US Sports Law Year in Review (2017/18) – Part 8 - International and Olympic sports

Friday, 29 June 2018

This article originates from the paper entitled Sports Law Year in Review 1, which gives a high level overview of key sports law developments in the United States between 15 May 2017 – 30 April 2018.

For ease, we’ve broken down the paper into its respective chapters, which will be published in turn as follows:

Agents and agent regulation
Leagues – labor matters
Leagues – non-labor matters
Contracts
Torts
Individual sports
College, high school and youth sports
International and Olympic sports
Title IX/Gender equity and civil rights;
Intellectual property and broadcasting
Personal injury, health and safety
Stadiums and venues
Sports Betting/Daily Fantasy Sports;

It was drafted under the supervision on Professor Mattew Mitten and Professor Gabriel Feldman, and was presented at the Sports Lawyers Association Conference in Washington DC. The SLA, a non-profit, international, professional organization whose common goal is the understanding, advancement and ethical practice of sports law. Each year in May the SLA hosts an Annual Conference at which the above topics are presented and debated.

LawInSport would like to thank the SLA and in particular Professor Mitten and Professor Feldman for permitting the republication of this work.

International Sports

Bridge

The European Court of Justice (ECJ) has ruled that bridge is not a sport. Determining that a sport must involve "a not negligible physical element," it concluded that bridge, which involves mental exercises, does not satisfy this requirement. Its ruling rejected the English Bridge Union’s request for an exemption from value-added tax (VAT) on entry fees to its competitions based on its contention that bridge is a sport.

International Skating Union

In December 2017, the European Commission ruled that an International Skating Union (ISU) rule imposing severe penalties (including a threatened lifetime ban from participating in the Winter Olympic Games) on athletes participating in unauthorized speed skating competitions violates European Union competition laws. European Commissioner Margrethe Vestager, who is responsible for ruling on competition policy, stated: “International sports federations play an important role in athletes' careers - they protect their health and safety and the integrity of competitions. However, the severe penalties the ISU imposes on skaters also serve to protect its own commercial interests and prevent others from setting up their own events. The ISU now has to comply with our decision, modify its rules, and open up new opportunities for athletes and competing organisers, to the benefit of all ice skating fans.”

Anti-doping issues

On January 18, 2018, the European Court of Human Rights (ECHR) rejected the claims of four-time Olympic cycling medalist Jeannie Longo and a group of French national sport unions representing football, basketball, handball and rugby players that WADA’s “whereabouts system” for out-of-competition drug testing violated a provision in Article 8 of the European Convention of Human Rights concerning "respect for private and family life." A summary of the ECHR verdict posted on its website stated: “Taking account of the impact of the whereabouts requirement on the applicants’ private life, the Court nevertheless took the view that the public interest grounds, which made it necessary, were of particular importance and justified the restrictions imposed on their Article 8 rights. It found that the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control.”

Sierra Leone became the 186th nation to sign the UNESCO International Convention against Doping in Sport treaty. WADA’s President, Sir Craig Reedie, claimed that 99% of the world has now "pledged its support to clean sport," with only five countries (Guinea-Bissau, Mauritania, Sao Tome and Principe, South Sudan and Tanzania) that are members of the Olympic Movement yet to sign this treaty.

In May, 2006, Spanish police raided Dr. Eufemiano Fuente's laboratory and siezed 211 frozen bags of blood and plasma, which he used to facilitate blood doping by several of the world's leading cyclists. In July 2016, the Provincial Court of Madrid ordered that these bags of blood and plasma be transferred to WADA and the International Cycling Union (UCI) for their use in anti-doping proceedings. In June 2017, the court ruled that the blood bags could be used to identify only those cyclists with pending doping cases. With no cases reportedly open, its decision effectively means that this evidence cannot be used to prosecute any cyclists in any future anti-doping proceedings.

Tax

A controversial July 2017 Australian Taxation Office (ATO) ruling allows Australian professional athletes to direct 10% of their playing income to a "private trust or company," which will pay a tax rate of 27.5% rather than the top marginal income tax rate of 45% plus a 2% Medicare tax that top-earning athletes currently pay. The ATO "ruled the [reduced tax] is justified to compensate elite athletes" for "exploitation" of their "fame and image" to promote their sport.

Sexual abuse

In November 2017, after extensive publicity regarding sexual abuse of young players (particularly in football), British Sports Minister Tracey Crouch announced that Britain’s 2003 Sexual Offences Act will be amended to ban sex between coaches and players under the age of eighteen. Under this law, the age of consent currently is sixteen, but it is eighteen if a person of trust (e.g. teacher, hospital worker) is involved in the relationship (coaches previously were not covered by this provision).

