Pechstein had a fair trial, says CAS

The Court of Arbitration for Sport (CAS) issued a statement on March 27, 2015, to point out that German speed skater Claudia Pechstein had a "fair trial".
Breaking its silence on the Pechstein issue that has shaken the foundations of the international arbitration court, based in Lausanne, CAS said "Claudia Pechstein had a fair trial, not only before the CAS Panel but also before the SFT (Swiss Federal Tribunal), and the judgment of the SFT, which remains in force, should have settled this matter definitively in 2010."
A German appeals court had upheld Pechstein's right to claim damages against the International Skating Union (ISU) after her doping case was disposed of by CAS and SFT.
In what could be of far-reaching consequences in sports arbitration around the world, the Munich court had questioned the neutrality of CAS and ruled that under German laws the winter Olympian could claim damages in a German court against the ISU.

"If, like in the Pechstein/ISU case, arbitration agreements were to be considered as invalid by state courts, even when not challenged at any stage during the arbitration, then the basic principles of international arbitration would be compromised," CAS has very rightly pointed out about the most startling ruling by the German court that theoretically at least opens up the possibility of a clutch of litigation around the world in all types of courts.

In a two-part piece on this blog, the issues were explained earlier 
The latest CAS statement is here

Is there a need for selection criteria for Olympics?

The ‘one-size-fits-all’ selection criteria for multi-discipline games announced the other day by the Union Sports Ministry may not solve all the problems that the government periodically faces prior to such games nor would it put a stop to arguments or litigations.

The most notable aspect of the latest announcement is, from now on, the Indian Olympic Association (IOA) and the National Sports Federations (NSFs) would not be able to fall back on the plea “we were not told” about selection standards.

     “It has been decided that for participation in multi-disciplinary sports events such as Olympic Games,  Winter Olympics,  Asian Games, Commonwealth Games, Asian Indoor Games, Asian Beach Games, Youth Olympics,  Asian Youth Games, Commonwealth Youth Games, Paralympics and Para-Asian Games, the performance  of the sportspersons in the individual events during the last twelve months prior to commencement of the event should not be less than the performance achieved by the 6th position holder of the previous edition of the respective tournament in measurable sports,” stated an official release.

Before we go into the issue of selection norms for the Asian Games and the Commonwealth Games, let us look at the relevance of such yardstick for the Olympic Games.

Participation in Olympics today is determined by qualification procedures laid down by the concerned International Federations in consultation with the International Olympic Committee (IOC). The process, as in shooting for example, begins around two years ahead of the actual Games.

In shooting there is a ‘quota place’ and a ‘minimum qualification score’ (MQS). A shooter may earn a ‘quota place for a country but need not be picked eventually to be the representative of that National Olympic Committee (NOC) in the event in which he earned the quota. The National federation makes that choice.

Should the ministry standard be applied here just in case the MQS is lower than the government norm and the shooter who gained the ‘quota’ is no longer in contention because of either poor form, ill health or any other valid reason that may satisfy the federation?

Athletics to have 'invitation' places

Take for example athletics. The IAAF qualification standards for the Rio Games are yet to be announced, but going by the formula adopted for the World Championships this year there could be just one standard instead of the ‘A’ and ‘B’ standards that used to determine whether a country could enter just one athlete or two or three in each event.

This could also mean the standards, to be announced next month, would be tough, at least tougher than those ‘B’ standards of the past. In many cases they may, however, not be as tough as the ‘sixth-place standard’ of the previous Games. And the crunch comes here.

Let us take the men’s discus standard for the last Olympic Games. It was 65.0m for ‘A’ and 63.0m for ‘B’. The sixth place in Beijing Olympics in 2008 went for 65.88m. The sixth place at the London Olympics in 2012 was 65.85m, and the standard for this year’s World Championships is 65.0m. For Rio, one can expect this to be more or less the same. If the ministry’s standard is to be the determining factor then it could turn out to be tougher than that prescribed by the IAAF.

An impressive 63.62m it was that Krishna Poonia achieved for her sixth place at the London Olympics. She has not crossed 63.0m since. Nor has the Asian Games champion Seema Ankush Punia (nee Antil ) done that kind of distance since 2004. In fact after 2012 Seema has not gone beyond 62 metres. Will it then be logical to fix the ‘sixth-place’ standard of the London Olympics in women’s discus as the selection norm for Rio?

There are any number of examples, especially of interest to Indian athletes, say men’s shot put (20.84), women’s 100m (10.94s), 400m (50.17s) etc where if the ‘sixth-place’ standard is applied the dreams of becoming an Olympian might recede for the Indian athletes.

Concessions become the rule

Concessions will then have to be made, as is normally done, in order to clear the few athletes who make the grade as per the IAAF standards. The IAAF this time would also be having an ‘Olympic ranking list’ to “invite” athletes who could be missing the ‘cut’ for qualification.

The same situation may be theoretically available in swimming also, though going by the last few games it has been shown that here it is much tougher for an Indian to make the grade as per the qualification system adopted by the International Federation (FINA). In swimming, individual rankings will count towards qualification with two sets of standards. ‘A’ standard will ensure automatic qualification.

In weightlifting, on the other hand, placing achieved by teams in various championships will be the benchmark to decide allocations of quotas.

In badminton, the qualification will be based on rankings as of May 5, 2016. The singles list will go down to the 34th place, with provision for continental representation and restriction of entries per NOC. In table tennis it would be a combination of rankings and continental qualification process that will decide who gets to play in the Olympics.

Obviously you cannot have a clause that says “the sportspersons must have achieved 6th rank in the last 12 months” and stick to a government-approved criterion. What if he or she is 34^th-ranked in badminton and fulfills the rest of the criteria for qualification? (In actual terms the qualification list will go down much deeper than 34th rank in singles since entry restrictions will limit the numbers per country to just two in singles and a maximum of 16 per NOC in all events put together. The 34 quota places will also include compulsory continental representation places.)

In boxing, wrestling etc competitors will earn quota places through pre-designated championships while in team games, countries make it either through a qualification tournament or on the basis of continental quotas normally decided by the results of the continental games or championships.

