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Which rules? International sport and doping in the 21st century.






When Baron Pierre de Coubertin launched the modern Olympic Movement in the late nineteenth century he probably never expected the Olympic Movement to grow to 205 National Olympic Committees, which would enter 10,500 women and men to compete in 304 events from 28 sports. (1) Coubertin never anticipated the need for anti-doping rules or a court of arbitration with an expedited appeals court which would be a part of conducting the Games.

Today's athlete must negotiate a complex set of rules governing doping. Every National Olympic Committee (NOC), every International Federation (IF), and every athlete who competes in a world championship or Olympic Games must agree to abide by the World Anti-Doping Code. In addition, the NOCs, the IFs, and their athletes are subject to the rules of the International Olympic Committee (IOC). All of these rules are subject to changes, and, in fact, in the fast moving world of doping control, are constantly being revised. How did this great celebration of human excellence become a scientific and legal playground? And, what international legal mechanisms are in place to govern this brave new world?

The IOC grew out of a congress in Paris in 1894 convened by Coubertin to discuss the future of the amateur sports movement. (2) The meeting took place at the Sorbonne University. (3) The list of invitees included seventy-eight men from nine countries. (4) The congress had several agenda items. The possibility of creating a modern version of the ancient Olympic Games was the last item listed, but it was the one that forever changed the face of modern sport. (5)

The Paris Congress laid the groundwork for what later became known as the Olympic Charter and the creation of the IOC. (6) The IOC exists as a Swiss association. (7) Under that legal status, the association is able to set up its own rules and regulations governing all actions of the association. (8) The ruling document is now called the Olympic Charter. (9) There have been many changes to this document over the years. The most recent review was carried out in 2004. (10)

As a result of that work, many references are made to documents that are outside of the Charter and have been given controlling authority. Examples of this are the rules and regulations of the World Anti-Doping Agency (WADA), the World Anti-Doping Code, the Court of Arbitration for Sport (CAS), and the many handbooks created to assist in the organization and operation of the Olympic Games. (11)

The Olympic Charter can be amended only by the Session, which is the name given to the annual meeting of the IOC. (12) There is typically one IOC Session per year, although the IOC President may call an Extraordinary Session as necessary. (13) The IOC has an Executive Board (EB), which acts between the Sessions and has full authority to make decisions in areas outlined in the Charter. (14) The EB meets at least four times a year, and there is no limit on the number of times it meets. (15) There are also twenty-one commissions with a variety of portfolios. (16) The commissions act in an advisory capacity to the EB. (17)

The Sessions are scheduled to be held at a host city selected at least four years in advance of the meeting date. (18) In an Olympic Games year, the Session meets before the Olympic Games at the site of the Olympic Games. (19) The NOCs may propose a city in their country to host the Session in non-Olympic Games years. (20) The selection of the host city is made by the Session, just as the Session decides which candidate city shall host the Olympic Games. (21)

It is necessary to understand the relationship of the various organizations that have been introduced in this paper. The IOC is the ruling organization, with the "supreme authority" over the Olympic Movement. (22) Before the IOC was created in 1894, International Sports Federations existed. The first International Sports Federation was Federation Internationale des Societies d'Aviron (FISA), the International Rowing Federation. (23) Shortly thereafter was Gymnastics and so on. (24) These IFs can exist with or without the Olympic Movement. In the Charter, the relationship with the IFs comes immediately after the discussion of the IOC. (25)

Over the years, a number of IFs have been recognized by the IOC. (26) The recognition provides a number of privileges as well as a number of responsibilities. The recognition by the IOC is a prerequisite for selection to the program of the Olympic Games or the Olympic Winter Games. (27) This recognition requires that the IF adhere to certain rules and policies set out by the IOC. Since 2004, it is necessary to have incorporated the World Anti-Doping Code into the constitution or bylaws of all Olympic IFs. (28) Other IFs have also been encouraged to adopt this Code. (29)

NOCs exist because the IOC exists. They operate as though they are franchises of the IOC. The NOC has the exclusive power to enter an Olympic team at the Olympic Games. (30) Each of the 205 NOCs is unique to its country. At the present, IOC recognition of a new NOC requires that the NOC exist in a country recognized by the United Nations (UN). (31) Until that requirement became a part of the Charter, in the mid-1990s, it was possible to have an NOC created in a territory or a commonwealth of a larger nation. (32) Thus, there is an NOC in Puerto Rico. (33) All of the NOCs recognized before the Charter was changed are retained by the IOC even though they might not be eligible under the UN recognition rule. (34) With the dissolution of the Soviet Union, and more recently Yugoslavia, many more NOCs have been created. (35) If a country ceases to exist, as was the case for East Germany, there is no longer an NOC and if there was an IOC member, that member must retire. (36)

An applicant NOC must show that it has at least five national sports federations (NFs) that have membership in their respective IF. (37) There are additional requirements that are set out in the Charter for successful recognition as an NOC. (38) The size of the population is not a deciding factor. China, India, and the United States have NOCs, as does Tuvalu, which has a population of ten thousand. (39)

In Europe, there has been a trend toward having the NOC become a part of a larger national organization of sports. (40) These councils of sport are generally created through a federal government and frequently are supported by the Minister of Sport. (41)

The NOCs have an international organization called the Association of National Olympic Committees (ANOC). (42) Each continent has its own organization as follows: Africa has the Association of National Olympic Committees of Africa (ANOCA), with fifty-three NOCs; America has the Pan American Sports Organization (PASO), with forty-two NOCs; Asia has the Olympic Council of Asia (OCA), with forty-four NOCs; Europe has the European Olympic Committees (EOC), with forty-nine NOCs; and Oceania has the Oceania National Olympic Committees (ONOC), with seventeen NOCs. (43)

