UEFA’s Financial Fair Play Regulations: the devil is in the detail International sports players: dealing with players coming to the United Kingdom Anti-doping in Major League : the “A-Roid” case and American exceptionalism in sports law The constitutional review of the 2014 World Cup Law by Brazil’s Federal Supreme Court The evolution of hGH cases: Veerpalu, Lallukka and Sinkewitz Mr Colclough, the dragon and the shoemaker France: The use of a foreign interposed company by sports persons The importance of intellectual property rights in sport Does the winner take it all: benefit and tax liability? Not always… Legal regime of sports clubs in Bulgaria

, 2June 14 Anti-doping in : the “A-Roid” case and American exceptionalism in sports law1 by Clifford J. Hendel2

Introduction ing but still-active superstar of the New by government agents investigating a Baseball is America’s national pastime, York Yankees, , will trig- notorious San Francisco laboratory – al- and one of the “big three” sports in this ger soul-searching and debate from a though the searches and thus the material sports-crazed country. Basketball and multitude of perspectives. The debate will and information seized were ultimately American football may well be better- dwarf that involving Lance Armstrong declared unlawful in light of constitution- suited to televised viewing and the fast- and the notorious world of professional al privacy concerns – showed that many paced, connected, You-Tubed world of the cycling. Cycling, after all, is a minor, re- leading players (some of whom testified twenty-first century. But the “grand old sidual sport in the U.S., and Armstrong before a grand jury in December 2003 game” of baseball continues to represent was a relatively little-known and retired to provide prosecutors with evidence of something special in American sport and athlete when his case exploded. But base- BALCO’s alleged sale of anabolic ster- society. No other sport in the U.S. is the ball is different. It is America’s game. The oids) were involved in steroid use. subject of an even remotely-similar quan- Yankees are America’s team. And Alex tity and especially quality of literary3 and Rodriguez (a/k/a “A-Rod”, but now deri- With this, the issue of PEDs in baseball cinematographic works. No other sport sively referred to as “A-Roid”) is one of and American professional sports gener- tugs so strongly on the American soul. No the sport’s biggest and highest-paid stars. ally became acute.6 In January 2004, Presi- other sport can legitimately be referred to dent G.W. Bush addressed the issue in a as forming “part of America’s social fab- Properly understanding the origins of the memorable State of the Union Address, ric in deep, almost mystical ways”4. “A-Roid” case, so as to be able to extract in which he called on professional sports meaningful lessons from it, requires a re- leagues and athletes to set better examples The structure and regulation of American view of the recent relation between doping for children and to rid themselves of PEDs. sport diverges in important respects from and U.S. professional sports, in particular that of world sport generally. Professional Major League Baseball (MLB). Now elevated to an issue of national po- sport tends to be viewed and regulated in litical interest, Congress responded by the U.S. as a business or form of entertain- proposing various bills aimed at eliminat- ment, with little or none of the pyramidal The “steroid era” in Major League ing the use of PEDs in sports. Each sought structure or social and other values that baseball – essentially for the purposes of protecting characterize prevailing conceptions of the integrity of sport and protecting youth sport globally. Anti-doping rules and pro- Reports of illegal use of anabolic steroids from the dangerous use of steroids – uni- cedures are addressed by league-specific and other performance enhancing drugs form regulation of drug-testing policies in collective bargaining agreements between (PEDs) in baseball became increasingly the principal American professional sports players and owners, and not by univer- frequent in the 1990’s, when among the leagues. But each differed in details as to sal, uniform systems under the aegis of players suspected of steroid use were testing, prohibited substances, sanctions an independent or ostensibly independent those battling for, establishing and explod- and other aspects.7 agency. Even U.S. scholastic and colle- ing single-season home run records which giate competitions apply their own anti- had stood untouched and unapproached In tandem, the professional sports leagues doping rules and procedures, incorporat- for decades. (accused of having closed their eyes to ing and applying those that are typically in doping practices, at best, and even of hav- force globally only in Olympic sports and The issue soon became even more visible ing aided and abetted these practices, at only for athletes aiming at participation in and complex from a legal perspective. worst) acted to stiffen their anti-doping Olympic competitions.5 In the “BALCO” case of the late 1990’s, rules. It is here where critical specificities searches and seizures of the results of drug of the American constitutional and legal The recent doping case involving the ag- tests of players carried out under warrant system enter into play.