Little scope for Govt criteria

In short, there is hardly any scope for any government-determined criterion to be brought into play in deciding the composition of any of the Indian teams for Olympics. Unless of course there is such an abundance of talent, say in athletics for example, that more than three athletes are vying for places in the team, all having attained the qualification standard in a particular event.

The ministry would thus do well to announce that for the Olympics, standards as prescribed by the respective International Federations, or qualification procedures already agreed upon by the IOC and the International Federations would determine the eligibility.

Every International Federation has already finalized its qualification process and the total number of athletes to be allowed in each sports discipline in Rio and the number of events in all sports had been agreed upon and announced. There is provision, where necessary, to utilize ‘unused quota places’ under various formulae in all disciplines.

Asian Games and Commonwealth Games do not have either a qualification process or minimum qualification standards. For nearly two decades the Asian Games selection criterion approved by the Sports Ministry was the ‘third-place’ norm, meaning the bronze-medal-winning mark of the previous Asian Games or the last Asian championships, whichever was higher.

In 2006, the ministry diluted this to the ‘sixth-place’ standard. In 2010 no strict standards were applied and the federations made their own norms or used their discretion in recommending names.

Last year when it applied the 'sixth-place' criteria, there were protests and controversies as the ministry cut down a 942-member contingent proposed by the IOA to 679, mainly excluding sports and individual athletes who in its opinion stood no chance of figuring anywhere. The pruning exercise was carried out by the Sports Authority of India (SAI) and carried forward by the ministry, though eventually the PMO's help was also sought.

There are no official figures about the eventual size of the contingent since a few teams managed to get the clearance of the courts and a few others, despite being initially rejected by the ministry, made it to Incheon. This happens all the time of course.

The announcement of a clear-cut criterion at this point is thus welcome. This may or may not prevent last-minute recommendations and/or manipulation of criteria, arguments and counter arguments the next time. But the message is clear_achieve the standards or otherwise lose your chance to make it to the Asian Games.

Low weightlifting standards in CWG

There is a rush to gain inclusion in Indian teams in sport like weightlifting and wrestling at the CWG level since the standards are low while that in athletics and swimming, in contrast, are quite high, comparable to world levels in a majority of the events. The uniform ‘sixth-place’ criterion thus becomes illogical in respect of CWG.

The sixth place in the 2014 CWG men's 56kg class in weightlifting had a total of 225kg while the sixth place finisher at the 2014 National lifted 233kg. Not all weight categories in men show this level of disparity but the Commonwealth standards are pretty low.

Among women, the sixth place in Glasgow in the 48kg went for 142kg, the same as that was achieved by the fifth-place finisher in the Indian National championships last year. In the 53kg class the disparity is even wider with the sixth place in CWG showing 173kg, the same that the seventh-place lifter totalled in the 2014 National.

A method will have to be devised to toughen the standards for CWG in such sport where the standards are much lower than our National level, keeping in mind of course the legal issues that may crop up as they did last year for the clearance of the teams for the Asian Games.

Many Indian teams fared poorly in the Incheon Asian Games. A comparison of the claims made by such teams or individual athletes, as projected by the NSFs, and their actual performance in the Games would help the SAI keep a data bank that can come in handy at the time of future clearances. The SAI and the ministry would also do well to remember that once the stage has crossed for getting accreditation for individual sportspersons it would be futile to attempt to stop them. That means a timeline, like the one fixed by the International Federations for Olympic qualification, will need to be drawn up by the SAI to process proposals for the Asian Games and the Commonwealth Games. But who will reform the IOA and the NSFs?

One last point. The last time the PMO shot down 'no-cost-to-Government' formula that is adopted by the Sports Ministry to refuse official funding for teams that in its opinion fail to meet the standards. There is still a mention of 'no cost' in the ministry circular this time. Sticking to a policy is often a difficult exercise. Eventually if everyone gets official funding, it becomes unfair to those who have been left out because of "poor standards".
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(Amended-14-03-2015)

Anti-doping education can also begin from Federation websites

Every now and then the Union Sports Ministry issues directives to the Indian Olympic Association (IOA) and the National Sports Federations (NSFs) about complying with various guidelines formulated by the Government with regard to their functioning.

More often than not these directives are either ignored or else implemented rather lethargically. For example, the ministry had sought last August details from the NSFs regarding their teams that went to the Commonwealth Games last year, when it found that a large number of officials who were not part of the official contingent had made it to Glasgow. Nothing has been heard of it since.

Communication sans follow-up?

In its communication to the IOA and the NSFs in October last year the ministry pointed out that there were previous communications dated 17 July, 2014 and 6 August 2014  related to these issues that seemed to have been by and large ignored.

As far back as 30 March, 2010 the ministry had declared NSFs receiving Rs 10 lakh or more annual grants as public authority and thereby asked them to provide suo motu information as per RTI Act 2005. Then also there was a directive that they should place certain information on their websites.

So, how will the IOA and the NSFs react to the latest directive issued today, March 2, 2015?

One is not trying to find out who did what. The idea of writing this blog piece is to focus on an area that seems to have been ignored by most of the federations and, unfortunately, missed by the ministry.

‘Anti-doping’ gets priority on the websites of most of the sports organizations the world over nowadays. A section devoted to the subject on a website is the best avenue to spread awareness and educate athletes. To a large extent, it also takes care of the oft-repeated complaint from athletes “but we were not aware of these rules” or “we are not aware of the latest prohibited substances” or “we found nothing of relevance regarding anti-doping when we searched the website."

This may or may not be true, but it sort of provides an alibi to the athlete during a hearing procedure related to an anti-doping rule violation. Many adjudicators in India have pointed out the lack of awareness among athletes on the topic of anti-doping measures and rules and about the need to educate athletes from rural areas regarding dangers of using drugs without proper medical advice. Yet there seems to have been no serious effort made to rectify this situation, particularly through the use of websites including that of the NADA.