The IOC has authority over the conduct of athletes in a sport only during the Olympic Games. (44) At all other times, the IFs and/or the NOCs have control of and responsibility for the athletes. (45) Because the IFs are the experts in their sports, the IOC relies on the IFs to conduct their sports during the Games in accordance with the rules of the Olympic Charter. (46)

During the Opening Ceremony of the Games, an athlete selected by the Organizing Committee, in consultation with the host NOC, recites the oath on behalf of all of the athletes competing at those Games. This practice began at the 1920 Games in Antwerp. (47) By 1972, a representative of the officials joined and recited the oath on behalf of all of the officials at the Games. (48) The Olympic Oath remained the same over the years until the 2000 Sydney Olympic Games. For those Games and all subsequent Games a commitment to compete without doping was added. (49)
 In the name of all the competitors I promise that we shall take
 part in these Olympic Games, respecting and abiding by the rules
 which govern them, committing ourselves to a sport without doping
 and without drugs, in the true spirit of sportsmanship, for the
 glory of sport and the honour of our teams. (50)

 The officials' oath is similar without the reference to doping. In
 the name of all the judges and officials, I promise that we shall
 officiate in these Olympic Games with complete impartiality,
 respecting and abiding by the rules which govern them, in the true
 spirit of sportsmanship. (51)

Through the Olympic Oath, they are stating that they will abide by the rules of the Charter. Similarly, the officials through that symbolic oath-taking are subjecting themselves to the rule of the Charter.

In addition, when an athlete or any member of the NOC delegation applies for a credential for the Games, there is another agreement to abide by the IOC rules. For the athletes and the NOC delegations, the language from the 2004 Athens Olympic Games entry form follows:
 I agree that any dispute, controversy or claim arising out of, in
 connection with, or on the occasion of, the Olympic Games, not
 resolved after exhaustion of the legal remedies established by my
 NOC, the International Federation governing my sport, ATHOC and
 IOC, shall be submitted exclusively to the Court of Arbitration for
 Sport (CAS) for final and binding arbitration in accordance with
 the "Arbitration Rules for the XXVIII Olympiad in Athens", which
 form part of the Code of Sports-related Arbitration.

 The CAS shall rule on its jurisdiction and has the exclusive power
 to order provisional and conservatory measures.

 The decisions of the CAS shall be final and binding.

 I shall not institute any claim, arbitration or litigation, or seek
 any other form of relief, in any other court or tribunal.

 The NOC confirms that all the relevant rules have been brought to
 the notice of the athlete/coach/trainer/official, and it has been
 authorized by the National Sports Federation concerned to sign this
 entry form on its behalf. (52)

That document is essentially a contract with the athletes and the members of the NOC delegation. For the media and other groups to be credentialed, other types of restrictions are found in the application for a credential. (53) This document is reviewed before every Olympic Games to make certain it will cover all of the issues likely to arise at the Games.

The Olympic credential also acts as a visa for the Olympic Family and guests for the Games; this remarkable situation is a result of Rule 53 of the Olympic Charter, as well as the contract, which the host city signs with the IOC. (54) It is necessary that all of the rules of the Charter are accepted by the host nation. (55)

For the 1996 Atlanta Centennial Olympic Games, our State Department worked with all of the NOCs so that at the Opening Ceremony, each NOC was present. (56) This was the case regardless of the diplomatic relations or lack thereof with the U.S. Government. This will also be the case for the 2008 Beijing Olympic Games.


Professors Jan Todd and Terry Todd, of the University of Texas, have provided an extensive outline of the history of drug testing in the Olympic Movement from 1960 to the year 2000. (57) They reference the 57th IOC Session, which was held in San Francisco prior to the 1960 Squaw Valley Olympic Winter Games, as the site of that first discussion. (58) The central topic of the discussion was amphetamine sulfate, or "pep pills". (59) Later that year, at the 1960 Rome Olympic Games, the first death at the Olympic Games since 1912 was attributed to the use of the blood circulation stimulant, Ronicol. (60) Doping had become a serious threat to the Olympic Movement.

Recognizing that the Games would not survive if athletes died as a result of doping, the IOC took steps to protect the health of the athlete. At the Session prior to the 1964 Tokyo Olympic Games, the IOC voted to condemn doping by athletes. (61) It was at this Session that it decided to take steps to sanction each person or NOC that uses or promotes the use of dope and to ask the judges and competitors to sign a pledge that they will not become involved in doping. (62) The method for detecting doping was not yet available, but scientists were beginning the work to develop those means. (63)

By 1968 the popularity of the Games had grown immensely. The 1968 Mexico City Olympic Games became a significant changing point for the Olympic Movement. Most Americans will remember the unity salute by John Carlos and Tommie Smith. (64) Others will remember the extraordinary long jump by Bob Beamon, whose record stood for twenty-three years. (65) Very few Americans were tuned into a student protest that occurred in a square not far from the Olympic stadium ten days before the Games opened. Police and military forces fired on the demonstrators. (66) Estimates of casualties vary, but most sources put the number of demonstrators killed at least 200. (67) It was a turbulent period in the world.

In the realm of sports medicine, 1968 also represented two Olympic milestones: the introduction of so-called gender verification tests and drug testing. Why was gender verification instituted at the 1968 Olympic Games? It seemed that for some time, certain NOCs had entered men to compete in the women's events. The national interest in winning gold medals had begun in earnest. The women's events at the Olympic Games are open only to women. In an effort to ensure that only women were in these competitions, the IOC implemented a sex chromatin test. (68) The test, now considered to be scientifically invalid, involved swabbing the inside of an athlete's mouth to collect data on the X Y make up of an individual. (69) This chromosome test was used as a screening tool, not as a final disposition of the question. (70) If there seemed to be a problem, further tests of the individual were undertaken. (71)

At no time was the individual's identity divulged. Despite some reports, the confidentiality of such individuals has never been breached by the IOC. (72) After a number of challenges to this type of testing, and because the communication systems today make it quite unlikely that an unheard-of woman athlete can burst on the scene, the IOC decided that women athletes would no longer be subjected to this gender verification test at the Olympic Games. (73) Further, given the modern approach to dope testing, it is thought to be impossible that a man could pass this test unnoticed. I do have my card from the 1976 Olympic Games which confirms that I am a woman.

