Running seems to be almost universally regarded as one of the simplest sports in existence. Without the need for special equipment, judges, or complicated scoring systems, running probably does come the closest to the ideal of “pure sport.” What could be more simple and pure than athletes lining up to compete with nothing but their competitors and the clock to contend with?
The recent announcement that elite marathoner Liliya Shobukhova has been banned from competition by the Russian Athletics Federation, however, shows how the purity and the simplicity of running are more fantasy than fact in the world of international athletics. There are a number of legal issues raised by her situation, some more obvious that others, and I hope to touch on as many of them as possible.
Before getting into the legal issues, what exactly happened that resulted in Shobukhova’s ban? Liliya Shobukhova of Russia is a three-time winner of the Chicago Marathon (2009-11) and former Olympic athlete (finishing 6th in the 5,000 in Beijing). According to the Runners World article above and other reports, her biological passport recently showed abnormal hematological curves. If you’re like me, that explanation isn’t particularly helpful. What’s a “biological passport,” what’s a “hematological curve,” and when do you know that it’s “abnormal”?
WARNING SCIENCE CONTENT AHEAD!
According to the Swiss Laboratory for Doping Analyses:
The Athlete Biological Passport (ABP) is an individual electronic document that represents a collation of all data regarding a specific athlete that is useful in establishing whether that individual has doped. The fundamental principle of the ABP is based on the monitoring over time of selected biomarkers which can reveal either the effects of doping or a pathology.
In other words, because doping violations can’t usually be caught in the same manner as performance enhancing drugs (i.e., while they are in the athlete’s bloodstream) the ABP is designed to measure an athlete’s biomarkers over time and detect deviations from those norms that could only be explained by doping. “Hematological” refers to the study of the blood. In the context of anti-doping, the hematological component of the ABP “has the sensitivity to identify among other blood doping methods, recombinant erythropoietin abuse and any form of blood transfusion or manipulation.” This type of doping has probably generated more public attention in competitive cycling, but it has applications to all endurance sports.
Endurance sports like cycling and long distance running are aerobic exercises as opposed to anaerobic exercises like sprinting or weightlifting. The most successful endurance athletes have a higher aerobic capacity (also know as VO2 max), enabling them to perform endurance activities at a higher intensity while remaining in the aerobic zone and to perform at that level for longer periods of time. Aerobic exercise relies on the body’s ability to process enough oxygen to keep from producing lactate in the muscles instead of turning carbohydrates into energy. Erythropoiesis-stimulating agents (ESAs) act to increase the percentage of red cell mass in the blood stream, thereby conferring increased capacity for muscular processes. Interestingly, because of the increased viscosity of the blood, use of ESAs is associated with an increased risk of blood clots and strokes.
That’s a very simplified explanation and I hope I didn’t do too much violence to the science involved. In any event, it should be obvious (even from my brief explanation) that an athlete who’s blood more efficiently carries oxygen to the muscles has an advantage over the competition. Hence the reason that blood doping has been banned and the utility of a “hematological passport” for competitive athletes.
With that background laid out, let’s move on to the legal issues.
The Legal Framework of International Competition and Anti-Doping
First, on the national and international levels of competition, the sport of running is now rather highly regulated and structured. Given the widespread use of performance enhancing drugs and other methods of doping, in 1999 the World Anti-Doping Agency was set up in an effort led by the International Olympic Committee. All of the major sports governing bodies are members of the WADA, including the IAAF, the sanctioning body for track and field and road running. The All-Russia Athletic Federation or ARAF (sanctioning body for Russian track and field and road running), in turn, is a member of the IAAF. As such, Russian athletes in international competitions are subject to the World Anti-Doping Agency’s (WADA) World Anti-Doping Code (the current version took effect in 2009, but will be supplanted by a new version which will become effective in 2015).
The Code runs to a length of 135 pages and outlines how the WADA establishes which substances and methods are prohibited, what process is used for establishing that a violation has occurred, and what penalties are to be imposed in case of a violation. Most of the reports about Shobukhova’s case mention that she has the right to appeal the decision. Whether she will do that I don’t know, but the Code provides her that opportunity in Article 13.
If Shobukhova were to appeal her ban (perhaps unlikely given that, at age 36, she may be close to retiring from elite competition), pursuant to the Code the case would be heard by the Court of Arbitration for Sport (CAS). If you follow international sports like track and field only casually (like I do) you might not have known that such a tribunal even existed. It owes its existence, at least in part, to the late Spanish President of the International Olympic Committee, Juan Antonio Samaranch. In addition to cases arising under the World Anti-Doping Code, the CAS also hears cases involving transfer disputes within professional association football. If you’re enthralled with the thought of reading up on the history of the CAS, you can check out this article published by Professor Richard H. McLaren in the Marquette Sports Law Review in 2010.
