The End Does Not Justify the Means – CAS Panel Strikes Down the Osaka Rule

In June 2008, the International Olympic Committee (IOC) enacted a new rule that became known as the “Osaka Rule” and came into effect in July of the same year. Under this regulation, any athlete who was found guilty of violating anti doping rules and was suspended for a period of six months or longer and was automatically ineligible for participation in the following/next Olympic Games. This rule came under scrutiny in a number of cases concerning US athletes who had been found guilty of violating anti-doping rules.

In one case (USADA v. Hardy), the tribunal decided that the Osaka Rule could not be used to prevent the athletes from competing in the 2012 Olympic Games, ruling that “it would be manifestly unfair and a grossly disproportionate penalty”. This put the US Olympic Committee (USOC) into a difficult position: an American tribunal had ruled that the athletes must be allowed to compete at the 2012 Olympic Trials, whereas the IOC would not accept their nomination.

To clear this situation, in April 2011, the IOC and the USOC agreed to enter into an arbitration agreement, asking the Court of Arbitration for Sport (CAS) to settle this issue once and for all. The CAS heard the dispute in an expedited manner as provided by Art. R44 of the CAS Code.

The USOC claimed that:

a) the Osaka Rule has to be qualified as a disciplinary sanction and therefore violates Art. 23.2.2. of the WADA Code;

b) the regulation is not consistent with the Olympic Charta (OC), which incorporates the WADA Code;

c) the application of the Osaka Rule would (1) result in unjustifiable discrimination between athletes and (2) affect the dignity of athletes in a way that is at odds with the fundamental principles of the OC;

d) the IOC regulation violates Swiss domestic law for several reasons.

In its response, the IOC argued that:

a) by enforcing the Osaka Rule, the IOC does not breach any of its contractual obligations as a signatory of WADA Code nor the rules or principles of the OC;

b) the Osaka Rule is merely an eligibility rule and no sanction;

c) the provision does not infringe personality rights of the athletes as there is no such right to participate in a specific single event;

d) the rule is not in conflict with any provision of Swiss law.

In its final award, the CAS struck down the Osaka Rule, following the USOC’s line of argument which qualified the rule as a disciplinary sanction as it effectively penalises the athlete’s wrongdoing a second time. The CAS further analyzed the WADA Code, the OC and its own jurisprudence regarding similar cases before reaching the following conclusion: The WADA Code provides that ineligibility means “the Athlete (...) is barred for a specific period of time from participating in any Competition (...)” and Art. 10 of the WADA Code states that ineligibility is a sanction. However, ineligibility is defined in the context of “Competition”. The WADA Code defines an Event as “a series of individual Competitions conducted together under one ruling body”. According to the tribunal, the Olympic Games come within this definition; and Rule 44 of the OC makes the WADA Code mandatory. Hence, the tribunal held that the new regulation - since it provides for an additional disciplinary sanction - is a substantive change of the WADA Code. Therefore, it is in conflict with the WADA Code - to which the IOC is a signatory party – in particular with Art. 10 and Art. 23.2.2 which provide that no such substantial change of the mandatory parts of the WADA Code – as e.g. the anti doping rules - is permitted. As the WADA Code is part of the Olympic Charta (which also serves as the statutes of the IOC) the Osaka Rule is also not in compliance with the IOC’s own statute.

The CAS did not deal with the other arguments brought forward by the USOC, considering further discussion of these issues moot. Notwithstanding this, the CAS pointed out that if the Osaka Rule was adopted by the WADA, this could be a violation of the principle of “ne bis in idem”.

The message that this decision delivers is an important one: While the ongoing fight against doping is important, it has to be fought within the rules governing the relations between sports bodies and athletes. In this matter, there is no such thing as the proverbial exception that proves the rule. Or, put simply: here, the end cannot justify the means.