Now, the technology for the ability to test is mandatory for each organizing committee, but it is available primarily for an NOC to have an athlete tested if there is a question. Thus far, no delegation has demanded that an athlete from another delegation undergo testing.

More recently, the IOC has considered the question of an individual who has undergone a sexual transition. While the policy has yet to be tested, it was decided that two years after the surgery is complete and the hormone therapy has been fulfilled, that athlete may compete in the Games. (74) There are other steps that require what some consider an invasion of privacy. Thus far, it seems that no one who has undergone such surgery after puberty has been selected to compete in the Olympic Games.

Drug testing in 1968 took place first at the Olympic Winter Games in Grenoble and then some months later at Mexico City in the Olympic Games. (75) The newly created IOC Medical Commission was given jurisdiction to improve the safety of Olympic competition. (76) The first list of banned substances was limited to alcohol, pep pills, cocaine, vasodilators, opiates, and hashish. (77)

The 1972 Munich Olympic Games for the first time brought the doping issue to the attention of the general American public. The American swimmer Rick DeMont was an asthmatic who had been using a medication that was permitted on the IOC anti-doping list. (78) At some point before the Games, he was provided with another medication that seemed to be more helpful in dealing with his condition. (79) Unbeknownst to DeMont the medication contained a substance banned by Olympic rules. When DeMont was tested after placing first in the 400-meter freestyle final, the test came back positive. (80) The IOC disqualified DeMont, and after a series of discussions, he left the Athletes Village. (81)

At the 1972 Games, the IOC did not test for anabolic steroids because a reliable test had not yet been developed. Nevertheless, anabolic steroids were already in use by athletes in sports that required significant strength and who had access to medical and scientific support. (82) It is sad to note that this type of abuse was fairly significant within those sports and even within the U.S. delegation for those sports. (83) Weightlifting, weight throwing, and other events that rely on short bursts of extraordinary strength were the most likely suspects for this abuse in the early years.

Add to this that some athletes were already cynical about the sophistication of dope testing. Some athletes indicated that whatever test was employed, they would find a way to beat it. (84) Physicians also admitted that athletes were using these drugs. (85) During the 1972 Munich Olympic Games, an athlete did an informal survey of athletes in his sport--track and field--and reported that sixty-eight percent of his colleagues reported dope use. (86)

It would not be until the 1976 Montreal Olympic Games that athletes were tested for anabolic steroids. There were rumors about how successful the testing would be. Some athletes stayed out of the Athletes Village until it was time for their competition. That way, they thought they could have time for any traces of the banned substances to be removed from their body.

The women from the German Democratic Republic (GDR) were dominant at the 1976 Olympic Games. In my sport, rowing, they won five of the available six gold medals. (87) The great American swimmer, Shirley Babashoff, who was the reigning world record holder in six events, lost to an East German swimmer in all but one of those events. (88) Her one gold medal at those Games came from a relay event. (89) In that event, all of the U.S. women were determined to bring an end to the dominance of the GDR.

Babashoff had spoken out about the GDR women and was mocked by U.S. swimming officials as being a poor sport. (90) They called her "surly Shirley." (91) It was not until the fall of the Berlin Wall and the opening of the secret files on those athletes that she was vindicated. (92) The IOC recognized her dedication to clean sport with awarding her an Olympic Order, the highest honor from the IOC. (93)

Throughout the 1980s and 1990s performance enhancing drug usage became increasingly prevalent in elite sport. National and international governing bodies, lacking a unified approach to the problem, seemed to many critics to be unable or unwilling to take steps to stem the tide. The growing crisis came to a head in 1998 as a result of a series of much-publicized doping scandals.

In January 1998, at the swimming world championships, Australian customs agents detained a Chinese swimmer carrying human growth hormone. Weeks later German prosecutors open proceedings against six former East German coaches and physicians who had given drugs to young female athletes. Meanwhile, Michelle de Bruin, a 1996 Olympic gold medal winner in swimming, was caught tampering with a urine sample during an out-of-competition test. Two American track and field athletes and Olympic medalists, Randy Barnes and Dennis Mitchell, were suspended from competition following an April drug test.

The most notorious scandal, however, occurred during the 1998 Tour de France cycling race, when French police raided the hotel rooms of cycling teams. (94) The raids uncovered remarkable quantities of banned substances. (95)

As the Tour de France story played out, IOC President Juan Antonio Samaranch, in an interview with a Spanish newspaper, suggested that perhaps the list of banned substances in sport was too long and that only drugs detrimental to health should be on the list. While Samaranch's remarks were not unreasonable, many in the press and world of sport interpreted them to be a retreat in the fight against doping. Samaranch and the IOC were strongly criticized.

The negative publicity of the various scandals combined with the realization among leaders of the Olympic Movement that national law enforcement officials were beginning to take the lead in doping control through raids on sport teams and other means prompted the IOC to convene the World Conference on Doping in Sport. The conference, attended by sport and government leaders, took place in February 1999, Lausanne, Switzerland, home of the IOC.

In preparation for that conference, working groups were created. I had the privilege of chairing the one for the protection of athlete rights. I recall lively discussion, which included recommending that elite athletes become card holders, which would make them available for drug testing at any time. This card would also verify that a baseline for the athlete had been developed so that over the years, if there were changes in the testing results, the change in the baseline would prove whether the athlete had begun use of banned drugs or not.

