Doping in Sport, to take effect on January 1, 2009.44

The adoption of the Code has led to several significant advances in the global fight against

doping in sport and sporting industry, including the formalization of certain rules and the

clarification of stakeholder responsibilities. This new approach to anti-doping has brought in

consistency to a previously disjointed and classified system. The Code has also been

significantly instrumental in introducing the core
concept of “non-analytical” rule violations. Non- For instance:

analytical rule violations means there is no It would be an anti-doping rule violation of

positive doping evidence at hand. However, it “evading Sample collection” if it were

allows anti-doping organizations to apply established that an Athlete was deliberately

sanctions in such cases where there is no positive avoiding a Doping Control official to evade

doping sample, but where there may still be notification or Testing. A violation of "failing to

evidence that a doping violation has occurred. submit to Sample collection” may be based on

either intentional or negligent conduct of the

Athlete, while “evading” or “refusing” Sample

43https://www.wada-ama.org/en/what-we-do/the-code Issues collection contemplates intentional conduct by
44Zorea, Aharon (2014). Steroids (Health and Medical
Today). Westport, CT: Greenwood Press. pp. 77–83.
the Athlete.

(e.g. through a combination of three missed tests, or Whereabouts failures; longitudinal testing;
evidence brought forward through an investigation).

Till date, more than 660 sport organizations have accepted the World Anti-Doping Code. These
organizations include the: -

International Olympic Committee (IOC),
The International Paralympic Committee (IPC)
Olympic Sport International Federations (IFs)
All IOC-recognized Ifs
National Olympic and Paralympic Committees
National Anti-Doping Organizations

Sports and its constituents are required to undertake the three steps in order to be fully compliant
with the Code:

1. Acceptance

2. Implementation

3. Enforcement

The acceptance of the Code is when a sports organization agrees to the principles of the Code
and agrees to implement and comply with it.

Once a sport organization accepts the Code, it must then implement it on themselves. Such
implementation of the Code is the process that an anti-doping organization must go through
to amend its rules and policies, so that all the mandatory articles and principles of the Code are
necessarily included.

Finally, enforcement refers to the sport organization actually enforcing its amended rules and
policies in accordance with the Code.45

Sport organizations within the following categories have accepted the Code:

Olympic Movement

45https://www.wada-ama.org/en/what-we-do/the-code

Government-Funded Organizations
Outside the Olympic Movement

The code is not a static instrument. In order to meet the constantly changing forms of doping the
regulations have also improved to tackle the upcoming issues. The international anti-doping
community, including WADA and all of the Code-Signatories, completed a full review and
revision of the 2009 World Anti-Doping Code; and as a result, on January 1, 2015, a new World
Anti-Doping Code took effect. The 2015 Code has been designed to better the protection of the
rights of clean athletes and the integrity of the competition with increased focus on targeting the
current issues in the fight against doping, while simultaneously being stricter and though for
those who intentionally cheat, and easier for those who follow the rules and compete clean.

The most significant changes brought about by the 2015 Code include:

1. Whereabouts: Under the 2015 World Anti-Doping Code, any combination of three
whereabouts failures, which include filing failures or missed tests within a rolling 12-
month period may result in an anti-doping rule violation and lead to a loss of funding,
medals, prizes and other money, as well as losing the chance to compete.

This is a change from the previous Code in which an anti-doping rule violation
resulted from three failures in an 18-month period.

2. 60 Minute Window: Athletes in the ITP (International Testing Pool) are required to
provide a 60-minute time slot for a location they will be at and available for testing
each day of the quarter. Starting on January 1, 2015, the 2015 Code will allow the
athletes to select that 60-minute time slot to be as early as 5 a.m., giving them more
flexibility.

3. Prohibited Association: The 2015 World Anti-Doping Code recognizes the fact that
athletes who want to cheat don’t typically do it alone. To help protect athletes from
people who would use their position of power or influence to prey on them, the 2015
Code will prohibit athletes from associating with coaches, trainers, physicians, or
other athlete support personnel who are sanctioned and/or criminally convicted of
doping. Some examples of assistance include obtaining training, nutrition, or medical
advice, and/or allowing the individual to serve as an agent or representative.

4. Sanction Changes: Starting January 1, 2015, athletes may receive a 4-year ban from
competition for a first offense for the presence, use, attempted use, or possession of a
prohibited substance or prohibited method. In addition, any athlete who refuses to
participate in, evades, or tampers with the sample collection process, may also be
subject to a sanction of up to 4 years. According to research done by the World Anti-
Doping Agency, there was a strong consensus among stakeholders, and in particular,
athletes, that intentional cheaters should be ineligible for a period of four years. There
was also stakeholder consensus that more flexibility in sanctioning should be
permitted in certain circumstances where the athlete can demonstrate that he or she
was not cheating.

5. Return from Retirement: Athletes will now have to be in RTP six months prior to
making a full return from retirement. Waivers to this rule will be granted from
WADA now and not the USOC. Retired athletes who wish to return to competition
must be included in a registered testing pool and available for testing for a set period
of time before they can participate in competition. This time period is designed to
ensure that returning athletes have been subject to the same anti-doping standards as
current athletes.

6. Other Changes:

The Storage of samples for WADA-accredited laboratories has increased from 8
years to 10 years.

The Statute of Limitations for anti-doping rule violations has increased from 8
years to 10 years.

Therapeutic use exemptions must be mutually recognized by international
federations and national anti-doping organizations around the world.

3.7.4 PURPOSE AND SCOPE OF THE WORLD ANTI-DOPING AGENCY

The World Anti-Doping Agency was founded with the aim of bringing consistency to anti-
doping policies and regulations within sport organizations and governments’ right across the
world. The World Anti-Doping Agency (WADA) was established in 1999 as an international

independent agency composed and funded equally by the sport movement and governments of
the world. Its key activities include scientific research, education, development of anti-doping
capacities, and monitoring of the World Anti-Doping Code (Code) – the document harmonizing
anti-doping policies in all sports and all countries.46

3.7.4.1 SCOPE

Code Acceptance, Implementation & Compliance As the international, independent organization
responsible for the Code, WADA has the duty to monitor the three aspects of stakeholder Code
activities—from acceptance to implementation to compliance. Therefore, it facilitates and
monitors government and sport anti-doping efforts, taking necessary measures to ensure the
integrity of the Code. This includes working with governments in their ratification of the
UNESCO International Convention against Doping in Sport—the practical tool enabling
governments to align domestic policy with the Code, thus harmonizing the rules governing anti-
doping in sport. In working with the sports movement, WADA aims to ensure that sports rules
are consistent with the Code and that they are enforced as such. It helps the stakeholders fulfill
their responsibilities under the Code through a variety of means. Further, it has the duty to
review sanctions and to seek appeal to the Court of Arbitration for Sport (CAS) when decisions
in doping cases are not in compliance with the Code. Furthermore, WADA ensures that the Code
evolves regularly by engaging in extensive consultation and thorough review of the Code and its
associated International Standards, on a periodic basis.

