Ken Plotz recognized to the Colorado Chapter of the National Academy of Distinguished Neutrals for 2020

We are thrilled to announce that Kenneth M. Plotz has been recognized  to the Colorado Chapter of the National Academy of Distinguished Neutrals for 2020.  Other ADR Services: Discovery Referee, Early Neutral Evaluation, Fact Finding, Mini-Trial Judge, Special Master

After 16 years on the district court bench, Kenneth M. Plotz retired as chief judge of the Eleventh Judicial District in central Colorado in 2005 to become a  mediator and a judge on senior status.

He earned his undergraduate and law degrees from the University of Denver. After stepping off the bench, he completed a master’s degree in Public Affairs from the University of Colorado, Denver. During his tenure on the bench, Judge Plotz presided over bench and jury trials concerning a wide range of cases and actively participated as a settlement judge and was successful in settling numerous domestic, construction defect,  personal injury and business cases.

As chief judge, he instituted a case management system that improved the flow of cases and promoted early resolution of civil, domestic and probate cases. Since joining AB Conflict Resolution Services, he has facilitated settlement in cases concerning business disputes, contractual matters, construction defect cases, employment disputes, probate and personal injury claims.

He has also arbitrated cases involving similar issues, and has served as a hearing officer for public entities concerning employment disputes. In 2009 to 2010 Judge Plotz went to Kathmandu, Nepal where he worked  for the International Legal Foundation, whose mission is to establish public defender systems in post-conflict countries.

For more information, you may view his full biography page HERE.  Or visit our schedule page to inquire about availability.

NADN Kenneth Plotz NADN Ken PLotz

Endurance and Mediation

This article originally appeared in The Docket August/September 2019 edition.  Reproduced by permission. ©2019 The Docket August/September. All rights reserved.  Modified from its original publication in The Docket.

 

This March I had the luck and the privilege of competing in the Masters World Cup Nordic ski races in Norway.

It was a series of age-group races over a six-day period at a real World Cup venue in Beitostolen, a village three hours north of Oslo that reminded me of what Aspen once was. The races were fun but extremely challenging. The mountains were beautiful and provided lots of long climbs, fast descents, and tricky turns. Although I did well for an American, I spent a lot of time on the course looking at the backs of the Norwegians, Swedes, and Finns.

Those of us who compete in any type of endurance event, whether it is cycling, trail running, or marathons, know there is a lot more to it than just showing up at the start line waiting for the gun to go off.

There is a long period of preparation or training, and there is the necessity of planning.  It recently occurred to me that preparing and competing for events like this is similar to the preparation and process of mediating a case.

 

  1. There is no way to compete or mediate without planning and preparation. In order to effectively mediate, one must obviously prepare by knowing the case and the client’s goals. For lawyers, it is important to plan how you are going to present the case to the mediator so that the mediator has a correct and clear message to present to the other side. As a mediator, I am usually impressed with how well lawyers I work with know the law and facts of their cases. Yet sometimes even the best lawyers fail to convey a clear message through the mediator to the other side. Like preparing advance strategy fora race where you plan when to ease up and when to go hard, planning and timing a clear message for a mediator to deliver to the other side can help the case go forward toward settlement.
  2. When I recall trying to reach the top of a long hill on a 10 kilometer course, it occurs to me that like racing, mediation is not a sprint but an endurance event. Sometimes it gets tiring and often it requires conscious pacing. When we enter mediation, we are in it for the long run. It is not a process where we walk in and say, here’s our position, take it or leave it. Rather, it is a process where everyone gives and takes at a manageable pace.
  3. In any competition or mediation, there are always low points where everyone feels they’ll never finish. This is where the right mindset enters the picture. Someone trying to complete a long race needs to break it down into manageable parts and just try to make it from point A to point B. Those engaged in mediation also may need to just get to one small point, then another, and then yet another where the end is in sight and the success of finishing does not seem so overwhelming.
  4. Technique is important. Even during the hard parts, one tries to maintain form. In the case of mediation, try to keep your cool, maintain your professionalism and don’t pass the feed zone. Seriously, don’t allow yourself or your client to get thirsty or hungry. Take adequate breaks. Get lunch and stay hydrated. It does make a difference in mediation.
  5. In masters racing, there really are no winners and losers. We all get out there to learn something about ourselves and others. In mediation, sometimes cases do not settle. But mediation always presents the opportunity to learn something about ourselves, our clients, and our opponents. Even though a case may not settle as we had hoped, we still learn from the experience.
  6. Competition is really hard. Mediating is really hard. That is why we do it, and that is what we train and prepare for. We would not be there if it were really easy. Just as some of us race long distances on hard courses because we embrace the challenge, some of us mediate because we enjoy the hard work of settling cases and the sense of accomplishment that follows a successful settlement.

One final thought. Sometimes after a long race, I ask myself whether I left anything out there. Did I try my hardest? Could I have done any more? When we finish a mediation, either as a lawyer or a mediator, we should ask ourselves the same questions.

 

Mediating Highly Emotional Cases

This article originally appeared in Colorado Lawyer July 2018.  Reproduced by permission. ©2018 Colorado Bar Association Colorado Lawyer (July 2018). All rights reserved.  Modified from it’s original publication in Colorado Lawyer.

Mediating highly emotional cases presents particular challenges.
This article discusses effective strategies for managing those challenges.

By Joe Epstein Esq. and Julie M. Williamson, Esq.

