‘Legally, ethically and morally, the decision of the Court of Arbitration of Sport in CAS 2018/0/5794 Semenya vs International Association of Athletics Federations is monstrous’. Critically analyse this statement.
Assessment Task
You MUST answer both Part A and Part B:
Part A
Question Two
‘Legally, ethically and morally, the decision of the Court of Arbitration of Sport in
CAS 2018/0/5794 Semenya v International Association of Athletics Federations is monstrous’.
Critically analyse this statement.
(1,250 words)
You must also answer Part B
Part B
Sam Barnes is twenty-five years old and is a professional tennis player, playing on the ATP Tour. Originally from Bristol, Barnes now lives in Surrey with his girlfriend Tatiana Hesketh, a racing driver who races in Formula Three. Since bursting on to the tennis scene with a run to the semi-finals of the Men’s Singles at Wimbledon as a nineteen-year-old, Sam has matured into a top 16 player, and now regularly reaches the quarter and semi-finals of the grand slams, reaching the quarter-finals of Wimbledon again in 2019, the French Open in 2020 and the semi-finals of the Australian Open in 2020 and 2021. Sam has represented Great Britain and Northern Ireland in the Davis Cup, and is expected to represent his country again at the Tokyo Olympics in 2021. He is currently ranked 11 in the latest world rankings.
The International Tennis Federation (‘ITF’) administers the Tennis Anti-Doping Programme on behalf of the ATP. The ITF is a signatory to the World Anti-Doping Code (‘WADA Code’). Consequently, the Tennis Anti-Doping Programme (‘TADP’) seeks to implement the WADA Code in its entirety.
As a world-leading tennis player, Barnes is entered into the International Registered Testing Pool which means that he is subject to the ‘whereabouts’ provisions of the Tennis Anti-Doping Programme.
On 30th September 2020, Barnes received a notification from the ITF that he had missed his third out-of-competition test in the past twelve months. Consequently, Barnes has committed an offence under Article 2.4 of the TADP and WADA Code respectively. The details of the missed tests are as follows:
1) 28th January 2020
Barnes’s ADAMS profile stated that he would be at home between 6am and 7am. When testers arrived at 6:30am, he was not at home. Barnes was still travelling back from a tournament in Australia, as his flight was delayed by several hours due to bad weather.
2) 17th September 2020
Again, Barnes had stated on his ADAMS profile that he would be at home between 6am and 7am; testers arrived, but only his girlfriend, Tatiana Hesketh was at home. Hesketh told the testers that Barnes had made a last-minute decision to enter the ATP St Petersburg Open, in St Petersburg, Russia in order to get more match practice. On 17th September, Barnes played a second-round match.
3) 22nd September 2020
Again, testers turned up to Barnes’s home, at 6:30am on the basis that Barnes’s ADAMS information stated that he would be at home between 6am and 7am. Once again, no one was at home. On the 21st September, Barnes had played a semi-final at the St Petersburg Open, losing in three sets. Following his defeat, Barnes decided to stay in St Petersburg for a few days to do some sightseeing.
While at the St Petersburg Open, Barnes was tested following his Quarter-Final, played on the 19th September. On 1st October, Barnes was notified by the ITF that this test had come back positive for cocaine. As cocaine is on WADA’s Prohibited List, the positive test is evidence of a doping offence under Article 2.1 of the TADP and WADA Code.
Barnes immediately requested that his “B sample” was tested, which also came back positive for cocaine. Barnes has always taken seriously his status as an international athlete and role model and has campaigned to “stamp out doping” in sport. On the 2nd of October, Barnes made a statement to the media which stated the following;
I took part in the St Petersburg Open as an opportunity to get some extra match practice. The night before my Quarter-Final, I was invited to present an award at a ceremony organised by a Russian magazine and I agreed to do it. I attended the after-party with my agent, and before midnight, I felt strange, so I decided to leave. I have never taken any illegal drugs or doped in any way, and so I’m doing everything I can to determine how this positive test has happened.
The following day, a British tabloid newspaper, under the headline, “Is our Sam being stitched up by the Russians?” stated that the spiking of drinks in St Petersburg is rife, and that several other attendees to the after party may also have had their drinks spiked with drugs.
As is his right, Barnes requested that the matter be heard by the Independent Tribunal.
The Tribunal upheld both charges and found the following:
(a) That the sample (as confirmed by the testing of the B sample) tested positive for cocaine. Cocaine is a prohibited substance by virtue of its inclusion on the Prohibited List.
(b) That the presence of a Prohibited Substance in an athlete’s sample is doping offence as specified by Article 2.1 of the World Anti-Doping Code.
(c) Further, as The Code states, “it is each athlete’s personal duty to ensure that no Prohibited Substance enters his or her body”. Consequently, there is no excuse which can absolve Mr Barnes from responsibility in anyway.
(d) As regards the “whereabouts” offence, the failure lay in Barnes failing to update his location via ADAMS, which means that he is entirely culpable for this offence.
(e) Individually, both penalties would require a four-year ban, which means that the Tribunal has no option other than to impose an eight-year ban.
Astonished by the harshness of the findings of the Tribunal, and the fact that an eight-year ban would effectively end his career, Barnes wishes to appeal to the Court of Arbitration for Sport (CAS) against both the findings and sanction imposed. Barnes has instructed your firm Chalk Dobson Nottingham, which specialises in Sports Law to act for him. Barnes has also told you that on the evening of 19th September, at the afterparty, he was approached several times by people who recognised him, asked for pictures and autographs. Shortly before he left, he was also told of rumours that some people were taking illegal drugs at the event.
You have been tasked with writing the main submission for the reference to CAS.
Write the submission to CAS on behalf of your client.
(2,000 words).
Assessment Learning Outcomes
a) Demonstrate a detailed knowledge of selected aspects of the law as it applies to sport
b) Demonstrate an understanding of the role of in the organisation and regulation of sport
c) Apply legal principles to moderately complex problem questions
d) Provide some critical evaluation of aspects of sports law and their significance to society
