Wednesday, February 6th, 2013...6:38 pm

Speaker Series: Howard Jacobs and Arbitrating Cases in front of CAS

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Yesterday the William & Mary Law School was pleased to welcome to Mr. Howard Jacobs, noted sports law attorney and W&M law alum (’90) to give a presentation to interested students on arbitrating doping cases in front of the Court of Arbitration for Sport (CAS). Mr. Jacobs also met with students at a reception before the presentation, taking individual questions and discussing his route to becoming a sports law attorney.

For obvious reasons, the subject matter is extremely timely. It seems that every day a new story about doping and performance-enhancing drugs breaks, with the latest example being the investigation of a Miami clinic linked to at least 8 Major League Baseball players, including former MVPs Alex Rodriguez and Ryan Braun. While Mr. Jacobs works most often with athletes in Olympic sports, he has also been involved extensively in several high-profile cases involving major American team sports athletes.

Before delving into the subject-matter of the presentation, it may be helpful to briefly relate Mr. Jacobs background. A 1990 graduate of W&M law, Mr. Jacobs began his career as an admiralty lawyer, and still does some work in the field. A mixture of networking and fortuity allowed him to get into the field of sports law, doing work for the United States Triathlon Federation, which eventually led to his first doping case. This was before doping became the national and international story it is today. Slowly he began taking more and more cases, and then with the BALCO scandal and other high-profile events, this field expanded exponentially and Mr. Jacobs was one of the few attorneys with bona fide experience defending athletes. He is now renowned as one of the top lawyers defending athletes and his practice has expanded significantly.

As alluded to above, a majority of Mr. Jacobs work occurs in the Olympic sports. These athletes are governed by the World Anti-Doping Agency (WADA) as well as national anti-doping organizations. (You’ll remember WADA was very involved in the Lance Armstrong scandal). WADA promulgates its own code and list of banned substances. Violations of this code are based on a standard like strict liability — there is no intent prong, nor does it matter that the substance was not performance enhancing. To give you an idea of the scope of the WADA code, they have banned and are considering outlawing once again caffeine, a substance in any number of normal products like coffee or soda. (Let’s just say that avoiding caffeine would be quite difficult and leave it at that. I, for one, can’t even go to class without a little coffee in the morning). As a result, this system is quite difficult for athletes to navigate.

Further complicating matters is that athletes are not permitted to challenge the fact that a substance is on the prohibited list. While extenuating circumstances do matter, a prima facie violation is established immediately upon a positive test or designated missed tests. Much of the argument in these cases is about reducing the penalties, which the presumption being a two-year ban from competition. Being able to explain where the substance came from, how the athlete ingested it, and what precautions the athlete took in an attempt to avoid the violation are all quite important in seeking a reduction of penalties. Perhaps surprisingly, a majority of these cases are unintentional violations. The takeaway from the presentation, at least in my eyes, is that the structure and operation of this system is very pro-sport and anti-athlete. Perhaps that is a policy decision we support, in an effort to clean up sports, but it does also seem that some essentially “clean” athletes are punished for unintentional or unknowing violations in which the performance bump is speculative at best. In other words, not all these cases are well-orchestrated conspiracies to cheat.

As far as the procedure goes, CAS an arbitration body. Cases usually reach it on appeal from national hearings or arbitrations. For US athletes, the first level of the process is an arbitration in front of the American Arbitration Association, with the United States Anti-Doping agency doing the regulation and prosecution. Other nations have their own anti-doping structures. The panel consists of 3 arbitrator, sanctioned by CAS, in which each party may pick one arbitrator. The CAS process is largely modeled after the European justice system, requiring somewhat of an adjustment for American lawyers. Evidentiary rulings and procedural aspects are often quite different than in the American court system.

The above serves as just a brief summary of Mr. Jacobs presentation. It is clear that the field is constantly growing, as professional leagues and sports federations around the world continue to crack down on the use of illegal substances.

Samuel Mann is a third-year law student and editor of the Sports and Entertainment Law Society Blog at the William & Mary School of Law.

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