Simply a Dress Rehearsal? U.S. Olympic Sports Arbitration and De Novo Review at the Court Of Arbitration for Sport

Abstract

This article discusses issues that can arise when American atheletes attempt to deal with the web of national and international dispute resolution procedures and the emerging lex sportiva, which govern international sports. Specifically, it examines the reasons why the American court system cannot assist American athletes who submit to international sports dispute resolution procedures. Congress has designated the United States Olympic Committee (USOC) as the domestic organization that handles disputes involving Olympic-eligible American athletes. If the USOC declares an athlete ineligible or hands down some other sanction, the case can be submitted to the American Arbitration Association (AAA), the tribunal designated by the USOC, for “binding” arbitration. Once an arbitration decision has been handed down by the AAA, it can then be appealed to the Court of Arbitration for Sport (CAS) in Switzerland, where it receives a de novo hearing. However, cases can be brought before the CAS not only by a party involved in the domestic arbitration, but also by international athletic regulatory organizations, such as the World Anti-Doping Agency (WADA). These organizations may seek a more harsh sanction against the athelete (such as a lifetime ban) than that which was sought by the national organization originally. If the CAS decision is unfavorable, the athlete’s only recourse is to submit the case to the Swiss Federal Tribunal (SFT) for review, which rarely overturns CAS decisions. This article questions the wisdom of allowing an international organization that is determined to subject an American athlete to a harsher penalty than he or she received from a domestic organization to appeal to the CAS for a de novo review of the athlete’s case, especially if the athlete does not have the right to appeal the CAS decision in a U.S. court. Not only does this de novo review subject the athlete significant expense and hassle, but it also places protection of American athletes’ rights directly and irrevocably in the hands of a non-U.S. entity.

Keywords: sport, athletes, doping, Olympics, dispute resolution, arbitration, American Arbitration Association, doping, Court of Arbitration for Sport, Swiss Federal Tribunal, athletic eligibility, rights