The New Transnational Regime against Doping WADA’s approach and its challenges for national and international legislation by Bastian Kern I. Introduction ...................................................................................... - 1 II. Threats to a successful Fight against Doping ................................. - 2 III. Existence of a Lex Sportiva Internationalis .................................... - 2 1. Concept of a Lex Sportiva Internationalis................................... - 3 2. WADA and the WADC................................................................ - 3 3. The Court of Arbitration for Sport (CAS)..................................... - 3 4. Tasks.......................................................................................... - 4 IV. Role of International Public Law .................................................... - 4 V. Role of EU Law............................................................................... - 4 VI. Role of National Legal Systems..................................................... - 5 1. Implementation of National Courts of Arbitration for Sport ......... - 6 2. Mandatory Arbitration ................................................................. - 6 3. Choice of Law ............................................................................ - 6 VII. Case Study: Hondo Case ............................................................. - 7 1. Hondo’s Doping Ban, its Rescission and its Reinstatement ....... - 7 2. Legal Problems .......................................................................... - 8 a) Multi-Competence of national and arbitral Courts ................. - 8 b) The 2-Year Ban and the Principle of Proportionality.............. - 8 c) The Strict Liability Rule.......................................................... - 9 VIII. Conclusion................................................................................. - 10 -

I. Introduction Historically, the world of organised sport has always claimed autonomy and freedom of interference from state authorities. Sport is traditionally organised independently and seeks worldwide validity of its self-imposed rules. For a long time, sport associations have been able to protect this autonomy by a monopolistic and powerful attitude. 1 In times of globalised and commercialised sport, this regime can hardly be held up by these means as athletes, sponsors and sporting bodies are not willing to accept lawless decisions and claim their rights granted by national legislations. The following article explores to what extent sports organisations may regain their autonomy in the most relevant fight against doping by means based on the rule of law. As this fight against doping does not only effect privately organised sports organisations but has also impacts on national legislations and courts as well as international and supranational organisations the tasks for these parties such as states, the EU and national courts will be part of this analysis as well. In this regard, the formulation and adoption of the World Anti-Doping Code in 2003 (“WADC”) 2 tries to create the basis for a new lex sportiva internationalis as a reaction to a development opposing the autonomy and uniformity of sport. The need for enforceability and validity of this transnational regime poses diverse challenges for national and supranational legislators. These derive from national legal systems as well as from public international law. National legal systems grasp for application in international sports cases and jeopardize the mandatory uniformity sport rules cannot live without. In order to overcome the legal obstacles of international private law EU legislation can be supportive. Furthermore, the transnational approach of World Anti Doping Agency (WADA) requires validity under international public law. In this regard, the scope of the new UNESCO

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International Convention against Doping in Sport as of 19 October 2005 (“UNESCO Convention”) shall to be assessed in order to find out to what extent it may present a widely accepted treaty under international public law clearly mandating WADA and providing mechanisms for its enforceability. The following article will describe some of the threads to the fight against doping from a legal perspective, then raising the assumption that a transnational regime of anti-doping rules could efficiently address these threads, followed by a short analysis of national, international and supranational bodies addressed by WADA’s concept. Finally, some of the theoretically raised issues shall be practically tested by looking at the most resent rulings in the doping case of professional cyclist Danilo Hondo and the legal questions raised therein.

II. Threats to a successful Fight against Doping A successful fight against doping in sport existentially depends on the uniformity of anti-doping regulations and their application by both sport organizations and the competent conflict settlement bodies. Essential characteristic of competitive sport is the comparability of performances. 3 This comparability is feasible only if the parameters for the performances to be delivered are identical; i.e. identical terms of competition need to be in place and athletes need to obey to these terms. 4 Therefore, the organization of sports shares its need for uniform rules with other social sub-systems such as transnational trade, international labour law, cyber space, human rights or environmental issues. 5 The central threads to this need for uniform and equal rules derive from efforts to fragment such cases that demand uniformity by different legislators of anti-doping rules, organisations applying these rules or settlement bodies adjudicating doping cases. And as a matter of fact athletes will take advantage of any right available to avoid doping sanctions that appear to violate their rights from their perspective and which jeopardize their right to take part in organised sport. Several doping cases prove this trend, such as the doping case of Harry “Butch” Reynolds Case with the District Court of Ohio ruling a USD 27 million damage claim against IAAF 6 . Contradictory court decision also characterized the case of basketball professional Stanley Roberts. 7 A court in Munich, where the international Basketball association is seated (FIBA), regarded itself competent and then declared an arbitration clause to be invalid and overruled the ban against Roberts. At the same time, the appeal of Roberts challenging the arbitration clause the Federal Court of Switzerland was declined and the court confirmed the competency of CAS. 8 After lengthy proceedings, CAS finally approved the doping ban against Roberts. 9 These examples show that growing transnational movements affect the world of sport as much as many other parts of life. At the same time, it faces attempts to nationalise individual conflicts while athletes legitimately claim for the guarantee of their rights.

