Case Against Howard Jacobs’ Projected Victory
James D. and Seungmin P.
Official Website of TAS / CAS [ Go ]
Park Tae Hwan, a 26 year old South Korean professional and uptil-recently-most-loved celebrity swimmer, has partnered with Defence Attorney Howard Jacobs in his battle against the Korean Olympics Committee (KOC) for Park’s position in the Korean National Team at the 2016 Rio Olympics. Howard is a renowned lawyer in the field of Sports Arbitration, having led several landmark cases at the Tribunal Arbitral du Sport / Court of Arbitration for Sport (TAS/CAS) to rule favorably towards professional athletes whom have been convicted of doping at their Hearings.
In 2014, when Park was notified by Fédération Internationale de Natation / International Swimming Federation (FINA) of his positive test result for testosterone (Nebido) in violation of World Anti-doping Agency (WADA)’s code (WADC) and was summoned to a hearing, it was Howard who led the still controversial-to-this-day 18 months probation verdict for Park. Mind you that “under the WADC, the standard penalty for an athlete’s first doping offense is a two year suspension (Gandert, 62A).” In 2015, this was extended to a max of four years. No question all medals (one silver and five bronze) acquired during the Incheon Asian Games after the test were confiscated. More importantly, other swimmers whom have participated in relay tournaments with Park have also been denied their medals. The Korean people lost a hero and the Nation lost face.
In 2016, despite the fact that Park’s probation period by WADA (Sep 2014 – Mar 2016) has elapsed, a Korean Olympic Committee (KOC) rule on eligibility preventing players convicted of and suspended for doping from joining the South Korean National Representative Team at the Olympics for a three year period beginning at the end of the WADC suspension stands in the way of Park from competing in Rio.
Howard – in defence of Park – claims that such action by KOC is an illegal sanction and an unfair discrimination. Park has brought the case against KOC at the TAS/CAS to settle this matter in April. All entries of National Representatives must be turned in by July.
Here we shall examine the legal argumentation that has led many scholars to believe that Howard’s Case for Park will most likely turn out to be victorious at TAS/CAS. Then, we shall argue against them, attempting to provide legal grounds for the claim that Park must not be allowed to participate in the 2016 Rio Olympics. (Issues of individual morality and political implications are NOT a matter of discussion)
Official Website of Howard Jacobs : [ Go ]
Let us examine first what Howard has to say about Park’s situation in terms of the law.
Case of Park : KOC Rule is illegal and must be found invalid and unenforceable.
- KOC Rule is NOT an “Eligibility Criterion”, but a “Sanction” in violation of WADC.
- KOC must comply to IOC, and IOC, in turn, to WADA.
- CAS case precedents support this line of argumentation.
- KOC Rule – as applied – is a violation of Double Jeopardy Principle.
- KOC Rule – as applied – is a disproportionate and Unfair Punishment.
- KOC Rule : Article 5 paragraph 6 of Selection Rules for Members of National Team of KOC
- CAS Jurisdiction : Article 15.4.1 of WADC, IOC Statutes, R27 of the CAS Code
(1) CAS has jurisdiction to rule on this Dispute between Park and KOC.
Ratified by IOC statutes in 1983, “TAS / CAS serves as the supreme court of the Olympic sports world and will hear any case submitted to it that is at least indirectly related to sport (Gandert, 60A).” Article 15.4.1 of WADC states that “all code signatories are required to recognize the panel’s decision. IOC is a signatory of WADC. CAS does not require both party consent to rule on a sport related matter as long as the piece of law binds both parties.
On 26 April 2016, Park applied for an arbitration process at the CAS regarding whether KOC Rule was in compliance with the WADC. On 17 May 2016, KOC delivered their position on the issue to the CAS stating that “there will be no amendments to the Rule made for the benefit of certain individual(s),” restating its original position. However, whether CAS Ruling is binding upon the two parties (both have never consented to it) is a wholly different matter. William Sternheimer, Deputy Secretary General of the CAS stated, “We don’t know whether the losing party will comply with the rulings (Yoo J.H., YNA)” and we can’t enforce it.