3.7.4.2 ANTI DOPING DEVELOPMENT

To help ensure that all athletes benefit from the same antidoping protocols and protections, no
matter the nationality, the sport, or the country where tested, WADA facilitates the coordination
of Regional Anti-Doping Organizations (RADOs). The Agency brings together countries in
regions where there are no, or limited, anti-doping activities, so that they can pool human and
financial resources in developing and managing their own anti-doping organization.

46https://www.wada-ama.org/en/who-we-are

Anti-Doping Coordination (ADAMS) Pursuant to its coordination responsibilities, WADA
developed, maintains and regularly improves ADAMS (Anti-Doping Development Management
System), the Web-based database management system that assists stakeholders in complying
with the Code. Within one secure system, stakeholders can coordinate anti-doping activities,
from athletes providing whereabouts information, to anti-doping organizations ordering tests and
managing results, to laboratories reporting results.

Cooperation with Law Enforcement WADA is constantly looking at innovative strategies to fight
against doping in sport. Considering that law enforcement and government agencies possess
investigative powers to attack source and supply of illegal substances, which in many cases
uncover evidence of anti-doping rule violations, WADA has developed protocols to ensure
evidence gathering and information sharing between its two stakeholder groups (governments
and sport). WADA cooperates closely with Interpol, the world’s largest police organization, in
this area. In addition, WADA works with UNESCO and individual governments to persuade
governments to have laws in place that allow combating manufacturing, supply and possession
of doping substances on their territories.

Science & Medicine Pursuant to the Code, WADA is responsible for annually preparing and
publishing the List of Prohibited Substances and Methods, in consultation with the panels of
experts in the field as well as the Agency’s many stakeholders. The Agency also fosters scientific
research dedicated to developing new and improved detection methods for performance-
enhancing substances and methods. It is responsible for accrediting the world’s network of anti-
doping laboratories. The Agency also monitors the Therapeutic Use Exemption (TUE) process
implemented by anti-doping organizations around the world to ensure compliance with the
International Standard for TUE. In addition, it explores new models for enhanced detection such
as the Athlete Passport Program (whereby an athlete’s biological parameters are monitored,
which can reveal doping).

Education WADA leads and coordinates effective prevention programs and assists stakeholders
in building knowledge and capacity to carry out their own effective education activities.
WADA’s goal is to provide a mechanism to empower athletes and youth to make informed
decisions to protect the integrity of sport. The Agency’s Education Seminars and Workshops,
hosted in key regions of the world, in partnership with RADOs, help raise understanding about

anti-doping efforts among stakeholders and offer guidance and practical tools to initiate or
enhance doping prevention programs worldwide. WADA’s Social Science Research Program
fosters understanding of attitudinal and behavioral aspects of doping to enhance doping
prevention strategies. The Agency’s Youth Program offers guidance and material for integrating
anti-doping messages into the school curriculum. WADA’s Play True Generation Program
reaches athletes during multi-national, multi-sport youth events.

Athlete Outreach WADA’s Athlete Committee, composed of current and former elite
international athletes representing the voice of the clean athlete, provides feedback on WADA
programs and speaks out on issues that are important to clean athletes. WADA’s Athlete
Outreach Program educates athletes and their support personnel at major international and
multisport events through direct, one-on-one, interaction with anti-doping experts, answering
their questions about the dangers and consequences of doping and providing information
resources. The WADA Athlete Outreach Model empowers stakeholders to develop and
implement their own sport-specific or national awareness programs to educate their athletes
about the fight against doping in sport.

3.7.4.3 RESPONSIBILITY OF SPORTS

It is the responsibility if the sports persons as well, to maintain the sanctity of the cumulative
hard work and dedication put in by everyone in the sport, including themselves and thus keep up
the fair play.

When was the last time that an athlete in any sport who tested positive said: "I'm sorry. I
deliberately cheated. I have been cheating for (weeks, months or years). I did so because I
wanted to win and I was willing to do anything to achieve that objective." Or: "I'm sorry. I made
a mistake. I did not intend to deliberately cheat but that is what happened. I unwittingly used a
product for (weeks, months or years) that had a banned substance in it. I apologize to all of the
athletes against whom I've competed and denied them cherished wins. I should have been more
careful. It's my fault." More often than not, athletes who test positive go into denial. It's
understandable but not excusable. There must be zero tolerance for those who test positive.
Responsibility starts and ends with each athlete.

Introduced in 2004, the World Anti-Doping Code (the Code) lists in detail every prohibited
substance and method, the regulations for testing, and rules to protect athletes’ privacy. The
Code is clear that Athletes are bound to comply with the Code through membership of the
National Governing Body in their sport. Every athlete must take ultimate responsibility for every
substance that enters their body. The following are the responsibilities of athletes in relation to
doping control under the 2015 Code:

Be aware of and comply with their sports anti-doping policy (including the provision of
accurate whereabouts information)
Be available for and comply with sample collection procedures.
Remain in sight of the official at all times until the Sample Collection Procedures are
complete (once notified for sample collection)

Report to the Doping Control Station as soon as practical or within 60 minutes
Whichever is sooner after being notified that they are required to provide a sample
They control the sample until it is sealed in the sample collection equipment
The sealed sample collection kit is secure and identified
All appropriate documentation is accurate, complete and signed

Be aware of which substance are prohibited

3.7.4.4 VIOLATIONS UNDER THE WORLD ANTI DOPING CODE

In the 2015 World Anti-Doping Code there are 10 Anti-Doping Rule Violations (ADRV). They
consist of the following:

