The uniform plan: a cost–benefit analysis of a proposed CAS first-instance tribunal to hear all anti-doping cases

Abstract

In April 2017, at a meeting between Court of Arbitration for Sport (CAS) representatives and representatives from winter sport International Federations (IFs), CAS announced that it intended to establish a permanent anti-doping division, to be operational by the 2020 Summer Olympics, to handle the adjudication of all “first-instance” arbitration hearings involving alleged violations of the World Anti-Doping Code. Spurred by the creation of the CAS Anti-Doping Division at the 2016 Olympic Games, to replace the hearing process formerly conducted by the International Olympic Committee (“IOC”) Disciplinary Commission at prior Olympic Games, this model stands to offer several benefits, including, for example, more uniform treatment of athletes on a global stage, and a uniform panel of qualified arbitrators to decide all first-instance anti-doping matters. CAS’ plan also raises several questions and potential concerns, which include, but are not limited to: the elimination of credible and effective first-instance tribunals set up by certain National Anti-Doping Organizations (“NADOs”) and International Federations (“IFs”); the potential for increased cost to athletes for first-instance hearings; and whether appeals to CAS from a CAS first-instance tribunal can truly offer de novo appellate review. Though there appears to be no intent to eradicate NADOs or their testing authority in the near future, should the IOC and/or a majority of International Federations require the use of a permanent CAS anti-doping division to hear first-instance anti-doping cases, this paper outlines what such an approach could mean for the adjudication of anti-doping matters in sport.