Many cases give rise to intense emotions in mediation. With reference to words of wisdom from a wide range of sources, this article addresses strategies that counsel can use to mediate emotionally charged cases.

Emotions at Mediation

There is a sacredness in tears. They are not the mark of weakness, but of power. They speak more eloquently than ten thousand tongues. They are the messengers of overwhelming grief, of deep contrition, and of unspeakable love. —Washington Irving

Mediation involves many types of cases that can evoke strong emotions. Family law disputes are an obvious example. Catastrophic personal injury cases may include life-altering injuries such as quadriplegia, paraplegia, burns, traumatic brain injuries, and amputations, as well as wrongful death claims. Probate cases may trigger not only grief for the loss of the deceased but also powerful memories of deep family wounds. Professional malpractice cases implicate both harm to the plaintiff and threats to the defendant’s livelihood and competency. Employment cases based on sexual harassment, Americans with Disabilities Act violations, age discrimination, or retaliation may raise strong feelings of anger and disrespect. Commercial disputes involving business dissolution’s, breach of long-term relationships, or allegations of fraud can also become highly emotional.

Mediation often takes place years after the events that gave rise to a lawsuit and long after a case was filed. But because parties have the renewed chance to tell their entire story to the mediator, the mediation session often involves unearthing past wrongs and reliving trauma. Negative emotions—whether grief, anger, sadness, betrayal, loss, disillusionment, fear, or insult—can be raw. Yet mediation can also add positive emotions to the equation—relief, a measure of closure, freedom from litigation, even forgiveness and reconciliation.

Grief, anger, and fear are the three emotions most widely and deeply displayed at mediation.1 Grief is almost always involved, whether parties grieve the death of a loved one, the end of an important business relationship, the loss of physical or financial capabilities, or other life disappointment. Anger can erupt from either the underlying wrong or from frustration at the opposition’s perceived inflexibility. Whatever the cause, anger, described by Seneca in the first century as “short madness,” can temporarily blind both clients and attorneys. And fear of change, the future, or even the finality of a settlement can impede resolution. Mediators, advocates, parties, and negotiators must be aware of these emotions and wisely gauge and address their impact before and during mediation.

Select the Right Mediator

Look at situations from all angles, and you will become more open. —Dalai Lama

Not all mediators are alike. It is important to examine the legal and emotional issues that are part of the case. Determine which mediator has the life experience, mediation experience, and legal experience the case requires. Choose a mediator who will infuse the process with a sense of calm optimism and understand and work the case as hard and skillfully as required. Hire the mediator who will look at all aspects of the case, listen objectively and compassionately to all parties, and stay open to disparate information. Find a mediator who approaches parties with clarity, compassion, empathy, patience, and insight. Select one who can lead with humility, measured confidence, and intuition based on experience, wisdom, and mindfulness.

There are many ways to find the right mediator. Professional colleagues are an important source of information about potential mediators, but don’t confine yourself to a particular mediation organization out of habit. Instead, think about what your case needs in terms of the mediator’s background, experience, technical and legal knowledge, and temperament. In addition, many lists of potential mediators are readily available. ADR organizations, such as The Mediation Association of Colorado and Mediate.com, maintain online directories with biographical information, and The Colorado Legal Directory lists attorneys whose fields of practice include ADR.

Once you have a list of potential mediators, conduct an Internet search to investigate the mediators’ background and experience. Also, feel free to call potential mediators and interview them ahead of time; there is no ethical rule against ex parte contact with mediators. Ask them about their experience, technical background, billing rates and structures, available facilities, and approach to mediation. They also should be able to provide you with names of other lawyers whom you can contact for a reference, if needed.

Structure the Mediation to Fit the Case

If you don’t know where you are going, you’ll end up someplace else. —Yogi Berra

Counsel should work with the mediator to individualize the mediation process to fit the unique dynamics of the emotional case. One helpful strategy to achieve this is for counsel and their mediator to address, before the mediation, questions such as:

  • How many parties/teams are there on each side of the case?
  • Who is coming to the mediation on each team?
  • Would pre-mediation meetings with the mediator be helpful?
  • Has the case been mediated before?
  • What is the magnitude of the injuries, damages, and losses?
  • Who needs to give voice to their thoughts and feelings?
  • Who needs to be heard by others?
  • What should the structure of the mediation look like?
  • What preparation do my client, my opponent, and my mediator require?

Depending on the answers to these questions, consider whether the case might benefit from co-mediation. Mediators with different backgrounds and perspectives can often help the parties to feel heard and to come up with creative solutions to resolve the case. Mediators should be willing to work with counsel to structure a fee arrangement that makes co-mediation cost-effective.

Once these foundational questions have been answered, counsel and the mediator can design a mediation structure that fosters creativity, connection, flexibility, and trust, and encourages closure and settlement. When devising the structure of the mediation, answer these questions:

“ Throughout the mediation, counsel should remember that the opposing party and opposing counsel are people with their own problems, fears, and concerns. ”

  • Should there be an opening session? If so, what should it look like? Would the case benefit from starting the day with a joint session?
  • How should breaks and lunch breaks be handled? Is lunch an opportunity to bring everyone back together in a joint session?
  • Should the mediation occur at a particular pace?
  • How should the information flow be managed?
  • What are the parameters for time-outs?

