Russian Olympic Ban

In recent years, Russia has faced a world of controversy surrounding doping by their internationally competing athletes. Accusations also extended to bribing of officials in an attempt to cover up many of these scandals.

 

In May 2016, Grigory Rodchenkov, the former Head of Russia’s anti-doping laboratory, detailed to The New York Times the elaborate plan set forth to help Russian athletes who were using performance enhancing substances to evade detection.[1]  Rodchenkov, who was exiled from Russia to the United States, admitted to playing a role in this campaign which spanned 5 years by producing several performance enhancing substances for the athletes and replacing positively-tested urine samples with clean ones.[2]

 

The first to make any statement regarding Rodchenkov’s exposé was the International Association of Athletics Federation Coucnil (IAAF); voting unanimously to place a ban on the Russian Athletics Federation. However, this ban exempts any Russian athletes that live or train outside of Russia, and allows them to compete neutrally. The IAAF is one of 28 sports federations representing their respective sports that compete in the Summer Olympic Games in Rio. Such sports federations serve as governing bodies for all teams globally that participate in their particular sport.

 

After the IAAF released their decision, the International Olympic Committee (IOC), the governing body for the Olympic games deferred all disciplinary decisions to the other 27 individual sports federations, and encouraged them to follow the IAAF’s lead in investigating each of the teams in the sport that they represent, and making a decision of disciplinary action based on their findings. The IOC also entertained the possibility of implementing a blanket ban on the entire Russian Federation following The World Anti-Doping Agency’s (WADA) suggestion. WADA demanded that Russia be banned from the upcoming Rio Olympics set to commence in August 2016 upon releasing a commissioned report that found a majority of urine samples of Russian athletes were manipulated.[3]

 

The Russian Olympic Committee (ROC) along with 68 track and field appealed the IAAF’s decision under the notion that the federation does not have the authority to make such a decision regarding the Olympic Games to the Court of Arbitration for Sport (CAS). The CAS serves as the international judicial body of athletes which consists of hundreds of attorneys and arbitrators world wide who are called upon to rule on disputes in sports. The CAS rejected to review the appeal by the ROC and Russian athletes, therefore upholding the ban and affirming the IAAF’s authority to place the ban.

 

The IOC’s committee was scheduled to meet on Sunday to make a final decision on whether to continue to allow the other 27 sports federations to make a ruling based on their investigation of the allegations similar to the IAAF, or to place a blanket ban on the entire Russian Federation which disqualifies all Russian athletes to participate and compete in the Rio Olympics set to begin on August 5th.

 

Placing a blanket ban on the entire Russian Olympic Team was in question concerning it being a reasonable and legal punishment. According to the International Olympic Committee’s Anti-Doping Rules, specifically article 11.2, a blanket ban punishment could be upheld if it is found that more than two members have committed an anti-doping rule violation during the period of the Rio 2016 Olympic Games.[4] The IOC committee will have to consider the dilemma of placing an unprecedented collective ban on the athletes, or deciding whether they must take into consideration the rights of each individual athlete to be investigated and allowed to participate if proven to be innocent.

 

The IOC ruled on Sunday that there would be no federation-wide ban and that individual federations should decide if their corresponding Russian teams and athletes should compete. Since then, seventeen additional Russian athletes have been banned from competing in the Rio Olympics. All banned athletes have the option of appealing their ineligibility to participate in the Summer Olympic games to the CAS, such as Russian swimmer Yuliya Efimova who has already started the appeal process.

 

[1] Rebecca R. Ruiz & Michael Schwirtz, Russian Insider Says State-Run Doping Fueled Olympic Gold, NY Times (May 12, 2016), available at http://www.nytimes.com/2016/05/13/sports/russia-doping-sochi-olympics-2014.html?_r=0.

[2] See id.

[3] See Russian Doping: Olympic Chiefs To Decide On Sanctions After McLaren Report, BBC (July 19, 2016), available at http://www.bbc.com/sport/36829318.

[4] International Olympic Committee, Anti-Doping Rules Applicable to the Games of the XXXI Olympiad, in Rio de Janeiro, in 2016, Article 11 (Aug. 6, 2016), available at https://www.fei.org/sites/default/files/IOC%20ADR%20-%20Final%20-%20Rio%202016%20-%20%20IOC%20Anti-Doping%20Rules%20-%20ENG.pdf.