III. Existence of a Lex Sportiva Internationalis It needs to be analysed whether these threads to the basics of organised sport are efficiently addressed by WADA’s approach against doping in sport. This requires a look at the central sports related bodies involved in this regime before the functions and tasks of parties involved outside the world of sport are to be evaluated in a second step.

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1. Concept of a Lex Sportiva Internationalis There are extensive theoretical discussions on the existence of such a thing as transnational law, which shall not be repeated in this analysis. 10 Still, from a purely factual perspective the idea of a uniform legal regime addressing the needs of a worldwide application of rules within a specific system is charming. Schmitthoff 11 set up a triad of pre-requisites to characterize the existence of transnational legal regimes: (i) consensual contractual agreements, (ii) international legislation, and (iii) arbitration so that WADA’s project of harmonizing the fight against doping may be analysed whether it displays transnational law.

2. WADA and the WADC The World Anti-Doping Agency is a private foundation constituted under the laws of Switzerland. Its ‘stakeholders’ present a rather unique composition with half of them being Governments or public authorities, and the other half coming from the Olympic movement or private international sporting bodies. Formed following a World Conference organized by the IOC in 1999 in Lausanne, it presently is headquartered in Montreal, Canada, with a Foundation Board of 36 members and an Executive Committee of 10 members. 12 The first and main task entrusted to WADA was to prepare a universal Code on AntiDoping, with the aim of harmonizing the multi-varied rules and regulations existing all over the world in order to ensure, that athletes will be treated equally by sport and governments in anti-doping issues. Following extensive consultation and considerable drafting exercises, the World Conference held in Copenhagen in March 2003 adopted the WADC. All throughout this process WADA intended the development of an international treaty to support its efforts against doping by a legal instrument involving the governments of states, which in the meantime lead to the UNESCO Convention at the end of 2005.

3. The Court of Arbitration for Sport (CAS) In addition, WADA implemented the Court of Arbitration for Sport (CAS) to be the solely competent body of conflict settlement for all appeals against doping-related decisions covering doping cases on the international level. 13 Furthermore, the implementation of the WADC obliges the participating states to install sports-related arbitration for doping cases on the national level. 14 The use of arbitration in the world of international sport began when the CAS, seated in Lausanne, was founded in 1984. Originally, it was meant to deal with disputes related to commercial aspects of sports, which significantly gained importance at the beginning of the 1980ies. 15 Nowadays doping cases already dominate the workload of CAS. Moreover, after WADC implementing CAS as the dispute settlement body deciding in all doping related cases in the last instance 16 , workload will increase further and the structure of the CAS will change accordingly in order to be able to handle this workload. 17 CAS also acts as ad-hoc instrument of arbitration during the Olympics and thereby does not apply a specific national legislation but the Olympic Charter, the applicable regulations of a sports association as well as general rules of law that appear reasonable to apply. 18

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4. Tasks Consequently and according to WADA’s efforts, parties participating in the execution of international sport events (athletes, support staff, doctors, officials, referees, sport organisations) would mutually agree to have their legal relations governed by non-national rules of sport in order to cope with sports global approach and to avoid the nationalisation of these relations that brings inequality into the system of sport. Still, this approach must not be abused to impeach athletes’ rights that are usually protected by national legal systems. 19 The tasks consist of granting the sub-system of sports the freedom necessary to satisfy its needs for uniformity and, at the same time, to supply the legal means to protect the rule of law and the athletes involved. This shield of protection has to be provided by (i) national legislation, especially by the law of conflicts, the respective ordre-public provisions, (ii) by interand supranational institutions increasing pressure on their member states to implement these shields of protection and (iii) by national and international arbitration itself by proving that it is able to develop an acceptable and undisputable standard of jurisdiction obeying the rule of law.