The 23 points now

Among the 23 points listed by the ministry in its latest communication, there is one item that deals with doping. The ministry has asked the NSFs to place on its website a“Note on efforts for having dope free sports and compliance to WADA/NADA Code along with details of cases found positive during the last calendar year and action taken thereon”

This is fine from the ministry’s point of view in ensuring that there is compliance. “Action taken thereon” is rather superfluous of course. The National Anti Doping Agency (NADA) that functions under the ministry, is the sole authority in India to lay down rules, test athletes,  carry out ‘results management’ procedures, to bring forward ‘positive’ cases before panels and to impose sanctions as ordered by the panels. The federations have to just enforce these sanctions. NADA updates the list of suspended athletes on its website on a regular basis and there can be little confusion regarding who has been suspended or about the number of athletes under suspension. No national federation keen to continue its affiliation with an international federation will be thinking of not enforcing these sanctions!

But we should not just be concerned about a ‘note’ being published on a website regarding compliance. The athletes should be provided information on a variety of topics related to anti-doping, at a minimum the latest rules of NADA and the National and International Federation, the latest WADA Code, the latest Prohibited List of substances, any useful information regarding drugs and supplements, procedures related to doping control, rules regarding  issue of therapeutic exemptions that allow an athlete to use banned drugs, ‘results management’ procedures, hearing procedures, appeals etc.

How they do it

It is best to have an entire section devoted to ‘anti-doping’ as is the practice with most of the sports associations abroad. Take for example the British Athletics website  or for that matter the USATF  one 

These are not only user-friendly websites but also very informative from an athlete’s perspective. The UK athletics website has the following topics under its anti-doping section, 1) anti-doping education, 2) check your medication, 3) register medication, 4) therapeutic use exemption, 5) supplements and nutrition, 6) ADAMS, 7) UKAD anti-doping advice card, 8) rules and procedures, 9) Testing procedures,10) Notice and news, 11) currently under sanction.

The above headings are apart from  ‘WADA Code 2015 explained’,  a ‘Clean sport’ app, doping control test video that explains what happens during a dope test, from notification to provision of a urine sample, and FAQs, quiz and links to other useful websites. All of these obviously placed there to help the athletes.

In contrast, even the Athletics Federation of India (AFI) which has a brand new, refurbished website seems to have not bothered to update its anti-doping rules and procedures.

Rather interestingly, the AFI website lists ‘anti-doping’ under ‘development programme’. You may almost miss this section since no one could be expected to look for it under ‘development’. But that is beside the point.

A look at the rules, available not within the anti-doping section but inside the AFI constitution,  will reveal that these rules are not only archaic and highly misleading they are not even in line with the latest IAAF anti-doping regulations or for that matter the 2004 or 2009 rules of the IAAF.

On one page the existence of NADA is acknowledged, but within the rules the ‘doping commission’ is the supreme authority!

Who has the authority?

Rule 4 lists responsibility for doping control. There is no mention of NADA, the sole agency entrusted with the responsibility of conducting in-competition and out-of-competition testing in India.

The disciplinary procedures still state that an AFI disciplinary panel would hear the athletes. Since 2009, the National Anti-Doping Disciplinary Panel, formed under the NADA rules has been handling all ‘positive’ cases in all sports.

That the AFI has not been able to correct these rules despite amendments carried out to its constitution at least on two occasions in recent years is unfortunate.

The sporting world had moved to the WADA Code-based anti-doping rules since 2004 (revised in 2009) but the AFI rules still mention a sanction of two years for a first doping offence, for three years for a second and for life for a third.

And here we are not even trying to bring in a comparison with the 2015 Code that has an entirely different set of sanctions now, but the 2009 Code. Unless we go back to pre-2004 days we may not be able to find anything remotely resembling the AFI anti-doping rules available in its constitution which is an amended version of 2013.

Get the basics right

A large majority of the federation websites does not have an anti-doping section, and only very few have any reference to any rule, forget the 2015 NADA rules or the WADA Code. Those who do have may not be having the NADA rules. Say for example the Badminton Association of India (BAI) . It does have an anti-doping section, but no reference to NADA rules or the NADA.

The Indian Weightlifting Federation website, for example, lists an anti-doping policy that cannot be accessed.  You will be lucky to get the 2015 Prohibited List on one of these websites unless through a link to the WADA website.

The majority of the websites also do not have the constitution of the NSF placed there.

Anti-doping information is a ‘must’ in tackling doping and ensuring that athletes do not fall into the trap just because of lack of awareness or inaccurate information. The websites of NSFs, apart from fulfilling mandatory requirements listed by the Government, should also be expected to provide basic information to the athletes on doping matters so that they are fully familiar with the rules and procedures. The task of the NADA and that of the adjudicators and lawyers will then become that much easier.

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CAS's neutrality questioned (part 2)

There is perhaps no need to panic straightaway as far as the Olympic Movement is concerned. An appeal in the highest court in Germany, which legal experts have forecast, should bring out more clarity on the matter even if the German skater re-establishes her claim for damages.

Since the Munich verdict would be recognized and enforced in the whole of European Union (EU) comprising 28 countries including the UK, France and Italy, apart from Germany, there should of course be very little chance of the ISU dismissing it as “we can’t be bothered”.

The ISU and some 60-odd International sports bodies including the IOC are based in Lausanne, Switzerland which is not part of EU but has integrated many of EU laws into its laws and rules. Only recently Switzerland had toughened financial laws dealing with sports bodies and sports administrators.

What kind of impact the Munich court ruling can have on the IOC and the rest of the Olympic Movement is to be seen only.

This is not the first time CAS’s neutrality had been questioned by a civil court. Being based in Lausanne CAS is governed by Swiss laws and its decisions, if there are valid legal grounds for a review, are normally appealed in the Swiss Federal Tribunal.

This is perhaps the first time, however, that a ruling by a civil court_not the highest in that land_may impact CAS considerably and can also have consequences for the rest of the sports world.

Formation of CAS

Formed in 1984, with the late Senegalese Judge of the International Court of Justice, Judge Keba Mbaye, as its chair, CAS was a court funded entirely by the IOC and thus lost some of its credibility in its early years.

In Feb 1992 a German horse rider, Elmar Gundel, was penalised by the international Equestrian Federation as his horse tested positive and he was suspended. Gundel appealed before CAS which upheld the decision of the FEI but reduced the rider’s sanction from three months to one month. Gundel took the case up to the Swiss Federal Tribunal, questioning CAS’s legitimacy, and argued that it was not an independent court to give judgements like the one given in his case.

The SFT, the Supreme Court equivalent of that country, dismissed his appeal and ruled in its judgement on March 15, 1993, that CAS was a true court of arbitration.

