by Renée Kolar
The United States Anti-Doping Agency (USADA) was created in 2000 by the congressionally-chartered United States Olympic Committee (USOC) in an attempt to address the national and international criticisms that the U.S. was not doing enough to eradicate the perceived use of performance enhancing drugs among U.S. athletes. Travis T. Tygart, Esq., Winners Never Dope and Finally, Dopers Never Win: USADA Takes Over Drug Testing of United States Olympic Athletes, 1 DePaul J. Sports L. & Contemp. Probs. 124, 124-5 (2003). To compete in sanctioned international competitions, athletes must agree to comply with the World Anti-Doping Code (WADC), requiring random in and out-of competition doping control testing for prohibited substances. Maureen A. Weston, Simply a Dress Rehearsal? U.S. Olympic Sports Arbitration and De Novo Review at the Court of Arbitration For Sport, 38 Ga. J. Int’l & Comp. L. 97, 106 (2009). USADA was designated by Congress as the national anti-doping agency empowered to protect the competitive integrity of Olympic sports and has exclusive authority to manage drug testing and adjudication of enforcement actions under the WADC. Maureen A. Weston, Doping Control, Mandatory Arbitration, and Process Dangers for Accused Athletes in International Sports, 10 Pepp. Disp. Resol. L. J. 5, 41-42 (2009). [hereinafter Weston Doping Control]. Although it receives more than 8 million dollars in federal funds (approximately 60% of its budget) and more than 3 million dollars from the USOC, the USADA is an independent non-profit corporation that has the power to impose sports sanctions but not criminal or civil penalties. Steve Frothingham, Judge slams Armstrong’s Complaint, The Bicycle Retailer and Industry News (July 9, 2012, 11:18 AM); Weston Doping Control supra at 42. Its authority has been consistently upheld by courts. Brent Schrotenboer, Armstrong gets 30-day extension to answer doping charges, USATODAY (July 10, 2012 ).
World Anti-Doping Code (WADC)
The WADC, created by the World Anti-Doping Agency (WADA) as part of their World Anti-Doping Program (WADP), has been effective since 2004, with a revised Code in effect since January 2009. Weston Doping Control supra at 25. It is designed to “ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping.” World Anti-Doping Agency, World Anti-Doping Code at 11 (2009) [hereinafter WADC 2009], available at http://www.wada-ama.org/rtecontent/document/code_v2009_En.pdf. The Code establishes anti-doping rules, definitions of doping, burdens of proof, prohibited substances and methods, and includes, inter alia, standards for testing, sample analysis, sanctions, appeals, confidentiality, reporting, and statute of limitations. See generally WADC 2009. Pursuant to the Code, WADA may bring an appeal to the Court of Arbitration for Sport (CAS) on rulings by anti-doping organizations without exhausting other remedies in the Anti-Doping Organization Process when no other party has appealed. WADC 2009, supra at art. 13.1.1. (“Where WADA has a right to appeal under Article 13 and no other party has appealed a final decision within the Anti-Doping Organization’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in the Anti-Doping Organization process”).
The Court of Arbitration for Sport (CAS)
The CAS was established by the International Olympic Committee (IOC) in 1983 with a mission to convene panels to resolve disputes arising in the field of international sport. Weston supra at 108. The CAS has two primary divisions: the Ordinary Arbitration Division and the Appeals Arbitration Division. Id. at 108-09. The former resolves commercial contractual disputes relating to the field of sport between parties who have consented to the jurisdiction of the CAS. Id. The latter handles disputes concerning the decisions of federations or sporting authorities like the USADA. Id. Although originally created by the IOC, CAS is now independently managed and financed by the International Court of Arbitration for Sport (ICAS). TAS/CAS, General Information: Organisation and Structure of ICAS and CAS, (http://www.tas-cas.org/en/infogenerales.asp/4-3-238-1011-4-1-1/5-0-1011-3-0-0/) (last visited July 15, 2012).
USADA has the authority to test any athlete who (1) is a member or license holder of a National Governing Body (NGB); (2) is participating in a competition sanctioned by the USOC or a NGB or participating at a competition sanctioned by an International Federation (IF); (3) is foreign but present in the U.S.; 4) has given his or her consent to Testing by USADA; (5) has been named by the USOC or an NGB to an international team or who is competing in a qualifying event to represent the USOC or NGB in international competition or is included in the USADA Registered Testing Pool; (6) is serving a period of ineligibility and has not given notice of retirement; or (7) USADA is testing under authorization from the USOC, an NGB, IF, any National Anti-Doping Organization (NADO), WADA, the IOC, the International Paralympic Committee (IPC) or the organizing committee of any Event or Competition. United States Anti-Doping Agency Protocol for Olympic and Paralympic Movement Testing, para. 2 Available at www.usada.org/files/pdfs/usada-protocol.pdf.
While the USADA’s jurisdiction appears very broad, USADA may not use its testing “to harass any athlete.” Tygart, supra at 128-9.
How Does the USADA Handle a Doping Violation?
Results for positive or elevated test or other doping violation are first given to the USADA Anti-Doping Review Board, consisting of a group of medical, technical and legal experts independent from USADA. Id. at 135. Before the board meets, the athlete has an opportunity to submit any written materials for the Board to take into consideration when deliberating. Id. The Review Board then makes a recommendation to USADA as to whether or not there is sufficient evidence to proceed to a hearing. Id. USADA will then inform the athlete in writing whether or not it intends to adjudicate and sanction the alleged violations. Id. at 136. The athlete has ten days from this written notice to decide whether to contest or accept the sanctions. Id. If he or she chooses to contest, there are two options: the athlete may chose to have a hearing before the American Arbitration Association (AAA) with the right to appeal to a final and binding CAS hearing, or he or she may proceed directly to the CAS arbitration which will be final and binding with no further review or appeal. Id.
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Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.