IV. Role of International Public Law Ideally, international public law, namely state conventions, creates the global frame by obliging signing states to support the respective transnational project. WADA clearly follows this idea by recommending an instrument under international public law to receive patronage from states. 20 In 2003, the Copenhagen Declaration was drafted and finally signed by 185 states. Still, the Copenhagen Declaration presents not more than a memorandum of understanding among governments to acknowledge the work of WADA. It did not create rights and obligations under international public law. Hence, the Copenhagen Declaration has been enhanced in cooperation with UNESCO towards the UNESCO Convention 21 . For the first time, a UNESCO Convention binds states to the regulations of a private body of sport organization 22 . The State Parties commit themselves to the principles of the WADC and they undertake to adopt appropriate measures to achieve the goals set out in the Code. Thereby, the State Parties agree to the implementation of a global legal regime against doping in sport and oblige themselves to facilitate the achievement of these goals within their competences. An interpretation of this rather vague mandate may lead to more precise obligations for the State Parties. These may comprise actions concerning national legislation such as (i) adapting the rules on the conflict of laws, (ii) recommending the applications of the WADA rules (iii) adopting rules of national and international arbitration to implement national courts of arbitration for sports 23 , because all these measures support the goals of the Code and meet the obligations of the State Parties. It is yet to prove how seriously the State Parties will take these obligations implied in the UNESCO Convention.

V. Role of EU Law It is also important to address the potential contribution of the European Union (EU) in the context of the fight against doping. The EU still has no direct competence in sports related matters. Sport appears on the EU-agenda only in cross-section matters where sport issues get in contact with classical EU matters such as mobility of labour or competition law issues.

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Besides that, European sports policy undertakes to respect the “specific characteristics of sport” in all the decision-making processes of its respective institutions. 24 . These specific characteristics comprise, inter alia, the independent and autonomous organisation of sport. The Helsinki Report was the first document presenting EU’s global vision of sport. This vision broke with EU’s traditional view on sport matters as a solely horizontal issue in between different fields of policy within the EU by establishing a coherent approach within this field and by emphasizing the social function of sport as well as the need to respect the specific characteristics of sport in EU policies. This approach would not change in case of the adoption of the European Constitution. Article III-282, which states that ‘the Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function’. Nonetheless, two aspects can be taken from this potential reference to sport in the European Constitution: On the one hand, the EU is clearly mandated to act within the field of sport; it is no longer seen as just an issue that might more or less coincidently be touched by other policy fields of the EU. On the other hand EU does not claim own rule-setting competences for sport related topics. It will only act in order to complement the activity of its member states with the competences remaining with the states. Under the new anti-doping regime of WADA, this means that EU’s current approach on sport related issues fits the idea of self-regulation accompanied by state measures. According to the Helsinki Report and the European Constitution, the EU supports the specific characteristics of sport and thereby agrees to the independent and autonomous organisation of the fight against doping. In addition, as member states will sign the new UNESCO Convention with its binding effects under international public law, the EU may support its members in adopting rules to facilitate the enforcement of universal anti-doping rules as demanded by WADA. The EU could and should use its coordinating and supplemental competences to assist WADA’s Anti-Doping Program, e.g. by composing a recommendation. This should state that it supports WADA’s work and encourages member states to support WADA by signing the respective documents and by adopting national legislation to facilitate the uniformity of the anti-doping regime.

VI. Role of National Legal Systems With international and supranational organisations already going through a process of legal reform towards a worldwide regime against doping in sport, the central threat to the uniform application of anti-doping rules derives from national legislation. These are not primarily bound by the needs of international sports but by the values set out in each legal system, often anchored in national constitutions. They thereby function as a shield of protection against decisions of sporting bodies that are not in line with the national standards and there is no way the organised sport can ignore these standards. However, states should refrain from intervening in private regulations set up by sports organisations, at as long as these generally correspond with fundamental standards of fairness and rule of law. In order to support the uniform application and enforcement of the worldwide antidoping regime legal systems still provide diverse loopholes that endanger the aspired uniformity, which is crucial in aspects of fairness and equality in sports. As many states support WADA’s attempt to eliminate doping in sport by signing the respective documents under international public law, they are obliged to put efforts into closing

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these loopholes. A uniform application of doping rules affects different areas and requires measures, inter alia, in the following areas.

