In praise of the CAS (and why the Ullrich case took years)

Friday, 10 February 2012

The Court for Arbitration in Sport has had a busy week. Monday saw it ruling on Alberto Contador, the UCI and Alexander Kolobnev were there on Tuesday and yesterday we got the verdict on Jan Ullrich.

Many fans have expressed anger or frustration with the news this week but a quick note to say don’t blame the CAS.

We’d all rather see the sport conducted on the roads of course but the CAS is a vital organisation to help settle disputes. It came about in the 1980s thanks to work from the International Olympic Committee. As the CAS explains:

the regular increase in the number of international sports-related disputes and the absence of any independent authority specialising in sports-related problems and authorised to pronounce binding decisions led the top sports organisations to reflect on the question of sports dispute resolution.

Since its inception many sports have signed up, including cycling. If you are caught in a dispute over a ruling with the UCI then you have a route of appeal; the same is true for the UCI which can appeal to the CAS. This is essential for justice.

The CAS's hearing room, aka the finish line

The CAS is not strictly-speaking about justice. Instead it arbitrates. It handles two main type of disputes:

  • commercial: it will arbitrate on contract rights, business deals and employment issues. Typically the CAS acts as a court of “sole instance” meaning people come to the CAS to ask it to help reach a compromise and resolve the commercial conflict.
  • disciplinary: here the CAS is often asked to rule on appeal cases and the CAS itself says “a large number are doping-related“. Here sports federations typically deal with a case, like a doping sanction, but one side is unsatisfied with the outcome. Or a third party intervenes, for example when the Spanish federation cleared Contador last year, the UCI and WADA intervened to bring the appeal to the CAS. Here the CAS acts as the court of “last instance” meaning it offers the final ruling after others have disputed each other’s verdicts.

In all cases the CAS is trying to settle a dispute. It uses Swiss law as a basis but when it comes to doping disputes, the kind we’re more used to with cycling, the CAS relies on the existing rules applied by the sport. For example it does not decide on the length of a ban for a guilty athlete, it aims to apply the rules set by the sport and to which the athlete signed up for. If one sport has stupid rules the CAS is not there to question them, simply if asked to adjudicate it will determine whether the rules are upheld. But rules from all sports and most recently the WADA code are subject to interpretation, there is a bulk of case history built on past precedent.

It works via a panel of three experts taking submissions from both sides of the case and the panel is human and therefore prone to error. That said, its awards are rarely overturned, some have tried to make appeals to the Swiss civil courts but success here is extremely rare. In 2010, the last year of published data, the CAS received 298 requests for arbitration of which 61 were heard and ruled upon.

What took so long with Ullrich?
Seeing Jan Ullrich judged for his role in a blood doping network years later looks absurd. But don’t blame the CAS. The organisation has only ruled on the case brought before it. Here’s the timeline of events with Ullrich:

  • 30 June 2006: Ullrich linked by media reports to the blood doping network of Dr Fuentes. He is suspended by his T-Mobile team
  • 21 July 2006: Ullrich is sacked by his team
  • 11 August 2006: after reviewing documents the UCI asks Swiss Cycling to start anti-doping proceedings against Ullrich as the German is resident in Switzerland.
  • 19 October 2006: Ullrich informs Swiss Cycling he resigns and returns his racing licence
  • 26 February 2007: Ullrich announces his retirement from professional cycling
  • 20 May 2009: the Swiss anti-doping authorities initiate proceedings
  • 30 January 2010: the Swiss anti-doping authorities say they can’t prosecute Ullrich as he’d resigned his licence.
  • 22 March 2010: the UCI announces it will appeal appeal the Swiss decision at the CAS

From here onwards the CAS is involved, some four years after the UCI tried to get the Swiss involved. The delay was in large part due to Swiss politics and the reorganisation of anti-doping structures; this had nothing to do with Ullrich, simply the officials were busy with other things and besides he’d resigned his licence and was not a Swiss national. But once in front of the CAS time was given to hear the case, indeed perhaps too much time. The CAS expressed its frustration in its award (para 85):

Ullrich’s decision not to participate in the hearings conducted, and Ullrich’s unwillingness to make submissions that address the substance of this case, all of which delayed the efficient resolution of this matter

Summary
The CAS isn’t perfect but it’s essential. If we’re frustrated by decisions this week, blame the Swiss for delays in processing Ullrich’s case or ask why all parties in the Contador case needed 565 days to return to the starting position that we could not explain where the clenbuterol came from and therefore all the CAS could do was uphold the black and white UCI rule that imposes a two-year ban if this is the case. If the CAS delivers verdicts that shake the sport it is only settling disputes started by others.

Laurence Guttmann February 10, 2012 at 9:07 am

It seems odd that the Swiss bothered initiating proceedings almost 3 years after the Fuentes link was made and 2 1/2 years after Ullrich handed in his Swiss licence only to halt proceedings another year later because he had handed in his Swiss licence. Surely it was obvious that he was now out of their jurisdiction?

Bundle February 10, 2012 at 9:57 am

I guess the obvious next step is to give Eddy Merckx back his 1973 Giro de Lombardia victory, which was taken away alter he tested positive for norephedrine, a substance that was removed from the Black List 30 years later because it was then deemed harmless.