Prepare Thoughtfully for the Mediation

Wisdom can only come by way of a willingness to accept truth from any source. —Jewish saying

As in any mediation, preparation for mediation in a highly emotional case is key. Only by having a firm grasp of the facts and the law can counsel be prepared, after emotions have calmed, to bring discussion around to the objective strengths and weaknesses of the case. Investigate early, thoroughly, and continuously. Gather and organize relevant documents, locate and meet with key witnesses, and maintain a “cast of characters,” chronology, and storyline that are updated to fit the evolving evidence. Conduct the necessary discovery and file appropriate motions. Select and work closely with the best available experts.

Whenever possible, try to develop a positive relationship with opposing counsel. Take the time to meet for lunch or coffee to get to know each other as people. Make interactions civil, professional, and respectful. Remember that it is the clients, not the lawyers, who have the dispute. Don’t amp up the already emotional case by badmouthing the opposing lawyer to the client. Keep the mediation unburdened by fights between counsel.

Use the mediation statement to refine case thinking for trial and evaluate the evidence objectively. Be wary of “drinking your own Kool-Aid,” that is, being so persuaded by your own advocacy that you lose sight of the opposing view. Describe the relevant facts and legal issues, highlighting strengths and addressing weaknesses. Make the statement concise and pare down the attachments to the essentials. Consider the creative use of government reports, investigative reports, witness statements, television reports, video, charts, and graphs.

Finally, prepare the client and yourself. Educate the client regarding the mediation process, including the possibility that emotions may be high at times. Let the clients know that they can express their views and feelings and can ask for a break if needed. Approach the mediation with as much calm, patience, and objectivity as possible. In the end, remember that mediation requires the wisdom that comes from combining knowledge and understanding.

Mediate Mindfully

If you want others to be happy, practice compassion. If you want to be happy, practice compassion. —Dalai Lama

Careful attention to words and actions at the mediation, while often just a matter of common courtesy, can bolster the chances of reaching a resolution. Throughout the mediation, counsel should remember that the opposing party and opposing counsel are people with their own problems, fears, and concerns. Begin by greeting each of the participants warmly. Listen kindly to the feelings voiced by the other side throughout the process. Without conceding responsibility, express understanding of and compassion for the other party’s circumstances. Look for opportunities for self-disclosures that create a common bond. Address the opposition respectfully; avoid accusations and insults, and advise the client to do the same.

[B]e quick to listen, slow to speak, and slow to anger. —Apostle James

“ A successful mediation requires the parties to look at their present alternatives for making the future as good as possible. ”

Appreciative, courteous, and compassionate listening are valuable tools in building a settlement. Having lawyers and a mediator who will listen carefully to the parties’ stories goes a long way toward achieving settlement goals.

Consider responses carefully, particularly if the opposition’s statements or offer are offensive to the lawyer or the client. Wait for the anger to subside before responding.

Grief is in two parts. The first is loss. The second is the remaking of life. —Anne Roiphe

Strong emotions arise from past wrongs and disappointments, and neither mediation nor a court case, no matter how successful, can undo the past. A successful mediation requires the parties to look at their present alternatives for making the future as good as possible. Honor the clients’ feelings but help them to not stay so trapped in their emotions that they are unable to make reasonable decisions. And be careful to not let empathy for the client cloud professional judgment. Mediation is an opportunity for parties to structure a resolution that will free them from the stress of litigation so they have space to heal and rebuild their lives. Help the client do just that.

[D]on’t ever underestimate the importance you can have because history has shown us that courage can be contagious and hope can take on a life of its own. —Michelle Obama

Counsel’s attitude can have a profound effect at mediation, negative or positive. Lawyers should be mindful that their emotions, particularly anger, fuel those of the client; clients are best served by taking the lawyers’ emotions out of the equation. Mediation is a time for careful, reasoned evaluation of alternatives for resolution. Remaining a calm voice of reason is essential. Give clients hope and support their courageous efforts to momentarily set aside their emotions to make wise and thoughtful decisions about the future.

Stay focused, go after your dreams and keep moving toward your goals. —LL Cool J

Remember, as a negotiator the lawyer is looking for closure. Focus on the objective and look for the path to settlement through the roaring thunder of argument. Be enlightened and enlightening, gracious, and clear. Be open to creative closing strategies that end the litigation and leave all parties with “face” and respect.

Move Clients Forward

You gain strength, courage and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, “I lived through this horror. I can take the next thing that comes along.” —Eleanor Roosevelt

Like the end of any prolonged, arduous effort, resolving a highly emotional case can cause its own set of emotions. While the end of litigation is a welcome relief, it can also be a reminder of the finality of the loss and trigger emptiness and fear. This is a good time to commend the clients’ courage throughout the process, reinforce the wisdom of their decision, and express your confidence that they will be able to handle the next steps in their journey.

Conclusion Mediating highly emotional cases requires extra care. The process should start with the selection of a mediator who is qualified for the case by temperament and experience and who can listen carefully to the parties and lead them to a settlement. The mediation should be designed to fit the unique circumstances of the case and the needs of counsel and clients, while remaining flexible enough to fit the ebb and flow of a dynamic mediation process. Careful preparation of the case, the client, and the lawyer are important. At mediation, respect for parties and counsel, compassionate and critical listening, appreciation of all aspects of the case, and a will to reach a settlement are the necessary ingredients to a successful resolution. Finally, supporting the client in resolving the highly emotional case can help the client to move forward confidently.

NOTE 1. See Epstein and Epstein, “Grief, Anger and Fear in Mediation,” Trial Talk 37 (June/July 2010).