The presence of a prohibited substance or its metabolites or markers in an athlete’s
sample:
“It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her
body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers

found to be present in their Samples. Accordingly, it is not necessary that intent, Fault,
negligence or knowing use on the Athlete’s part be demonstrated in order to establish an
anti-doping rule violation.” (Article 2.1)

Use or attempted use by an athlete of a prohibited substance or a prohibited method:
“It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her
body and that no Prohibited Method is used. Accordingly, it is not necessary that intent,
Fault, negligence or knowing use on the Athlete’s part be demonstrated in order to
establish an anti doping rule violation for Use of a Prohibited Substance or a Prohibited
Method. The success or failure of the Use or Attempted Use of a Prohibited Substance or
Prohibited Method is not material. It is sufficient that the Prohibited Substance or
Prohibited Method was Used or Attempted to be Used for an anti-doping rule violation to
be committed.” (Article 2.2)

Evading, refusing, or failing to submit to sample collection:
“Evading Sample collection, or without compelling justification, refusing or failing to
submit to Sample collection after notification as authorized in these Anti-Doping Rules or
other applicable anti-doping rules.” ( Article 2.3)

Whereabouts failures:
Any combination of the three missed tests and/or filing failures within a 12-month period
by an athlete in a registered testing pool: Any combination of three missed tests and/or
filing failures, as defined in the International Standard for Testing and Investigations,
within a twelve-month period by an Athlete in a Registered Testing Pool.

Tampering or attempted tampering with any part of doping control:

“Conduct which subverts the Doping Control process, but would not otherwise be
included in the definition of Prohibited Methods. Tampering shall include, without
limitation, intentionally interfering or attempting to interfere with a Doping Control
official, providing fraudulent information to an Anti-Doping Organization or intimidating
or attempting to intimidate a potential witness.” (Article 2.5)

Possession of a prohibited substance or prohibited method:
“Possession by an Athlete In-Competition of any Prohibited Substance or any Prohibited
Method, or Possession by an Athlete Out-of-Competition of any Prohibited Substance or
any Prohibited Method which is prohibited Out-of-Competition unless the Athlete
establishes that the Possession is consistent with a Therapeutic Use Exemption (“TUE”)
granted in accordance with Article 4.4 or other acceptable justification and possession by
an Athlete Support Person In-Competition of any Prohibited Substance or any Prohibited
Method, or Possession by an Athlete Support Person Out-of-Competition of any
Prohibited Substance or any Prohibited Method which is prohibited Out-of-Competition
in connection with an Athlete, Competition or training, unless the Athlete Support Person
establishes that the Possession is consistent with a TUE granted to an Athlete in
accordance with Article 4.4 or other acceptable justification.” (Article 2.6)

“Trafficking or attempted trafficking in any prohibited substance or prohibited method.”
(Rule 2.7)

“Administration or attempted administration to any athlete in-competition of any
prohibited method or prohibited substance, or administration or attempted administration
to any athlete out-of-competition of any prohibited method or any prohibited substance
that is prohibited out-of-competition.” (Rule 2.8)

“Complicity: assisting, encouraging, aiding, abetting, conspiring, covering up or any
other type of intentional complicity involving an ADRV or any attempted ADRV:
Assisting, encouraging, aiding, abetting, conspiring, covering up or any other type of
intentional complicity involving an anti-doping rule violation, Attempted anti-doping rule
violation or violation of Article 10.12.1 by another Person.” (Rule 2.9)

“Prohibited Association: associating with a person such as a coach, doctor or physio who
has been found guilty of a criminal or disciplinary offence equivalent to a doping
violation.” ( Rule 2.10)

3.8 THERAPEUTIC USE EXEMPTION
The Therapeutic Use Exemption (TUE) process is a means by which an athlete can obtain
approval to use a prescribed prohibited substance or method for the treatment of a legitimate
medical condition.47 Athletes may have illnesses or conditions that require them to take
particular medications. If the medication an athlete is required to take to treat an illness or
condition happens to fall under the Prohibited List, a Therapeutic Use Exemption (TUE) may
give that athlete the authorization to take the needed medicine.
The purpose of the International Standard for Therapeutic Use Exemptions (ISTUE) is to ensure
that the process of granting TUEs is harmonized across sports and countries.

Article 4.1-4.3 of the International Standard for Therapeutic Use Exemptions governs the criteria
for granting such an exemption. The system is so designed as to ensure that those with a genuine
medical condition for which there is no effective alternative treatment are not unfairly penalized,
while simultaneously at the same time trying to prevent them gaining an undue advantage over
others. These exemptions are only valid for as long as the specific condition, which allows them
to use such drugs persists, although in some cases that means an athlete's entire career. Athletes

47http://ukad.org.uk/medications-and-substances/about-TUE/

must apply to their national anti-doping agency or international federation for a TUE, but they
can also be issued retrospectively subsequently. It has been reported that Lance Armstrong, for
example, once escaped a ban by obtaining a TUE for cortisone after testing positive for the drug
in 1999.

As per Article 4.1, an Athlete may be granted a TUE if (and only if) he/she can show, by a
balance of probability, that each of the following conditions is met:

a. The Prohibited Substance or Prohibited Method in question is needed to
treat an acute or chronic medical condition, such that the Athlete would
experience a significant impairment to health if the Prohibited Substance
or Prohibited Method were to be withheld.

b. The Therapeutic Use of the Prohibited Substance or Prohibited Method is
highly unlikely to produce any additional enhancement of performance
beyond what might be anticipated by a return to the Athlete’s normal state
of health following the treatment of the acute or chronic medical
condition.

c. There is no reasonable Therapeutic alternative to the Use of the Prohibited
Substance or Prohibited Method.

d. The necessity for the Use of the Prohibited Substance or Prohibited
Method is not a consequence, wholly or in part, of the prior Use (without a
TUE) of a substance or method which was prohibited at the time of such
Use.

Article 4.2 provides that, unless one of the exceptions set out in Article 4.3 applies, an Athlete
who needs to Use a Prohibited Substance or Prohibited Method for Therapeutic reasons must
obtain a TUE prior to Using or Possessing the substance or method in question.