1. Implementation of National Courts of Arbitration for Sport The WADC obliges the national sport associations to adopt the mandatory regulations of the WADC. This includes that national anti-doping organisations have to install national courts of arbitrations that are supposed to deal with doping cases on the national level. 25 These national settlement bodies will have to apply the rules of WADC directly or indirectly through the national anti-doping regulations in place. Decisions of these national settlement bodies shall only be appealed to the CAS. Thus, WADA undertakes to install a worldwide and uniform anti-doping regime. States can support this effort by facilitating the installation of such private settlement bodies in their jurisdiction. If there is a clear mandate by the state that doping related matters shall generally be treated by arbitration, the reluctance of national courts to accept the autonomy of sport and sport related issues might be reduced.

2. Mandatory Arbitration Furthermore, it is important to raise the question whether athletes can be forced to sign an arbitration clause in consideration to compete in competitive sport. In some national legislations – Germany among them – courts have concerns about allowing sport organisations to force their members or contractual partners to accept an arbitration clause. 26 This shows that national courts still have concerns with respect to the monopolistic and powerful structure of sport organisations being able to force the individual to accept its self-established rules. It must be WADA’s task to eradicate effectively those doubts by providing transparent and fair regulations and proceedings, which allow states to adjust their concerns about mandatory arbitration clauses. However, if states take their obligations under the UNESCO Convention seriously, they should consider eliminating this threat to the uniform application of anti-doping rules by adopting national legislations and clarifying the possibility to substitute entirely the competency of national courts by private settlement bodies. According to the UNCITRAL model law on international arbitration, which has been transformed into national law in so many member states, arbitration presents an equivalent alternative to national courts. Multi-competency between private and public conflict settlement bodies also occurs in correlation with athletes filing for preliminary injunctions at a national court. So far, it is not entirely clear according to German jurisprudence whether it is possible under German law to prevent an athlete from filing for an injunction in a doping case. The court ruled that a preliminary injunction according to section 1033 of German Code of Civil Procedure could not be excluded despite an arbitration clause validly agreed between the parties. 27 Such ruling creates legal uncertainty and impedes the uniformity in international decisions. However, in order not to leave athletes without legal protection in urgent cases, sport’s private conflict settlement bodies need to improve their mechanisms for temporary relief.

3. Choice of Law Finally, the regulations concerning the choice of law in national legislations would be worth an amendment in order to establish the equal and uniform application of anti-doping rules. So far, national legislations see problems in national or private courts applying non-

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national rules such as a lex sportiva internationalis. This can be avoided by national legislation implementing a reference in their laws on international private law or on international arbitration with respect to the international rules of sports in general and those of the international fight against doping in particular by referring to the states’ obligation under international public law deriving from the UNESCO Convention. This would open the door for the recognition of a new lex sportiva internationalis.

VII. Case Study: Hondo Case The doping case of professional cyclist Danilo Hondo is currently causing some confusion among doping experts and the case may serve as an example for some of the abovementioned aspects that are crucial for the future legal problems of the fight against doping. As the case is still pending and not all the rulings are publicly available yet, there only remains the approach of summarizing briefly and superficially those facts available. Still, they might give a sufficient impression of some of the legal issues the fight against doping still faces.