Madness.

Duncan February 10, 2012 at 11:28 am

Ok, so the CAS just does what it is told but why does the UCI take so long?

Larry T. February 10, 2012 at 12:08 pm

Well written. I wish more fans would try to understand how these things work before screaming “my guy is clean!” or “your guy is dirty” so often, followed by cherry-picking of the facts to reinforce their argument. Now Ullrich has confessed (ala Basso) and apologized so that’s the end of it. What bothers me now is the other 50+ cyclists involved with Puerto who so far have escaped any sanction. What about them? It’s not hard to understand how the ones punished for their involvement feel that they got screwed while so many got away with it. Then there are of course the hundreds of other sportsmen involved who seem to have escaped even publication of their identity. If the Spaniards want to repair their sports doping image with the rest of the world, maybe they should provide all that information to WADA or some other SPORTING rules enforcement body…and let them identify and sanction some more cheats. I understand this stuff was not a CRIME in Spain when it was discovered but there’s NO argument that it was against the rules of the sports these folks competed in.

Bundle February 10, 2012 at 2:51 pm

Well, Larry T., the legal argument was that evidence that is collected to substantiate criminal charges, obtained by law-enforcers through the use of special powers (arrest, search, intercept communications), cannot be used for any other purposes than criminal proceedings, and therefore the information cannot legally be forwarded to sports authorities. Now, I don’t know how that fits with sending the whole file to the CAS for the Ullrich case.
It’s also interesting that the Cyclingnews piece is headlined “Ullrich apologizes” and then the bottom-line of Jan’s communiqué is “I look back on my cycling career and accomplishments with pride”.

The Inner Ring February 10, 2012 at 3:05 pm

Laurence Guttmann: not so it seems, the CAS ruled it was up to the Swiss to go after him.

Bundle: I’m not sure the UCI will go back that far! Let’s hope not. Ullrich’s case is the only “old” case being pursued by the UCI. But we have the trial of Operation Puerto coming in Spain and who knows who gets named in this.

Duncan: the main delay seems to have been in Switzerland but yes, the UCI could have pushed its Swiss colleagues to get a move on. I don’t know what communications took place.

Larry T: we’ll see about the criminal aspect, the provision of medicine and selling drugs without a prescription could be a crime so watch for the news from the court case, if there is any.

Bundle: not sure what to make of Ullrich’s “apology”. Everyone seems to be wishing him well but the CAS say he tried to thwart the process and if he’s admitted to doing some things wrong, it’s not exactly a full confession, it’s been dragged out of him.

Marty J February 10, 2012 at 3:49 pm

I read Jan Ulrich’s statement, and I believe that it was heartfelt – not dragged out of him. Are we to condemn his whole career because of his involvement with Fuentes? Are we going to go back into history and condemn all of our heroes?

In my memory, I cannot recall the CAS doing anything other than rubber stamping disciplinary actions. Arbitration has its roots in the same word as arbitrary – and it seems to me that they are nothing more than that.

Larry T. February 10, 2012 at 7:11 pm

Bundle – you raise an interesting point. One wonders if that same thinking will hamper investigation into BigTex’ alleged doping? The WADA folks seem to think they’ll get the details collected from the US feds, why not ask for it from the Spaniards too? Why should only 5-6 guys be sanctioned when there are 50 more that may be just as guilty of cheating? And that’s only the cyclists. The entire “let’s move on” idea strikes me as odd, it would seem to send a message to cheaters that it’s worth delaying proceedings for long enough for folks not to care anymore…how will THAT clean up the mess? I would say that the “no matter how long it takes or whether the public cares anymore, if you cheated, we’ll find out about it and you will be held accountable.” idea is what’s needed….how ’bout starting with everything post-Festina affair?

CAT4Fodder February 10, 2012 at 8:12 pm

Larry T:

This is my current position as well. The idea of “let sleeping dogs lie” seems to me to reduce the deterrents to doping. If the sport and its various governing bodies and anti-doping authorities will chase athletes down even post-competition, it would seem to me to provide an additional deterrent.

If the precedent is set that once you retire, you can get away with it, well, this in a way makes doping look all the more rationale, especially for riders as they get closer and closer to retirement.

OJT February 10, 2012 at 11:11 pm

Good post, even better comments. The list of ‘retirees’ who seem to have escaped punishment is already too long and there is no need to let it get any longer. The statute of limitations should occupy very little space in any mature justice system. And as much as I liked watching Ullrich as a rider I’m glad CAS has reached this decision.

Big Mikey February 13, 2012 at 6:25 pm

This isn’t an issue about letting sleeping dogs lie, it’s an issue of justice being meted out to a fraction of the Puerto suspects. Jan Ulrich didn’t fight, and b/c of that, the guy has been treated like dirt. For doing something EVERYONE ELSE WAS DOING at the time. Basso is a hero, Valverde had a couple of years of racing before his eventual ban, Schleck is still riding (and being assumed clean by fans). It’s been a disaster how they’ve pursued some of these guys while other guys get off clean.

Seriously, is there a single benefit to pursuing Ulrich at this point? He’s already been kicked out of cycling (whether he “retired” or not). He’s shown no inclination to fight, which has emboldened the pursuers. It’s a bully mentality, and it’s shameful.

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