Not so independent

However, the SFT also noted in its judgement the fact that CAS was financed almost exclusively by the IOC, the IOC was competent to modify CAS rules, and the IOC and its president had the power to appoint members of the CAS. These factors, the court noted, would have been sufficient to call into question the independence of CAS had the IOC been one of the parties in the case (German rider’s) before it.

The message was clear. CAS had to shed its dependence on the IOC. In November 1994 the ICAS was created to look after the functioning and financing of CAS. Not until May 2003 was the new structure of CAS put to test when two Russian cross-country skiers, Larissa Lazutina and Olga Danilova, challenged a decision to disqualify them from an event at the Salt Late Winter Olympics.

In a detailed judgement the SFT concluded that CAS was not “the vassal of the IOC” and was sufficiently independent of all the parties that called upon its services, comparable to the judgements of a State tribunal.

The Swiss court noted the widespread recognition of CAS among sports community and stated that there appeared to be no available alternative to this institution.

The German courts in the Pechstein case, as said earlier, have not questioned the need to have an arbitration court for sport in order to resolve disputes quickly and inexpensively. It has only questioned its neutrality in relation to its structure that, in their opinion, was heavily slanted towards the sports associations.

As for the claim for damages for loss of wages and other losses that could be pursued by Pechstein in Germany, a comparison to the ‘Butch Reynolds case’ of 1990 might be in order.

The Butch Reynolds case

American Harry ‘Butch’ Reynolds, former world record holder in the 400 metres, was suspended by the IAAF (then International Amateur Athletic Federation, now International Association of Athletics Federations) in August 1990 for two years for a steroid violation.

Reynolds sued the IAAF in the Southern District Court, Ohio, but was told to go through administrative remedies laid down in the sports organisations’ rules. A USA athletics federation (TAC) panel to which he later appealed, found that there were doubts about the validity of the drug tests. The IAAF refused to accept the ruling.

Reynolds continued to sue the IAAF in Ohio Federal court for defamation, breach of contract and loss of wages. By then he had failed in his bid to compete in the Barcelona Olympics though, through a series of court orders, Reynolds had succeeded in participating in the US Olympic trials.

He was chosen eventually as an ‘alternate’ in the relay but the IAAF refused to allow him to compete in the Olympics. The TAC finally removed his name from the Olympic roster.

On September 28, 1992, Reynolds filed a supplementary complaint with the district court. After the IAAF and the TAC refused to appear for the proceedings, the court awarded $27.35 million as damages to the athlete including treble punitive damages of more than $20 million.

The court found that the IAAF “acted with ill will and a spirit of revenge” towards the athlete and suppressed evidence and held out threats against Reynolds and fellow athletes and eventually extended his suspension by another four months for having competed in the Olympic trials during his suspension.

On Feb 17, 1993 Reynolds began garnishment proceedings (to recover the money that the IAAF was refusing to pay despite court orders) against four corporations with which the IAAF had connections when he found that the IAAF was refusing to recognize the district court’s decision. The IAAF responded at one of the hearings at this stage and later filed motions arguing that the court lacked personal jurisdiction and subject matter jurisdiction. The Ohio court dismissed all pleas.

Federal court ruling

The IAAF then filed an appeal with the US Court of Appeals (Sixth Circuit), citing lack of jurisdiction of the district court.

In its judgement on May 17, 1994, the three-judge bench of the Federal court ruled that the district court indeed did not have jurisdiction.

“ In conclusion, we do not believe that holding the IAAF amenable to suit in an Ohio court under the facts of this case comports with "traditional notions of fair play and substantial justice." …The IAAF stated in its brief and at oral argument that it will not challenge the jurisdiction of English courts to determine the validity of the London Arbitration award if Reynolds seeks to have it set aside in the courts of that country.

“Our decision renders the IAAF's recusal motion moot.

“The district court abused its discretion by denying the IAAF's Rule 60(b)(4) motion for relief. The judgment of the district court is reversed. Upon remand the district court will dismiss this action for lack of personal jurisdiction over the IAAF,” the court ordered.

Supreme Court refuses to intervene

Reynolds did not rest there! He went up to the US Supreme Court which eventually refused to hear his appeal.

On his return, Reynolds won two successive silver medals in the 400m at the World athletics championships and was also part of the US relay teams that took the gold in 1993 and 1995 World championships.

The Pechstein case is of course different, especially since an EU country is involved and the ISU could possibly be concerned about the implications of a an award for damages in case such an award was granted.

 The jurisdiction part could however be relevant. From 1994, when it revised its rules, to date, CAS has rendered decisions that have gone against sports associations including two famous ones that went against rules framed by the IOC and the British Olympic Committee to have extended bans for athletes turning up ‘positive’ for dope in Olympics

But the Pechstein ruling has set off an interesting debate.

“Claudia Pechstein case puts Sports supreme court on trial”, says the headline of an excellent article by Matt Slater on BBC Sport.

Dutee Chand case coming up

Of immediate interest to India could be the March 23-26 hearing of the Dutee Chand appeal in CAS against her exclusion from women’s events on the basis of the IAAF’s hyperandrogenism policy.

The IAAF rules, based on the levels of testosterone in a female body, apart from an assortment of tests and clinical examinations, have been challenged by the Odisha sprinter with the support of the Government of India and its agencies.

This was going to be a huge challenge for CAS itself in the ordinary circumstances. With the backdrop of the Pechstein case, this has surely become more delicate than before. The IAAF rules apart, the IOC rules on hypernandrogenism, similar to the IAAF rules to a great extent, would also be in focus though Dutee has not named the IOC as a respondent.

Will the Indian athlete be able to plead ‘lack of independence’ of a CAS panel, like in the Pechstein case, and approach an Indian court in case she loses her appeal before CAS? A hypothetical question at this moment, but who would have thought that a CAS verdict would be rejected by a Munich court?

 (concluded)

CAS's neutrality questioned (part 1)

The recent ruling by a German court in a case involving speed skater Claudia Pechstein has left a question about the 'neutrality' of the Court of Arbitration for Sport (CAS), the highest court in sports litigation. The legal community  is abuzz, the media has started speculating CAS's future in the present format. A two-part piece here brings details and attempts to explain the issue.