Athlete Drug Testing: Coming to a Race Near You

Reproduced by permission. ©2017 Colorado Bar Association 46 The Colorado Lawyer 19 (Jan. 2017). All rights reserved.

Amateur as well as professional athletes are subject to drug testing. This article describes what happens to athletes who provide positive samples to the U.S. Anti-Doping Agency.

Every weekend in our outdoor-oriented state, hundreds of people compete in individual and team sporting events, including running, cycling, nordic skiing, alpine skiing, swimming, and triathlon. Many participate simply to get some exercise while socializing with friends. Others are more competitive, working their way up the ranks to elite amateur status, like the road cyclist upgrading from a Category 3 to a Category 1 or 2 racing license. Some just want to be the big dog in a regional race.

The reality is that some participants will do more than just train hard for the next competition: they will try to boost performance by using banned substances. Such shortcuts can be tempting, especially when athletes suspect others are getting away with them. So it should come as no surprise to hear news that drug testing is taking place in local amateur competitions, in addition to elite competitions.

CEO Derek Bouchard-Hall of USA Cycling stated that he’s received “hundreds of emails saying ‘I don’t feel like I’m competing in a clean field.’”1 In fact, as recently as December 2015, two U.S. Anti-Doping Agency (USADA) doping control agents showed up unannounced at the door of a Category 3 amateur cyclist and acquired a urine sample that tested positive for a banned substance. This resulted in the cyclist’s suspension from competition. The cyclist was not on his way to the Olympics, but was merely competing in open regional and national competitions.2

Caley Fretz, senior editor of the American cycling publication VeloNews, estimates that at least 10% of Category 1, 2, and 3 amateurs have used performance-enhancing drugs.3 But the use of performance enhancing substances is not confined to amateur cyclists. Other athletes competing in regional events, such as the Boulder Peaks Triathlon, have also received sanctions for using prohibited substances.4 As the popularity of such events grows, it seems likely that the number of athletes seeking counsel to defend these types of charges will grow along with it.

This article describes the process that occurs when an athlete who has competed in a recent competition provides a USADA- required urine sample and tests positive for a prohibited substance. This article does not address other violations, such as administering a prohibited substance to another, being accused of using prohibited substances absent a positive urine sample, or refusing to dis- close one’s whereabouts to USADA doping control agents.

Athletes Must Agree to Testing

Athletes who compete in events more serious than the local fun run or ride, such as qualifying events for regional or national events, are usually members of federations such as USA Cycling, USA Triathlon, or USA Track and Field, which are U.S. National Governing Bodies (NGBs). As members of NGB federations, athletes must sign agreements that subject them to the World Anti-Doping Agency (WADA) Code5 and the USADA Protocol.6 The NGBs have committed themselves to be governed by the Protocol, and USADA has agreed to follow the WADA Code.

The USADA Protocol Preamble states, The provisions of the [USADA] Protocol for Olympic and Paralympic Movement Testing . . . are intended to implement the requirements of the World Anti-Doping Code (the Code) on a national basis within the United States. As required by the Code and the United States Olympic Committee (“USOC”) National Anti-Doping Policies (“NADP”), all [NGBs] must comply, in all respects, with this Protocol and shall be deemed to have incorporated the provisions of this Protocol into their rulebooks as if they had set them out in full therein.7

Thus, by being licensed to compete under the jurisdiction of an NGB, which organizes, insures, and licenses most serious events, athletes agree to be randomly tested.

Following the Sample

USADA doping control agents make unannounced requests for urine samples when an athlete places very high in a significant re- cent event or when someone gives USADA a statement that an athlete is suspected of using a prohibited substance. Athletes who are members of an NGB may also be randomly tested, even in the absence of probable cause or a reasonable belief for such test. If a test is refused without an acceptable reason, a suspension from further competition for a period of time is a foregone conclusion.

When the athlete provides a sample, it is divided into “A” and “B” samples. If the A sample tests positive for a prohibited sub- stance, USADA conducts an initial review to determine whether the athlete permissively used the substance under a therapeutic use exception (TUE). USADA will also review the matter to deter- mine whether there may have been a departure from the required laboratory testing procedures. If there is no TUE or departure from applicable standards, the athlete and the appropriate NGB are then informed of the positive A sample. This is referred to as an “adverse analytical finding without a therapeutic use exception.”8 At this stage of the proceedings, the athlete is given notice as to when the B sample will be opened and is informed of the right to be present with a representative, such as an attorney or laboratory expert.9

In certain cases, such as a when an adverse analytical finding is received for a prohibited substance, the athlete will also be advised that a provisional suspension will be imposed unless the athlete challenges it in writing within three business days after notice of the suspension.10 A mandatory provisional suspension may be challenged on grounds that the violation is likely to have involved a contaminated product.11 The athlete may also be offered the opportunity to accept a provisional suspension, which begins the term of suspension.12 If the athlete does not accept a voluntary provisional suspension and the case proceeds to conclusion, the suspension does not begin until the case is concluded. A provisional suspension may not be imposed unless the athlete is given either an opportunity for a provisional hearing or an opportunity for an expedited hearing.13 Expedited proceedings usually take place in situations where a competition will occur within 45 days and therefore before the matter can be resolved on the non-expedited track.14

The next stage of the proceeding is the B sample testing. As stated above, an athlete has the right to be present with a representative at the opening of the B sample. After the sample is tested, if the analysis confirms the positive A sample analysis, the results are provided to the athlete along with the B sample documentation package. The B sample results are then provided to an athlete’s NGB and the USOC, if applicable, and the athlete remains under a provisional suspension.15 Then the USADA results management process begins.