1. Hondo’s Doping Ban, its Rescission and its Reinstatement Danilo Hondo, a professional cyclist, was tested positively on a substance called Carphedon during his participation at the Tour of Murcia in March 2005. Both the A and the B sample came to the positive result that Hondo’s body contained a very small amount of this substance. During the proceedings well-known German doping expert Prof. Dr. Werner Franke uttered doubts concerning an intentional doping offence by Hondo as the amount of the prohibited substance found in his body would hardly be able to cause any performance enhancement and could have, in addition, easily entered the athletes body without him knowing. 28 Nonetheless, the Swiss Olympic Association banned Hondo for one year. 29 All the parties involved, including Hondo, UCI and WADA challenged this ban. According to the regulations of UCI CAS was the competent body for this challenge. During the CAS proceedings Hondo himself claimed that he did not ingest Carphedon and that he had no explanation how it could have penetrated his body and that it may well be that he consumed it by either a contaminated bottle or even by a third person trying to harm Hondo intentionally. CAS argued that it applied the rules of the WADC providing the chance to reduce regular sanctions in case of no or no significant fault or negligence by the athlete 30 and came to the conclusion that (i) these exceptional circumstances did not apply because the amount of a prohibited substance found in an athlete’s body does not matter in this respect and that (ii) the athlete was not able to present facts that caused serious doubts in his fault or negligence. Therefore, Hondo was banned for 2 years. So far, the new mechanisms implemented by WADA seemed to function in regards of a quick decision including two stages of appeal by private settlement bodies with worldwide application. However, Hondo took the chance offered by the Swiss law on arbitration that allowed him to challenge the ban once again by way of an injunction. 31 Moreover, the Court of Appeal

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of Canton de Vaud granted the injunction in March 2006 stating that it might see a violation of the principle of proportionality by the 2-year ban for Hondo. 32 Hondo was eligible to compete in professional cycling; otherwise, UCI would have been under serious threat of damage claims by Hondo. Still, UCI “reminded” the top teams participating in the elite class of professional cycling that according to the code of conduct these teams agreed on they were not allowed to hire a cyclist whose doping case is still pending. 33 While the parties involved waited for the final decision of the court, WADA filed another appeal against the injunction of the Swiss court, which was successful again so that Hondo’s ban was reinstated a few weeks ago. This completed the confusion and the final decision is still outstanding.

2. Legal Problems This back and forth in a doping case presents the problems the new WADA regime against doping in sport originally tried to overcome. These aspects shall shortly be analysed in the following.

a) Multi-Competence of national and arbitral Courts The Swiss legal system – as many others – allows parties of an arbitral award to challenge the award to a national court if it is arbitrary in nature. 34 Unlike other loopholes some legal systems provide, which can cause multi-competency between national courts and arbitration, this control mechanism will remain as a legal instrument for states to protect their citizens of decisions that are opposing the legal standards of the national legislation. Therefore, arbitration bodies have to ensure the conformity of their awards with the legal system(s) the award might be challenged in. 35 More remarkable is the aspect of the Swiss court casting doubts on the basic legal standards that have been established over the years in international doping cases such as the adequate duration of a doping ban and the strict liability rule. A state – and its courts – that has signed the UNESCO Convention and supports the regulations set out in the WADC by WADA should be familiar with the typical legal problems in doping cases and should probably exercise the reluctance necessary to keep the system of sport functioning.

b) The 2-Year Ban and the Principle of Proportionality Nevertheless, the Swiss court raised the question of the acceptable duration of a doping ban and its compatibility with the principle of proportionality. In order to dispel these doubts, the discussion has to stress the fact that in general there are no valid arguments doubting the possibility of neither contractual penalties nor sanction in legal relations based on membership 36 , it rather focuses on the duration of such penalties instead. According to different opinions on the purpose and the legitimacy of doping bans, their duration varied massively in practice among the different sporting associations in the past. 37 In this regard, the interests that are at stake for the parties involved are of central importance for the evaluation of the adequate duration of a doping ban. This question is closely related to the principle of proportionality and accordingly, the discussion is influenced by the constitutional obligations of states, protecting these interests. 38 National constitutions guarantee freedom to choose an occupation as well as freedom of action on the one hand and

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the freedom of association on the other hand. 39 The guaranteed freedom of association is not an end in itself; it implies the guarantee of the existence of organised sport. As doping threatens the existence of organised sport, sport associations legitimately declare the efficient fight against doping as one of their goals to pursue. Without an efficient fight against doping, the existence of organised sport is at stake, thereby jeopardizing the participation of all athletes in sport. Thus, by enforcing equal treatment among the athletes organised sport guarantees the existence of organised competitive sport for all parties involved. That is why the banning of doping offenders from participation in sporting events cannot be considered disproportional per se. On the contrary, arguments favouring a strict punishment of doping offenders by long-term bans can claim to protect the interests of the majority of clean athletes. Adequate duration of doping bans has been discussed throughout the elaboration of the WADC. 40 The parties involved, including states, athletes, and national and international sport associations agreed on a 2-year ban. 41 So far, this was generally respected by national courts dealing with doping cases whereas a 4-year ban for a first doping offence is regularly considered too long. 42