Participants in the World Conference on Doping in Sport were not unanimous in their recommendations. There was significant support, however, for a universal no-notice out-of-competition testing system. While some IFs had already developed an out-of-competition testing program, very few were taking the problem seriously. Although the IOC was becoming more committed to finding drug cheats during the Games, the IOC had no jurisdiction over athletes at any other time. This was a problem because athletes who were drug cheats would generally cycle off of the drugs in time for their systems to be clean at the Games. The main benefit of most of the doping compounds was to enable athletes to train harder. Anabolic steroids made it possible to recover from training significantly faster, in addition to its ability to add muscle strength for those who continued to train. (96) By 1998, athletes knew that drug use was prevalent during training, and that was when drug cheats could be caught.

Broad agreement on the concept of out-of-competition testing led to the conference's most important decision, the call for a World Anti-Doping Agency and with it the development of a worldwide anti-doping code in sport. (97)

In November of 1999, the IOC established the World Anti-Doping Agency (WADA). (98) WADA was guided by a representative board. In part to reinforce its independence from the IOC, the WADA established its headquarters in Montreal, Canada. (99) The funding was to be fifty percent from the sports world and fifty percent from the governments. (100) The IOC put up $25 million from the sports world to establish WADA. (101) It would take several years to get the governments to fulfill their responsibility.

The first order of business for WADA was to develop a World Anti-Doping Code. The goal of the Code was to harmonize the approach to anti-doping in all sports and countries. (102) This was an immense undertaking. Nevertheless, after another world conference, in 2003, the Code was adopted. (103)

Both the Code and the list of banned substances are reviewed every other year. Before every Olympic Games, the IOC Anti-Doping Rules are reviewed to make certain the knowledge gained in the intervening years is applied appropriately. (104) The IOC Juridical Commission finished its review for the Beijing Olympic Games and passed the document on to the EB.

The process of getting every NOC and IF into compliance finally became a matter of entry to the 2004 Athens Olympic Games. Without adoption of the Code, an NOC would not be allowed to compete and an IF would be withdrawn from the Games. (105)

The work of WADA, by its very nature involves high stakes and controversy. Inevitably, athletes and governing bodies will challenge the methods and decisions of WADA. When WADA and other parties find themselves at odds, they turn to the Court of Arbitration for Sport to resolve disputes.


In the United States, Olympic sport has long turned to the American Arbitration Association (AAA) to solve matters in sport. Even before the 1978 legislation, which is now called the Senator Ted Stevens Olympic and Amateur Sports Act, the AAA was called on to settle disputes in sport. (106) I was a part of an arbitration in 1975, during which my boat club demanded the right to stay together as the national team in the women's eight-oared shell with coxswain (the eight). For the first time, the U.S. Rowing Association had decided to select the women's eight during a camp organized in Boston.

The problem for our club was that all of the women had jobs in Philadelphia and would not be able to take the time off to row in Boston for three weeks in hope of making the team that would then spend another three weeks competing in Europe. In addition, the cost of paying for housing and board in Boston was prohibitive for the women of the Vesper Boat Club.

Vesper was the dominant club in women's rowing from the beginning of the 1970s. Our club was the defending national champion in the eight. (107) The award from that arbitration gave Vesper the right to represent the United States in the eight, provided that we won the national championship regatta that year. Alas, an upstart team from the University of Wisconsin beat us and ended our hope to represent the United States in that boat category.

While the arbitration tool was used to settle this type of dispute, the process became instrumental in dealing with doping sanctions. As the IOC became more and more interested in making the Olympic Games both safe and fair, the issue of legal action by athletes became a worry.

The Court of Arbitration for Sport (CAS) was created by the IOC and presented to the Olympic Movement in 1983. (108) The eminent jurist from Senegal, Judge Keba Mbaye, was given the task to build this institution by IOC President Juan Antonio Samaranch. (109) The judge, who served as vice president of the International Court of Justice at The Hague, was elected to the IOC in 1973. (110)

After the 1980 election of Samaranch to the presidency of the IOC, Judge Mbaye approached him, expressing his wish to retire as an IOC member. He felt that his tenure on the IOC had not been particularly of interest, and he thought he should make way for someone else. Samaranch recognized the importance of the judge to the IOC and countered with the idea that Mbaye should consider how dispute resolution in sports could be created so that the civil courts would not become entrenched in the sports movement. (111) This task given to Judge Mbaye resulted in the creation of CAS.

The purpose of CAS was to have an institution where sports-related disputes could be solved. (112) The thought was that the arbitrators and mediators for this court would develop expertise in matters of sport, which included both contract-related disputes as well as those controversies resulting from disciplinary actions. The intention was to keep sports matters out of ordinary courts. In addition, this procedure would keep the costs of dispute resolution under control so that the IFs and NOCs would be able to provide athletes and other parties with due process.

The Code of Sports-Related Arbitration and Mediation (Code) was first approved by the IOC in 1983 and made public in 1984. (113) Initially, the IOC had considerable control of the organization and was able to amend its statutes and rules. (114) That would change a decade later.

Over the years, the complete structure was created. This includes the International Council of Arbitration for Sport (ICAS). The purpose of ICAS is to protect and guide the CAS. (115) The ICAS board has twenty members. Twelve board members represent the constituent groups of the Olympic Movement: four from the IFs, four from the NOCs, and four from the IOC. (116) These twelve identify four additional members who can represent the interest of athletes. (117) Finally, four are selected by the sixteen seated Council members from organizations independent from the four groups with representative members. (118) This provides opportunity for jurists and personalities to assist in the governance of the ICAS.