18 June 2014 © Nolot Constitutional implications of congres- courts have determined in other cases – These authors find in their assertions of sional legislation – The Fourth Amend- enjoy diminished or limited expectations conflict of interest a particularly damning ment of privacy so as shift the balance of con- condemnation of the CBA system’s effec- stitutionality in favor of the search, is far tiveness: The Fourth Amendment to the United from clear. The fact that the cases apply- States Constitution protects “[t]he right ing this exception have tended to involve “Both owners and players financially of the people to be secure in their person, people and occupations having a clear and benefit from doping. Players that dope houses, papers and effects against unrea- direct effect on public safety suggests that usually perform better. The better the sonable searches and seizures”8. It is the the “special needs” exception might be athletes perform, the more revenue the benchmark against which the validity of hard to satisfy in the case of congression- owners make. The more revenue owners Congressionally-mandated blood or urine ally-mandated drug testing of professional make, the more valuable players are to testing of athletes (the critical feature of athletes. their owners. The more valuable players any anti-doping policy) would have to be are, the higher their salaries are.”12 tested. U.S. labor law implications – the Other authors advocate the opposing view There can be no doubt that a blood or collective bargaining system for reasons going beyond the constitution- urine test must be considered a “search” or al issues involved in a congressionally- “seizure”. The question, then, is whether Under the U.S. National Labor Relations mandated policy. One13 argues that CBA- random blood or urine tests should be con- Act, all terms and conditions of employ- based policies would: sidered reasonable for Fourth Amendment ment in industries engaged in or affecting purposes, where not based on specific, in- interstate commerce are subject to col- a give both parties an “ownership” of the dividualized suspicion. This involves two lective bargaining in good faith between policy, strengthening its acceptance; hotly-debated issues. the employees (represented by unions in b potentially provide for rapid response to the case of unionized industries, such as developments in doping and anti-doping – First, whether a governmentally-man- professional sports, including the Major technology; dated policy of suspicionless - League Baseball Players Association, or c permit sport-specific regulation taking ing by a private party employer (in this MLBPA, in the case of baseball) and the account of difference between leagues case, MLB) converts the private party employer (here, the clubs as part of MLB). and sports; and into an “instrument” or “agent” of the d avoid distracting Congress’s attention government for Fourth Amendment pur- Drug testing, then, is by law a manda- from more pressing issues than regulat- poses. This question involves a determi- tory subject of private collective bargain- ing drug testing in sports. nation, “in light of all the circumstanc- ing in U.S. professional sports: a league es” of a particular case, of the “degree or team may not unilaterally implement Another14 similarly argues that: of the Government’s participation in the a drug testing policy, but rather such a private party’s activities”, i.e., applica- policy must be collectively bargained for a those most affected by the policies are tion of the so-called “state action” test.9 between the players’ union and the league. in the best position to collectively bar- gain on the rules and regulations by – And second, once the state action test As a result, the terms of a sport’s appli- which they themselves will be affected; is satisfied, whether in application of a cable collective bargaining agreement b unionized bargaining takes into consid- balancing test developed by the courts, (CBA), and the process and climate under eration many aspects of business that the search can be considered reason- which these terms can be changed, be- any “external” regulation would ignore; able without individualized suspicion. come the critical element of anti-doping and This involves a determination as to the policy and enforcement in U.S. profes- c collective bargaining would likely lead existence of “special needs”, i.e., a sub- sional sports. Whether or not (as a practi- to a more effective and more effective- stantial government interest sufficient to cal matter) doping regulation can be effec- ly-revamped policy. outweigh the individual’s privacy inter- tively implemented via the CBA process est so as to permit the suppression of the is, like the question of the applicability In light of the above debate, a bevy of Fourth Amendment’s normal require- (as a legal matter) of the Fourth Amend- proposed solutions have been advanced. ment of individualized suspicion. ment to suspicionless testing imposed by These range from the more “extreme” so- federal legislation, a hotly-disputed issue. lutions of mandatory federal legislation on There are strong (perhaps, compelling) the one hand or pure CBA-solution on the arguments supporting the view that con- Some authors, citing asserted loopholes, other, to a host of creative, intermediate gressionally-mandated suspicionless drug built-in conflicts of interest and intrinsi- solutions. These include: testing of professional athletes would