Article 4.3 on the other hand provides that, retroactive approval to an athlete for his/her
Therapeutic Use of a Prohibited Substance or Prohibited Method (i.e., a retroactive TUE) can be
only granted if:

Emergency treatment or treatment of an acute medical condition was necessary; or

Due to other exceptional circumstances, there was insufficient time or opportunity for the
Athlete to submit, or for the TUEC to consider, an application for the TUE prior to
Sample collection; or

The applicable rules required the Athlete (see comment to Article 5.1) or permitted the
Athlete (see Code Article 4.4.5) to apply for a retroactive TUE; or

It is agreed, by WADA and by the Anti-Doping Organization to whom the application for
a retroactive TUE is or would be made, that fairness requires the grant of a retroactive
TUE.

3.9 TUE, CORRUPTION AND MISUSE

However, over the years the wider question of whether the widespread use of TUE [Therapeutic
usage exemption] is appropriate or not is one which is being increasingly debated within
international as well as regional anti-doping and sports science fraternities. Some strongly
believe that while what started out as a genuine and legitimate practice has now been corrupted
and used as a mere excuse to avoid doping charges. The debate is also about whether the TUEs
merely level the playing field or bestow an unfair advantage upon its exemptee. The questions
raised against TUE is also about whether the process of granting a TUE is rigorous enough and
whether there is any check or balance mechanism to inquire into the corruption that may be
persisting within the system of granting such approvals. Another question that arises is whether
there is process of timely review of such TUE is thoroughly being followed as many TUEs
bestow advantages on an athlete’s performance which results in the kind of unfair advantage
which is quite beyond repair. Perhaps a new fairer system needs to be incorporated to fill out the
loop holes of the current system so as to level the playing field.

3.10 DISPUTE RESOLUTION BODIES

There is no denying the fact that sports is a big industry in the world. So much so that 3 % of
worldwide GDP comes from sports. In India sport approximately amounts to 0.5% of the
Government of India expenditure. Since there are various methods designed to resolve dispute of

other goods and services of such high value, POINTER
should sports be different?
“The draft National Sports Development
The essence of quick dispute resolution in sports Bill 2011, released on the MYAS website
cannot be stressed enough. This is particular to in February 2011 has sought to set up an
sports because in sports the careers of office of Sports Ombudsman to resolve
sportspersons are short, they get paid a huge sum dispute in sports.”
of money for weekly work and the underlying
risk of injuries and form is very big. It is because
of these very facts that the question of resolution
of sports dispute becomes even more important.48

In sports, some disputes are of purely commercial contractual disputes, some are regulatory and
others can be quasi criminal. Necessarily all disputes in sports have a commercial impact, since
even a mere disciplinary proceeding against a player may lead to his ban and may have a huge
financial impact on his career, the performance of the club and the image of his sponsors. The
sports dispute resolution does not necessarily have a fixed hierarchy or method. Parties involved
in sports disputes have three ways of resolving such a dispute. First, by complaining to the
internal authorities available within the sporting federations both national and international
disputes can be resolved. Secondly, disputes can be settled by instituting a civil or criminal suit
in a court of law and thirdly through a body of alternate dispute resolution (ADR). It is debatable
which method should be chosen to resolve a sports dispute - the traditional one through courts or
the modern one through Alternate Dispute Resolution (ADR).49

If the dispute is within the rules of the game then the procedure set up by the governing body of
the game is to be followed. The governing bodies have certain in built mechanisms like a penalty
during the match or sending a player off from the field. There can also be disciplinary sanctions
imposed, after the event/game by the governing body, questioning the breach of rules by the
player. The procedure by which the governing bodies decide matters should be carefully
structured and applied due to the peculiar position of sports, where the governing body acts as a

48Manley, A., Palmer, C. and Roderick, M., 2012. Disciplinary power, the Oligopticon and Rhizomatic surveillance
in elite sports academies. Surveillance & Society, 10(3/4), p.303.
49McCutcheon, P., 1999. Sports discipline, natural justice and strict liability. Anglo-Am. L. Rev., 28, p.37.

prosecutor and the judge.50

For a long time sports dispute resolution in India lacked any sort of definite form. Though some
of the National Sports Federations (NSF) had made efforts to set up some kind of an internal
dispute resolution procedure, these bodies were in lack of the teeth and the expertise to
adjudicate on such matters effectively, besides the failure to completely dispense the issue of
bias in the decisions. With the absence of a dispute resolution mechanism at the National
Olympic Committee level (Indian Olympic Association ‘IOA’), the disputes between and/or in
the NSFs (particularly relating to elections, tenure and democratic proceedings of the NSFs)
could not be reached to final decision. The Supreme Court of India in Madhya Pradesh Triathlon
Association v. Indian Triathlon Federation had observed that the NSFs instead of fighting
amongst themselves in courts, should engage in the larger good of promoting sports in India.
Such disputes between the NSFs could be resolved through a dispute resolution process which
could be initiated by the IOA.

For a long period i.e., between 1996 and 2011 (15 years) the IOA failed to set up a sport dispute
resolution body. The Ministry of Youth Affairs and Sports (MYAS) in its draft of the National
Sports Development Bill 2011, released on the MYAS website in February 2011 has sought to
set up an office of Sports Ombudsman to resolve dispute in sports. While this Bill is yet to be
tabled in the Parliament, the IOA has sought to constitute an Indian Court of Arbitration for
Sports (comprising of 8 members) to resolve disputes pertaining to sports under the IOA.
Therefore if the Bill is passed in its current form (as on MYAS website, February 2011) a certain
structure of sports dispute resolution would develop. The first tier of dispute resolution would be
within the NSF with an appeal lying either to the IOA or the Sports Ombudsman as the case may
be.51

3.11 ARBITRATION IN SPORT

Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution
of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the

50 Supra note at 12.
51Hill, D., 2010. A critical mass of corruption: why some football leagues have more match-fixing than others.
International Journal of Sports Marketing and Sponsorship, 11(3), pp.38-52.

"arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be
bound. It is a settlement technique in which a third party reviews the case and imposes a decision
that is legally binding for both sides.52

Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral
third party) and non-binding resolution by experts. Arbitration in India is governed by the
Arbitration and Conciliation Act 1996 (“Indian Arbitration Act”), which is based on the
UNCITRAL Model Law. The Indian Arbitration Act is broadly divided into two parts. Part I
applies to arbitrations held in India, whether domestic or international, and Part II applies to
arbitrations held outside India.53 Part II, incorporates the rules related to international arbitrations
governed by the New York or Geneva Conventions. In sports, the disputes are first referred to
the federations that govern a particular sport and subsequently the international authorities that
govern the sport e.g. in hockey disputes are referred to the Indian Hockey Federation and after
that the International Hockey Federation.54

At a time when sports are becoming more professional and the stakes are becoming higher than
ever, dispute resolution takes on an increasingly important role. In many respects arbitration
offers the most suitable solutions with regards to the rapidity, diversity, incontestability, and
professionalism of the decisions rendered. With regular increase in the number of sports-related
disputes in the country, India requires an independent authority that specializes in sports-related
problems and that is authorized to pronounce binding decisions. The disputes when referred to
courts take a long time to come up with the final decision since the Indian courts are already
piled up with a number of pending cases. 55

There is a need to have an authority for sports that offers flexible, quick and inexpensive method
of resolution of disputes. With the inauguration of India’s first Arbitration Centre in Delhi in
2009, India is recognizing the necessity of arbitration for quicker disposal of cases. The
increasing use of arbitration in sport over the last decade has challenged the legal framework in

52McLaren, R.H., 2000. Court of Arbitration for Sport: An Independent Arena for the World's Sports Disputes, The.
Val. UL Rev., 35, p.379.
53 Supra note at 11.
54 Ibid.
55Kaufman, S.A., 1995. Issues in international sports arbitration. Bu int'l Lj, 13, p.527.

which arbitration disputes are addressed in many jurisdictions.56

3.12 SPORTS ARBITRATION IN INDIA

The rapid advancement in "sports law" in Europe and America has led to the notion that the
disputes that arise concerning the athletes on one part and their Sports Federations, Olympic
Councils and other sporting bodies on the other hand, are quickly and efficiently resolved with
the minimum involvement of judicial bodies, with arbitration and other forms of alternate dispute
resolutions being given enhanced preference. The dynamic development of a "Sports Law" has
led to the twin concepts of Lex-Sportiva (technical rules associated with Sporting Law, which
regulates the public aspect and includes the "specificity of Sports" within itself) and Lex-Ludica
(the "spirit of sports", of ethical sporting conduct, sportsmanship, fair play and other aspects
which privately regulates sporting conduct of athletes in tournaments).

The twin concepts were developed through precedents by international institutions such as the
Court of Arbitration for Sports ("CAS"). In fact, the term was coined by Matthieu Reeb, the
acting Secretary General of the CAS in 1986. However, prior to setting up of such institutions,
and development of a specific "sports law", the interpretation of sporting disputes was left to
Civil Courts who interpreted law as per their own interpretation of ordinary civil law. As such,
the decisions were fraught with vague enunciations due to the non-appreciation of the
"specificity of Sports." In a majority of cases, the Civil Courts usually decided in favour of the
athletes, due to the nature of arguments advanced. Three decisions given in 1980's and 1990's
would clearly illustrate the flawed decision making process that was employed and the manner in
which Civil Courts decided when confronted with Sports decisions.

The decisions were Gasser v. Stinson57, Harry Renolds and that of Katrin Krabbe. While each of
these cases highlight a different aspect connected to the aspect of doping in Sports, the ingenuity
of arguments advanced in these matters go on to show the manner in which athletes used the
Judicial process to get reliefs which would otherwise not be permitted or capable of being
exercised against sports federations.

In Sandra Gasser's case, the material issue was doping. Gasser's advocates argued on the legal

56Lei, T.A.N.G., 2009. Comparison between International Sports Arbitration and International Commercial
Arbitration [J]. Journal of Wuhan Institute of Physical Education, 11, p.011.
57 (unreported Q.B.D. June, 15, 1988).

aspect that a ban on doping amounted to restraint of trade. The Courts had no difficulty in
dismissing the argument of IAAF which was centered on arguing that Gasser, as an "amateur"
athlete, did not have any trade, and therefore, there could not be any restraint. The Courts held
that there could not be any amateurism, rather, Gasser was a sportsperson, and as a sportsperson,
any action that infringed her right to compete amounts to a restraint of trade.

In Reynolds' case, spite of the facts, the issues that arose interestingly was the absolute disregard
of IAAF for the Court process, wherein IAAF had remarked that "Courts create a lot of
hindrance in the anti-doping work. But the IAAF doesn't care the least for what the Courts say.
The Rules of IAAF are supreme and IAAF will follow their Rules.58

In Katrin Krabbe's case, the German Athletics Federation had after arriving at a finding that
Katrin Krabbe had partaken in doping, imposed a one-year ban. Not satisfied with the sentence,
the IAAF conducted its own in-house disciplinary procedure and after arriving at a positive
decision, recommended for an additional two-year sentence to run concurrently with the one-
year ban. Krabbe challenged the same as two-year ban was unlawful under the rules of IAAF.
The German Courts found favour in her submissions. Simultaneously, Krabbe preferred an
action for loss of earnings. After nearly eight years, the IAAF entered into private settlement and
resolved the matter.59

Sports Federations, concerned due to the fact that athletes were getting favorable decisions,
sought refuge in alternate dispute resolution systems such as arbitration. This trend towards
arbitration, therefore has been gaining prominence since the early 1980s. These, in turn, gave
impetus for arbitration, and more particularly, arbitration within the Sports arena at the global
stage.

Sports Arbitration as a concept did not receive international attention until the early 1980's. On
30.06.1984, due to all such and further cases, the CAS was proposed to be established with its
own particular Code, which was framed in 1981.

As things stands today, Arbitration holds sway in almost all sports related disputes. Within this
sphere, the CAS holds a unique place as the "Supreme Sports Resolution Authority". Various

58David McArdle ‘Reflections on the Harry Renolds Litigation’, Entertainment Law, Vol 2, No 2, Summer 2003
59Bhatia, V.K., Candlin, C.N. and Engberg, J. eds., 2008. Legal discourse across cultures and systems (Vol. 1).
Hong Kong University Press.

domestic arbitration tribunals have also been set up to in various local jurisdictions to deal with
Sports Disputes.

Various other jurisdictions have put in place specialized institutions to deal with arbitration in
Sports. One of such institutions is the Asian Council for Arbitration in Sports ("ACAS") with has
been established in China. The Asian Council for Arbitration in Sports has been set up in
collaboration with the Olympic Council of Asia and is meant as a means to diversify the
jurisdiction of CAS. The involvement of the Olympic Councils in the dispute settlement process
would only mean that expert bodies and individuals having specialty in resolving "Sports
Disputes" are appointed to such Panels as may be set up at the regional level, apart from CAS,
and which would act as a "buffer system" and facilitate a diversified dispute resolution system.