Initially, the IOC Executive Board recommended the IOC member who would become the President of ICAS. Judge Mbaye was the obvious candidate and he filled that position until his death in 2006. (119) Me Mino Auletta is the current President of ICAS. (120)

The ICAS is supported by a professional staff. In addition to ICAS, there is CAS, which is made up of arbitrators who carry out the work. (121) There are two hundred arbitrators at present. (122) Those members of CAS in the United States must also be members of the AAA. (123)

As the CAS undertook its work, the IOC knew that, at some point, the question of its legitimacy would be tested. This test came in 1994 with a case involving the Equestrian Federation (FEI) and an athlete who was appealing the decision of CAS to the Swiss Federal Tribunal (FT). (124) This was the moment at which a federal court would accept the legitimacy of the CAS or not. While the decision pointed out the very close ties to the IOC and other potential flaws, the FT gave the nod of approval to the CAS with some suggested steps to ensure independence. (125)

As a result of that case, the CAS underwent a series of reforms to ensure its independence. The IOC turned over a large sum of money so that ICAS could create a foundation and could make its own financial decisions. (126) The ICAS created two divisions: an Ordinary Arbitration Division and an Appellate Division. (127) The reforms were implemented in 1994 and the ICAS became an independent organization fully able to govern itself. (128)

As the dope testing procedures at the Olympic Games became more sophisticated, there was a concern that the procedure for appealing a case might take months, thus jeopardizing the Games. It was not reasonable to allow an athlete who was under the cloud of a positive test to continue in competition. Nevertheless, the notion of due process required that an appellate procedure be in place to quickly resolve the question.

The IOC procedure, until the Atlanta 1996 Olympic Games, required that the Medical Commission would notify the IOC President that there was a positive test. (129) The President would then notify the athlete, or an appropriate member of the NOC delegation of the positive test. (130) The Medical Commission would immediately schedule a hearing during which the athlete had the right to appear with legal counsel and a member of the NOC. (131) The IF involved would also be able to send a representative to the hearing. (132) After the hearing, the Medical Commission would present its recommendation to the full IOC EB. (133) The EB had the power to discipline the athlete.

As the significance of the outcomes grew (in other words, the ability of the athlete to earn money based on the results of competition at the Games), it became clear that an expedited appeals mechanism incorporating due process needed to be created. The CAS created the Ad Hoc Division of the Court of Arbitration for Sport. (134) The Ad Hoc procedure was utilized for the first time during the 1996 Atlanta Olympic Games. (135) This required an understanding with the U.S. judiciary, both state and federal, that the CAS had jurisdiction over these cases and that only in cases where due process was not made available could the national courts become involved.

Judge Richard Arnold, chief judge of the U.S. Court of Appeals for the Eighth Circuit, was instrumental in explaining the function and legitimacy of CAS to the U.S. judiciary. Judge Arnold had been elected to the governing body of the CAS in 1994. (136) He understood that moving appeals to the court system would not be useful to sports or to the courts. He used his reputation and esteem to assure the judiciary that this system would be the best and had the necessary legitimacy.

The Ad Hoc Division was a great success and has continued in place at every Olympic Games since. The reason this works is that the IOC made itself subject to the jurisdiction of the Court. That meant that after the EB determined a sanction for an athlete or member of a delegation and informed the person of the sanction, the EB's decision could be reviewed by the CAS. This is true of all decisions made by the IOC in the area of sanctions and contract resolution, unless the contract stipulates another authority. (137) The CAS adopted a permanent set of Games-related rules, which remain consistent for each Olympiad. (138)

The next test of the system came with the 2000 Sydney Olympic Games. A Romanian gymnast, Andreea Raducan, tested positive for an excessive level of pseudoephedrine. (139) The EB sanctioned the doctor by imposing a ban from the next Olympic Games. (140) The sanction given the athlete was to take away the gold medal in that event. (141) Due to the circumstances, under the then applicable Rules, it was determined that

Raducan could continue to compete in other events at the Games. (142) CAS upheld the EB decision. (143) Later, the Romanian NOC appealed to the Swiss Federal Tribunal. (144) The FT dismissed the appeal, indicating that she admitted taking the banned substance so she had no grounds for complaint. (145) In 2003, during a case on appeal by two Russian cross country skiers, the FT undertook a thorough analysis of the independence of the CAS. (146) The court was congratulatory of the steps taken since 1994 and dismissed the appeal. (147)


We all know that the world is not perfect, but almost all of the ground work for a coordinated, worldwide anti-doping system is complete. In 2008, WADA asked all nations to become signatories to a convention created by UNESCO, which will harmonize the anti-doping organizations. (148) Over one hundred nations have signed the treaty, including the United States, which ratified the treaty in August 2008. (149) The structures to protect the athletes and to help the Olympic Movement survive are substantially grounded in law. They are primarily the law of associations, rather than federal government-type legal systems. Most of this work is undertaken by volunteers who are supported by professionals. All of it must be in the best interest of helping the Olympic Games endure and flourish.

Which rules? My hope is that the rule of ethical behavior will control. I hope that the fundamental principles of the Olympic Movement--that competitors will compete with mutual respect and fair play--will ultimately win the day. Will that prevail? Only time can tell.


(2.) INT'L OLYMPIC COMM., OLYMPIC CHARTER (2007), available at http://multi [hereinafter OLYMPIC CHARTER].

(3.) See MACALOON, supra note 1, at 153 (stating that in 1984 Cubertin installed Demetrios Bikelas (Vikelas), a Greek living in Paris, as the first head of the IOC).

(4.) Id. at 171.

(5.) Id. at 170.

(6.) See OLYMPIC CHARTER, supra note 2, Preamble.

(7.) See id. R. 15 (indicating the legal status of the IOC).

(8.) See Agreement Between Switzerland and the International Olympic Committee, Switz.-IOC, art. 2, Nov. 1, 2000, available at (stating that the IOC has been afforded freedom of action and independence).

(9.) OLYMPIC CHARTER, supra note 2, Introduction.

(10.) INT'L OLYMPIC COMM., IOC SESSION FACTSHEET (2008), http://multimedia.

(11.) See OLYMPIC CHARTER, supra note 2, R. 44 & 45 (requiring competitor compliance with the World Anti-Doping Code and the Court of Arbitration for Sport).