Upon the point when Park revokes his request to delay CAS panel proceedings, CAS will listen to both sides once more and rule on the issue through a hearing (Yoo J.H., Ibid). Pursuant to Article 3.2.4 of WADC, CAS may draw an adverse inference against KOC should they refuse to participate in the hearing. In any case, Park will be able to receive a decision on this issue.
- Article 23.3.2 of WADA Code (Prohibition against Substantive Changes to the Code) and Appendix 1 (Definition of Ineligibility)
- s.10.2 of WADA Code (Sanctions for 1st Violation)
- s20.1.1 of WADA Code (IOC Implementation of Code)
- Olympic Charter : “the NOCs must ensure that the entries proposed by the national federations comply in all respects with the provisions of the Olympic Charter”
- “the adopting and implementing the WADC is one of the roles of NOCs”
- Article 44 & 45 of the Olympic Charter
(2) USOC v. IOC, CAS 2011/0/2422 (Ct. Arb. Sport Oct. 4. 2011) can be applied to find the KOC Rule as not in compliance with the WADC and Olympic Charter.
In 2008, the IOC introduced the Osaka Rule (or Rule #45) which prohibits any athlete who receives a doping suspension of greater than six months from participating in the next Olympic Games for the athlete’s sport (Gandert, 69A). In April 2011, the IOC and United States Olympic Committee (USOC) “agreed to have CAS determine the Osaka Rule’s validity (Gandert, 73A).” Here, the CAS panel “determined that the Osaka Rule becomes disciplinary once it prevents an athlete from participating in the Olympics, and thus, is classified as a sanction instead of an eligibility standard (Gandert, 74A).” Panel found that the Osaka Rule was inconsistent with the WADC. Pursuant to Article 23.3.2, WADC prevents signatories from making substantive changes to WADC penalties. IOC is a signatory to the WADC and the Osaka Rule was found to be a substantive change. Prof. Gandert concludes that “the USOC v. IOC panel provided precedent for finding that any rule that provides a doping penalty greater than what the WADC has prescribed is out of compliance with the code (75A).” IOC eventually discards the Osaka Rule and notifies each NOCs to not apply the above. “Based on the CAS decision of October 4, 2011 that advised the IOC that its Rule 45 (Osaka Rule) was non-compliant with WADC,” CAS will use the same extension of logic and analysis to reach the conclusion that the KOC Rule is also non-compliant (Gandert, Ibid). Like the Osaka Rule, the KOC Rule is a “signatory organization-imposed-sanction that is more severe than that prescribed by the code” and will be found invalid and unenforceable. Therefore, if the USOC v. IOC case is to be accepted as the controlling case, Park will prevail.
(3) Other CAS cases also suggest that the KOC Rule should be categorized as a “disciplinary rule” than an “eligibility rule” which is in violation of WADC.
- “The panel for Advisory Opinion IAAF determined the European Athletics Association’s (EAA) rules prohibiting athletes who have been suspended for at least two years from competing in the European Athletics Championships constituted a penalty and that the rule brought the EAA out of compliance with the WADC (Gandert, 70A).”
- In Sport Lisboa e Benfica Futebol SAD v. UEFA & FC Porto Futebol SAD, “CAS found a disciplinary element in rules prohibiting clubs from participating in the Champion’s League if they went against UEFA’s values.”
- Similarly, in RFEC & ALejandro Valverde v. UCI, CAS panel stated that, “generally, eligibility rules do not penalize an athlete’s undesirable behavior (Gandert, 70A).”
In 2012, BOA (British Olympic Association) Bylaw 25 which rules a lifetime ban on doping offenders was found invalid and unenforceable due to its violation of WADC by CAS in BOA v. WADA. The fact that BOA Bylaw 25 allowed for an appeals process for minor offence players was found irrelevant. Following the 2011 Advisory Opinion that due to the similarities between the Osaka Rule of IOC and Bylaw 25, the Bylaw is not compatible with the WADC, BOA and WADA entered into arbitration at CAS and as a result of the above ruling, Dwain Chambers and other British athletes with doping offenses became eligible to participate in the 2012 London Olympics.