As things stand today, the CAS is the major institution involved in dispute settlement with
Centres at Lausanne, New York, Sydney and a recently opened centre at Abu Dhabi. This would
only mean that there would be an immense advancement in resolution of sporting disputes which
are resolved according rules and procedures of CAS.

Within the Indian sports jurisprudence, a positive step was taken in 2011 with the Indian
Olympic Association being directed by the International Olympic Committee to establish an
Indian Court of Arbitration for Sports ("ICAS") which was to be composed of eight Panellists to
adjudicate disputes arising in the sporting arena. The Panellists were retired judges of the
Supreme Court of India and various High Courts. The Panel comprises of HMJ (Retd.) Dr. A.R.
Lakshmanan, who is the Chairperson of the ICAS along with Mr. M.R. Culla, Retired Justices
R.S. Sodhi, B.A. Khan, Usha Mehra, Lokeshwar Prasad and S.N. Sapra.

From a bare perusal of all newspaper information and other information that is available, it is not
clear whether the aforesaid panel is functional, and furthermore, there is no clarity on whether
any hearings have been conducted, whether specific Rules and Regulations have been framed
and whether there are any particular decisions that have been rendered by such a panel within the
last 3-4 years. It is believed that since 2011, when news first circulated that such a panel was to
be constituted, no effective steps have been taken, since, to establish this panel.

In fact, if such a panel was functioning, then a recent dispute involving doping of an Indian
Swimmer would have been referred to such a Panel. In reality, the said dispute has been referred
to the Alternative Hearing Centre ("AHC") of the CAS at Abu Dhabi, where the Sole Arbitrator

has in a detailed order dated 08.04.2015 held against the Indian swimmer. It would not be out of

place to state that this is the first case that has been referred to the Abu Dhabi Centre, which

merely goes on to show that resolution of sports is

moving towards a more specialised form.

As a concept, the ICAS was a step towards POINTER

developing a niche area of law and efficiently The CAS is governed by its own Statutes
resolving disputes at the earliest possible instance and Rules of Procedure namely the Statutes
without recourse to a long winded litigation of the Bodies Working for the Settlement of

Sports Related Disputes, Code of Sports

process. However, steps had to be taken to bring Related Arbitration and Mediation Rules.
such institutions into fruition. As the CAS has promoted the AHC at Abu Dhabi, which has been

set up in association with the Judicial Department in Abu Dhabi, similar steps are required to be

taken to promote the Indian Court for Arbitration in Sports. It is believed that if proper steps had

been taken to promote and further the cause of sports arbitration within India, then such a

specialized Tribunal would go a long way in effectively and efficiently resolving sports disputes.

In all sports disputes, it is important to realize that the career-span of most athletes is extremely

limited. Achievement of sporting excellence holds primacy of place for every athlete. Getting

entangled in the long winded procedural court process would not serve any useful purpose for

the athletes. Therefore, time bound alternate dispute resolution is one of the key mechanisms

whereby sports disputes can be effectively resolved.60

Another important aspect which cannot be ignored is that the "Sports Management" in India is
strangely deficient, and has no clue about the working of the CAS, the particular Rules and
Regulations or what is the manner in which procedural aspects such as challenging of decisions
needs to be resolved. A recent case in point which shows this aspect in stark contrast is that of
Ms. Sarita Devi, where in a matter pending before the Hon'ble High Court of Delhi at New
Delhi, the Counsel for Boxing India simply gave a statement that, in regard to the one-year ban
that was imposed by the International Boxing Association, there is no provision of appeal before
CAS.61

It was later shown that CAS Rules specifically permit such an appeal within a defined time-limit.

60Straubel, M., 2004. Enhancing the performance of the doping court: how the court of arbitration for sport can do
its job better. Loy. U. Chi. LJ, 36, p.1203.
61 Ibid.

The fact that the counsel was prompted to take such a course was occasioned due to in part,
incorrect understanding of the particular Rules62 and a clear non-appreciation of the CAS Rules.
This clearly shows that there is a trenchant lack of awareness within the sporting fraternity as the
concerned sports administrators within various Federations and even within the Ministry are
completely nonchalant and unconcerned about gaining knowledge of latest developments in
sports.

This leaves the athletes competing under the aegis of such federations in a lurch, as they are
completely dependent on such federations. This aspect was distinctly seen in the case of Ms.
Sarita Devi.

Sports Arbitration is still a relatively new concept The dynamic development of a
under Indian jurisprudence. A suggestion can be "Sports Law" has led to the twin
advanced that "Sports Arbitration" as a class can be concepts of Lex-Sportiva and Lex-
introduced into the Arbitration and Conciliation Act, Ludica.
1996 giving it a certain sense of Parliamentary

legitimacy or be incorporated through the means of

separate model conduct rules that federations can take recourse. If such an action cannot be given

effect to, there are always other Alternate Dispute Resolution methods such as Mediation and

Conciliation that could be applied from the existing legal framework to resolve such an impasse.

Examples which can be culled out from existing laws include Section 89 of the Civil Procedure

Code, 1908 and Part III of the Arbitration and Conciliation Act, 1996.63

Having such a Tribunal such as ICAS which can efficiently deal with and resolve the issues of
sportspersons would go a long way in helping genuine disputes being resolved at the earliest.

It can only be imagined that had there been an effective Alternative Dispute Resolution process
in place, BCCI and IPL related issues, which have occupied national attention could have been
resolved at the earliest without causing undue sensationalism and scandal.

A hope can only be expressed that ICAS commences to exercise its jurisdiction in respect of
sports disputes and to function in an efficient manner. India is a country where sports law is

62 Supra note 2.
63Forster, J., 2006. Global sports organisations and their governance. Corporate Governance: The international
journal of business in society, 6(1), pp.72-83.

severely lagging and steps are required to be taken in respect of such disputes so that both
athletes as well as Sports Federations and other ancillary bodies attached with sports in India can
move forward towards realising their sports related goals rather than ponder over how to settle
scores against or with each other.64

64Reilly, L., 2012. Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in
International Sports Disputes, An. J. Disp. Resol., p.63.

