International sport and rule of law: Leading a horse to water | Richard W. Pound

Law360 Canada (June 15, 2022, 9:02 AM EDT) --

Richard Pound

It is, in our part of the world, generally accepted that observance of the rule of law is a hallmark of a democratic and enlightened society. Our conduct within the social order is governed by rules established by elected representatives, who are ultimately responsible to their electors, acting within their constitutional jurisdiction. Measures are also in place to deal with conduct that does not comply with those rules. Asserted infractions are brought before courts or administrative tribunals independent from both the legislature and the executive branch of the appropriate government. It is acknowledged, at least domestically, that such a system, predicated on compliance with the law, actually “works.”

An escalating series of considerations emerges when application of the rule of law is engaged in an international context, as occurs, for example, in sport.

It is usually not too complicated in a purely bilateral situation, such as a sport-related contract or competition between persons or organizations in, say, Canada and the United States. The mutual agreement can be recorded in the contract or the competition protocol, which in turn can identify the governing law and provide for the regulation of disputes by arbitration or litigation. Even multiparty contracts and competitions can be similarly structured. Complications can arise if a court award is sought to be enforced in the country where the award was issued, but the losing party is not within that jurisdiction or has no assets there. Absent a convention between the two countries or domestic legislation which recognizes the enforceability of the foreign award, the winning party may be forced to relitigate in the other country. In any event, the rule of law will eventually prevail.

The complexity is exacerbated when many countries are involved. In matters of arbitration, the New York Convention, now ratified by almost all countries, on the recognition and enforcement of foreign arbitral awards, has simplified matters affecting the rule of law to a substantial degree.

The Court of Arbitration for Sport (CAS) was initially created by the International Olympic Committee in 1984, to deal with sports-related disputes. CAS has been recognized as an independent tribunal whose orders and judgments are entitled to deference by state courts, unless tainted by lack or excess of jurisdiction or breach of the rules of natural justice. As it approaches 40 years of experience, CAS has become one of the most active international arbitrational bodies in the world.

One of the principal issues affecting sport is doping. Oversimplified, this involves the use of performance-enhancing substances (such as anabolic steroids) or certain methods (such as blood enhancement and sample substitution), contrary to the provisions of the World Anti-Doping Code (Code), which applies, among others, to the entire Olympic movement.

From a legal perspective, the relevant sport organizations have incorporated the Code into their own rules and the state parties have adopted and ratified an international Convention under the aegis of UNESCO, pursuant to which they undertake to use the Code as the basis for their anti-doping programs. All sports and state parties have agreed that CAS has the final jurisdiction with respect to any anti-doping disputes. The same anti-doping rules, for the first time in history, apply both to the sports authorities (and athletes) and the governments of the world.

More problematic with respect to the rule of law, however, is the action (or inaction) of state parties, which are not normally inclined to act except in their own perceived self-interest. Within the last decade, for example, we have seen massive state-sponsored doping programs in Russia, completely contrary to Code. Despite its ratification of the UNESCO International Convention Against Doping in Sport, Russia has, through its active involvement in doping programs, breached its responsibilities under that Convention. Other state parties responsible for enforcement of the Convention have declined to sanction Russia for its breach of the rules, undoubtedly in their own perceived self-interests.

The integrity and credibility of sport, like any other form of behaviour, depends on participants to respect the rules to which they have agreed. Russia continues to deny any responsibility or culpability with respect to its doping activities, even in the face of the documented findings of several independent investigations, plus a unanimous CAS decision (in which the Russian-appointed arbitrator participated) that made a specific finding that state-sponsored doping activities could be traced to and linked to the highest Russian political authorities.

The outcome of Russia’s intractable behaviour is to unilaterally thwart the application of the rule of law. Russia has reneged on its promises and the other states bound by the same Convention have failed to call it to account. Shame on both.

Richard W. (Dick) Pound is a lawyer who was the first president of the World Anti-Doping Agency and vice-president of the International Olympic Committee.

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