USADA Results Management Process

“The results management process is designed to protect the rights of clean athletes and preserve the integrity of competition [and] hold accountable those athletes looking to cheat through the use of dangerous, performance enhancing drugs[] while ensuring only those athletes guilty of anti-doping rule violations (ADRV) face sanctions.”16

USADA Has the Burden of Proof

When the case enters the results management phase, the proceedings move from an investigatory stage to a quasi-adjudicatory stage. Even after a positive B sample, USADA has the burden of proving a rule violation. The WADA Code states:

The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.17

The WADA Code also provides that the presence of a prohibited substance in an athlete’s body is a strict liability situation for the athlete.18

Anti-Doping Review Board Track

According to USADA Protocol, the next step in the results management process is the Anti-Doping Review Board Track.19 The review board comprises three to five persons—with at least one medical, one technical, and one legal expert—appointed by the USADA. The board is provided with the laboratory documentation from the A and B samples and all other documentation deemed appropriate by USADA.20 According to USADA Proto- col, the board will not be provided with the athlete’s name.21 How- ever, USADA informs the athlete that he has 10 days to provide the appointed review board members with any other documentation deemed necessary for a review.22 The Protocol provides that USADA has the power to shorten the 10-day period in its sole discretion.23 The review board also has the discretion to request additional information from USADA, the athlete, or the athlete’s representative during this time period.24

The USADA Protocol states that the review board process is not a “hearing.”25 Rather, the purpose of the review board is only to “consider whether there is sufficient evidence of an anti-doping rule violation to proceed to an arbitration hearing.”26 But the Protocol also states that “[a]ll inferences and conflicts in the evidence shall be resolved in favor of the case being [sic] proceeding to an arbitration hearing.”27 This reference makes the review board process seem very similar to a hearing to determine whether there is a level of reasonable belief akin to probable cause for the case to proceed.

Upon expiration of the designated time period, the review board is required to consider all written information submitted and then “make a signed, written recommendation to USADA whether or not there is sufficient evidence of an anti-doping rule violation to proceed to an arbitration hearing.”28 According to the Protocol, USADA will then report whether USADA considers the matter closed or that an alleged doping violation has occurred, in which case the matter will proceed to the adjudication process.29 The Protocol also states that the review board’s recommendation is not binding on USADA.30 If USADA does not close the matter and decides to proceed, the athlete and her representative, the NGB, the USOC, and any other interested organization with a right to appeal under the WADA Code will be notified of the specific charges and the sanction sought to be imposed.31

The Arbitration Hearing

The notice described above begins the 10-day time limit that the athlete and the athlete’s representative have to seek, in writing, a hearing to contest the sanction, or in the alternative, to accept the proposed sanction handed down by USADA.32 If the sanction is not accepted by the athlete or any organization entitled to be notified in the results management process, such as an NGB or the USOC, the matter enters the adjudication process, which consists of an arbitration hearing with a panel of American Arbitration Association (AAA) arbitrators who will hear the case according to the USADA Protocol supplemental AAA hearing rules (Supplementary Procedures).33

The Supplementary Procedures are similar to the AAA Commercial Arbitration Rules (Commercial Rules), and they control the proceedings whenever there is a conflict between the Supplementary Procedures and the Commercial Rules.34 There are differences between the Commercial Rules and the Supplementary Procedures because the Commercial Rules generally involve con- tract disputes between parties, while the Supplementary Procedures provide a procedure for adjudicating contested disputes involving alleged violations and sanctions.

Selection of Arbitrator(s). Unlike the Commercial Rules, the Supplementary Procedures do not allow the parties to designate a mutually acceptable arbitrator. Instead, the Supplementary Procedures require the AAA to send the names of all persons in the Arbitrator Pool to the parties,35 because the Pool is limited to Court of Arbitration for Sport (CAS) arbitrators, who are citizens of the United States. Under the Commercial Rules the Pool is larger, and only 10 names are sent to the parties from the National Roster.36

If the parties to a USADA dispute cannot agree on an arbitrator from the lists submitted, the procedure for the selection of one arbitrator is the same as set forth in the Commercial Rules:37 the parties must strike the names of unacceptable arbitrators on the list and rank, in order of preference, the names of the acceptable arbitrators. The AAA then “invites the acceptance” of a mutually acceptable arbitrator. The parties have five days to strike the unacceptable names under the Supplementary Rules, and 14 calendar days under the Commercial Rules.38

Unlike the Commercial Rules, the Supplementary Procedures allow any party to demand three arbitrators.39 The Commercial Rules provide for one arbitrator, unless the arbitration agreement provides for a specific number.40 If a demand for three arbitrators under the Supplementary Procedures is made, the USADA must designate one arbitrator from the Arbitrator Pool, and then the athlete has five days to designate another.41 The two arbitrators chosen then choose the third arbitrator from the remaining names in the Arbitrator Pool.42

The Hearing. Because of the urgency of upcoming competitions, the Supplementary Procedures provide that the hearing must be held within three months of appointment of the arbitrator, ab- sent good cause.43 The Commercial Rules do not have this requirement.