Tom Brady’s Uphill Battle with the Supreme Court

Majority of people are having difficulty fathoming how the infamous “deflategate” case, a seemingly insignificant issue to the general public, has the potential to be heard by the highest court in the United States. It is important to note that a lower court must consider whether the litigant, Tom Brady (“Brady”), is entitled to have the court decide the merits of his dispute with the NFL before the case has potential to be reviewed by the United States Supreme Court. In order to meet the minimum constitutional requirements a plaintiff must allege an actual or threatened injury to himself that is fairly traceable to the allegedly unlawful conduct of the defendant, and is likely to be redressed by the requested relief. Brady and the National Football League Players Association (“NFLPA”) were entitled to have their case heard by the Federal District Court because Brady is subject to a four game suspension, which is an economic injury. Brady and the NFLPA are alleging Roger Goodell and the NFL’s punishment and investigation of him was an unlawful breach of the collective bargaining agreement (“CBA”).

Review by the Supreme Court is considerably more burdensome and unlikely. In addition to establishing standing, the Supreme Court only reviews cases that have national significance, will avoid frequent and reoccurring litigation on the same matter, and/or establish precedent for future decisions.[1] Only 100-150 cases, out of the nearly 7,000 cases that are presented to the Supreme Court yearly, are accepted for review.[2] The circuit justice for the Second Circuit, Supreme Justice Ruth Bader Ginsburg, will review Brady’s petition for stay, which is a legal order that would postpone his suspension until the Supreme Court makes a decision on whether to review his case. Justice Ginsburg’s review of Brady’s petition entails a review of whether there is a “reasonable probability that four Justices will grant review of the case, irreparable harm will result with a denial of the stay, that there is a “fair prospect” that the lower courts decision was erroneous, as well as the lower courts rulings, relevant rulings of precedent cases and briefs filed by Brady, the NFL and possibly third-party amicus briefs.[3] If stay is granted then it will remain in effect until the Supreme Court makes a decision on the case, however, if the petition for writ of certiorari is denied then the stay will automatically terminate.[4] If stay is denied then Brady may present an application to each Justice, until a majority of Justices denies his request. This is not Justice Ginsburg’s first review against the NFL. Former Ohio State running back, Maurice Clarett, petitioned Justice Ginsburg to allow Clarett to participate in the 2004 NFL draft. Justice Ginsburg ultimately rejected Clarett’s petition, ruling there was no reason to overturn the Second Circuit’s decision in the case.[5]

Review of Brady’s case by the Supreme Court is unlikely because it is difficult to ascertain that the NFL’s handling of the issue at hand is of national significance. Sports labor attorney Jon Israel, a former assistant general counsel for the NBA, told Law360, that “there’s not really anything that’s unusual” with the case.[6] He added that, “To define labor management relations through the lens of professional sports is probably not the best place to establish labor law precedent.”[7] Justice Ginsburg will likely affirm the Second Circuit Court of Appeals decision because Brady’s petition does not present an issue of great national significance. In addition, resolution on Brady’s issue will not serve future, similar disputes, because of its specialized nature, as it is particular to only NFL players. This means that Ginsburg will likely deny Brady’s request for stay, which significantly dampens his chances of the Supreme Court reviewing his case. Subsequently, Brady will likely serve his four game suspension and the NFLPA will likely place heavy weight to the involvement of the NFL Commissioner in such labor disputes when they arise due to upcoming renegotiation’s of their CBA agreement, which expires in 2020.

 

 

 

 

 

[1] Supreme Court Procedures: Writ of Certiorari, u.s.courts.gov, available at http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (last visited July 14, 2016).

[2] See id.

[3] Michael McCann, Tom Brady’s Last Shot: Taking Deflategate to the Supreme Court, si.com (Jul. 13, 2016), available at http://www.si.com/nfl/2016/07/13/tom-brady-suspended-deflategate-appeal-supreme-court. See also infra note 4.

[4] Public Information Office Supreme Court of the United States, A Reporter’s Guide to Applications Pending Before The Supreme Court of the United States, supremecourt.gov (revised Feb. 2016), available at https://www.supremecourt.gov/publicinfo/reportersguide.pdf.

[5] See id.

[6] Benjamin Horney, Deflategate Could Alter NFL’s Collective Bargaining, Law 360 (Jul. 13, 2016), available at http://0-www.law360.com.library.law.suffolk.edu/sports/articles/817000/deflategate-could-alter-nfl-s-collective-bargaining.

[7] See id.