Meeting the Challenges of Mediating the Catastrophic Injury Case

This article originally appeared in Trial Talk/Colorado Trial Lawyers Association – February/March 2018.  Reprinted with permission.

Synopsis:

Treat catastrophic injury cases with the care they deserve and require, with compassion and consummate care.

Plan your case from the outset and keep planning. Associate with highly qualified attorneys and experts. Use focus groups early and often. Find the right mediator. Prepare a concise mediation statement.

Hire the mediator who honors the words of the Dalai Lama by looking at all aspects of the case, listening to all, and staying open to disparate information. Find a mediator who walks his/her walk with clarity, compassion, empathy, patience, and insight.

Emotions:

Grief, anger, and fear are the three emotions with the widest and deepest display at catastrophic injury mediations. Mediators, advocates, parties, and negotiators must be aware of these emotions and wise enough to gauge and address their impact before, at, and during mediation. Appreciative, respectful, even compassionate listening are valuable tools in building a settlement in such cases. Just listening to the stories another shares about their grief, anger or fear goes a long way towards making closure possible as does relevant self-disclosures which create a common bond.

Setting the Stage [By Counsel]:

Investigate as early as possible and re-investigate. Locate key witnesses and meet with them personally or via an investigator when that is appropriate. Work with governmental agencies as appropriate. Put together a “cast of characters,” a chronology and a story that counsel updates as the evidence evolves.

  • Investigate early, thoroughly, and continuously
  • Develop a positive relationship with opposing counsel
  • Select the best available co-counsel and experts
  • Select the best mediator for the case

Selecting the Mediator:

Mediators are not all alike. It is important to examine the legal and emotional issues that are part of the catastrophic injury case. Determine which mediator has the life experience, mediation experience, and legal experience with a case like yours. Which meditator can listen objectively and compassionately to all parties? Determine who will work the case as hard and as skillfully as required.

  • Experience
    • In life
    • In mediation
    • In the law
  • Ability to listen
    • With objectivity
    • With compassion
    • With a peaceful/open mind
  • Work ethic
  • Analytic ability

Preparing the Mediation Statement

Use the mediation statement to refine your case thinking for trial. Describe the relevant facts and legal issues, highlighting strengths and addressing weaknesses. Make the statement concise and pare down the attachments to the essentials.

Setting the Table [Mediation Design Factors]:

Counsel should work with the mediator to individualize the mediation process to fit the unique dynamics of the catastrophic injury case. The work of mediation in catastrophic injury cases should generally be front-end loaded with a creative mindset. Counsel and their mediator should address and answer questions such as the following:

  • 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 in- juries, damages, and losses?
  • Who needs to give voice to their thoughts and feelings?
  • What should the structure of the mediation look like?
  • What preparation does my client, my opponent, and my mediator require?

At the Mediation Table:

Pre-mediation design and preparation will involve exploring the mediation process and dealing with questions such as those below. The key ingredients at mediation that enable closure/settlement are creativity, connection, flexibility, and trust. Parties should reflect on the questions below:

  • Should there be an opening session?  If so, what should it look like?
  • How should you handle breaks (scheduled or not) and lunch?
  • What consideration should you give to pace?
  • How should the parties manage the flow of information?
  • How to honor the teaching of the Dalai Lama by remembering to “[l]ook at situations from all angles, and you will become more open.”

The Closing:

Remember as a negotiator, you are looking for closure. Remember your goal, your objective; look for  the path to settlement  through  the roaring thunder of argument. Be enlightened and enlightening, gracious, and clear. Give people “face” and respect. Manage time and expectations. Be open to creative closing strategies.

Conclusion:

Catastrophic Injury cases need extra care. Their mediation process should start with the selection of a mediator uniquely qualified by  temperament and experience who can deeply listen to the parties and lead them to a settlement.

It should then move to a mediation process designed to fit the parties—counsel and clients.  While the mediation process should be pre-designed [and front-end loaded] it needs to be flexible enough to fit the ebb and flow of a dynamic mediation process that you have geared to settlement. At mediation storytelling, 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 mediation.