The conduct of USADA arbitration proceedings is similar to that under the Commercial Rules. Among the differences in the proceedings, the USADA must present evidence of its claim; the athlete must then present evidence to support her defense; and wit- nesses for both parties must submit to questions from the arbitrator and the adverse party.44 As stated above, conformance to legal rules of evidence is not required.45

The Supplementary Procedures do not have a specific provision that gives the arbitrator the power to allow for the presentation of evidence by alternative means such as videoconferencing or tele- phonic testimony. However, this power is implicit in both the Supplementary Procedures and Commercial Rules, which give arbitrators discretion to conduct proceedings with “a view to expediting the resolution of the dispute . . . ,”46 and the Supplementary Procedures state that the Commercial Rules apply as modified by the Supplementary Procedures.47

The Supplementary Procedures limit the power of the arbitrator to retain an expert to situations where the parties agree to retain one and agree to pay the associated costs.48 The Commercial Rules do not place such a limit on the arbitrator.

The Supplementary Procedures also provide that USADA hearings shall incorporate the mandatory Articles from the World Anti-Doping Code. “If the World Anti-Doping Code is silent on an issue, then the USADA Protocol, the USOC National Anti- Doping Policies, and the International Federation’s anti-doping rules shall apply as determined by the arbitrator.”49

Unlike the Commercial Rules, the Supplementary Procedures allow for witness evidence by declaration or affidavit. However, under the Supplementary Procedures the arbitrator may only give it such weight “as the arbitrator deems it entitled to after consideration of any objection made to its admission.”50

Closing of the Hearing. Closing the hearing is similar under both sets of rules, but the Supplementary Procedures give the par- ties slightly more leeway by allowing the parties an opportunity to demonstrate that the record is incomplete and that additional proof or witnesses “are pertinent and material to the controversy.”51 The Commercial Rules do not contain such a provision and specifically allow the arbitrator to declare the hearing closed if the arbitrator is satisfied that the record is complete.52 Like the Commercial Rules, the Supplementary Procedures allow for the filing of briefs and provide that the hearing is closed upon receipt of such briefs.53 Each set of rules also allows for hearings to be reopened at the arbitrator’s initiative or upon application of the parties, pro- vided both parties agree to an extension of time.54

Both sets of rules provide that the award must be made within 30 days from the date of the closing of the hearing.55

The Supplementary Procedures require that the award be delivered to the appropriate NGB, the USOC General Counsel’s office, and the athlete Ombudsman.56 Obviously there is no such requirement in the Commercial Rules.

The Supplemental Procedures provide that the award of arbitration is public.57

Post-Hearing Matters. The AAA panel will issue a “reasoned decision” that is deemed final for the purpose of appeal to the CAS.58 The final award by the arbitrators may be appealed to the CAS within 21 days of its issuance. If an award concerning the eligibility of an athlete is issued without reasons, an appeal may be taken within 30 days.59 While the CAS has administrative offices in Lausanne, Switzerland, appeals from panel decisions are heard by the CAS in the United States.60

Expedited Track

The results management process can be expedited if an athlete has an event that is a protected competition61 or another significant event scheduled within 45 days and has refused to accept a provisional suspension, and the USADA concludes that the case might not be concluded on the normal Anti-Doping Review Board Track prior to the competition.62 USADA has the power to eliminate the review board process and shorten the hearing time frames to make a timely determination,63 and to meet the hearing deadline, the athlete’s B sample will be tested at the earliest possible time.64 Regardless of the status of that analysis, the athlete can accept a provisional suspension at any time during the pendency of the expedited track procedure.65 This does not appear to be an admission of guilt, but only a procedural device to place the matter back on the normal Anti-Doping Review Board Track.66 When the case is on the expedited track, the athlete will be deemed to have requested arbitration.67

When the AAA receives notice of an expedited hearing from USADA, it will immediately form a panel of arbitrators under the AAA’s expedited procedure.68 The panel will then complete and close the hearing and issue its award within the time period set forth by USADA so that the matter can be resolved prior to the protected competition, or if the competition is not imminent, within 21 days from the formation of the panel.69

Appeals

When there is an adverse finding against the athlete for use of a substance on the prohibited list without a TUE, or if the athlete wishes to contest the severity of the penalty, the athlete has the right to appeal to the CAS.70 USADA also has the right to appeal.71 An appeal must be filed within 21 days with the CAS ad- ministrator.72 The CAS has its own appellate arbitration procedure that is beyond the scope of this article.73

Instructive Decisions

Arbitrators should have a working knowledge of the salient AAA and CAS decisions. Because the presence of a prohibited substance in an athlete’s body is a strict liability situation, cases dealing with the reduction in the amount of time of a suspension are frequently helpful because degree of fault is an issue. A few instructive cases are highlighted below.

USADA v. Asfaw.74 Asfaw, an American marathoner vying to make the U.S. Olympic team, tested positive (an adverse analytical finding) for the presence of ephedrine after a race in Peru. The presence of ephedrine is permissible in small amounts, but the amount present in Asfaw’s sample was above the permissible level. After receiving the results of the A sample, Asfaw admitted that she had taken the substance, did not request testing of a B sample, and accepted a provisional suspension. However, she argued that her period of ineligibility should be minimal because she inadvertently took ephedrine, rather than Benadryl, for her allergies. She stated that she was given ephedrine by acquaintances while in a restaurant in Japan, and while traveling, she put both the Benadryl and ephedrine in one bottle. After the Review Board process, USADA advised Asfaw that she could accept a two-year period of ineligibility or contest the sanction by requesting a hearing before the AAA. She requested a hearing, and the sanction was upheld.