The foundations of the Court of Arbitration for Sport (CAS) have been shaken by the recent judgement of a Munich court in an appeal filed by multiple Olympic medallist Claudia Pechstein.

In what could be of far-reaching consequences in sports arbitration, especially in matters of doping and other disciplinary procedures, the Munich appeal court (Oberlandesgericht München) ruled that there were structural imbalances in the composition of the International Council of Arbitration for Sport (ICAS) and thus in the CAS panels that could be deemed favourable to the sports associations.

The Munich court consequently ordered in its judgement on Jan 15, 2015, that the CAS verdict in relation to a doping appeal by Pechstein could not be acceptable as per German ‘competition law’ and the New York Convention of 1958, thus opening up a fresh avenue for the German skater to claim damages from the International Skating Union (ISU) in a German civil court.

In a nutshell, the Pechstein ruling has questioned the ‘neutrality’ of the ICAS and CAS, leading to a situation where individual athletes, clubs and officials from other countries could approach civil courts in their own countries to resolve doping issues and other disputes from a long-term perspective. At least in theory that could be possible.

It is too early of course to say whether the Munich court ruling is here to stay, so don’t jump to quick conclusions. Legal experts do expect the ISU or any other competent authority to go in appeal to the highest German civil court, the Bundesgerichtshof (BGH), which could be expected to pronounce a final verdict on this drawn-out drama that began unfolding in 2009.

The Pechstein case

What is the Pechstein case?

Background and brief analysis are available at the Asser International Sports Law Centre 

The case, as explained in the above article, relates to a ‘blood passport’ finding of the German speed skater in 2009. She was suspended for two years by the ISU in July, 2009. Pechstein, owner of nine Olympic medals including five goldis the most successful Olympic speed skater, male or female, of all-time. She is also the most successful German Winter Olympian ever.

Pechstein’s was the first case to be determined under the biological passport system introduced by WADA in 2009 in which an athlete’s biological variables over a period of time are monitored rather than the blood tested to find out the doping substance or method.

Pechstein was banned for two years by the ISU, leading to a series of legal battles that eventually culminated, six years later, in the recent judgement by the German court. In between she approached CAS which dismissed her appeal in November 2009. She knocked at the CAS doors again next year, unsuccessfully, as she tried to compete in the team skating events of the Vancouver Olympics with an appeal to the CAS ad hoc division.

Pechstein went to the Swiss Federal Tribunal twice and failed on oth occasions. The Swiss court gave its final ruling on September 28, 2010, rejecting the German’s plea. She returned to competition in February 2011, won a bronze in that year’s World Championships in the 5000m race, and almost took a medal in the Sochi Olympics last year.

By then she had filed a petition before a lower court in Munich seeking damages including for loss of earnings of around four million Euros from the ISU. Despite accepting the invalidity of the arbitration clause that forced her to seek justice at the CAS in an arbitration proceeding with the ISU, the Munich court in its order of Feb 26, 2014 held that the res judicata effect of the CAS verdict was to be recognized since the Olympian did not contest the competence of CAS in her appeal. (res judicata is a term used to indicate that the effect of a first judgement by a competent authority was to be preserved if the subsequent appeal was identical in nature or substantially the same.)

She appealed this Munich court decision to Oberlandesgericht München, an appellate court,  which has now given the path-breaking verdict, not only questioning the neutrality of the ICAS and CAS but also providing the skater with an opportunity to seek damages from the ISU.
The Munich appeals court noted that the arbitration clause signed on the 2 January 2009 by the appellant (Pechstein) and the respondent No. 2 (ISU) did not preclude access to the ordinary courts

 "To this end the question whether the CAS, designated by the arbitration clause, can be considered a real arbitration tribunal, despite the fact the parties have no equal influence on its composition, can stay open. The arbitration clause would also be null in that case.

"The arbitration clause is in the present case inapplicable because it goes against

Anti-trust law," the court stated.

Even as it acknowledged the utility of an independent court or arbitration body to deal with cases related to sports, especially doping, the Munich appeal court went by the argument that the composition of the CAS panel had an imbalance in favour of the sports associations.

Monopolistic

The Munich courts concluded that the ISU (and all such international sports governing bodies) were monopolistic in nature, thus ruling out the possibility of a banned athlete competing in any competition and make a living out of the sport.

A rough translation of the Munich court decision in German, provided by the Asser International Sports Law Centre, states “The provisions regulating the selection of the potential CAS arbitrators favour the sports associations in disputes against athletes, thus embedding a structural imbalance that is threatening the neutrality of CAS.”

Though rules have changed from Jan 2014 as far as eligibility to be named on the CAS list of arbitrators are concerned the court apparently took note of the previous set of rules applicable to the German’s case that did not facilitate selection of arbitrators from an open panel.

Moreover, even now, the sports bodies, including the International Olympic Committee (IOC), the international federations and the Association of National Olympic Committees (ANOC), have a large say in the appointment of the 20 members who constitute the ICAS which in turn approves the CAS panel members.

Is there a bias?

 “This disproportionate influence creates the risk that the persons included on the CAS arbitrators list predominantly or even entirely favour the side of the sporting associations over the athletes. This is also true concerning the arbitrators that are not suggested by the sporting association, but are selected in view to protect the interest of athletes or on the basis of their independence, as they are designated by ICAS members chosen by the sporting associations. A balanced influence of the parties on the composition of the arbitral tribunal that would be needed to safeguard its independence is thus not provided. Such a structural deficiency threatens the neutrality of the arbitral tribunal; this is independent of the fact whether the persons included on the CAS list of arbitrators are in any way linked to the sports associations, as this would actually open the possibility to challenge their nomination. Even when the personal integrity of the persons included on the CAS list is not affected, there is a potential risk that arbitrators share the worldview of the sports associations rather than the one of the athletes,” said the order, as translated by Asser International SportsLaw Centre.
Can this lead to drastic reforms in the ICAS and CAS framework? Is this binding on the ISU and in turn will other international federations be forced to cough up money if damages are claimed in litigations in different countries on the same premise as in the Pechstein case? Even in such instances where a final appeal might have been disposed of by CAS?