Transgenderism

In July 2017, Canadian cyclist Kristen Worley settled her Human Rights Tribunal of Ontario proceeding against Cycling Canada, the Ontario Cycling Association, and Union Cycliste Internationale. After transitioning from an XY male to an XY female, Worley requested a therapeutic use exemption (TUE) to use synthetic testosterone to restore the natural level of endogenous testosterone that her gonadectomy (removal of testicles) had reduced, but the amount approved was too low for her to maintain good health. Worley sought changes to these governing bodies’ policies, guidelines, rules and processes regarding XY female athletes, gender verification, and permissible therapeutic use of medically required hormones. As a result of the settlement, Cycling Canada and the Ontario Cycling Association have agreed to review and revise internal policies to embrace human rights; launch awareness and education related to diversity of participants; advocate for the establishment of standards and guidelines related to XY female athletes based on objective scientific research; advocate for individualized TUEs conducted by medical personnel with subject-matter expertise; and to solicit the Canadian Centre for Ethics in Sport, Canadian Olympic Committee, Sport Canada, Commonwealth Games Federation and the Canadian Minister of Sport to advocate that these inclusive policies be adopted by international bodies such as WADA and the IOC.

In October 2017, the Australian Football League (AFL) rejected the request of Hannah Mouncey, a transgender woman who is 6-foot-2 and weighs 218 pounds, to be eligible for the AFL Women’s draft. The AFL’s decision was based on the Victorian Equal Opportunity Act, which allows discrimination based on sex or gender "if strength, stamina or physique is relevant." The league left the door open for Mouncey to be eligible for the 2019 AFL Women’s draft, but she would have to go through a similar application process and hope for a different result.

In April 2018, it was reported that the IOC is expected to issue new guidelines reducing the permissible level of testosterone that transgender women may have in their body by one-half (from ten to five nanomoles per liter of blood) to compete in women’s Olympic sports competitions.

A 2015 Court of Arbitration for Sport (CAS) case brought by Dutee Chand, an Indian sprinter with naturally high levels of testosterone, resulted in suspension of the IAAF’s Hyperandrogenism Regulations, which excluded female athletes with endogenous testosterone levels in serum of over 10nmol/L from female track and field competitions. In its decision, the CAS questioned whether the degree of competitive advantage enjoyed by a female athlete with this level of endogenous testosterone is equivalent to the advantage that a male athlete has over a female athlete, which it generally determined to be between 10% and 12%. A July 2017 study conducted by the IAAF found that female athletes with elevated testosterone levels had a competitive advantage of between 1.78% and 4.53% over those with lower testosterone levels in the 400 and 800 meter races as well as the hammer throw and pole vault. Based on this study, the IAAF submitted revised female competition regulations to the CAS in September 2017. In January, 2018, the CAS ruled that its Hyperandrogenism Regulations remained suspended, but stated: “If the IAAF withdraws the Hyperandrogenism Regulations and/or replaces them with the proposed draft regulations it has submitted, then these proceedings will be terminate.”

On April 26, 2018, the IAAF approved controversial new regulations requiring women participating in all women’s international track events of distances from between 400 meters to one mile to have endogenous testosterone levels below a certain threshold.

Athletics South Africa (ASA) has indicated it will challenge the IAAF’s regulations on behalf of Castor Semenya, world and Olympic 800-meter runner who will be precluded from participating in women’s Olympic and other international competitions. Gideon Sam, President of the South African Sports Confederation and Olympic Committee, has welcomed ASA's decision and its intention to take the case to the Court of Arbitration for Sport (CAS) if necessary.

International Testing Agency

To strengthen the global anti-doping system, the IOC Executive Board has established the International Testing Agency, an independent not-for-profit Swiss foundation, which will provide anti-doping services to International Federations (Ifs) and Major Event Organizers (MEOs) choosing to delegate their anti-doping programs to a body that will operate independently from sports organizations and national interests. The establishment of the ITA does not change an IF's or MEO's ultimate responsibility under the World Anti-Doping Code (WADC) to ensure its compliance with the WADC, which will be monitored by WADA. The CAS is authorized to impose a range of "graded, predictable and proportionate sanctions" including fines, a six-month probation period, or a suspension for an IF's or MEO's noncomplicance in an arbitration proceeding brought by WADA. The members of the ITA’s board of directors, which was ratified by the WADA Executive Committee in October 2017, are Independent Chair Dr Valérie Fourneyron, France; IOC and National Olympic Committee representative: Professor Uğur Erdener, Turkey; IF representative Mr Francesco Ricci Bitti Italy; IOC Athletes' Commission representative Ms. Kirsty Coventry, Zimbabwe; and Independent member Professor Dr Peijie Chen, China. Benjamin Cohen (Switzerland) has been appointed as the ITA’s Director General.