con- cally sluggish approaches for dealing with stitute “state action” for Fourth Amend- new doping issues, have been especially – the possible creation of a “hybrid” gov- ment purposes, but the question has been critical in this regard, concluding that ernmental agency to work in conjunc- and remains subject to substantial doctri- CBA-based anti-doping policy is “cha- tion with professional leagues in order nal uncertainty.10 The question of the ap- otic and fundamentally flawed”; “dooms to establish drug-testing policies for plicability of the casuistic “special needs” the development of proper regulations”; American professional sports15; exception in this area has been the subject and will leave the league being “forever – the signing of a “soft law” agreement of very intense debate. Whether profes- [...] on the losing side of a cat and mouse between the World Anti-Doping Agen- sional athletes – like teachers, train op- game” and “always behind the curve when cy (WADA) and the American sports erators or agents carrying firearms, as the it comes to regulating doping”11. leagues which would establish a system

© Nolot June 2014 19 respectful of the diverse circumstances b in respect of blood collections for confirmed the suspension, but reduced its existing in different sports leagues and human growth hormones it provides length. Various court actions, including focus on coordination rather than WA- for an unannounced blood test dur- one seeking to vacate (set aside) the arbi- DA’s traditional harmonization and uni- ing and the possibil- tral award, were brought by A-Rod, but in formity16; and ity of unannounced random testing early February, he withdrew them, accept- – the creation of a Sarbanes-Oxley in- during the off-season. The Joint ing the sanction. spired regulatory model (notwithstand- Program also sets out a follow-up ing the manifestly more limited public testing regime for players who have To a certain extent, the A-Rod case can interest in this area than in the area of been disciplined for violations (in- be considered a test case of MLB’s CBA- financial market supervision).17 volving multiple unannounced tests based anti-doping regime as embodied in during the twelve months after the the Joint Program. violation was found). Anti-doping regulation in MLB today – It provides (Section 7A) for a simple Background The CBA currently in effect for MLB is disciplinary scheme for violations in- the 2012-2016 Basic Agreement, a docu- volving performance enhancing sub- A-Rod has established himself as one of ment of some 300 pages in length, cov- stances: a 50-game suspension for a first the leading baseball players of all time and ering a broad range of matters from basic violation: a 100-game suspension for a the greatest slugger of recent years. Hav- salary and expense items to revenue shar- second violation; and a lifetime suspen- ing played the latter part of his career with ing and luxury tax provisions to matters sion for a third violation. the , and having been involving discipline and grievance proce- linked sentimentally with media figures dures. Significantly, the Basic Agreement – It also provides (Section 7G) for disci- such as Madonna and Cameron Diaz, he is provides in its art. XII(B) that players may pline on a “just cause” basis for viola- a sporting icon in the United States (with be disciplined for conduct “materially det- tions, the sanctions for which are not a commensurate paycheck, of some $ 25 rimental or prejudicial to the best interest specifically referenced in Section 7. million/year and effective through 2017). of baseball”, including engaging in con- duct in violation of federal, state or local – All authority to discipline players for Linked with the BALCO investigation in law. The Basic Agreement is accompanied violations of the Joint Program lies with the early years of the last decade, he has by a 34-page Joint Drug Prevention and the Commissioner’s Office. admitted to the use of PEDs in the past, Treatment Program (the Joint Program). when they were not specifically prohibited – Review of determinations of violations, in MLB. But his name, and that of a num- The content of the Joint Program can be or as to the level of discipline and the ber of other baseball players, including summarized as follows. existence of just cause falls to the Ar- former MVP Ryan Braun, who escaped bitration Panel and the grievance pro- a doping sanction previously on account – It provides for the joint selection of an cedure established in the Basic Agree- of a technicality, appeared again in the individual, unaffiliated with the parties ment. records of a notorious Miami-based anti- to the agreement or any major league aging institute named Biogenesis. baseball club, to serve as “Independent The summary of the Joint Program set Program Administrator”, with authority out above can be said to represent both to administer all aspects of the Program. the “yin” and the “yang” of a CBA-based MLB’s suspension anti-doping regime. Constitutional chal- – It contains a list of prohibited substanc- lenges, needless to say, are avoided since As a consequence of an apparently quite es, which may be amended or expanded there is no Fourth Amendment implication aggressive investigation into the mat- by agreement of the parties and shall of an agreement between employer(s) and ter, the Commissioner sanctioned stiffly be deemed automatically amended by employee(s). But MLB (unlike Congress) all thirteen players involved: eleven re- amendments to the relevant schedules is not authorized to impose unilaterally ceived the mandatory 50-day suspension of the U.S. Code of Federal Regulations testing or other employment-related meas- for first-time validations; Ryan Braun Schedules of Controlled Substances. ures; instead these matters must be subject received a stepped-up suspension of 65 to the often slow and uncertain “tit for tat” games; and A-Rod received a suspension – It establishes separate testing regimes process of collective bargaining. of 211 games, i.e. the 49 games remaining for random testing and for “reasonable in the 2013 regular season and the entire cause” testing. Regarding random test- 162 games of the 2014 season. At his age ing, the Joint Program contemplates: The “A-Roid” case (38), and with his recent history of health problems, a 211 game suspension may a in respect of performance enhancing The doping problems of Alex Rodriguez be tantamount, in practice, to a lifetime substitutes and , a single led to the imposition by MLB of an un- suspension, and one would cost him (and urine test of each player upon report- precedented 211 game suspension in Au- save the Yankees) tens of millions of dol- ing to spring training, an additional gust 2013 and the subsequent filing of a lars in salary. unannounced urine specimen on a grievance with an MLB Arbitration Panel randomly selected in-season date, challenging the suspension and its length. The Commissioner’s “Notice of Disci- and 1,400 additional tests of ran- A five-day hearing was held before an ar- pline” letter issued to Rodriguez on 5 domly-selected players, up to 250 of bitral panel in late September 2013. An August 2013 indicates that the suspen- which may be off-season tests; and arbitral award issued in January 2014 sion was based, in part, on repeated use

20 June 2014 © Nolot of PEDs and, in part, on interfering with brought against MLB, the Commission- “Rodriguez seems to have very few friends MLB’s investigation and covering-up vio- er’s Office and Commissioner , in baseball, and probably deserves to have lations: and alleging essentially that MLB, in order even fewer than he does. His image has to make an example of A-Rod and “gloss been leaking hot air ever since he joined “Your discipline under Section 7.G.2 over Commissioner Selig’s past inaction the Yankees. And yes, he is floundering in of the Program is based on your in- and tacit approval of [PEDs] [...] in an at- a vain attempt to rescue the reputation he tentional, continuous and prolonged tempt to secure his legacy as the “savior” personally fed into the wood chipper. But, use and possession of multiple forms of America’s pastime [...] engaged in tor- in his battle with Selig, it’s important to re- of prohibited Performance Enhancing tious and egregious conduct [indeed, “a member that – while Rodriguez is fighting Substances, including but not limited to witch hunt”] [...] to improperly marshal for his reputation, and Selig for his legacy Testosterone, Human , evidence [...] to destroy the reputation and – they’re also both fighting just as hard to and IGF-1, that you received as a result career of Alex Rodriguez”.18 The second avoid something else. Neither one wants of your relationship with Anthony Bosch was a suit against the Yankees’ doctor for to be the lasting face of the steroid era. beginning in the 2010 championship medical malpractice in clearing A-Rod to The commissioner would like to fit Rodri- season and ending in or about Decem- play in the 2012 play-offs and against the guez for the role, because that’s the only ber 2012. Considering all of the facts hospital for lack of informed consent and way to save Selig’s legacy; this makes his and circumstances of which I am aware, vicarious liability.19 pursuit of Rodriguez look less like an at- including your statements duding prior tempt to rescue the game and more like an investigatory interviews regarding your In what one of New York’s liveliest news- elaborate attempt to cover his own histori- knowledge of, and purported adherence papers called a “rampage of litigation [...] cal ass.”25 to and support for, the requirements of making the game’s richest player a one- the Program, the substantial length of man stimulus plan for the Manhattan le- time you used Performance Enhancing gal economy”20, A-Rod seems to have fol- The Arbitration Panel’s award26 Substances, the quantity and variety of lowed Lance Armstrong’s failed strategy Performance Enhancing Substances of taking his case to the courts and thus, to As mentioned, on 11 January 2014, an you consumed and the frequency with the public. Armstrong’s case21 was aimed MLB Arbitration Panel, acting (essen- which you consumed them, and your at declaring that the cyclist was not obli- tially, and as per established practice) via efforts to conceal such use and avoid a gated to bring an arbitration against the the independent panel chairman, upheld positive test under the Program, I have United States Anti-Doping Agency (USA- the suspension, although reducing it from determined that your conduct in 2010, DA) in order to challenge the agency’s de- 211 games (the period from the August 2011 and 2012 evinces a wanton and cision to strip him of his cycling titles due 2013 announcement of the sanction by the willful disregard for the requirements to what USADA later described in its 164- Commissioner through the remainder of of a Program that was jointly agreed to page (excluding several hundred pages of