3.13 COURT OF ARBITRATION FOR SPORT

Arbitration exists in international sport through the Court of Arbitration for Sport. All

international disputes relating to sports are referred to it. The most prominent sports dispute

resolution forum is the Court of Arbitration for

Sport (CAS) which has its headquarters in DID YOU KNOW?

Lausanne, Switzerland. The CAS was created The Becky Scott ruling was the first time in
by the International Olympic Committee (IOC) Olympic history that a gold medal had been
in 1983. It also has two permanent outposts in awarded to an athlete as a result of a CAS
Sydney, Australia and New York, USA. It has a ruling
minimum of 150 arbitrators from 37 countries,

who are specialists in arbitrations and sports law. They are appointed by the International

Council of Arbitration for Sports (ICAS) for a four year renewable term and need to sign a ‘letter

of independence’. The CAS also has a permanent President who is also the President of ICAS.65

The body was originally conceived by International Olympic Committee (IOC) President Juan
Antonio Samaranch to deal with disputes arising during the Olympics. It was established as part
of the IOC in 1984. However in a case decided by the CAS, an appealed was made to the Federal
Supreme Court of Switzerland, challenging CAS impartiality. The Swiss court ruled that the
CAS was a true court of arbitration, but drew attention to the numerous links which existed
between the CAS and the IOC. The biggest change resulting from this reform was the creation of
an "International Council of Arbitration for Sport" (ICAS) to look after the running and
financing of the CAS, thereby taking the place of the IOC. CAS is placed under the
administrative and financial authority of the International Council of Arbitration for Sport
(ICAS).66

Almost all international sports federations or associations which are part of the Olympic Games
require sports disputes arising between themselves and sportspersons to be decided by the CAS.
Sporting federations whose sports are not part of the Olympics such as Formula I where the FIA
which is the governing body of motor sports has its own dispute settlement tribunal. Even some
sports which are included in the Olympics have their tribunals like football where its governing

65Greenberg, M.J. and Gray, J.T., 1998. Sports law practice (Vol. 1). Lexis Law Publishing (Va).
66Kaufmann-Kohler, G., 2001. Arbitration at the Olympics: Issues of fast-track dispute resolution and sports law.

body FIFA has its own tribunal. For example, in 1993, a claim of bringing Formula I into
disrepute was brought against former FI champion Alain Prost and the Williams Renault Team.
The matter was however, satisfactorily resolved by the FIA resulting in Prost escaping a possible
ban from competing in the remaining FI races of that particular season.67

DID YOU KNOW? A dispute may be submitted to the CAS only if
there is an arbitration agreement between the
The Becky Scott ruling was the first time in parties which specifies recourse to the CAS.
Olympic history that a gold medal had been The language for the CAS is either French or
awarded to an athlete as a result of a CAS English. In principle, two types of dispute may
ruling. be submitted to the CAS:

1. Those of a commercial nature, and

2. Those of a disciplinary nature.

3.13.1 COMMERCIAL NATURE

The first category essentially involves disputes relating to the execution of contracts, such as
those relating to sponsorship, the sale of television rights, the staging of sports events, player
transfers and relations between players or coaches and clubs and/or agents (employment
contracts and agency contracts). Disputes relating to civil liability issues also come under this
category (e.g. an accident to an athlete during a sports competition). These so-called commercial
disputes are handled by the CAS acting as a court of sole instance.68

3.13.2 DISCIPLINARY NATURE

Disciplinary cases represent the second group of disputes submitted to the CAS, of which a large
number are doping-related. In addition to doping cases, the CAS is called upon to rule on various
disciplinary cases (violence on the field of play, abuse of a referee). Such disciplinary cases are
generally dealt with in the first instance by the competent sports authorities, and subsequently

67Panagiotopoulos, D., 1999. Court of Arbitration for Sports. Vill. Sports & Ent. LJ, 6, p.49.
68Nafziger, J.A., 2000. Arbitration of rights and obligations in the international sports arena. Val. UL Rev., 35,
p.357.

become the subject of an appeal to the CAS, which then acts as a court of last instance. 69

3.14 LAWS GOVERNING CAS

The CAS is governed by its own Statutes and Rules of Procedure namely the Statutes of the
Bodies Working for the Settlement of Sports Related Disputes, Code of Sports Related
Arbitration and Mediation Rules. The CAS acquires its jurisdiction in a particular case only
through the mutual consent of the parties involved.
Currently, all Olympic International Federations and POINT OF INFORMATION
many National Olympic Committees have recognised CAS has a minimum of 150 arbitrators
the jurisdiction of the CAS and included in their statutes from 37 countries, who are specialists
an arbitration clause referring disputes to it. The CAS in arbitrations and sports law.
hears approximately 200 cases per year. While it was
the international response to the rise in the use of performance-enhancing drugs and the resulting
doping cases that fueled the creation of the CAS, the Court is called upon to assist in a wide
range of sport conflicts, including sponsorship disputes, the eligibility of a particular athlete in
accordance with a sport's constitution, as well as the resolution of disagreements concerning
competition results. The determination of issues arising in doping cases remains a significant
portion of the CAS caseload.70

3.15 CAS AND MEDIATION

In addition to arbitration CAS also offers mediation services to any requesting parties of a sports
dispute. Unlike arbitration, the mediation process is not binding—the mediator will provide
recommendations, with solutions suggested, but these are not imposed as a result as in the case
of arbitration. Mediations are designed to permit the adverse parties an opportunity to air their
grievances in an atmosphere aimed at conciliation of the dispute.

3.16 ADVANTAGES FOR REFERRING CASES TO CAS

69 Ibid.
70Shuli①, G.U.O., 2002. On the Sport's Arbitration System of International Court of Arbitration for Sports
[J]. Sports & Science, 6, p.009.

Expertise in sports-related disciplines (there are more than 300 arbitrators from 87
countries qualified to hear CAS disputes) whereas a typical civil judge will not likely
possess such sports-specific knowledge.
Its arbitrators are all high-level jurists and it is generally held in high regard in the
international sports community.
Procedure is flexible and informal.
Expeditious proceeding as cases are heard and determined within a few months from the
date of reference. During the Olympics, awards are required to be made within 24 hours.
Lower legal cost to the participants
Also provides mediation services
CAS is a private procedure and therefore is conducted without the public or media
interference. The arbitrators and CAS staff are obligated not to disclose any information
connected with the dispute.