Is it the beginning of the end of CAS and world-level sports arbitration as has been made out by some observers?

 (continued)

(updated 24 Feb 2015)

A rare case at CAS

If we thought last September that the 'Indian MHA saga' was set to complete quickly, we were wrong. 

Four years and four months after the stimulant, methylhexaneamine (MHA), came to haunt some of the top sportspersons of the country, just ahead of the New Delhi Commonwealth Games, one among the ‘batch of 11’ MHA cases is still unresolved.

Of the 11 MHA cases that went into disciplinary procedures in September, 2010, one, that of swimmer Amar Muralidharan, is yet to be decided despite the Indian panels having disposed of the case.

The last of the MHA case appeals from the 2010 batch to be disposed of at the national level was that of swimmer Richa Mishra in October last year.

CAS hearing on Jan 16

Amar Muralidharan’s case will come up, yet again in appeal, this time before the Court of Arbitration for Sport (CAS) at a sitting in Abu Dhabi this Friday, January 16.

Muralidharan’s appeal to CAS, to be heard by a single arbitrator, is a rare instance of a ‘national-level’ athlete approaching the highest court in sports arbitration. It was a case that was heard and dismissed by an appeal panel at the national level.

The details of the grounds on which Muralidharan has filed his appeal with CAS are not known. From the information gathered from sources it would seem that the swimmer has again stressed on the points that came up at his hearings in India. These primarily relate to ‘chain of custody’ of the sample and the confusion generated by the National Dope Testing Laboratory (NDTL) in allotting laboratory code numbers that mixed up the names of Muralidharan and another swimmer Jyotsana Pansare.

One additional point that seems to have been made relates to the composition of the National Anti-Doping Appeal Panel (NADAP). As per the then existing rules of the National Anti Doping Agency (NADA) such a panel had to be composed of four members.

Since 2009, the NADAP has been composed of three members only. The Muralidharan case was also heard by a three-member panel, headed by Justice M. L. Varma (retd.). The other members of the panel were Dr V. K. Sharma and former table tennis international Indu Puri.

Rules amended

The NADA rules of 2010 (based on the 2009 WADA Code) stipulated that the appeal panel would comprise a chair, a legal practitioner, one medical practitioner, a sports administrator and a “renowned athlete who has retired from active sports”.

The WADA model rules for 2009 did not specify the number of persons to be nominated to an appeal panel. It was presumed that just like in the case of disciplinary panel it would be a three-member panel.

How the discrepancy came about in the composition of the NADAP and how for five years different panels functioned without checking up the rules will remain a matter of conjecture.

The latest NADA rules, based on the revised Code of 2015, have amended the provisions to specify that it would be a three-member panel. The third member would either be a sports administrator or a sportsperson.

Whether this discrepancy would be viewed seriously by the CAS arbitrator is to be seen only.

Muralidharan argued before the disciplinary panel that the ‘chain of custody’ during the four-day period the sample took from Jaipur to Delhi was in doubt and that there were variations in the pH of the ‘A’ and ‘B’ samples.

The most important point stressed during the disciplinary panel proceedings seemed to be the discrepancy in the lab code that was mixed up with that of Pansare. Muralidharan tended to argue, through his lawyer, R. K. Anand, that there could be a doubt as to the contention that his sample had tested positive for MHA.

The same points were brought up before the appeal panel also where Amar Muralidharan’s father, Cdr.  Muralidharan, argued the case. The NADAP noted that the disciplinary panel had gone into all the aspects related  to ‘mix-up’ of code numbers etc and rejected them.

CAS in the past had invariably taken a dim view of procedural irregularities by laboratories or anti-doping agencies and there could be possibilities on this front if jurisdiction is established.

CAS jurisdiction

The NADA, one of the respondents in the appeal before CAS (the others are the NDTL and the Ministry of Youth Affairs and Sports), is expected to base its defence on the argument that Muralidharan was a ‘national-level’ athlete and he did not have the right to appeal to CAS. Conversely CAS did not have jurisdiction over this matter according to NADA argument.

NADA is expected to argue that having exhausted his right of appeal before the Justice Varma panel, the swimmer did not have the right to seek another appeal.

The International Swimming Federation (FINA) anti-doping rules define an ‘international-level’ athlete as one who is in its Registered Testing Pool (RTP). The top-12 swimmers is each event are included in the RTP by FINA.

One could not readily find precedents that could be compared to the Muralidharan appeal in CAS. The one that could come close to a comparison is that of South African marathon runner Gert Thys.

Thys who tested positive for steroid 19-norandrosterone after winning the 2006 Seoul international marathon, was suspended for 32 months by Athletics South Africa (ASA). The hearing process took more than two years.

The South African athlete went in appeal to CAS which annulled the ASA disciplinary panel decision. CAS found procedural irregularities in the tests conducted at the Seoul laboratory and ruled in the athlete’s favour.

Gert Thys precedent

Despite ASA’s contention that Thys was not an ‘international-level’ athlete at the time of the doping infraction, CAS entertained the appeal on the argument that the IAAF anti-doping administrator had written a letter to Thys to “offer” a “settlement” for a two-year ban if the athlete admitted his offence. He also pointed out that even after CAS arbitration there could be an appeal before CAS and it could end up in protracted, expensive processes. CAS construed this as an arbitration window being offered.

ASA went in appeal to the Swiss Federal Tribunal. CAS being located in Lausanne, the Swiss Tribunal had jurisdiction over its decisions in a civil suit.

The Tribunal ruled in favour of ASA and set aside the CAS verdict, stating that CAS did not have jurisdiction over a ‘national-level’ athlete which Thys was found to be within the rules of the IAAF at the time of the Seoul marathon 2006.

Swiss court ruling

“When the CAS found that the Respondent was to be denied the status of an International-Level Athlete and therefore it had no jurisdiction according to Art. 60.11 of the IAAF Competition Rules, it did not violate the law”, the court said.

“The CAS wrongly found that it had jurisdiction on the basis of the April 10, 2008 letter. Its jurisdiction cannot rely on the applicable Federation Regulations either. The award of the CAS of July 24, 2009 is accordingly to be annulled as a consequence of the appeal being allowed and the CAS must be found to lack jurisdiction,” the court stated.