(12.) Id. R. 18.1.

(13.) Id.

(14.) Id. R. 19.

(15.) See Karolos Grohmann, Morocco's El Moutawakel Wins Senior IOC Post, REUTERS, Aug. 7, 2008, USL761479920080807; see also OLYMPIC CHARTER, supra note 2, R. 19.

(16.) International Olympic Committee, IOC Commissions, uk/organisation/commissions/index_uk.asp (last visited Nov. 1, 2008).

(17.) Id.

(18.) See OLYMPIC CHARTER, supra note 2, R. 18.2.5 (giving the session the power to choose the city in which a session will be held).

(19.) IOC SESSION FACTSHEET, supra note 10.

(20.) See OLYMPIC CHARTER, supra note 2, R. 18.2.5.

(21.) See id.

(22.) OLYMPIC CHARTER, supra note 2, R. 11.

(23.) International Federation of Rowing Associations (FISA), Mission, (last visited Nov. 1, 2008).

(24.) International Gymnastics Federation (FIG), Inside the FIG, 0,10853,5187.191087_208310.nav_list,00.html (last visited Nov. 1, 2008).

(25.) OLYMPIC CHARTER, supra note 2, at pp. 29-58.

(26.) International Olympic Committee, Recognised Sports, (last visited Nov. 1, 2008).

(27.) OLYMPIC CHARTER, supra note 2, R. 3.1; see also International Olympic Committee, International Sports Federations, uk/organisation/if/ index_uk.asp (last visited Nov. 1, 2008).

(28.) OLYMPIC CHARTER, supra note 2, R. 26.

(29.) See WADA, World Anti-Doping Agency, Code Acceptance, (last visited Nov. 1, 2008).

(30.) OLYMPIC CHARTER, supra note 2, R. 28.3.

(31.) See id. R. 31.1 (requiring NOCs to exist only in countries recognized by the "international community").

(32.) Olympic News, 4 CITIUS ALTIUS FORTIUS 44, 45 (1996).

(33.) Olympic Committee of Puerto Rico, (last visited Nov. 1, 2008); see Association of National Olympic Committees (ANOC), National Olympic Committees, (last visited Nov. 1, 2008).

(34.) See Olympic News, supra note 32, at 45.

(35.) See generally ANOC, supra note 33 (listing current NOCs and members of ANOC, including countries formerly part of Yugoslavia and the Soviet Union).

(36.) See OLYMPIC CHARTER, supra note 2, R. 29.5 (limiting jurisdiction of NOCs to the limits of the country in which it is established); R. 16 BLR 1 (outlining IOC member eligibility requirements); R. 31.1 (defining "country").

(37.) OLYMPIC CHARTER, supra note 2, R. 28 & 29 BLR 1.2.

(38.) Id. R. 29 & BLR 1.

(39.) See ANOC, supra note 33; EMERGING SOCIAL ISSUES DIV., U.N. ECON. & SOC. COMM'N FOR ASIA & THE PAC. [UNESCAP], 2008 ESCAP POPULATION DATA SHEET (2008), data_sheet/2008/Datasheet _2008.pdf.

(40.) See, e.g., The Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF), English, t2.aspx?p=26797 (last visited Nov. 1, 2008) (describing the umbrella organization that includes all Norwegian national sports federations).

(41.) See, e.g., NIF Statute [section] 1-1, available at{715A2 D90-286C-4D74-9EC8-A5BIF6663B4A}.pdf (defining Norway's National Olympic Committee and Confederation of Sports as one joint organization for sport in Norway).

(42.) Association of National Olympic Committees (ANOC), About ANOC, http:// (last visited Nov. 1, 2008).

(43.) International Olympic Committee, National Olympic Committees, http://www. (follow hyperlinks on the map for a list of NOCs from each continent's organization).

(44.) See OLYMPIC CHARTER, supra note 2, R. 7.1.

(45.) Id. R. 27.

(46.) Id. R. 27.1.5 & 27.1.6.

(47.) Karel Wendl, The Olympic Oath: A Brief History, 3 CITIUS ALTIUS FORTIUS 4, 4 (1995).

(48.) Id.

(49.) International Olympic Committee, FAQ: Sport and the Olympic Games-Symbols and Emblems, 10_39_0 (last visited Nov. 1, 2008).

(50.) Id.

(51.) Wendl, supra note 47, at 4.

(52.) THE COURT OF ARBITRATION FOR SPORT 1984-2004 510 (Ian S. Blackshaw et al. eds., 2006).


(54.) See News Release, Embassy of the People's Republic of China in India, Olympic Family Members Can Enter Into China Without Visa (July 18, 2008), available at; see also OLYMPIC CHARTER, supra note 2, R. 53.

(55.) OLYMPIC CHARTER, supra note 2, R. 34.3.

(56.) See Athelia Knight, Olympic Village Houses Strange Bedfellows; Feuding Nations Are Among Countries Going to Atlanta, WASH. POST, May 8, 1996, at D1 (explaining the State Department's process for certifying countries for the 1996 Atlanta Games).

(57.) Jan Todd & Terry Todd, Significant Events in the History of Drug Testing and the Olympic Movement: 1960-1999, in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 65, 65-128 (Wayne Wilson & Edward Derse eds., 2001).

(58.) Id. at 66.

(59.) Id.

(60.) R. Craig Kammerer, What Is Doping and How Is It Detected?, in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 3, 4-5 (Wayne Wilson & Edward Derse eds., 2001).

(61.) Todd & Todd, supra note 57, at 67.

(62.) Id.

(63.) Kammerer, supra note 60, at 4.

(64.) Tim Weiner, Olympics: When Games Turned Political, N.Y. TIMES, July 24, 2004, at D1.

(65.) Lena Williams, Bob Beamon Recounts Career, N.Y. TIMES, Nov. 12, 1999, at D7.

(66.) See Weiner, supra note 64 (detailing the events and effects of the protest).

