Behind the Essendon Decision: The Court of Arbitration For Sport, WADA & ASADA
Monday 25 January 2016 @ 11.58 a.m. | Legal Research
Earlier this month, the Court of Arbitration for Sport decided to hand down bans to 34 past and present Essendon AFL players. The controversial decision overturned an earlier decision of the Australian Football League Anti-Doping Tribunal, which had dismissed the charges against the players. But who are the Court of Arbitration for Sport, and how do they fit into Australia’s anti-doping legislation and codes of conduct?
The Court of Arbitration for Sport
The Court of Arbitration for Sport is an international institution created in 1984. According to their website:
“The Court of Arbitration for Sport (CAS) is an institution independent of any sports organization which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world…The CAS has nearly 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law. Around 300 cases are registered by the CAS every year…
The CAS has the task of resolving legal disputes in the field of sport through arbitration. It does this pronouncing arbitral awards that have the same enforceability as judgements of ordinary courts.”
Although the CAS is headquartered in Lausanne, Switzerland, it also has offices in New York and in Sydney. The Essendon case was heard by a panel approved by both parties, consisting of a President and two arbitrators, assisted by an ad hoc clerk.
WADA, ASADA and the Codes
The appeal was brought by the World Anti-Doping Agency (“WADA”), described in the judgment as “a Swiss private law foundation… an international independent organization created in 1999 to promote, coordinate and monitor the fight against doping in all of its forms”. The original case at the Tribunal was brought by the Australian Sports Anti-Doping Authority (“ASADA”), which operates under the Australian Sports Anti-Doping Authority Act 2006. The Act is closely aligned with the World Anti-Doping Code (“The Code”), authored by WADA and is kept up to date with changes in the Code. For example, it was amended in 2014 by the Australian Sports Anti-Doping Authority Amendment Act 2014 which updated the Act to align with a revised version of the Code.
ASADA’s website notes:
“The Code is in use by most countries following the unanimous adoption of the International Convention against Doping in Sport by the UNESCO General Conference in 2005.
The Code is the document that applies consistent regulations regarding anti-doping across all sports and countries of the world. The Code provides a framework for anti-doping policies, rules, and regulations for sport organisations and public authorities…
Ultimately, all decisions made by us can be reviewed by WADA or a relevant International Federation. This means if WADA or the International Federation disagrees with any anti-doping decision made by ASADA or an individual sport, WADA can appeal that decision to the Court of Arbitration for Sport.”
In the Essendon case, ASADA chose not to appeal the Tribunal decision, but WADA was able to exercise its right of appeal.
AFL also has its own specific code, the “AFL Anti-Doping Code”, which is compliant with the World Anti-Doping Code. According to an AFL website, “AFL players agree to comply with the Anti-Doping Code as part of the Standard Playing Contract and in particular, to provide samples for drug testing.” The “AFL Anti-Doping Code”, rather than the World Code, is the one that was considered by the Court of Arbitration for Sport in their final decision.
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