Russian Doping Scandal

In September 2017, three Russian cyclists (Kirill Sveshnikov, Dmitry Strakhov and Dmitry Sokolov) sued Professor Richard McLaren and WADA in the Ontario Superior Court of Justice seeking damages for allegedly being wrongfully associated with other Russian athletes who committed doping violations. They were not individually named in the McLaren report (an independent study commissioned by WADA) that found evidence of Russian state-sponsored doping, and the CAS denied an appeal of their ban from participation in the Rio Olympic Games for committing anti-doping violations. Nevertheless, the cyclists allegedly were "unfairly implicated" by this report and "suffered great reputational harm," for which they seek public vindication and damages in this judicial proceeding.

In December 2017, the IOC banned the Russian Olympic team from participating in the 2018 PyeongChang Winter Olympic Games for a state-run doping scheme involving Russian Olympians during the 2014 Sochi Winter Olympic Games. The IOC permitted 169 Russian athletes who satisfied criteria indicating they have not committed any doping violations, including those in team sports such as hockey, bobsled, and curling, to compete under a neutral flag identified as “Olympic athletes from Russia.” No Russian officials were credentialed for the PyeongChang Games, and no Russian flags and symbols were permitted to be part of the Opening Ceremony.

In November and December 2017, a three person disciplinary commission chaired by Prof. Denis Oswald and also including Mr. Juan Antonio Samaranch and Mr. Patrick Baumann (Oswald Commission), which was established in December 2016 by the IOC to examine the Sochi doping scheme, retroactively invalidated the competition results of 43 Russian athletes whose positive drug tests were found to have been destroyed or tampered with before or during the Sochi Olympic Games, stripped them of their medals, and banned them for life from participating in any future Olympic competition. It concluded that three Russian athletes (Olympic figure skating champion Adelina Sotnikova, ice hockey player Anna Shokhina and speed skater Denis Yuskov) were not involved in doping violations.

In January 2018, the International Paralympic Committee (IPC), continued the Russian Paralympic Committee’s suspension initially imposed in August, 2016 for “systematic doping," which prevented it from competing at the 2018 PyeongChang Winter Paralympics. The IPC permitted more than 30 individual Paralympic athletes who satisfied prescribed anti-doping criteria to compete in five sports as neutral athletes in a uniform with "no identification" relating to Russia. No official from the Russian Sports Ministry was accredited for the Pyeongchang Paralympics, and the Russian flag was not permitted "in the vicinity of any venue associated with the Games."

On February 1, 2018, the CAS issued Operative Awards in 39 of the 42 appeals by Russian athletes of the Oswald Commission’s decisions. After individually considering each appeal, the CAS upheld 28 appeals because there was insufficient evidence supporting the Oswald Commission’s determination that 28 Russian athletes committed doping violations in connection with the Sochi Olympic Games and overturned its decision banning them from the PyeongChang Olympic Games. It also partially upheld another 11 appeals. To date, two CAS reasoned awards have been issued: CAS 2017/A/5379 Alexander Legkov v. International Olympic Committee; CAS 2017/A/5422 Aleksandr Zubkov v. International Olympic Committee. However, the IOC did not permit any of these Russian athletes to participate in the PyeongChang Olympic Games. It has been reported that the IOC will appeal the Legkov ruling to the Swiss Federal Tribunal (Switzerland’s highest court), which has jurisdiction to review and confirm or vacate CAS awards.

In early February 2018, Swiss civil courts rejected appeals by six Russian athletes (each of whom previously had committed doping violations) against the IOC’s decision not to include them on the "Olympic Athletes of Russia" invitation list for the PyeongChang Olympic Games.

After the PyeongChang Olympic Games ended, the IOC lifted the Russian Olympic Committee’s suspension on February 28, 2018.

U.S. Arbitrations, Litigation, and Legislation

USADA v Gil Roberts, AAA 01-17-0003-4443 (June 20, 2017) the AAA arbitrator determined that an athlete’s positive out of competition test for probenecid resulted from him kissing his girlfriend, who had taken capsules of Moxylong containing this substance purchased in India for a sinus infection, and that he had No Fault or Negligence for this doping violation because he had no way of knowing he was exposing himself to a doping violation by doing so. The CAS dismissed WADA’s appeal and upheld the AAA arbitration award. WADA v Gil Roberts, CAS/A/5296 (January 25, 2018).