Asfaw illustrates the format that AAA arbitration panels under USADA Supplementary Procedures follow in setting forth a decision and award. It also sets forth the principal guidelines for the elimination or reduction of the period of ineligibility for particular substances under specific circumstances.75 The guidelines dis- cussed and applied in Asfaw were derived by the AAA Panel from an appeal to the CAS of a period of ineligibility imposed by the International Tennis Federation (ITF) in Cilic v. ITF (which was decided before January 2015 changes to the WADA Code).76

Cilic v. ITF. Cilic, a high-level tennis player competing in the Rolex Masters in Monte Carlo, was found to have a prohibited substance, nicethamide, a central nervous system stimulant, in his system. Like Asfaw, he claimed to have taken it mistakenly. Cilic testified that while in Monte Carlo, his mother purchased a glucose supplement for him that contained nicethamide, but he did not correctly read the pharmaceutical label, which was in French. In Cilic, the CAS arbitration panel held that in cases where the prohibited substance was not intended to enhance performance, the period of ineligibility must be determined within a specified range of three sanctions: a significant or considerable degree of fault (16 to 24 months suspension); a normal degree of fault (eight to 16 months’ suspension); and a light degree of fault (zero to eight months’ suspension). Ultimately the CAS reduced the suspension imposed by the ITF from nine months to four months.77

USADA v. Lea.78 Lea, which was decided after the new WADA Code became effective in January 2015, involved an experienced Olympic cyclist who had competed primarily in track events for about 10 years and was competing to participate on the 2016 Olympic Team. Lea had an adverse analytical finding for having oxycodone, a banned substance, in his system during competition. He accepted the finding, waived his right to have the B sample tested, and accepted a provisional suspension. USADA and the International Cycling Federation (UCI) claimed that Lea should be declared ineligible for four years for using a performance-enhancing substance during competition. Lea’s position was that he had taken a permissible out-of-competition substance as a sleep aid and that it did not create a competitive advantage or mask an injury, and therefore the sanction was too severe. Because Lea, USADA, and UCI did not agree on the sanction, the matter was referred to the AAA for arbitration. The panel first determined that, contrary Article 10.2.1, which provides for a four-year suspension where the rule violation was intentional and concerned a specified substance. The Panel found that Lea was negligent, and under the Cilic guidelines, he was culpable for “significant fault,” and imposed a 16-month suspension. Lea appealed to the CAS.

The CAS reduced the period of ineligibility to six months after a lengthy Cilic analysis. It found that Lea had taken a permissible out-of-competition substance for a long time without positive results in competition, and that he was merely too close to the permissible 12-hour window for taking the medication prior to the beginning of a cycling competition. As an interesting aside, the CAS noted that under its own rules it had the power to perform a de novo review of both the facts and the law in these types of cases, even though it did not review the facts of Lea’s case because both parties had agreed on them.79 The CAS found that Lea was in a category of “light degree of fault” because he did not take an out- of-competition prohibited substance but was merely negligent in taking the substance too soon before the next day’s competition.

The panel explained,

This Panel agrees with the CAS jurisprudence that “although consistency of sanctions is a virtue, correctness remains a higher one: otherwise unduly lenient (or, indeed, unduly severe) sanctions may set a wrong benchmark inimical to the interests of sport.” [Citations omitted.] In our view, a six month period of ineligibility for Appellant achieves both objectives because it is a fair and proportionate sanction under Cilic’s guidelines as well as the pre-Cilic sanctioning principles set forth in Kendrick.80 These three cases demonstrate that athletes often admit to the existence of a prohibited substance after testing positive and argue over the degree of fault rather than guilt or innocence. The cases also illustrate the well-defined procedure created by the CAS and adopted by the AAA to make the degree-of-fault determination.

Conclusion

The public demand for clean sport is rising among both competitors and spectators. The entire Russian track and field team, except for one person, was banned from the 2016 Rio Summer Olympics, and the Kenyan track and field team program is under the scrutiny of WADA. The recent victories of the Russian Olympic competitors at the Sochi Winter Games also are being questioned because of doping violations and gross procedural violations of the Russian Anti-Doping Agency. Signatory nations to the WADA Code (all nations that participate in the Olympic Movement) have signed on to its fundamental rationale, which states that the essence of sport is “the pursuit of human excellence through the dedicated perfection of each person’s natural talents. It is how we play true.”81

Testing for banned substances and subsequent prosecutions have already occurred locally, and will increase as public demand for clean sport trickles down to local levels. Those involved with doping offenses are entitled to fair hearings and competent representation, which requires an understanding of how the WADA Code and the USADA Protocol work.

The author would like to thank Sarah Hartley of Bryan Cave LLP for her assistance in writing this article.

Any errors are solely those of the author.