c) The Strict Liability Rule Another aspect brought up by Hondo’s lawyers and apparently by the judges of the Swiss court as well has been the legitimacy of the strict liability rule regularly applied by CAS. Strict liability describes a legal rule that establishes a person’s liability irrespective of its fault or negligence. 43 Whereas the strict liability rule used to be applied in a ‘very strict’ sense in the early times of private anti doping jurisprudence, it soon became clear that an athlete needs to have the chance to establish evidence (or to shift the burden of proof) in order to reduce the standard 2-year ban. Therefore, the athlete’s interest protected by national or international human rights standards require to take into account the aspects of each individual case. Such circumstances allowing a reduction of the duration of the ban can be seen in the grade of liability, the intensity of performance enhancing, the athlete’s willingness to resolve the doping case or the potential career duration of the athlete. 44 The WADC refers to the necessity to adopt the strict liability rule by implementing regulations addressing these exceptional circumstances 45 . In this context the WADC specially makes a reference to the principle of proportionality which has to be taken into account. It thereby respects the requirements of national and international legislation to pay attention to these circumstances in each particular case before imposing a doping ban. 46 For that reason, it does not seem advisable if members of the CAS arbitration panel publicly state that the principle of proportionality “has only limited foundations in international law” 47 ; a comment that hints that CAS probably does not have to apply this principle in their awards. Irrespective of the correctness of such statement 48 , it appears irrelevant as an international court of arbitration does not only have to consider “foundations of international law” but with respect to the enforceability and the defeasibility of arbitral awards according to national legislations, it always has to consider the legal standard in the country where the award might be enforced or challenged in. And there are many legal systems throughout Europe and the world guaranteeing the principle of proportionality as a part of their national ordre public.

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Finally, it appears feasible to apply a 2-year ban as a regular sanction, subject to the athlete’s right to establish counter evidence or to shift the burden of proof in order to reduce or even eliminate the duration of the ban. In the Hondo case CAS considered the facts presented by Hondo concerning his lack of fault or negligence and the small amount of Carphedon found in his body with regard to the exceptional circumstances rules which allow reducing the duration of the ban. However, after considering the proportionality of the sanction it concluded that Hondo’s arguments could not establish substantial doubts necessary to reduce his ban. 49 As a result, the Hondo Case shows that even with the new WADC in force problems concerning the uniform application of the WADA rules remain. Some are caused by a reluctance of national courts to accept these new and non-national rules; others are based in states not fully supporting the new approach by adopting their national legislation.

VIII. Conclusion It can be summarised that WADA’s Anti-Doping Program has set out the basis for the implementation for a worldwide legal regime against doping in sports. The current legal situation thereby created presents the profound setting for a legal ‘consolidation’ that allows having international doping cases being judged by state-independent arbitration applying the rules created by the international community of sports administration as a reaction to the legal threats for uniformity in international decisions. Still, there is a lot of implementation-work yet to come, addressing states, international and supranational institutions as well as sports organisations themselves. Only a joint effort of all these stakeholders may establish an effective system to cope with the biggest scourge of modern sport.