Lopez v. USA Taekwondo, AAA 01 17 0001 1733 (August 8, 2017) The AAA arbitrator rejected Jean Lopez’s Section 9 complaint and upheld his five-year suspension from coaching by the USA Taekwondo Ethics and Judicial Committee Hearing Panel for sexual misconduct with an athlete during one of USA Taekwondo’s competitions and subsequent reinstatement conditions, including proof of successful completion of a treatment program and convincing evidence that inappropriate sexual conduct with athletes will not be repeated. Based on this disciplinary action, World Taekwondo suspended him from participation in any of its events.

On May 8, 2018, based on allegations in a Colorado federal court lawsuit filed by four former female athletes against the USOC and USA Taekwondo, the U.S. Center for Safe Sport suspended two-time Olympic gold medal taekwondo champion Steven Lopez based on its investigation of alleged sexual misconduct. Their complaint accuses defendants of negligence, defamation, obstruction, and benefiting from a sex trafficking venture because they “exposed hundreds of young female athletes to two adult predators" by allowing Steven Lopez and his brother Jean to travel to and compete at major taekwondo events at which their sexual abuse occurred.

In March 2018, two separate California lawsuits alleging that the USOC and/or U.S. National Governing Bodies failed to respond adequately to sexual abuse of Olympic sport athletes were filed: 1) sports psychologist Dr. Steven Ungerleider alleges that the USOC and Angela Ruggiero, a USOC board member and former IOC Executive Board member, attempted “to derail efforts to enlist the IOC and other organizations into investigating sexual abuse within U.S. Olympic sports” and "to minimize the extent of the sexual abuse crisis with American Olympic sports,” while also taking retaliatory action against him; and 2) Aly Raisman, captain of the gold-medal winning 2012 and 2016 U.S. women's Olympic gymnastics teams, asserts she was abused by Nassar beginning in 2010 and that the USOC and USA Gymnastics knew or should have known" about Nassar’s history of sex abuse and negligently failed to ensure appropriate protocols were followed in to monitor his purported medical treatment of gymnasts.

The 10th Circuit affirmed the district court’s ruling that the Amateur Sports Act preempts state law claims by athletes arising out of eligibility disputes regarding protected competitions except for a breach of contract action to require the USOC or an NGB to follow its own internal dispute resolution procedures. Pliuskaitis v. USA Swimming, Inc., 2017 WL 963202 (D. Utah), aff’d, 2018 WL 258773 (10th Cir.).

A Colorado federal district court denied a pro se plaintiff’s request for a temporary restraining order against the enforcement of the Switzerland-based private international governing body for wrestling’s eligibility rule prohibiting athletes 60 years of age and older from participating in the upcoming Veterans World Championships. Even assuming personal jurisdiction over the defendant, it ruled that plaintiff failed to establish a likelihood of success on its federal antitrust and denial of equal protection claims or its state breach of fiduciary duty claim. The court also held that “ineligibility for participation in athletic competitions alone does not constitute irreparable harm.” Wirs v. United World Wrestling, 2017 WL 8943750 (D. Colo., August 24, 2017).

A new Colorado law (House Bill 1104) exempts most Team USA athletes from Colorado state income taxes on the value of medals and bonuses won at the Olympic and Paralympic Games as well as athlete monetary awards for winning medals provided by the USOC, a National Governing Body, or Paralympic sport organization. This state tax exemption does not apply to athletes who make an adjusted annual gross income exceeding $1 million or $500,000 if married and filing individually. The Colorado legislation is consistent with the United States Appreciation for Olympians and Paralympians Act, a federal law exempting all Olympic and Paralympic Games medalrelated income in 2018 and beyond from federal income taxes for all Games (which is inapplicable to athletes earning at least $1 million in annual income from any sources, including endorsements.

Lance Armstrong has agreed to pay $5 million to settle a federal lawsuit against him by the U.S. Postal Service alleging he committed fraud during his cycling career when he admitted in 2013 that he committed doping violations.

On May 23, 2018, the House Energy and Commerce Committee’s Oversight and Investigations Subcommittee will hold a hearing during which chief executives of the USOC, USA Gymnastics, USA Swimming, USA Taekwondo, USA Volleyball and the US Center for SafeSport will testify in response to Congressional concerns about the “potentially pervasive and systemic problem of sexual abuse across the U.S. Olympic community.”