the 2013 season and the full 2014 season) and is jointly administered by the Of- damning annexes) reasoned decision22 as to 162 games (the 2014 season). fice of the Commissioner and the Major a “massive fraud” involving “one of the League Baseball Players Association most sordid chapters in sports history” The 34-page award concludes as follows: (MLBPA). in which Armstrong “engaged in serial cheating through the use, administration “Based on the entire record from the ar- Your discipline under Article XII(B) is and trafficking of performance enhancing bitration, MLB has demonstrated with for attempting to cover-up your viola- drugs and methods [...] and participated clear and convincing evidence there tions of the Program by engaging in in running the U.S. Postal Service Team is just cause to suspend Rodriguez for a course of conduct, beginning in or as a doping conspiracy”. the 2014 season and 2014 postseason about January 2013, that was intended for having violated the JDA by the use to obstruct and frustrate the office of the The federal court threw out Armstrong’s and/or possession of testosterone, IGF- Commissioner’s investigation of Bio- case23 and shortly thereafter – with USA- 1, and HGH over the course of three genesis and Anthony Bosch.” DA’s devastatingly detailed reasoned de- years, and for the two attempts to ob- cision in the public domain – Armstrong struct MLB’s investigation described confessed to the charges against him24. above, which violated Article XII(B) of A-Rod counterattacks the Basic Agreement. While this length A-Rod’s strategy in filing these court of suspension may be unprecedented for Twelve of the thirteen players sanctioned cases was different and more nuanced a MLB Player, so is the misconduct he accepted their suspensions. Not A-Rod. In- than Armstrong’s: he did not appear to committed. The suspension imposed by deed, not only did he file (as is, of course, be denying the doping charges but in- MLB as modified herein is hereby sus- his right) a grievance under the procedures stead was presenting himself as a victim tained.” set out in the Basic Agreement – with the of over-zealous prosecution; seeking to effect of suspending the sanction and thus extend his playing (and earning) career as Specifically, the award found clear as“ allowing him to return to the playing field long as possible and staunch, to the extent and convincing” the evidence that Rod- for the final weeks of the 2013 season – possible, the reputational damage he has riguez committed multiple violations of but he also filed two separate court claims suffered as a consequence of the matter. the Joint Program as alleged, noting (in on the last of the five days of his grievance As one observer noted before the arbitral terms reminiscent of the Armstrong case) hearing. The first was a claim for tortious panel issued its award, there was more that “the absence of a positive test during interference with existing contracts and than mere litigation strategy involved in the three years in question, in and of itself, with prospective business relationships this dispute: does not and cannot overcome the unre-

© Nolot June 2014 21 butted direct evidence in this record of MLBPA’s statement said that while it to the underlying investigation and deci- possession and use”. The critical evidence “strongly disagrees” with the decision, it sion of the Commissioner. Thus, for ex- was provided by a cooperating witness, recognized it as a “final and binding”. ample, the Notice of Decision letter (of the phony doctor (described in the award less than two pages) was not made public as a “drug dealer”) who testified as to the Rodriguez criticized the ruling and vowed until the award, which included its text, detailed program of doping he designed to challenge it in court, saying: was made public on the filing of the action for and administered to Rodriguez. to vacate. These confidentiality provisions “The number of games sadly comes as have been criticized as inappropriate in The award similarly confirms the viola- no surprise, as the deck has been stacked cases in which the investigation results in tion of art. XII(B) of the Basic Agreement against me from Day 1 [...]. This is one sanction rather than exoneration. As noted by obstruction or cover-up of an investi- man’s decision, that was not put before a by a columnist, the detailed report issued gation. Specifically, the award concludes fair and impartial jury, does not involve by the USADA in support of its decision that “the evidence considered in its entire- me having failed a single drug test, is at in the Armstrong case: ty supports a minimum of two such viola- odds with the facts and is inconsistent tions” having been committed. with the terms of the Joint Program and “satisfied the public’s desire to know the Basic Agreement, and relies on tes- the how – not only the what – that made Significantly, the award confirmed that the timony and documents that would never Armstrong’s actions so bad: when the Joint Program’s Section 7G “just cause” have been allowed in any court in the player is found guilty, as in Rodriguez’s standard applied to cases of continuous United States because they are false and case, why not lay everything out for the use or possession of prohibited substanc- wholly unreliable.”28 public? Instead, there is no transpar- es, and thus (having found that “the record ency. We are left to guess what Rodri- here establishes that Rodriguez used or guez did to deserve his infamy and how possessed three separate performance en- A-Rod’s action to vacate the award the arbitrator arrived at that number, hancing substitutes on multiple occasions 162 [...]