Sunday, 4 October 2009

"WADA" rule from CAS & ICAS

No need for long and winding legal arguments, today; only the heartfelt desire to congratulate the Court of Arbitration for Sport, for taking a necessary and logical step, perhaps overdue, perhaps not (Institutional 'circulatory systems' being based on their internal, legal requirements), something that was (perhaps) obviously brought to light by the huge increase in cases before its Panels since the WADA Code and laboratory efforts have been ramped up these last six years or more...

CAS announced Thursday that its rules have been amended, to disallow the 'cross-bench' musical chairs that we've come to acknowledge were a deterrent to eliminating any 'appearances' of conflicts of interest (aka 'C.O.I').

We would have welcomed three additional comments to the Press release:
  1. The actual Rule in which the change appears (Ie: R30 Representation and Assistance or R33 Independence and Qualifications of Arbitrators (with links?) would be a luxury);

  2. The date of the Rule's coming into effect; and,

  3. Whether or not the new wording already appears in the web-based set of rules currently on-line (an hour's search hasn't revealed a clear statement that any of its rules now prohibit arbitrators from appearing in other cases as legal representative to interested parties).

Hopefully CAS-TAS will have this cleared up shortly.

Interestingly, this Institutional decision parallels the legal argument presented by Floyd Landis in his withdrawn US Federal Court lawsuit, which had sought the vacating of the Award(s) against him due to 'evident' (claimed his lawyers) C.O.I. situations between nearly all the attorneys that either represented USADA or sat as CAS Panelists (with the notable exception of Christopher Campbell). A 'Pyrrhic victory' for those who cases will follow Floyd's.

Bully good job, CAS... Here is a quote from their release of Thursday:

The most significant amendment is the prohibition for CAS arbitrators and mediators to also act as counsel before the CAS. This prohibition of the double-hat arbitrator/counsel role was decided in order to limit the risk of conflicts of interest and to reduce the number of petitions for challenge during arbitrations.

We might have hoped for another rule change, which would have mandated the principle of 'Stare decisis' and we continue to support the new database archive of all post-1986 CAS arbitration (those which are non-confidential) Awards.

Stare decisis?

In the words (below) of the US Ninth Circuit Courts of Appeal, this legal principle develops consistency, as a requirement (well, mostly) that any decision on a certain body of facts, must 'be in line' with previous cases that had essentially the same facts or issues (non-legal types have certainly heard (if in the USA) a news report on TV, discussing the Supreme Court, and using the phrase 'a precedent-setting case was decided today...' (etc.)) which would be a welcome component to the quasi-monopolistic field of sports-doping arbitrations. It would promote the 'level playing field' that some assert has been cruelly missing in the post-laboratory-evidence phase of these quasi-criminal doping allegation cases. The Court said:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases."

Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

(United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).)

(Definition and citation from Wikipedia; the fast and free source)

We commend CAS-TAS for this important decision announced last week, and we look forward to the benefits of this proper rule change being implemented as per their time schedules.

100 percent pure

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