Well, the case did not end there! Thys went back to the South African Institute of Drug Free Sports (SAIDS), which was the appellate authority over a ‘national-level’ athlete. The matter was, however, delayed at SAIDS.

When WADA found that ‘due process’ was not being gone through in South Africa, it went in appeal to support the athlete in CAS and sought setting aside of his suspension. ASA gave up at this stage and informed CAS that it did not have the financial capacity to defend a case in CAS but it would abide by any decision by the court.

CAS upheld WADA appeal in 2012, nearly six years after the marathoner tested positive, and stated that Thys's due process rights are “seemingly being ignored" in South Africa. It agreed with the WADA that he needed to be reprieved under the circumstances even though it noted that the athlete had tested positive.

Thys’s case drove home the point that a ‘national-level’ athlete did not have the right of appeal at CAS, an argument that was upheld by the Swiss Federal Court. If there happened to be a second appeal in this case, under different circumstances, it was done by a party (WADA) that had the right of appeal before CAS.

Since CAS has admitted Amar Muralidharan’s appeal, it is to be presumed it could lead to an interesting argument over jurisdiction just as in the case of Thys.

The Padma Bhushan controversy

Was Saina Nehwal trying to seek the Padma Bhushan? Or was she simply trying to find out from the Sports Ministry why her ‘application’ for the award had not been forwarded to the Home Ministry? That she tried to enquire from the ministry through a series of Tweets indicated what her intentions were.

The badminton star, an Olympic bronze medal winner, has since clarified that her intention was not to “demand” the award but to find out why her name was not considered by the Sports Ministry. We should leave it at that.

That in the process Saina mentioned Sushil Kumar, whose name by then had already been forwarded by the Sports Ministry, only helped present (unfortunately) a ‘negative’ picture of the Hyderabad player.

Varied reactions

Reactions have varied on the Padma Bhushan controversy. As usual those who charge the political set-up with making a mockery of State awards have attacked the Government, questioned the system and argued that at least sportspersons need to be treated with honour and dignity and only true merit should be recognized by the system rather than ‘lobbying’ being of prime significance.

Several sportspersons on the other hand have wondered (despite Saina’s query “Who am I to demand an award”) how someone could “demand” an award or question a ministry’s recommendation or even try to argue about the ‘premature choice’ of a fellow Olympic medallist (Sushil Kumar).

Mercifully, most seemed to agree that Sushil Kumar, the Delhi wrestler who owns two back-to-back Olympic medals, and a World Championship gold, apart from several other medals and honours, was way ahead of Saina in stature and achievements, if that was indeed the debating point, and would deserve to get the award if he was eventually chosen. The technicalities were of course that could be looked into by the panel and/or the Home Ministry.

A few have opined that the awards, often susceptible to political manipulation, should be of no great relevance to any one, while some others have complimented Saina for “standing up” to the authorities and showing the courage to question their ways. Saina has surely highlighted the deficiencies in the system, though one should not assume that it is the badminton star alone who has suffered in respect of civilian awards.

By the way, rather interestingly, Saina got the Padma Shri in 2010, ahead of Sushil Kumar, though the latter by then had won an Olympic bronze (Beijing 2008).

Before we try to analyze the issue in greater detail, and discuss a few important aspects related to the Padma awards, one crucial point needs to be mentioned  straightaway. The awardees for 2015 are yet to be announced. Saina is only one of the few _or several as the case may be_sportspersons whose names have been recommended. So, too, Sushil Kumar.  (The awards are expected to be announced on the night of January 25)

It is a moot point whether the selection committee would ignore the stipulation of deadline in Saina’s case (there is no provision to do so even as a ‘special case’ as the Sports Ministry described it) or that of the five-year gap rule that prohibits a Padma awardee being given a higher award that could affect Sushil Kumar (there is a provision to waive this rule if the committee so desires).

We don’t know who the other contenders are among sportspersons for the Padma Bhushan this year.

Shooting in the dark

In this no-holds-barred attack against the system, commentators, television channel anchors and ‘experts’ who express their opinion during discussions, editorial writers and others have overlooked several facts. And those do not relate to whether Saina deserves the award or not, whether the ‘application’ had reached the ministry in time or not, whether wrestler Sushil Kumar fulfils the criteria or not, but on certain basic facts of the Padma awards scheme itself. In this the Sports Ministry has not helped matters. It has only complicated them as we will soon see.

The most important point in this whole unsavoury episode that had been missed by Saina, Sports Ministry, and critics has been the simple truth no one needs to “apply” to receive a Padma award.

Everyone from critics to ‘experts’ to former internationals to the common man have been fed this news through these past few days that no one would believe otherwise.

The word ‘apply’ or ‘application’ is missing in the Padma awards scheme. In contrast it figures five times in the Arjuna award scheme. For more than a decade, the Arjuna award scheme has been demanding ‘applications’ from prospective awardees.

The Arjuna awardee proforma has a space for an undertaking by the athlete being proposed to the effect that no disciplinary action had been taken against him/her for age fraud or doping etc.

Application v recommendation

The Home Ministry normally checks with the awardee-designate once the selections are made about the acceptance of the award by the individual. The rest of the formalities are completed by the Home Ministry in time for the awards ceremony.

Since the Arjuna award scheme required a signature from a candidate, over a period of time it became ‘application for Arjuna award’ rather than ‘recommendation’. Aspiring athletes talked about ‘applying’ for the Arjuna rather than being recommended for the highest sports honour of the country. Unfortunately through these past few decades, nothing had been done to correct this.

It is natural only then that sportspersons, and several others, believe that Padma awards also require an ‘application’ from a prospective candidate. It does require a short resume of the achievements of the candidate but that could be filled up by the agency/individual who is recommending the person or else obtained from the candidate and furnished with the nomination.

 It is not necessary that a recommendation for a Padma award for a sportsperson has to be made by the Sports Ministry. This is where the confusion and controversy has arisen in the latest episode.

The Sports Ministry is not a ‘routing agency’, it is a ‘recommending agency’ just like all Central ministries and departments, like all State Governments  or Governors or  Chief Ministers are, like all Members of Parliament, like all private agencies or any citizen of this country. Anyone can recommend any one for a Padma award. You may even recommend self.