. The raw footage remains out over the course of three years”) was not Just two days after the award was issued, of reach.”30 limited to the specified 50- or 100-game Rodriguez filed a U.S. federal court- ac maximum suspensions set out in Section tion29 to vacate (set aside) the award, al- Equally interesting, the award’s confirma- 7A. leging essentially that the panel chair had tion of the Commissioner’s power to use exhibited “manifest disregard for the law” the “just cause” standard of Section 7G in On the basis of comparative suspensions (a ground for setting aside arbitral awards order to impose sanctions beyond those in other cases and all other facts and cir- under applicable U.S. law with extremely set out in Section 7A has been said to be cumstances deemed relevant, the award high standards of application, requiring detrimental to players: concluded that an appropriate suspension more than a mere error in law or failure to was 162 games (one full season), substan- understand or apply the law). “Rodriguez unwittingly did his fellow tially exceeding the maximum suspension players a huge disservice by bringing in any other MLB substance abuse case to Rodriguez surely recognized that his this case to arbitration [...]. Baseball date. The award observes: chances of vacating the arbitral award now has the power to impose penal- were essentially nil and that his civil cases ties beyond what people thought they “It is recognized this represents the were unlikely to prosper. Still, he consid- could.”31 longest disciplinary suspension imposed ered that these cases would allow him to on a MLB Player to date. Yet Alex Rod- vent his arguments in the public forum and Others have voiced an entirely opposite riguez committed the most egregious allow (or require) the MLB’s arguments, view, deeming A-Rod’s challenge of the violations of the Joint Program to date, evidence and tactics to be revealed and award as a service to the players and base- and engaged in at least two documented explained as well. Rodriguez may have ball generally: attempts to cover up that behavior in hoped to be able to establish in the “court violation of the Basic Agreement.” of public opinion” that Commissioner “Baseball’s pursuit of Rodriguez was Selig and MLB were mean-spirited and aimed as much at exploiting a vacuum over-aggressive in pursuing him, which of leadership in the union as at target- Reactions to the award might (in addition to easing the reputa- ing a cheat. The most rabid fan and the tional damage he will suffer) temper their most casual observer should be troubled Immediately upon announcement of the zeal and make more prudent their actions by how baseball’s emboldened investi- award, the parties issued press releases. in future cases. Interestingly, under the gative unit snared its man, employing rules of the Basic Agreement, the actual unsavory tactics to establish Rodri- MLB’s statement said: text of the award (as indeed is stamped on guez’s guilt [...]. By continuing his bare- its very cover page) is confidential: it was knuckle resistance to baseball in court, “For more than five decades, the arbi- not released when the decision was an- Rodriguez, for the first time, could do tration process under the Basic Agree- nounced, and may never have been made something to benefit the greater good. ment has been a fair and effective public had it not been for Rodriguez’s He could continue pushing back against mechanism for resolving disputes and court action to vacate the award (since the baseball’s assault on players’ rights protecting player rights [...]. While we court proceeding is public and the award and, at the same time, galvanize a once believe the original 211-game suspen- needed to be attached to the complaint). powerful but lately listless, players un- sion was appropriate, we respect the ion.32 decision.”27 Similar confidentiality applies, of course,

22 June 2014 © Nolot As mentioned, the chances for success of The reason is simple: a is a rather positive and promising mani- Rodriguez’s annulment action were con- festation of the American form of anti- sidered to be very slim. U.S. federal courts “The U.S. professional league sports, doping regulation in professional sports, only rarely set aside arbitral awards, and both the unions and the owners, do not and this one was considered to be essentially want to be governed by the terms of the b will not augur any particular and signifi- “sound and impervious to second-guess- WADA Code nor turn over testing to an cant change in the current system. ing by a federal judge [...]. It would take entity entirely outside their control.”36 the equivalent of a polar vertex and a ver- All indications are that this example, con- nal equinox [...]