Again and again, CAS re-affirmed the line of precedents “finding that rules penalizing undesirable behavior constitute disciplinary sanctions instead of eligibility standards (Gandert, 75A).”
- Ne bis in idem : Double Jeopardy
(4) KOC Rule – as applied – is in violation of the Principle Ne bis in idem (Double Jeopardy).
Since the KOC has incorporated WADC into its rules, as has IOC, the KOC Rule and WADC are in effect a “single set of Rules.” KOC Rule – as applied – will mean that Park will be punished for the same fact (doping) under a single regime (set of Rule) twice and such is a violation of the Principle.
American Arbitration Association (AAA) panel in USADA v. Meritt “established that the 2002 CAS Award in Prusis & the Latvian Olympic Committee (LOC) v. IOC provided precedent that preventing an athlete from entering an event based upon a suspension that he or she has already completed constitutes double jeopardy (Gandert, 78A).”
- Proportionality Doctrine
(5) KOC Rule – as applied – is in violation of the Proportionality Doctrine
KOC Rule or any NOC rule for that matter banning its Nationals from participating in the Olympics in addition to the WADC suspension will compose a disproportionate punishment. Application of such Rule will bring about drastically different results for players whom have been found in violation of the same act or fact. This is due to the fact that the entire period of suspension for athletes subject to the KOC Rule will suffer substantially more.
(6) CAS Award is binding for KOC.
“The International Olympic Committee (IOC) is at the top of the Olympic movement. Below the IOC [is] … the National Olympic Committees (NOC)s (Gandert, 55A)” which include the KOC. “NOCs manage the Olympic teams of their country … [and] are required to abide by the rules of the IOC in order to be recognized. (Gandert, Ibid).” IOC is a signatory to the WADC. Also as a signatory to the WADC, the KOC is required to comply with the WADC.
Due to the 2011 CAS Award in USOC v. IOC, Danish Olympic Committee (DOC) ended its ban on athletes with past doping suspensions which was established in 2004 (Gandert, 75A).
KOC in the past has complied to CAS Awards such as in Yang, Tae Young v. International Gymnastics Federation (FIG) and Kim Dong Sung v. International Skating Union.
In short, Howard and Park were well-prepared to win this game long before it ever even began. This is why many scholars project Howard and Park’s victory at CAS.
HOWEVER, we would like to believe that it is not over for KOC. There still are some questions that have not been addressed properly by CAS in the past. So, we have prepared a defence case for KOC.
- Suggested Counter-Strategy for KOC by James and Seungmin
- An Amendment to the Olympics Constitution which is in violation of the spirit of Olympics is null and void
- An Amendment to the Olympics Constitution forfeiting each state’s sovereign right to select representatives is also null and void
- KOC Rule on Park does not violate Proportionality
- Setting Eligibility Criterion for National Representative Teams is within the right of National Olympic Committee (NOC)
- KOC Rule does not constitute Double Jeopardy
Argumentation that has already been rejected by CAS is highly unlikely to bring about a different solution. The following are new possible perspectives that may be raised.
(1) IOC alone holds the right to decide whom to allow or disallow in the Olympic Games.
In 2004, IOC amended the Olympic Charter in order to give itself the “right to deny entry to any athlete for any reason (Gandert, 70A).” In contrast to the 2002 CAS Award in Prusis & the Latvian Olympic Committee (LOC) v. IOC, eligibility and selection to compete as a National Representative Team at an private competition (Olympic Games) should NOT be understood as a “reasonably expected right of a professional athlete.” The power of decision on eligibility belongs exclusively to IOC, and in extension to the NOC.
However, an argument can be made that the WADA Code is de facto violating the IOC’s exclusive right to determine eligibility of athletes in participating in the Olympics. Through this logic, KOC may attempt to dispute the legality of Article 23.2.2 of the WADA Code which was found to held ineligibility rules as a prohibited “sanction.”
The focus of the KOC rule resides not in punishing athletes for their doping, but in selecting a national representative based on the sovereign powers that reside within that state.
At footnote 11 of the USOC decision, the CAS panel noted that :
“If the IOC issued a rule that persons convicted of a violent felony were not eligible to participate in the Olympic Games, such a rule would likely not violate the principle of ne bis in idem, because the effective purpose of that sanction would be different from the purpose of the criminal penalty associated with that violent felony.”
