On the Double Jeopardy Controversy over the Korean Swimming Hero

James D. and Seungmin P.

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Click HERE to see Park’s Naver Profile Photo : Joins.com 25th Sep 2014

South Korean swimming hero Tae-hwan Park (aka “Marine Boy”) currently faces the danger of ending his competitive association with Team Korea. Although Park is free to take part in the sport as of 2nd of Mar 2016 – after serving an 18-month XXX (FINA) ban on account of testing positive for testosterone in September 2014 – he is barred from representing his country internationally. This is due to what can only be deemed a toxic provision of the Korean Olympic Committee (KOC) which holds that “any athlete who serves a drug-related ban is barred from national teams for three years beginning on the day the suspension ends (Art 5 para 6 of Selection Rules for Members of National Team of Korean Olympic Committee).” In April, Park appealed to the Court of Arbitration for Sport (CAS) to mediate, find this ban illegal, and allow him to compete in the Rio Olympics .

In Park’s favor are several legal precedents on double jeopardy, a principle of law so fundamental that even the Constitution of Korea explicitly proscribes it: “All citizens should not be penalized more than once for the same crime.” Opposed to Park’s reinstatement to the National Team and defending the Korean Olympic Committee’s rule are figures such as the Korean Olympic Committee Head Young-ho Cho who claimed that rules as they are are rules, and that they must to be followed in order to deter doping cases in the future (XXX, ). Based not on moral considerations, emotional appeals, or public sentiment, this essay shall argue that Park must be given a chance to swim in representation of his country at the Rio 2016 Olympic Games strictly based on legal analysis.

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Article 5 Paragraph 6 as boxed above states in Korean the toxic provision of KOC.

Long story short, Article 5, paragraph 6 of the Selection Rules for Members of National Team of KOC is not in compliance with the World Anti-Doping Agency’s Code (WADC) and the Olympic Charter.

The CAS Panel in the USOC (which is the U.S. equivalent of the KOC) v. IOC determined that the International Olympic Committee’s Rule 45, which banned athletes who had received doping sanctions of more than six months, was inconsistent with the WADA Code, since it constituted a second punishment for the same offence: Double Jeopardy. In upholding USOC’s argument, the Panel found that the so-called Osaka Rule, which “provides for a period ineligibility (non-participation) that is not provided for under Article 10 of the WADA Code ” is a substantive change prohibited by Article 23.2.2 of the WADA Code. As a signatory, the IOC acted contrary to the WADA Code by “imposing an additional consequence that is over and above already provided for in the WADA Code ”. Following this reasoning of the CAS, forcing Park to serve an additional three years (in excess of what WADA itself had determined as punishment) of non-participation in the Korean National Team is, in parallel to above case, can be argued to be as invalid and unenforceable. The KOC’s persistence in adhering to its Rule is therefore likely to be determined as a violation of the WADA.

Making such compliance with WADA even more necessary is the Olympic Charter, a text of paramount sporting authority, which states in Rule 44 that “it accepted the binding nature of the WADA Code .” That is, the very measure of preventing Park from participating in the Olympics is itself inconsistent to the Olympic Charter, essentially a constitutional document. The Rio Olympics is an IOC event and is governed accordingly by the Olympic Charter; in the event of a dispute between the Olympic Charter and the local rules of a National Olympic Committee (NOC), it is all too evident which prevails over the other. In fact, Articles 2 paragraph 2 and paragraph 3 of the Articles of Association of the KOC all clearly prescribe guarantees of compliance with and superiority of the Olympic Charter over the rules of the KOC. Article 2 pargraph 5 says that the KOC is to comply with the WADA Code as well. By failing to act in accordance with the relevant international standards, regulations, and its own articles of association, the KOC’s treatment of its athletes is unnecessary, unjust, and embarrassingly unlawful.

Another case that dealt with the issue of excessive and double punishment was British Olympic Association (BOA) v. WADA in 2012. This case, in fact, has more relevance to Park’s case than USOC v. WADA because it involved the legality of an NOC regulation independently suspending its national athletes. Just as the aforementioned CAS case illustrated the inconsistency of the IOC’s Osaka Rule, it was found that BOA’s Bye-Law 25 imposing a lifetime Olympic ban was incompatible with the WADA Code and hence unlawful, as the rule violated the Principle of Double Jeopardy or Double Sanction.

What should be noted in the results is that both cases were determined not because CAS chose to be lax on doping or that it lacked respect for the anti-doping efforts of NOCs and the IOC, but because CAS prioritized the need to reinforce an internationally-harmonized effort against doping which, as the WADA proclaims in its Code , is “designed to harmonize anti-doping policies and ensure the standards are the same for all athletes.” As the Olympic Oath makes clear at length (“committing ourselves to a sport without doping and without drugs ” every athlete knows that doping control is one of the biggest obstacles to Olympic glory and is surely aware of the grave consequences they face should they fall foul of it. However, if the punishment for doping varies from country to country, it would result in unequal punishment for an equal act of wrongdoing, potentially harming the morale of national athletes and undermining the spirit of universal fair play.

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The question of whether or not Park should be sent to Rio as the South Korean Representative should not be framed – as it is so in the local media – in terms of (1) whether such amounts to a grant of special advantage or privilege for Park, (2) whether Park is a Gold Medal hopeful for South Korea, nor (3) whether such amounts to an exoneration of Park despite doping. An examination of the CAS precedents and relevant clauses of the WADA clearly demonstrates that there is no proper legal ground on the part of the KOC to prevent Park from competing in Rio.***

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*This essay was originally written on June 13th 2016 and an internal embargo has been lifted as of 7th July 2016.

**[UPDATE] 7th July 2016 KST: A CAS ruling on Park’s case is imminent (so is the KOC’s final Board of Directors meeting on the matter) and almost every news article indicates that Park is expected to win. A follow-up on the CAS decision along with the KOC’s meeting, which is scheduled on 8th July 2016 KST, will be updated soon.

***[UPDATE] 3rd August 2016 KST: A CAS ruling on Park’s eligibility for Team Korea has been announced.CAS upheld Park’s request for provisional measures and that means Park is now able to compete for Team Korea in the Rio 2016. See the attachments below.

 

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Click Here to see Citations [ Go ]

임시James 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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