(67.) Id.

(68.) Cheryl L. Cole, One Chromosome Too Many?, in THE OLYMPICS AT THE MILLENNIUM: POWER POLITICS AND THE GAMES 135 (Kay Schaffer & Sidonie Smith eds., 2000) (noting the use of the buccal smear test in the Olympics starting in 1968).

(69.) Id.

(70.) Pamela B. Fastiff, Gender Verification Testing: Balancing the Rights of Female Athletes With a Scandal-Free Olympic Games, 19 HASTINGS CONST. L.Q. 937, 940 (1992).

(71.) Id.

(72.) See Hayden Opie, Australian Medico-Legal Issues in Sport: The View from the Grandstand, 13 MARQ. SPORTS L. REV. 113, 140 (2003) (explaining the impossibility of knowing for certain whether an imposter had even been detected because of the considerable confidentiality with which the tests are conducted).

(73.) Cole, supra note 68, at 142.

(74.) Press Release, International Olympic Committee, IOC Approves Consensus with Regard to Athletes Who Have Changed Sex (May 18, 2004), available at

(75.) Todd & Todd, supra note 57, at 68-69.

(76.) OLYMPIC CHARTER, supra note 2, R. 21.7.

(77.) Todd & Todd, supra note 57, at 68.

(78.) See Alan Abrahamson, IOC Denies Appeals in Controversies, L.A. TIMES, Feb. 9, 2002, available at, 0,557567.story? page=l (stating that DeMont had taken allergy medicines since he was a child).

(79.) See id.

(80.) Id.

(81.) See id.

(82.) See Jay L. Silvester, Anabolic Steroids at the 1972 Olympics!, COACH & ATHLETIC DIR., Oct. 2006, at 11, available at browse/article. jsp?id=7685 (discussing the results of a drug usage survey taken of athletes at the 1972 Olympic Games).

(83.) See id. (explaining that sixty-eight percent of Olympic athletes surveyed had used anabolic steroids).

(84.) See id. (describing athletes' perceptions of drug testing during that time).

(85.) See generally Frank Fitzpatrick, Where Steroids Were All the Rage, PHILA. INQUIRER, Oct. 20, 2002 at D1 (discussing the early use of steroids provided by Russian team physicians, as well as U.S. team physician, Dr. John Ziegler, who provided Dianabol to the U.S. Olympic Weightlifting team in 1960).

(86.) Silvester, supra note 82, at 11.

(87.) International Olympic Committee, Olympic Medal Winners, http://www. (search database for individual, women, gold, Europe, German Democratic Republic, Rowing, All Events) (last visited Nov. 1, 2008).

(88.) Christine Brennan, Babashoff Had Mettle to Speak Out About Steroids, USA TODAY, July 15, 2004, at 14C.

(89.) Sports Reference, Olympic Sports: Shirley Babashoff, (last visited Nov. 1, 2008).

(90.) Bill Dwyer, Olympic Drug Cheats Still Ahead of the Cops, L.A. TIMES, Aug. 1, 2008, at D4, available at la-sp-olydwyredrugs1-2008aug 01,0,2852673.column.

(91.) Id.

(92.) See Merrell Noden, Setting the Records Straight, SPORTS ILLUSTRATED, Dec. 16, 1991, at 138, available at vault/article/magazine/ MAG11401571index.htm.

(93.) Vicki Michaelis, Training Organizations Will Have to Earn Funding, USA TODAY, May 1, 2005, at 9C, available at

(94.) Samuel Abt, The Tour de France Faces Its Worst Crisis, N.Y. TIMES, July 30, 1998, at C1.

(95.) Id.


(97.) Id.

(98.) World Anti-Doping Agency, WADA History, dynamic.ch2? (last visited Nov. 1, 2008).

(99.) See World Anti-Doping Agency, Regional Offices, Overview, (last visited Nov. 1, 2008) (discussing WADA's move as an effort to achieve its global mandate).

(100.) World Anti-Doping Agency, Funding, en/dynamic. ch2? (last visited Nov. 1, 2008).

(101.) Jessica K. Foschi, A Constant Battle: The Evolving Challenges in the International Fight Against Doping in Sport, 16 DUKE J. COMP. INT'L L. 457, 464 n.54 (2006).

(102.) See Media Release, Canadian Centre for Ethics in Sport, WADA Approves New World Anti-Doping Code (Nov. 19, 2007), available at CCES-MR-Final2007Code-E.pdf.

(103.) Frank Litsky, International Drug Code Is Adopted, N.Y. TIMES, Mar. 6, 2003, at D5.

(104.) See, e.g., Press Release, Int'l Olympic Comm., Anti-Doping Procedures for the Games of the XXIX Olympiad Enter Into Force (July 27, 2008), available at http://www. For example, the Rules for the 2008 Beijing Olympics were amended from the 2004 Rules to allow an athlete to be tested more than once during the same day, to make missing a test under certain circumstances an anti-doping rule violation, and to make possession of any substance from the list of prohibited substances a violation; whereas under the 2004 Rules, only a selection from the prohibited list applied. See INT'L OLYMPIC COMM., THE INTERNATIONAL OLYMPIC COMMITTEE ANTI-DOPING RULES APPLICABLE TO THE GAMES OF THE XXIX OLYMPIAD, BEIJING 2008 3 (2008), available at pdf/en_report_1316.pdf.

(105.) International Olympic Committee, Olympians, athletes/olympians/index_uk.asp (last visited Nov. 1, 2008).

(106.) Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. [section] 220501 (2006); Amateur Sports Act of 1978, 36 U.S.C [section] 371 (current version at 36 U.S.C. [section] 220502).

(107.) Harvard's Shell Beats Wisconsin; Vesper Women Win, N.Y. TIMES, June 17, 1974, at 42; Quebec Woman Is Rowing Victor, N.Y. TIMES, June 21, 1975, at 18.