Other than the fact that it grew out of the IOC and that it deals exclusively with sports cases, the CAS is merely an arbitration forum not so unlike the American Arbitration Association or the National Arbitration Forum. Interestingly, although Samaranch conceived the CAS as a “supreme court for world sport” decisions of the CAS can be appealed to the Swiss Federal Tribunal (although such appeals are rarely successful). What the appellate structure means for Shobukhova’s case is unclear. Although the 2015 Code specifically provides that proceedings before the CAS are de novo (“CAS need not give deference to the discretion exercised by the body whose decision is being appealed”) the current version of the Code doesn’t address that point directly. If the decision of the ARAF to ban Shobukhova is entitled to some level of deference, that would only make her route to undoing the ban that much more difficult.
Follow the Money (Prize Money, That Is) . . . to Russia?
Another interesting legal issue is raised by a second Runners World article: if the ban is upheld, Shobukhova could be forced to pay back the more than $1.4 million in prize money for her race wins that have now been annulled. Without being able to look at the specific provisions of Shobukhova’s contract it’s hard to predict how such a case might turn out. We more or less have to take the word of Nick Bitel, the general counsel for the World Marathon Majors, when he says that “There may be breach of contract involved, breach of conditions in contract or breach of expressed contract, and all of those will give organizers the right to reclaim money.”
If marathon organizers want to bring in elite competition while protecting themselves from negative association with athletes who run afoul of the Anti-Doping Code, they certainly would do well to structure their contracts with these athletes very carefully. A warranty by the athlete that they will be able to compete at the race under conditions that will not later cause the result to be annulled for doping violations would seem to be one way to cover race organizers. In fact, that’s just what some races have done:
Each of the World Marathon Majors elite athlete contracts has provisions that stipulate the organizers have the right to recover any appearance fees, prize money, and travel reimbursements paid out to that athlete, should the athlete not fully comply with anti-doping rules.
Another interesting issue raised is whether and how race organizers would be able to collect damages that a court might award against Shobukhova. As pointed out in the Runners World article, collecting judgments in Russian courts is a task that gives even the top lawyers at the biggest firms some trepidation:
Since the Russian Federation does not have a treaty with the United States or Great Britain, the question becomes about the enforceability of any judgment. “Just because you get a judgment in the U.S., doesn’t mean you can enforce it in the Russian Federation,” says Bitel.
Recent developments, however, show that collecting on judgments in Russian courts might not be nearly as difficult as once thought. Irini Nikolaeva, an associate for international mega-firm DLA Piper, wrote this brief article about a 2012 decision by the Higher Arbitrazh Court of the Russian Federation. The case was a patent dispute between a Swiss company and a Russian company that was heard before the High Court of Justice in England. The Swiss company obtained a judgment in the UK and then went to Russian arbitration courts in Moscow to enforce the judgment. Despite the lack of a treaty between Russian and the UK, the Russian courts recognized the enforceability of the judgment from the English Court, basing their decisions on principles of comity.
In international law, the principle of comity has been defined thus:
The legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts. The underlying notion is that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect.
So, although Russian courts are under no treaty obligations to recognize judgments of the High Court of Justice of England, the courts that heard this case nonetheless decided to recognize the judgment. Given the relative importance that is given to patent issues these days, perhaps the result isn’t that surprising. Concern that foreign courts might see fit to return evil for evil if Russian courts did not allow enforcement of patent judgments against Russian companies could have played a role here as well.
Whether any of those principles would be extended to the Shobukhova case isn’t immediately clear. It seems to me that the issues at stake in her case (assuming the race organizers take her to court for the prize money or other damages) would likely not be considered nearly as weighty as the patent matter from back in 2012. The consequences for not applying principles of comity in the case of a breach of contract case involving a professional athlete might not be regarded as having nearly the same downstream effects.
There are six races in the World Marathon Majors series, half of which are in the United States and none of which are in Russia (that is, none of them are regularly in Russia, the IAAF 2013 World Championship event being an exception). While the concerns about Russian companies not being afforded comity in patent judgments are obvious and involve a lot of money, the concerns about Russian professional athletes (especially marathoners) would seem to be relatively attenuated by comparison. Those are factors that might or might not play into any Russian court’s eventual analysis of any lawsuit that comes about. As a legal term of art, comity sounds like a noble, high-minded principle, immune from realpolitik or judicial corruption. To entirely discount the influence of pragmatic concerns would, I think, be a mistake.
Because some of the facts of the Shobukhova case are still obscured, it’s likely that I’m only scratching the surface here. The case has made the headlines over the last week, but the real fallout will come some time in the future, perhaps years from now, when a small army of lawyers and a diverse group of judges have had their say,