Unincorporated Associations: Property Holding, Charitable Purposes and Dissolution


 

169 

Denning Law Journal 2012 Vol 24 pp 169-176 

 

CASE COMMENTARY 
 
 

BOA v WADA: Harmonisation v Self-Regulation 
 

Gregory Ioannidis

 

 

 

INTRODUCTION 
 

The area of anti-doping in sport has always been fascinating, exciting, as 
well as complicated and controversial. The two latter aspects have been 

entrenched, in case law and statutory law and the highest Court in sport, 

namely the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland. 

This court has had the opportunity to develop important principles of sports 
law. One of these principles is the subject matter of the present case 

commentary and relates to the principle of self-regulation. In other words, it 

examines the ability of sporting governing bodies to regulate their sport and 
concentrates on the legality of such self-regulation. In doing so, this case 

commentary will also examine the particular importance sports law 

jurisprudence attaches on the contractual relationship between sporting 

governing bodies and athletes. Such analysis should help readers understand 
the nature of regulation in sport, as well as the reasoning behind the decision 

of the Court of Arbitration for Sport in the case under analysis.  

 

THE FACTUAL BACKGROUND 
 

The Appellant in the present Appeal was the British Olympic Association 
(BOA), which is the national Olympic association, responsible for all UK 

Olympic teams. The BOA is a company incorporated under the laws of 

England. 
The Respondent is the World Anti-Doping Agency (WADA), a Swiss 

private law foundation, whose headquarters are in Montreal, Canada, but 

whose seat is in Lausanne, Switzerland.  

                                                   

 LLB (Hons), LLM (Sports Law), PhD (Sports Law), Master of the Moots, 

Negotiation Co-ordinator, Faculty Advisor for the Bar of England and Wales, 

Advocate, Senior Lecturer in Law, Barrister (Middle Temple), University of 
Buckingham. 



CASE COMMENTARY 

 170 

The present commentary relates to an Appeal brought forward by the 

BOA against a decision reached by WADA, to hold BOA‟s bylaw of its Rule 

7.4 invalid. Such bylaw does not allow for membership or selection of athletes 

who have, previously, served an anti-doping ban. The Anti-Doping bylaw 
states:  

 

“Any Person who is found to have committed an Anti-Doping Rule 
violation will be ineligible for membership or selection to the Great 

Britain Olympic Team or to receive funding from or to hold any 

position with the BOA as determined by the Executive Board in 
accordance with the BOA's bylaw on Eligibility for future 

membership of the Great Britain Olympic Team.” 

 

The new version of the above bylaw was ratified by the BOA in 2009 and 
WADA informed the BOA, in November 2011 that such bylaw was not in 

compliance with the WADA Code. In particular, WADA wrote to BOA on 21 

November 2011 stating:  
 

“…that the British Olympic Association has been determined to be 

non-compliant with the (WADA) Code because your rule on selection 
for the Olympic Games is an extra sanction, and non-compliant for the 

same reason the IOC eligibility rule was deemed non-compliant by the 

Court of Arbitration for Sport.”  

 
This determination constituted the „decision‟ against which the BOA 

appealed to the CAS. 

The above determination by WADA, came as a result of another CAS 
Award in the case of US Olympic Committee v International Olympic 

Committee,
1
 (the USOC Award), on 4 October 2011. In this case, the USOC 

challenged the validity of an IOC rule [IOC Regulation] which stated:  

 
“Any person who has been sanctioned with a suspension of more than 

six months by any anti-doping organisation for any violation of any 

anti-doping regulations may not participate…in the next edition of the 
Games of the Olympiad and of the Olympic Winter Games following 

the date of expiry of such suspension.”  

 
The BOA did not share WADA‟s view and attempted to distinguish the 

USOC Award from the present Appeal. In various pieces of correspondence 

prior to the Appeal, the BOA stated that its bylaw made reference to a 

                                                   
1
 US Olympic Committee v International Olympic Committee CAS 2011/O/2422. 



THE DENNING LAW JOURNAL 

 171 

selection policy and it was neither a rule of ineligibility nor a sanction and, 

consequently, did not violate the WADA Code. 