Last year there were as many as 576 self recommendations among 1878 nominations.

Whether such a recommendation would have any chance of getting the nod from the selection committee appointed by the Prime Minister is a moot point.

The Padma awards search committee can also recommend names for the consideration of the selection panel.
Unlike the Arjuna award, which, for some strange reasons, had been made year-specific (previous four years), the Padma awards are not bestowed for performance or achievements for a particular year or set of years. Thus any attempt to argue that Saina had a productive 2014 in comparison to a "lean" year for Sushil Kumar is meaningless and misses the point altogether.

Is this a post office?

By giving so much of importance to the question of Saina Nehwal’s  nomination from the Badminton Association of India (BAI) not having reached the ministry in time to beat the deadline of September 15, 2014 (as claimed by it), the Sports Ministry gave the impression to the world that it could only ‘forward’ an application and was otherwise incapable of making a choice of its own to finally recommend the same to the Home Ministry. In fact it would be a lot better if the Sports Ministry were to perform the role of a "recommending authority" in its true sense rather than function as a 'forwarding post'.

Had it been making a recommendation or a few recommendations out of several nominations received, it could have simply stated that from the valid nominations received prior to the deadline it had made its recommendation/s to the Home Ministry and that is where it rested. Instead it announced that it had recommended the name of Sushil Kumar and, as a special case, that of Saina Nehwal.
Such an announcement has not been known in respect of Padma awards in the past. There was no need to make an announcement as though the ministry was attempting to 'correct' a grave mistake made by it.

There is nothing in the rules or precedents that suggest that a higher Padma award becomes due after a certain number of years or medals, in the case of sportspersons. You become eligible, that is all. Eligibility should also not mean that some agency has to recommend your case.

Were there other recommendations this year from National Sports Federations or the Indian Olympic Association (IOA) or any other agency that the Sports Ministry had received for the Padma Bhushan and had rejected? We do not know at this point and might come to know of it only when the Home Ministry releases the complete list in future.

(There was a brief intervention by boxer Vijender Singh to place himself as another possible candidate for the Padma Bhushan that put the ministry in poor light., Vijender later denied that he had ever proposed his candidature, for, he argued on TV that an award, if demanded and gained, would not be worth anything at all. Perhaps Vijender helped everyone concerned put things in perspective, not only on the deadline and other technical issues but also on the worth of an award that is sought not bestowed. Vijender's posturing also highlighted the futility and dangers of authorities relaxing rules and regulations in response to publicly-aired criticism. For, the Home Ministry cannot be expected to keep the deadline hanging for 'late-comers' to join the fray.)

Bring clarity

It is time the Sports Ministry clarified its procedures regarding Padma Awards nominations. Will it be forwarding all the nominations that it receives for the Padma awards for a year? Or else will it make its own choice of candidates from among the nominations received for various categories and then make its recommendations to the Home Ministry?

If the latter course is adopted, it would be logical and fair to advise all parties concerned that a mere submission of a nomination to the Sports Ministry would not be a guarantee for it to be forwarded to the Home Ministry so that candidates or their proposers are free to pursue different channels.

The media, the critics, the TV panelists all took it for granted that the ultimate clincher was a recommendation from the sports ministry, forgetting the fact that a recommendation for a sportsperson could come from anyone, any State Government for example. Whether a recommendation from a concerned ministry would add weight to a nomination for an award is a debatable point, but what we can make out from last year’s awardees list is that it is not always the case.

Gopi had AP backing

Last year Leander Paes and Pullela Gopi Chand were upgraded to Padma Bhushan. Paes was recommended by the Sports Ministry, 17 years after he won a historic bronze in the Atlanta Olympics, and after countless Grand Slam doubles titles, not to speak of success in the Asian Games, while Gopi Chand was nominated by the Andhra Pradesh Government. The Sports Ministry made five other ‘unsuccessful’ recommendations including one for the late wrestler K. D. Jadhav who won India’s first ever individual medal in the Olympics back in 1952 though there is no provision to give the award posthumously unless a special case is made out and death had occurred within a year of the selection. Jadhav had died in 1984.

What prevents the Sports Ministry_or for that matter the Padma awards search committee_ from recommending any of these great icons of Indian sports who are yet to be bestowed the Padma Bhushan_Prakash Padukone, P. T. Usha, Balbir Singh (triple Olympic gold in hockey), Rajyvardhan Singh Rathore, Anju Bobby George, Ajitpal Singh, Bishan Singh Bedi and Pankaj Advani?

The above is just a small list of some of the outstanding Indian sports stars, some of them yesteryears heroes and almost forgotten, but who have contributed a great deal to Indian sports through the years, some not just by their performances on the field, but off it, too. There are others, too, who might deserve a look-in who have not been mentioned here.

Inspiring the youth

Padukone and Usha inspired a generation of young Indians to aspire for glory and were also engaged later in their lives in coaching budding talent. Usha is still engaged in that task with her trainee, Tintu Luka having won a silver in the last Asian Games.

Rathore it was who showed the way for Indian sportspersons that Indians could also win something other than a bronze in the Olympics, and Anju George proved, by taking the bronze in the Paris World championships in 2003 that an Indian athlete can after all win a medal in a global championships. Never before had someone else done that in Indian athletics.

Balbir Singh, apart from figuring in three Olympic gold-medal winning hockey teams has had the distinction of being the manager of the World Cup winning team in 1975 plus of being the National coach.

We haven’t touched all of the other Olympic medal-winning sportspersons since giving a list of possible candidates for any category of Padma award is not the intention of this blog. It is to drive home the point that a recommendation from the Sports Ministry is not the be-all and end-all in a Padma award nomination. Whether right or wrong, it had never been so and we have had a former Sports Minister (M. S. Gill) complain once that his ministry’s recommendations were being ignored for the final choice.

The Padma awards in sports cannot and should not be moulded into a medals format or a championship-based points system as they have rather unsuccessfully tried out for the Arjuna award with disastrous consequences.

By giving importance to Tweets and Press statements by an “aggrieved” athlete, the Sports Ministry has sadly given the impression to the country at large that there are no more deserving cases from the past to be considered for higher civilian awards.

Or is it that the Sports Ministry is waiting for an “application”?
(amended 9 January, 2015)