(108.) See Court of Arbitration for Sport, History of the CAS, history (last visited Nov. 1, 2008) [hereinafter History of CAS].

(109.) Id.

(110.) News Release, International Association of Athletics Federations, Judge Mbaye, Chairman of IOC Ethics Commission and President of ICAS Dies (Jan. 12, 2007), (last visited Nov. 1, 2008).

(111.) See Daniel H. Yi, Turning Medals into Metal: Evaluating the Court of Arbitration of Sport as an International Tribunal, 6 ASPER REV. INT'L BUS. & TRADE L. 289, 291-92 (2006).

(112.) History of CAS, supra note 108.

(113.) Id.; THE CODE OF SPORTS-RELATED ARBITRATION AND MEDIATION (2004), available at 281/5048/0/3.1%20CodeEngnov 2004.pdf [hereinafter CAS CODE].

(114.) See History of CAS, supra note 108.

(115.) CAS CODE, supra note 113, at A.S1.

(116.) Id. at B.S4.

(117.) Id. at B.S4(d).

(118.) Id. at B.S4(e).

(119.) News Release, supra note 110.

(120.) Court of Arbitration for Sport, ICAS Board, (last visited Nov. 1, 2008).

(121.) Court of Arbitration for Sport, Statutes of ICAS and CAS, (last visited Nov. 1, 2008).

(122.) See Court of Arbitration for Sport, Arbitrators (General List), (last visited Nov. 1, 2008) (listing CAS arbitrators).


(124.) Matthieu Reeb, The Role and Functions of The Court of Arbitration for Sport (CAS), in THE COURT OF ARBITRATION FOR SPORT 1984-2004 31, 33 (Ian S. Blackshaw et al. eds., 2006).

(125.) Id.

(126.) See Nancy K. Raber, Dispute Resolution in Olympic Sport: The Court of Arbitration for Sport, 8 SETON HALL J. SPORT L. 75, 83 (1998).

(127.) Id. at 86.

(128.) Id. at 89-91.

(129.) See generally Kammerer, supra note 60, at 104 (indicating approval of new procedures in 1997). An ad hoc CAS hearing panel was created before the 1996 Atlanta Games which allowed cases to be heard in a short two to three-day period.

(130.) Id.

(131.) Id.

(132.) Id.

(133.) Id.

(134.) Court of Arbitration for Sport, The Decentralised CAS Offices and Ad Hoc Divisions, 4-3-240-1011-4-1-1/5-0-1011-3-0-0/ (last visited Nov. 1, 2008).

(135.) Id.

(136.) INT'L OLYMPIC COMM., APPOINTMENT OF TWENTY MEMBERS OF ICAS, 326 OLYMPIC REV. 567 (1994), available at InformationCenter/OlympicReview/1994/ore326/ORE326g.pdf.

(137.) CT. OF ARBITRATION FOR SPORT CODE R. 47, available at http://www.tas-cas. org/en/arbitrage_reglement.asp/4-0-1031-4-1-1/5-0-1089-7-1-1/ (stating that an appeal against a sports-related body may be filed with the CAS as long as the parties have completed an arbitration agreement).

(138.) Court of Arbitration for Sport, Arbitration Rules for the Olympic Games, (last visited Nov. 1, 2008).

(139.) Andreea Raducan v. Int'l Olympic Comm., Arbitration CAS Ad Hoc Division (O.G. Sydney 2000) 011, award of 28 Sept. 2000, at * 1-2, available at http://juris

(140.) Id. at * 3.

(141.) Id.

(142.) Id. at * 2-3.

(143.) Id. at * 9.

(144.) BGEr, Dec. 4, 2000, docket no. 5P.427/2000,; see also Adrian Warner, Drugs in Sport: Raducan Appeal Fails Despite Supreme Effort, THE INDEPENDENT, Dec. 13, 2000, available at mi_qn4158/is_20001213/ai_n14362449.

(145.) Gerry Tucker & Antonio Rigozzi, Sports Arbitration for the 2008 Beijing Olympic Games, in THE COURT OF ARBITRATION FOR SPORT 1984-2004 160, 168 (Ian S. Blackshaw et al. eds., 2006).

(146.) Ian S. Blackshaw, Introductory Remarks to THE COURT OF ARBITRATION FOR SPORT 1984-2004 1, 4-5 (Ian S. Blackshaw et al. eds. 2006).

(147.) See id.

(148.) Graham Dunbar, WADA President Challenges More Than 100 Nations to Join Anti-Doping Fight, ASSOC. PRESS, Feb. 27, 2008, available at sports/olympics/2008-02-27-364972851_x.htm?loc=interstitialskip.

(149.) More Than 100 Countries Sign Anti-doping Treaty at U.N., ASSOC. PRESS, Nov. 12, 2008, available at wadapraises-government.ap/index.html.

Anita L. DeFrantz *

* Anita L. DeFrantz is the president and member of the Board of Directors of the LA84 Foundation, which is managing Southern California's endowment from the 1984 Olympic Games. She is a member of the International Olympic Committee, the USOC Board of Directors and vice president of the International Rowing Federation (FISA). Twice an Olympian, she was a member of the 1976 and 1980 U.S. Rowing Olympic teams.

Born in Philadelphia, PA, DeFrantz began her formal involvement with sports at the age of 18 when she was introduced to rowing at Connecticut College. After graduating from Connecticut College with honors in 1974, she studied for her law degree at the University of Pennsylvania Law School while training at the prestigious Vesper Boat Club. In addition to her Olympic bronze medal performance in the 1976 Games, DeFrantz won a silver medal in the 1978 World Championships in rowing, was a finalist in the World Championships four times, and won six National Championships. The IOC awarded her the Bronze Medal of the Olympic Order for her leadership role in fighting the U.S. government-led boycott of the 1980 Olympic Games in Moscow.
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