3.17 IMPORTANT CAS RULINGS

In 2003, Canadian cross country skier Becky Scott successfully appealed to the CAS with
respect to her claim that she be awarded the 2002 Olympic gold medal in the 5-km pursuit
event. Russian skiers Olga Danilova and Larissa Lazutina finished first and second
respectively in the competition, with Scott in third place, and each athlete passed their
post-event doping test. Danilova and Lazutina each failed a subsequent doping test
administered in relation to another Olympic cross-country event, when the presence of a
prohibited blood doping agent, darbepoetin, was detected in each skier's sample. Scott
appealed her 5-km race result on the basis that both Russian skiers were engaged in
ongoing doping practices. The Scott ruling was the first time in Olympic history that a
gold medal had been awarded to an athlete as a result of a CAS ruling.71
In 2005, the CAS arbitration panel ruled that American sprinter Tim Montgomery be
banned from international competition for two years as a result of doping, in spite of the
fact that Montgomery had never failed a doping test. The CAS ruled that it could find a
doping violation on the basis of the third party evidence called against Montgomery, most

71Wild, A. ed., 2011. CAS and football: landmark cases. Springer Science & Business Media.

of which connected Montgomery to the Bay Area Laboratory Cooperative (BALCO)
athlete steroid scandal that had arisen in the United States in 2003.72
In February 2010 Five-time Olympic speed skating champion Claudia Pechstein lost her
appeal against a two-year ban for blood doping. CAS dismissed the German’s appeal
against a ban imposed by the International Skating Union.73
Setting aside proceedings against CAS arbitral awards may only be filed with the Swiss Supreme
Court due to the seat of CAS tribunals being in Lausanne.

3.18 SUSPENSIONS AND APPEALS

3.18.1 SUSPENSION

Suspension is a punishment in sport where players are banned from playing a certain number of
future games. These suspensions may be issued for severe infractions of the rules of play (such
as personal fouls), excessive technical, or flagrant fouls for the duration of a season, fights during
the course of the game in which the player was a part of the wrongdoing, or misconduct off the
field (such as illegal or banned substance use).74

Generally, an athlete who is suspended must forfeit In Football, the showing of red
his pay during the course of the suspension, and card to a player generally results in
depending on the team's or league's rules, may not be one or more match suspension for
permitted to don his uniform or be present with the the player.
team during the course of play, which often includes

attending games in the stands as a typical spectator

would. Every sports has its different rule for suspension which is dealt with as per the rules of

that particular sports.

3.18.2 APPEALS

72 Ibid.
73Haberfeld, M.R. and Sheehan, D., 2014. Match-fixing in International Sports. Springer.
74Nafziger, J.A., 1988. International sports law. International sports law.

In law, an appeal is the process in which cases are reviewed, where parties request a formal
change to an official decision. Appeals function both as a process for error correction as well as a
process of clarifying and interpreting law.75 Every sport has its own disciplinary code of
conduct/ethics which prescribe the mode and appellant authority to whom the appeal is made
upon suspension or any other action taken against the player/coach/team.

3.18.3 APPEAL TO COURT OF ARBITRATION OF SPORTS
According to Articles S12, S20, R27 and R47 of the Code, the Appeals Arbitration Procedure is
open for the appeal against every decision rendered by a federation or club and not limited to
disciplinary matters, especially doping cases. In addition, Article R57 empowers the CAS Panels
not only to annul a certain decision, but also to replace a decision by a decision by a decision of
the arbitrators, or to refer the case back to the issuing body.76
Moreover, Article R58 authorizes the Panel to apply the ‘rule of law’ it deems most appropriate
for the case. Thus the Panels may deviate from the laws of the country in which the federation is
domiciled and reach a decision on the basis of laws of another country or other rules of law, such
as general principles of law.77

3.18.4 CHALLENGING DECISIONS
As per R34, an arbitrator may be challenged if the circumstances give rise to legitimate doubts
over her/his independence or over her/his impartiality. The challenge shall be brought within
seven days after the ground for the challenge has become known.78

75Weiler, P.C. and Roberts, G.R., 1993. Sports and the Law. Text, Cases, Problems, 3.
76 Ibid.
77 Supra note at 45.
78 Supra note at 32.

Challenges shall be determined by the ICAS Board, The CAS was created by the
which has the discretion to refer a case to ICAS. The International Olympic Committee
challenge of an arbitrator shall be lodged by the party (IOC) in 1983.
raising it, in the form of a petition setting forth the facts

giving rise to the challenge, which shall be sent to the

CAS Court Office. The ICAS Board or ICAS shall rule

on the challenge after the other party (or parties), the challenged arbitrator and the other

arbitrators, if any, have been invited to submit written comments.79 Such comments shall be

communicated by the CAS Court Office to the parties and to the other arbitrators, if any. The

ICAS Board or ICAS shall give brief reasons for its decision and may decide to publish it.

3.19 INTERNATIONAL COUNCIL OF ARBITRATION FOR SPORT (ICAS)

The purpose of ICAS is to facilitate the resolution of sports-related disputes through arbitration
or mediation and to safeguard the independence of CAS and the rights of the parties. It is also
responsible for the administration and financing of CAS.80

ICAS is composed of twenty members, experienced jurists appointed in the following manner:

Four members are appointed by the International Federations (ifs),

viz. Three by the Association of Summer Olympic ifs (ASOIF) The CAS hears
and one by the Association of the Winter Olympic ifs (AIOWF), approximately 200
chosen from within or outside their membership; cases per year.

Four members are appointed by the Association of the National

Olympic Committees (ANOC), chosen from within or outside its

membership;

Four members are appointed by the International Olympic Committee (IOC), chosen from

within or outside its membership;

Four members are appointed by the twelve members of ICAS listed above, after

appropriate consultation with a view to safeguarding the interests of the athletes;

79Panagiotopoulos, D., 1999. Court of Arbitration for Sports. Vill. Sports & Ent. LJ, 6, p.49.
80 Ibid.

Four members are appointed by the sixteen members of ICAS listed above, chosen from
among personalities independent of the bodies designating the other members of the
ICAS.
ICAS exercises its functions itself, or through its Board, consisting of the President, the two
Vice-Presidents of the ICAS, the President of the Ordinary Arbitration Division and the
President of the CAS Appeals Arbitration Division.81

81 Supra note at 49.