As stated previously, WADA informed the BOA, on 21 November 2011 

that its bylaw was not in compliance with the WADA Code and on 12 
December 2011, the BOA filed an Appeal with the CAS, pursuant to Article 

47 of the CAS Code of Procedure. The BOA requested CAS to:  

 
1) annul the WADA decision,  
2) rule that the bylaw is a selection rule and not a sanction rule and  
3) rule that the bylaw is in compliance with the WADA Code. 

 

The BOA was represented by Baker & McKenzie LLP who instructed 

Lord Pannick QC and Adam Lewis QC of Blackstone Chambers, whereas 
WADA was represented by Bird & Bird LLP and Carrard & Associés.  

The CAS Panel of judges, who heard the matter, comprised of Richard 

McLaren (Barrister in Canada), Michele Bernasconi (Attorney in Switzerland) 
and David Rivkin (Attorney in USA). 

 

THE PARTIES’ MERITS AND THEIR SUBMISSIONS 
 

The BOA, in an attempt to persuade the Panel, produced several 

submissions regarding the interpretation of WADA Code, the interpretation of 
its own bylaw under appeal, as well as a distinction between the BOA and 

other sporting governing bodies, such as the International Olympic 

Committee, in terms of creating rules and regulations. In summary, the BOA‟s 

submissions could be summarised as follows:
2
 

 

I. Construing the WADA Code to ascertain precisely what constraints it 
imposes on the actions and policies of the signatories; 

II. Assessing the true purpose, nature and effect of the bylaw to ascertain 
whether it is caught by those constraints; and 

III. Comparing the bylaw to the IOC Regulation considered by CAS in 
the USOC Award. 

 

The BOA‟s submissions, therefore, focused on the notion of the „proper‟ 
construction and interpretation of the bylaw and the WADA Code. The 

primary submission stated that the bylaw is not a sanction rule, but instead, a 

rule which relates to selection of athletes solely. In order to support this 

contention, the BOA attempted to distinguish itself from the IOC and further 
stated that the WADA Code says nothing to indicate that an autonomous body 

                                                   
2
 Para 5.2 of the Award. 



CASE COMMENTARY 

 172 

such as the BOA cannot establish rules that prohibit the selection of athletes. 

On a proper construction, the BOA argued, its bylaw is different in nature 

from the original disciplinary sanction imposed as a consequence of the anti-

doping offence.
3
 

WADA's submissions, on the other hand, sought the assistance of a 

previous CAS Award in USOC v IOC,
4
 [the well-known Award in favour of 

LaShawn Merritt]. In particular, WADA argued that the application of the 

BOA's bylaw on athletes is an additional sanction to a previous offence 

committed, as it is clear that such bylaw precludes athletes from participating 

in the Olympics. WADA also submitted that the BOA's contentions that its 
bylaw is fair, necessary and appropriate cannot possibly be the subject matter 

of the present appeal. The real issue is whether the bylaw can be properly 

characterised as an additional sanction. If this is the conclusion of the Court, 
then such bylaw cannot be in compliance with the WADA Code and, 

therefore, infringes Article 23.2.2 of the Code.
5
 

 

THE PANEL’S DECISION 
 

The Panel was cautious to acknowledge
6
 that “both Parties are strong 

advocates in the fight against doping” and that “BOA and WADA both 

recognise that doping is fundamentally contrary to the spirit of sport.” The 
Panel summarised the main issue under consideration at Paragraph 8.2 of its 

Award and stated: “The dispute between the Parties here involves one means 

of pursuing the fight against doping, not the fight itself. The bylaw prevents 
an athlete who has had a doping offence from being selected to represent the 

British Olympic Team. The core issue to be determined here is whether BOA 

may pursue that policy on its own or whether that policy must be pursued, if it 

all, through the world-harmonised WADA Code.” 
The Panel's reasoning is explicit in terms of the BOA's acceptance of the 

WADA Code, as the BOA is one of its signatories. The Panel states at 

paragraph 8.12 of its Award that the BOA has agreed to limit its autonomy by 
signing the Code and, therefore, accepting its terms. The Panel makes the 

important point that the purpose of WADA's existence is to harmonise 

different anti-doping rules and sanctions throughout the world.
7
 If the BOA 

                                                   
3
 Para 5.2 – 5.19 of the Award. 

4
 USOC v IOC CAS 2011/O/2422. 

5
 Paras 5.36 – 5.68 of the Award. 

6
 Para 8.1 of the Award. 

7
 The Panel states at para 8.12: “However, NOC‟s like BOA have agreed to limit their 

autonomy by accepting the WADA Code. In particular, Article 23.2.2 WADA Code, 

requires that its Signatories, including NOC‟s do not make any additional provisions 
in their rules which would change the substantive effect to any enumerated provisions 



