The Court of Arbitration for Sport and its Global Jurisprudence: International Legal Pluralism in a World Without National Boundaries

Published in cooperation with the American Bar Association Section of Dispute Resolutio

A Brief Review of CAS Doping Jurisprudence Issues,

This article briefly summarizes several leading, recent Court of Arbitration for Sport arbitration awards interpreting and applying the 2015 World Anti-Doping Code (WADC) and, in a few instances, its 2009 or 2003 prior versions. It provides a primer regarding various issues frequently arising in Olympic and international sports doping cases, including proof of Anti-doping Rule Violations (ADRVs) by nonanalytical positive evidence; rebuttal of presumed intentional ADRVs; proof of an athlete’s no fault or no significant fault; determination of an athlete’s appropriate period of ineligibility less than the presumptive standard sanction for an ADRV; and determination of the appropriate period of disqualified competition results and period of ineligibility start date. It also identifies and describes other CAS awards resolving important WADC issues, including the International Olympic Committee’s broad authority to retest athlete samples from prior Olympic Games for the presence of prohibited substances and to retroactively invalidate athlete competition results

The Penn State Consent Decree : The NCAA\u27s Coercive Means Don\u27t Justify Its Laudable Ends, but is There a Legal Remedy?

In a July 23, 2012 Consent Decree, the National Collegiate Athletic Association (NCAA), acting through its Executive Committee and President Mark Emmert, imposed unprecedented sanctions on Pennsylvania State University (Penn State). This action apparently was taken in an effort to convincingly demonstrate presidential control of intercollegiate athletics after recent widely reported scandals involving violations of NCAA amateurism, academic integrity, and ethical conduct rules by persons associated with high-profile intercollegiate football programs. This unprecedented use of de facto best interests power to punish a member university for individual criminal activity and institutional misconduct which traditionally has not been disciplined by the NCAA and which was unilaterally imposed outside of its customary rules enforcement and disciplinary procedures violated Penn State\u27s contractual due process rights and private association law as well as possibly federal antitrust law and state common law restraint of trade laws

Why and How the Supreme Court Should Have Decided O’Bannon v NCAA

Despite requests by both parties, the United States Supreme Court refused to grant a writ of certiorari in O’Bannon v. NCAA, the first federal appellate court decision holding that an NCAA student-athlete eligibility rule violates section 1 of the Sherman Act. The Ninth Circuit ruled that NCAA rules prohibiting intercollegiate athletes from receiving any revenue from videogames and telecasts incorporating their names, images, or likenesses unreasonably restrain economic competition among its member universities in the college education market in which these athletes purchase higher education services and sell their athletic services, which violates federal antitrust law. Circuit court rulings conflict regarding whether student-athlete eligibility rules are commercial restraints subject to the Sherman Act, and lower courts have inconsistently interpreted and applied NCAA v Board of Regents of University of Oklahoma, the Supreme Court’s only intercollegiate athletics antitrust law precedent. The Supreme Court’s refusal to resolve this conflict continues the significant judicial confusion regarding how antitrust law constrains the NCAA’s governance of intercollegiate athletics, which has evolved into a multi-billion dollar part of the entertainment industry with millions of fans and more than 450,000 student-athletes. Its decision not to do also creates uncertainty regarding how lower courts will resolve pending antitrust challenges to other NCAA amateurism rules and input market restraints such as limits on the duration and maximum number of athletic scholarships per sport as well as transfer rules. This article makes some recommendations for applying section 1 to NCAA student-athlete eligibility rules and input market restraints, which will better promote consumer welfare, protect student-athletes’ economic rights, and permit the NCAA to promote the unique features of intercollegiate sports without unwarranted judicial micromanagement

Judicial Review of Olympic and International Sports Arbitration Awards: Trends and Observations

This article provides an overview of the nature and scope of judicial review of Olympic and international sports arbitration awards, primarily those rendered by the Court of Arbitration for Sport (based in Lausanne, Switzerland) and their review by the Swiss Federal Tribunal pursuant to the Swiss Federal Code on Private International Law. It also describes and compares U.S. courts\u27 review of international sports arbitration awards pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards as well as domestic sports arbitration awards. Both Swiss and U.S. courts are permitting CAS arbitration awards to establish a developing body of private international sports law that displaces national laws. The author concludes that this is the appropriate jurisprudential view because it is necessary to have universally accepted legal rules and dispute resolution processes for Olympic and international athletic competition, and for the governance of global sports competition to be fair and equitable on a worldwide basis

The Penn State Consent Decree : The NCAA\u27s Coercive Means Don\u27t Justify Its Laudable Ends, but is There a Legal Remedy?

In a July 23, 2012 Consent Decree, the National Collegiate Athletic Association (NCAA), acting through its Executive Committee and President Mark Emmert, imposed unprecedented sanctions on Pennsylvania State University (Penn State). This action apparently was taken in an effort to convincingly demonstrate presidential control of intercollegiate athletics after recent widely reported scandals involving violations of NCAA amateurism, academic integrity, and ethical conduct rules by persons associated with high-profile intercollegiate football programs. This unprecedented use of de facto best interests power to punish a member university for individual criminal activity and institutional misconduct which traditionally has not been disciplined by the NCAA and which was unilaterally imposed outside of its customary rules enforcement and disciplinary procedures violated Penn State\u27s contractual due process rights and private association law as well as possibly federal antitrust law and state common law restraint of trade laws