The KOC eligibility rule is rather, a moral and ethical behaviour clause that falls within the scope of NOC’s power.
(2) IOC’s succession of its own rights to the WADC influencing whom can compete in the Olympic Games is an undesired and unintended result – an Absurd Conclusion led by a Gross Violation of Rights.
If – as Prof. Gandert argues – the above CAS rulings indicate that NOCs will be found in violation of the Olympic Charter “if it refused the entry of an athlete who is eligible to compete based on the WADC (Gandert, 77A),” this will be – in effect – a concession of rights to decide on eligibility to participate from IOC to WADA. There is no evidence to suggest that this was indeed the intention of IOC, but rather to the contrary. In this case, the argument could be made that the WADC should be determined null and void ab initio.
(3) IOC alone holds the right and obligation to ensure that the “integrity and value of the Olympic Games be preserved (Gandert, 70A).”
CAS panel’s statement in USOC v. IOC that the Olympic Games is “the pinnacle of success and the ultimate goal of athletic competition” is a gross misrepresentation and bordering on an insult. IOC in upholding its obligation to ensure the preservation of “the integrity and value of the Olympic Games” by denouncing the above statement. The significance of the Olympics to the athlete in question’s professional career should not be a contributing factor in determining whether he or she should be eligible to participate as a representative of a state. Considering this factor itself is a violation of the above mentioned obligation
(4) KOC Rule of a 3 years ban as a National Representative in the Olympics is a “proportional” punishment for Park’s Doping.
In USOC v. IOC, CAS avoided making a decision regarding the issue on proportionality (Gandert, 74A) The Puerta Doctrine reads that “in order for justice to occur, the principle of proportionality needs to be applied instead of a strict interpretation of the rule (Gandert, 74A).”
There is no restraint of trade for Park. As the British Court has ruled in 2008 Chambers v. BOA, the KOC’s decision can only bar Park from participating in the Olympics and Park “does not have strong prospects for arguing that exclusion from the Olympics would affect his livelihood (Gandert, 57A).”
On the other hand, there are numerous victims of Park’s doping whom have not been discussed thoroughly. All other Korean National Team members whom have participated alongside with Park in team competitions have been stripped of their awards and privileges due to Park’s doping. The KOC’s – South Korea’s National Olypmic Committee (NOC) – independent restriction on Park’s eligibility to compete as representative of South Korea is a proportional punishment to the damage he has caused to the state and Olympic spirit.
Moreover, doping is a form of cheating violating the spirit of the Olympics and all forms of competitions. One can even make the argument that the total ban of an athlete from ever becoming a national representative for cheating in the Olympics may still be considered “proportional.” CAS did not address the issue of proportionality so far.
Expectation on the part of the athlete to be re-selected as a national representative after having been found cheating is unwarranted and unreasonable. Although the Ad-Hoc CAS panel in Prusis v. Int’l Olympic Comm., CAS OG 2/001 (Ct. Arb. Sport ad hoc div. O.G. Salt Lake City Feb. 5, 2002) where the Latvian bobsleigh athlete Sandis Prusis was refused by the IOC to compete ruled that “athletes had the expectation of participating in the Olympics following the end of their ineligibility (Gandert, 69A),” this should be reversed.
- The groundbreaking USOC v. IOC and BOA v. WADA CAS panel Awards have been published several years ago. ∴KOC’s ineptitude to respond appropriately to these changes and amend their Rules accordingly are shocking and horrifying.
- Despite the fact that the CAS precedents seem to point at an inevitable conclusion (Howard and Park’s Victory), there still remains some rather critical questions that needs to be addressed by CAS. The time sensitivity of Park’s Case will require CAS to rule in an efficient fashion, however, it would be a wise decision for KOC to consider the above listed strategical options as legal defence should they reach the CAS Hearing. Howard can be stopped.
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James D. and Seungmin P. are co-founders of JS & Associates Ltd. Their comment, writing, or column above does not represent the official position of YULS. All rights reserved.
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