THE DENNING LAW JOURNAL 

 173 

was allowed to operate independently and separately from WADA, in terms 

of sanctions, such harmonisation (and the fight against doping) would assume 

the risk of being seriously undermined.  

The Panel came to the conclusion that the effect of the bylaw is to make 

an athlete 'ineligible' for participation in the Olympics.
8
 It is submitted that 

such interpretation is correct and confirms the argument that the two issues in 
relation to the application of the BOA's bylaw concern the 'eligibility' and 

'participation' of athletes in sporting competitions. The Panel, similarly, had 

no difficulty in finding that the BOA's bylaw "renders an athlete ineligible to 

compete - a sanction like those provided for under the WADA Code.”
9
. 

Accordingly, the Panel concluded that the BOA's bylaw has the effect of a 

disciplinary sanction and it is, therefore, incompatible with the WADA Code. 

 

HARMONISATION V SELF-REGULATION 
 

It could be argued that such decision was to be expected, given that CAS 

had already ruled on a similar matter only recently.
10

 Although the BOA 

attempted to distinguish the two cases, the truth is that rules that 'prohibit' 
athletes from taking part in the Olympics are disciplinary in nature and, 

therefore, constitute a sanction. 

In the present matter, the application of the BOA's bylaw has as an aim to 

punish athletes, for the same offence, twice. With respect, the argument that 
the bylaw has a different nature, in a sense that it only prohibits selection, is 

                                                                                                                          
of the WADA Code, including its sanctions for doping. The purpose of Article 23.2.2 

WADA Code is indeed the very purpose of the WADA Code: the harmonisation 

throughout the world of a doping code for the use in the fight against doping. This 

worldwide harmony is crucial to the success of the fight against doping. The WADA 

Code is intended to be an all-encompassing code that directs affected organisations 

and athletes. The WADA Code ensures that, in principle, any athlete in any sport will 

not be exposed to a lesser or greater sanction than any other athlete; rather, they will 
be sanctioned equally. By requiring consistency in treatment of athletes who are 

charged with doping infractions or convicted of it – regardless of the athlete‟s 

nationality or sport – fairness and proper enforcement are achieved. Any disharmony 

between different parties undermines the success of the fight against doping. For these 

good reasons, NOCs and other Signatories agreed to limit their autonomy to act 

within their own spheres with respect to activities covered by the WADA Code.” 
8
 Paragraphs 8.24 – 8.26 of the Award. In particular, the Panel states at para 8.24: 

“…disbarment from the Team for life carries with it the direct consequence of never 

being able to participate in the Olympics and as a consequence to compete in the 

Games. That is the underlying reality of ineligibility.” 
9
 Paras 8.26 and 8.33 of the Award. 

10
 US Olympic Committee v International Olympic Committee CAS 2011/O/2422 [the 

USOC Award]. 



CASE COMMENTARY 

 174 

flawed. One cannot dismiss the clear fact that the non-selection of an athlete, 

relates to and brings forward his inability to participate in the Olympics. A 

bylaw which prohibits selection for non-sporting reasons and in relation to a 

previous offence only, for which a penalty has already been served, is indeed 
disciplinary in nature and gives rise to an additional sanction. 

One is, therefore, somewhat mystified by the BOA's insistence on fighting 

a cause that was lost before it even reached the starting line. It is also difficult 
to understand why the BOA ignored valid and comprehensive legal advice, 

which indicated to them that their case had no merits.  