. The odds are remote at Baseball, perhaps precisely due to MLB’s sistent with American exceptionalism in best.”33 refusal to comply with WADA rules (to- sport, will continue to characterize the ap- gether, no doubt, with the absence of MLB proach of MLB and of U.S. professional stars due to the overlap of the summer leagues to anti-doping policy in the future. A-Rod’s throws in the towel Olympic Games with the MLB schedule) All indications are that, unless and until has recently ceased to be Olympic, be- a very broad-based consensus is reached On 7February 2014, Rodriguez filed court coming the first sport to be cut from the against the self-regulatory CBA-based papers withdrawing his federal lawsuits, Games since 1936. On the other hand, practice of anti-doping policy in the U.S. including the annulment action; initial basketball and the NBA remain welcome professional sports, such will continue to press reports indicate that it was unclear at the Olympics, notwithstanding that the apply. And all indications are that only a if he planned to proceed with the malprac- NBA’s anti-doping policy is viewed by huge scandal, equalling or exceeding that tice suit pending in the New York state many as considerably weaker than that of of the steroid era, could realistically trig- courts.34 While not expressly admitting to MLB. ger such a consensus. the doping violations (which, essentially, he never denied), A-Rod seems to have Baseball’s steroid era has run its course. Legislative action at a national level seems come to the conclusion that neither suits’ Its last victims are being identified. Sig- quite unlikely to be taken; instead, the prospects nor the public’s interest in their nificantly, last year not a single - contem threat of legislation (as seen in the case of prosecution was sufficient to pursue them porary player was voted into the Baseball the steroid era discussed above) is a more further. Hall of Fame because so many eligible likely route to the taking of effective ac- players were suspected of steroid use.37 tion in the “American way”: incremental, MLB and the MLBPA immediately ap- sport-by-sport, league-by-league action plauded Rodriguez’s decision. Initial press The scandals of the steroid era and the via the mechanic of collective bargaining. reports suggest that bringing closure to the threat of legislation have prompted sig- dispute could be beneficial both to Rodri- nificant movement in the CBA-structured guez and MLB, whose “dirty laundry” had anti-doping policy of MLB, giving birth to 35 already been sufficiently exposed. the Joint Program and more recently the 1 inclusion of HGH testing. Progress may This is an updated and abbreviated version of a paper submitted by the author in November 2013 be slow and it might arrive late, but it is in partial satisfaction of the requirements of the Lessons and conclusion progress nonetheless; Congress has not ISDE Global Executive Master in International had to intervene and the courts have not Sport Law. 2 American sports, and, in particular, Amer- had to review the constitutionality of con- Clifford J. Hendel is a partner of Araoz & Rueda ican professional sports, operate to some gressional action. Abogados, a Madrid firm with a broad-based business practice. His practice focuses on inter- extent in a world of their own, a world par- national transactions and international arbitra- allel to that of the global sporting world, The “A-Roid” case has brought, and will tion, both as counsel and as arbitrator. Qualified in which business and entertainment often surely continue to bring, considerable at- as an attorney in New York, an abogado in Ma- trump other interests. tention to MLB’s Joint Program. The drid, an avocat in Paris and a solicitor in England resolution of the case, and even more and Wales, he has practiced in New York, Paris and (since 1997) in Madrid. American athletes must comply with In- so, the way in which its resolution is ac- 3 As noted by S. Kuper, Financial Times, 23-24 ternational Olympic Committee (and, cepted (not so much by A-Rod, but by the November 2013 – citing Hemingway, Mailer, therefore, WADA) rules if they want players’ union, the clubs and the public Kerowac and others –American Writers Have Al- to compete in the Olympic Games. But generally), may play an important part in ways Taken Sports Seriously. American authors U.S. sports have little or no concept of confirming the efficacy, or alternatively, have always taken baseball very seriously. 4 “Viewpoint: Why Doping in Baseball is Pun- national teams. U.S. professional leagues confirming doubts about the efficacy, of ished so Severely”, in: BBC News Magazine, 7 and clubs have little interest in permit- the CBA system. August 2013. ting their players to play in international 5 M. Straubel, The International Convention competitions and no interest (or ability) to Rodriguez will not starve by losing his $ Against : Is it the Missing Link require them to play in such competitions. 25 million paycheck for 2014. Selig will to USADA Being a State Actor and WADC Cov- erage of U.S. Pro Athletes?, 19 Marq. L. Rev. 63 Indeed, a declaration attached by the U.S. retire able to claim that he definitively (2008). Senate to the country’s ratification of the closed baseball’s steroid era. Unlike in 6 In fact, entire websites were dedicated to fol- little-known UNESCO International Con- the Armstrong case, it was the sport itself lowing this controversy. See, e.g., Baseball’s Stereoid Era, www.baseballssteroidera.com. vention Against Doping in Sports (2008) which took action, and during the athlete’s 7 expressly limits its scope to U.S. athletes sporting lifetime. It is early to say, but a See generally, Blaine V. Roche, “Congressional Involvement in Professional Sports’ Drug-Testing in the Olympic movement, i.e., excluding preliminary verdict might conclude that Policies: Get Involved but Don’t Infringe”, 4 not only professional athletes but also col- the case: Phoenix L. Rev. 489 (Fall, 2010). legiate and scholastic athletes generally. 8 United States Constitution.