 

Notes

  1. Dreir, “Doping Cops Take Aim at Amateur Athletes,” Wall Street Journal (Dec. 23, 2015), wsj.com/articles/doping-cops-take-aim-at- amateur-athletes-1450913174.
  2. Fretz, “Totally Amateur,” VeloNews ( June 2016).
  3. Id.
  4. USADA news release re: Mark Fretta (Nov. 9, 2012), usada. org/u-s-triathlon-athlete-fretta-receives-sanctions-for-anti-doping-rule- violation.
  5. USADA Protocol ¶ 3, usada.org/wp-content/uploads/USADA_protocol.pdf. For the WADA Code, see www.usada.org/wpcontent/uploads/wada-2015-world-anti-doping-code.pdf.
  6. USADA Protocol ¶ 3.
  7. USADA Protocol
  8. USADA Protocol ¶ b.
  9. Id.
  10. USADA Protocol ¶
  11. WADA Code Article 9.1.
  12. USADA Protocol ¶
  13. Id.
  14. USADA Protocol ¶
  15. USADA Protocol ¶ c.
  16. usada.org/testing/results.
  17. WADA Code 3.1.
  18. WADA Code 2.1.1.
  19. USADA Protocol ¶ a.
  20. USADA Protocol ¶ b.
  21. USADA Protocol ¶ d.ii.
  22. USADA Protocol ¶ d.iii.
  23. Id.
  24. USADA Protocol ¶ d.v.
  25. USADA Protocol ¶ d.vi.
  26. Id.
  27. Id.
  28. USADA Protocol ¶ d.7.
  29. USADA Protocol ¶ f.
  30. USADA Protocol ¶ e.
  31. USADA Protocol ¶ f.
  32. USADA Protocol¶¶ g. and 13.i.
  33. USADA Protocol Annex D, AAA Supplementary
  34. USADA Protocol Annex D, AAA Supplementary Procedures R-1.
  35. USADA Protocol Annex D, AAA Supplementary Procedures R-11.
  36. AAA Commercial Arbitration Rules R-12(a), adr.org/aaa/ ShowProperty?nodeId=/UCM/ADRSTG_004103&revision=latest released.
  37. USADA Protocol Annex D, AAA Supplementary Procedures R-ii.
  38. ; AAA Commercial Arbitration Rules R-12(b).
  39. USADA Protocol Annex D, AAA Supplementary Procedures R-b.
  40. AAA Commercial Arbitration Rules R-16(a).
  41. USADA Protocol Annex D, AAA Supplementary Procedures R-d.i.
  42. USADA Protocol Annex D, AAA Supplementary Procedures R-d.ii.
  43. USADA Protocol Annex D, AAA Supplementary Procedures R-
  44. USADA Protocol Annex D, AAA Supplementary Procedures R-
  45. USADA Protocol Annex D, AAA Supplementary Procedures R-
  46. USADA Protocol Annex D, AAA Supplementary Procedures R-b; AAA Commercial Arbitration Rules R-32(b).
  47. USADA Protocol Annex D, AAA Supplementary Procedures R-1. A telephonic hearing was recently conducted in USADA Raquira, AAA Case No. 01-16-0000-7103, Award ¶ 4 (Aug. 17, 2016), www.usada.org/ wp-content/uploads/2016_08_17-AAA-Award-Raquira.pdf.
  48. USADA Protocol Annex D, AAA Supplementary Procedures R-28(b).
  49. USADA Protocol Annex D, AAA Supplementary Procedures R-28(f ).
  50. USADA Protocol Annex D, AAA Supplementary Procedures R-a.
  51. USADA Protocol Annex D, AAA Supplementary Procedures R-
  52. AAA Commercial Arbitration Rules R-39(a).
  53. USADA Protocol Annex D, AAA Supplementary Procedures R-
  54. USADA Protocol Annex D, AAA Supplementary Procedures R-33 and AAA Commercial Arbitration Rules R-40.
  55. USADA Protocol Annex D, AAA Supplementary Procedures R-38 and AAA Commercial Arbitration Rules R-45.
  56. USADA Protocol Annex D, AAA Supplementary Procedures R-
  57. Id.
  58. USADA Protocol b.
  59. USADA Protocol Annex D, AAA Supplementary Procedures R-
  60. Generally, a protected competition is an event sanctioned by an See USADA Protocol ¶ 12, which refers to the definition of a protected competition in the Bylaws of the United States Olympic Commit- tee Section 1.3(w)(1) and (2).
  61. USADA Protocol ¶
  62. Id.
  63. USADA Protocol ¶ a.
  64. USADA Protocol ¶ e.
  65. Id.
  66. USADA Protocol ¶ b.
  67. USADA Protocol ¶ c.
  68. USADA Protocol ¶ d.
  69. USADA Protocol ¶ b.
  70. Id.
  71. Id.
  72. Id.
  73. USADA v. Asfew, AAA Case No. 01-14-001-4332 (Mar. 9, 2015), www.usada.org/wp-content/uploads/3-10-15-Reasoned-Decision-and- Award.pdf.
  74. It is important to note that the panel cited the 2009 WADA Those articles were revised, effective January 1, 2015. The same factors still apply in deciding the period of ineligibility.
  75. Cilic ITF, CAS 2013/A/3327 (Oct. 25, 2013), www.morgansl. com/pdfs/Marin_Cilic_v_ITF.pdf.
  76. Id. at
  77. USADA v. Lea, AAA Case No. 01-15-00005-6647 ( Jan. 5, 2016), www.usada.org/wp-content/uploads/AAA-Decision-Lea-Award-01-05- 2016.pdf. (See also Lea v. USADA, CAS 2016/A/4371 (May 4, 2016), www.usada.org/wp-content/uploads/2016-05-04-CAS-Award-Robert- Lea.pdf.)
  78. Id. at
  79. Id. at
  80. WADA Code, Purpose, Scope and Organization of the World Anti-Doping Program and the n