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1

Adolphsen, SchiedsVZ 2004, p. 170. available at www.wada-ama.org. 3 Pfister, in: FS Lorenz, p. 171. 4 Summerer, in: Praxishandbuch Sportrecht, p. 80; Prokop, Dopingverbote, p. 43; Pfister, in: FS Lorenz, S. 171). Thus, sport a s a social sub-system follows similar rules as other parts of social life, Adolphsen, SchiedsZ 2004, p. 169ff., Pfister, in: FS Lorenz, p. 171; Philipp, die Konstruktion des medialen Dopingdiskurses, p. 2. 5 Teubner, RJ 1996, p. 256; Bercusson, Globalizing Labor Law, p. 133; Bianchi, Globalization of Human Rights, p. 179; Adolphsen, SchiedsVZ 2004, p. 169. 6 United States Court of Appeals Reynolds v. IAAF, 23, F.3d. 1110. 7 OLG München as of 26 Oct. 2000, SpuRt 2001, p. 64; Engelbrecht, AnwBl 2001, p 642. 8 Vgl. Fritzweiler, NJW 2002, S. 1015. 9 CAS, 11.10.2001 – TAS 2000/A/262 – Roberts v/FIBA (bisher unveröffentlicht); erfolglos blieb inzwischen auch der von Roberts angestrengte Schadensersatzprozess gegenüber der FIBA, LG München, Urt. 20.12.2001 – 7 O 2030/2001 (bisher unveröffentlicht). 10 See Schmitthoff, RabelsZ 1964, p. 47; Goldstajn, FS Schmitthoff, p. 171; Jakubowski, FS Schmitthoff, p. 207; Stein, lex mercatoria; Berger, lex mercatoria; Weise, lex mercatoria; Kappus, lex mercatoria; Teubner, RJ 1996, p. 256; Zumbansen, RabelsZ 2003. 11 Schmitthoff, RabelsZ 1964, p. 47. 12 David Howmann as of 12 Nov. 2003, article can be dowloaded at: http://www.wadaama.org/en/dynamic.ch2?pageCategory.id=539. 13 Section 13.2.1 WADC. 14 Section 13.2.2 WADC. 15 Simma, FS Seidl-Hohenveldern 1988, p. 573, 576 Reeb, Le Tribunal du sport, son histoire et son functionnement, J.D.I. 2001, p. 234, 239. 16 This relates to athletes on international level. 17 Adolphsen, SchiedsVZ 2004, p. 172. 18 Martens/Oschütz, SpuRt 2002, p. 89. 19 Adolphsen, SchiedsVZ 2004, p. 174 aE. 20 Section 22 WADC. 21 it is so far signed (and ratified) by [12] states. 22 Section 4 of the UNESCO Convention. 23 See below VI. 24 Conclusion of the Belgian Presidency, 12 Nov. 2001. 25 Section 13.2.2 WADC. 26 BGH, NJW 2000, p. 1713. 27 LG München I, SpuRt 200, p. 155. 28 Kölner Stadtanzeiger as of 20 March 2006, http://www.ksta.de/html/artikel/1142836960915.shtml. 29 Decision by the disciplinary chamber of Swiss Olympic dated 2 June 2005. 30 Section 10.5.1 WADC and 10.5.2 WADC. 31 see section 38 of the Swiss Law on Arbitration which allows to appeal an arbitral award which is arbitrary in nature. 32 according to a statement by one of Hondo’s lawyers Dr. Lucien W. Valloni. 33 a recommendation raising legal problems as well. 34 in Germany this challenge may be based on the violation of the ‚ordre public’ according to section 1059 German Code of Civil Procedure. 35 Mertens, FS Odersky, p. 870. 36 BGH NJW 1995, p. 584; Summerer, in: Praxishandbuch Sportrecht, p. 140; Lukes, FS Westermann, p. 334. 37 Vrijman, in: Vieweg (Hrsg.), Doping, p. 189; Adolphsen, Internationale Dopingstrafen, p. 40. 38 Adolphsen, Internationale Dopingstrafen, p. 40f. 39 Krogmann, Grundrechte im Sport, p. 106f. 40 see the comments to section 10.2 WADC. 41 see for an overview on the statements of the sports associations the EU-Study: Legal Comparison and the Harmonisation of Doping Rules, Project C115-16, p. 217. 42 OLG München, SpuRt 1996, p. 136; Krogmann, p. 108. 43 OLG Frankfurt v. 18.5.2000, OLG-Report 2000, S. 252f. 2

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44

see EU-Study, Legal Comparison and the Harmonisation of Doping Rules, Project C115-16, p. 220. 45 See section 10.5.1 and 10.5.2 WADC. 46 Steiner, in: Röhricht/Vieweg, Doping-Forum, p. 136ff.; Steiner, in EU-Study, Legal Comparison and the Harmonisation of Doping Rules, Project C115-16, p. 259. 47 as did McLaren in [2006] I.S.L.R., p. 16/17. 48 Frankfurter Allgemeine Zeitung, 08.11.2004, Nr. 261, p. 9. 49 CAS Award of 10 January 2006 – Hondo, No. 132 to 142.

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