© Nolot June 2014 23 9 See generally, Joshua Peck, Last Resort: The Lance Armstrong v. Travis Tygart, in his official we’d have passed [...]; not because we were Threat of Federal Steroid Legislation – Is the capacity as Chief Executive Officer of the United delusional – we knew we were breaking the rules Proposed Legislation Constitutional?, 75 Ford- States Anti-Doping Agency, and United States – but because we didn’t think of it as cheating. It ham L. Rev. 1777 (December, 2006). Anti-Doping Agency, case No. A-12-CA-606-SS, felt fair to break the rules.” M. Gladwell, “Man 10 See generally, Brent D. Showalter, Steroid Test- filed 10 July 2012 in the United States District and Superman”, in: The New Yorker, September ing Policies in Professional Sports: Regulated by Court for the Western District of Austin, Texas. 9, 2013. Congress or the Responsibility of the Leagues? 22 See Reasoned Decision of the United States 25 C. P. Pierce, “When the Fall is All There is”, 17 Marquette L. Rev. (Spring, 2007). Anti-Doping Agency on Disqualification and www.grantland.com, 11 November 2013. 11 Daniel Gandert and Fabian Ronisky, American Ineligibility in Report on Proceedings Under 26 Panel Decision No. 131, Grievance No. 2013-12, Professional Sports is a Doper’s Paradise: It’s the World’s Anti-Doping Code and the USADA Major League Baseball Arbitration Panel, Fred- Time We Make a Change, Vol. 86, North Dakota Protocol Concerning the Matter of USADA v. eric Horowitz, Panel Chair, 11 January 2014. L. Rev, 813 (2010). Lance Armstrong, filed 10 October 2012. 27 Quoted in S. Eder, “Arbitrators Ruling Banishes 12 Id. 23 See Order Granting Motion to Dismiss filed 20 the Yankees Alex Rodriguez for a Season”, in: 13 See Showalter, supra, note 10. August 2012 of Amended Complaint and Jury New York Times, 11 January 2014. 14 See Roche, supra, note 7. Demand of Lance Armstrong v. Travis Tygart, in 28 Id. 15 See Roche, supra, note 7. his official capacity as Chief Executive Officer 29 See Complaint of Alexander Emmanuel Rod- 16 George T. Stiefel, Hard Ball Soft Law in MLB: of the United States Anti-Doping Agency, and riguez v. Major League Baseball, Office of the Who Died and Made WADA the Boss?, 56 Buff. United States Anti-Doping Agency, case No. A- and Major League L. Rev. 1225 (December 2008). 12-CA-606-SS, filed 10 July 2012 in the United Baseball Players Association, U.S. District 17 Sarah R. Heisler, Steroid Regulation in Profes- States District Court for the Western District of Court, Southern District of New York, 13 Janu- sional Sports: Sarbanes-Oxley as a Guide, 27 Austin, Texas. ary 2014. Cardozo Arts & Ent. L. J. 199 (2009). 24 A recent article by best-selling author Malcolm 30 J. Macur, “In Alex Rodriguez Decision, the Devil 18 See the Complaint of Alexander Emmanuel Gladwell questions the logic of anti-doping regu- is in a Lack of Detail”, in: New York Times, 12 Rodriguez v. Major League Baseball, Office of lation. Comparing the case of a Finnish athlete January 2014. the Commissioner of Major League Baseball and with a rare genetic mutation which caused his 31 D. Waldstein, “Arbitrators Ruling on Rodriguez Allan Huber “Bud” Selig, filed 3 October 2013 body to overproduce red blood cells and led him Gives Baseball a Disciplinary Hammer”, in: New in the Supreme Court of the State of New York, to be a perennial cross-country ski champion, York Times, 15 January 2014. County of New York. Gladwell asks of Armstrong (whose violations 32 W.C. Rhoden, “Punishing Lords of Baseball 19 See the Verified Complaint of Alexander Rod- in part involved “” designed to Along With Their Fallen Idol”, in: New York riguez v. Christopher S. Ahmad, M.D. and New increase his red blood cell count): “Before we Times, 17 January 2014. York Presbyterian/Columbia University Medical condemn him, shouldn’t we have to come up with 33 D. Schroeder, quoted in D. Waldstein, supra note Center, filed 4 October 2013 in the Supreme a good reason that one man is allowed to have 31. Court of the State of New York, County of lots of red blood cells and another man is not?” 34 S. Eder, “Rodriguez drops Suits Against Baseball Bronx. Gladwell also cites, in what likely character- and Union”, in: New York Times, 7 February 20 T. Thompson and N. Vinton, “What Does Alex izes A-Rod’s sentiments, an observation of 2014. Rodriguez Hope to Accomplish by Following Armstrong’s former teammate Tyler Hamilton in 35 Id. Lance Armstrong’s Legal Blueprint?”, in: NY his autobiography: “I’ve always said you could 36 See supra note 5. Daily News, 5 October 2013. have hooked us up to the best lie detectors on 37 J. Mahler, “Is the Game Over?”, in: New York 21 See Amended Complaint and Jury Demand of the planet and asked us if we were cheating and Times Sunday Review, 28 September 2013.

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