Arbitrating Sports

Posted: February 28, 2009 in Discussions

Yesterday’s symposium was very interesting, and not what we non-academics would have expected. When I think of arbitrating sports, I think of mega-contracts with major stars, but in reality the discussion involved athletes on the poor side – think Olympians in sports like women’s field hockey. There was lots and lots of talk about “doping” accusations, along with a myriad of references to the Floyd Landis (cycling, if you’ve forgotten) public arbitration that Pepperdine hosted a couple of years ago.

There was a “poor athlete” versus mean ol’ WADA (World Anti-Doping Agency) vibe that ran throughout the day, partly because it seems WADA is a screwed-up organization, but mostly because there were lots of folks on the athletes’ side in attendance (read: their lawyers).

One of the major arguments is that testing labs are presumed correct in arbitrations over doping. In the Landis case, two labs came to diametrically opposite results (the Paris lab said “dirty,” and the UCLA lab would have said “clean”), and overcoming this scientific presumption is fairly impossible for an athlete – especially for athletes w/o funds to fight it.

It really should make us all think when we hear of someone testing positive for doping. We might ought to start with that crazy notion of jurisprudence that says “innocent until proven guilty,” and then go one step further and consider that several might be innocent even after being proven guilty.

Attorney Howard Jacobs mentioned a couple of prime examples:
#1: Zach Lund (skeleton), who was denied the opportuntiy to compete in the 2006 Olympics because of his positive doping test that came from taking Propecia for male-pattern baldness.
#2: Alain Baxter (alpine skiing), who was stripped of a bronze medal from the 2006 Games in Salt Lake City after picking up a Vick’s inhaler from a local convenience store and testing positive for methamphetamine.

But I especially enjoyed hearing Michael Lenard’s panel at the end of the day. Lenard is a board member of the International Court of Arbitration for Sport, and a straight-shooter. Without attempting to exonerate WADA (and its American version, USADA), he basically said What did you expect? Everyone wanted an independent agency to deal with these matters, created an international one, told them doping was bad, and set them loose on the world of sport. As he pointed out, the world doesn’t have an effective international body to deal with war crimes yet – do we expect a beautiful one to deal with doping issues in sport?

Then, after all was (practically) said and done, I found it most interesting when Lenard said that doping isn’t really the big issue on the horizon of sport. In his presentation on “The Future of Sports Dispute Resolution,” he said that “citizenship” is the biggie. He spoke briefly of countries buying athletes’ citizenship, and I remembered high school – moving the stud into town so he can play for your team. Lenard argued that “integrity of the outcome” is the most important value to protect because, if we think the game is rigged, we’ll quit watching.

All in all, it was in interesting day. I’m not really interested in pursuing a career in sports arbitration, but it was fun to take a break from studying law for grades, and engage in a study of law just for the sake of learning something – which is a novel idea all by itself.

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