Further, it is hard for someone to apply and, indeed, accept, the merits of 
such an important appeal on arguments and submissions to the effect that the 

bylaw is necessary, fair and proportionate. These are not issues that come 

under consideration. On the legal advice given, the BOA should have 

understood that they undertook a contractual obligation when they ratified and 
accepted the WADA Code. Such obligation is valid, binding and continuous 

and the BOA cannot retract from this obligation, at least, not because of 

arguments that focus on morality and jurisprudence. This Appeal, it is 
submitted, was not an exercise of “what is wrong with doping” or “the sport 

needs to be protected.” It was an Appeal regarding the legality of a specific 

regulation, whose application could have potentially affected important legal 
and sporting rights. Irrespective of whether morality and legality come into 

the equation, the adherence to the WADA Code, by all stakeholders, is 

paramount, if certainty and transparency are going to be followed. Any 

diversion from the Code would seriously undermine both the Code and all 
attempts to eliminate doping in sport. 

Finally, the author cannot but remember that, back in 2008, he raised 

similar arguments against the IOC, when the latter prohibited his client 
Katerina Thanou from participating in the Beijing Olympics. Ms Thanou 

decided in the end not to proceed with legal action against the IOC (although 

the matter remains open) for reasons that cannot be analysed here. The 

argument remained, however, that rules which prohibit the eligibility and 
participation of athletes in the Olympic Games, in the absence of anti-doping 

offences, are incompatible with the Olympic Charter and the European 

Convention on Human Rights. As it turned out, Ms Thanou was acquitted in 
the Greek Court of Appeal of all criminal charges, as well as settling out of 

court with the IAAF (before CAS in June 2006) on the disciplinary charges 

(the matter of IAAF v Kenteris/Thanou & SEGAS
11

is unreported because of 
the out-of-court settlement) and there was, therefore, no valid justification for 

barring Ms Thanou from participating in the Beijing Olympics. 

 

 

                                                   
11

 IAAF v Kenteris/Thanou & SEGAS  CAS 2005/A/887. 



THE DENNING LAW JOURNAL 

 175 

CONCLUSION 
 

It follows that the application of such rules violates not only the regulatory 
framework that the same sporting governing bodies have created, but most 

importantly, it violates the rights afforded to the athletes. It is not disputed 

that the intention of sporting governing bodies, by and large, is to protect the 
image of sport, the health of participants and to ensure that a level playing 

field is followed continuously. Not many would disagree with these old, but 

well established justifications towards the application of sanctions for anti-

doping infractions. 
Such justifications, however, cannot be used by sporting governing bodies 

as an excuse for diverting from the correct and proportionate application of 

their rules. Sporting governing bodies have the advantageous position of 
creating the rules that athletes need to follow. The contractual relationship that 

is usually present between such governing bodies and athletes depends on the 

condition that athletes would follow the regulatory framework and accept its 
terms. In the absence of such acceptance, athletes cannot participate in 

competition. 

Given that the regulatory framework of a governing body is drafted, 

created and applied in a unilateral way, it is submitted that it is only fair and 
just if governing bodies adhere to such regulatory framework themselves, 

without diverting from it. Athletes follow the normative environment the 

regulator has created and a possible misapplication of the rules or any changes 
to such environment, without prior notice, could pose a breach to the 

relationship between governing bodies and athletes. In addition and where 

there is confusion in the application of the rules, such rules must always be 

interpreted contra preferentem against the party who drafted them. 
Finally, it is submitted that breaches of rules and regulations by sporting 

governing bodies occur all the time. Others occur intentionally, others because 

of negligence and others because of incompetence. All three categories have 
been examined repeatedly before several courts and tribunals. The need, 

therefore, for a practical solution is immense.  

The author has been advocating for years (via his PhD research) in favour 
of the criminalisation of doping in sport. The author is a firm believer that 

sporting governing bodies cannot properly and efficiently regulate anti-doping 

in sport. As Robert Voy MD has suggested in the past, allowing governing 

bodies to regulate testing procedures in sport is like having a fox guarding the 

hen-house.
12

  

When all stakeholders are in a position to understand why doping in sport 
is wrong (and only for the right reasons) then the only effective, transparent 

                                                   
12

 R Voy Drugs, Sport & Politics (Leisure Press, 1991). 



CASE COMMENTARY 

 176 

and appropriate response would be the application of criminal law on anti-

doping infractions. Criminalisation of doping in sport would guarantee the 

correct and proper application of the sanctions and it would create a fair and 

proportionate response to the offence committed. It would further create a 
strong legal foundation which would respect the balance between the rights of 

the sport and those of the individual athletes.