Postscript:

When proceeding with the mediation of a catastrophic injury case consider these sayings of the Dalai Lama:

  • Calm mind brings inner strength and self-confidence.
  • If you want others to be happy, practice compassion. If you want to be happy, practice
  • The best way to resolve any problem in the human world is for all sides to sit down and
  • Where ignorance is our master, there is no possibility of real
  • The ultimate authority must not always rest with the individual’s own reason and critical
  • Love and compassion are necessities not luxuries. Without them humanity cannot
  • When you practice gratefulness, there is a sense of respect toward others.
  • I am just one human being.
  • I feel exhausted if I teach too
  • Disagreement is something
  • I have no trouble
  • Look at all situations from all angles, and you will become more
  • To order to carry a positive action we must develop here a positive vision.
  • In the best practice of tolerance, one’s enemy is the best

Endnotes:

1 For a full exploration of this topic see Joe Epstein, Esq., with Susan Epstein, Esq., Grief, Anger and Fear in Mediation, Trial Talk, June/July 2010, at 37.

Making the Arbitrator’s Job Easier

This article originally appeared in Colorado Lawyer – August/September 2017.  Reprinted with permission.

This article offers suggestions to help counsel achieve cost-effective and successful arbitrations by making the arbitrator’s job easier.

These days, few civil litigators are strangers to arbitration because contractual provisions to arbitrate are common. Put simply, in arbitration the parties have contractually agreed to bring disputes before one decision maker or a panel of three private decision-makers rather than before a judge or jury.

This article describes ways counsel can make the arbitrator’s job easier to facilitate a prompt and successful result at less cost.

“Why should counsel care about making life easier for the arbitrator? Because it is in counsel’s and the clients’ best interests to do so.”

Why Focus on Helping the Arbitrator?

Why should counsel care about making life easier for the arbitrator? Because it is in counsel’s and the clients’ best interests to do so.

First, arbitration is meant to be an efficient means of dispute resolution. All too often, though, parties complain that the arbitration took as long as it would have taken to litigate the case in court. In most cases, it should not be that way. The suggestions below will help counsel achieve a prompt resolution of the client’s problem.

Second, arbitrators cost money. Arbitrators typically are paid an hourly rate. That cost is multiplied for a three-member panel. On top of that, the client must pay the attorney for time spent on the case. The suggestions discussed below help the arbitrator and counsel spend less time on the case, and thus save the client money.

Third, to paraphrase a maxim more often said about moms: “If your arbitrator ain’t happy, ain’t nobody happy.” If parties are in arbitration, they have taken the time to select a qualified and impartial neutral. Arbitrators take seriously their obligation to consider the evidence fairly and decide the case according to the law and the evidence. However, a lawyer who is disorganized or unduly combative not only makes the arbitrator unhappy, but may be damaging the client’s case as well. Such counsel is asking the arbitrator to rule in favor of the client in spite of himself. Don’t do that. Instead, practice in a way that makes it easy for the arbitrator to look favorably upon the client’s case.

A few caveats are important to note here:

■ Arbitrators have different styles and opinions. For example, some like to follow the rules of civil procedure as closely as possible, and some apply the rules of evidence more strictly than others. Know the arbitrator and modify these suggestions accordingly.

■ The author’s views are her own and are not made on behalf of any alternative dispute resolution organization.

■ No criticisms should be taken personally. The author’s experiences as an arbitrator reveal that most counsel are professional, present their cases well, and are a pleasure to work with.

■ While the suggestions in this article are also applicable to cases before judges, the author has never been a judge.

Suggestions for Facilitating Arbitrations

Arbitration should be a fair, efficient, and economical means of resolving disputes. Counsel, as well as arbitrators, can take steps to achieve that result. The following are some practical suggestions to make an arbitration run smoothly.

Confer, Confer, Confer

As judges say over and over again: You need to confer with opposing counsel. Conferring is more than exchanging polarizing emails. It means talking and trying to reach reasonable accommodations. The need to confer starts with the scheduling order and addressing such topics as hearing time, deadlines, discovery limits, and motions procedure. It continues throughout the arbitration process regarding discovery disputes, proposed motions, joint exhibits, admissibility of exhibits, and undisputed facts. Counsel will not resolve every issue, but by conferring with opposing counsel, the most is made of the arbitrator’s time—and the client’s money—by limiting the matters to be raised with the arbitrator to true disputes.

Many arbitrators find it efficient to be readily available for phone conferences with counsel to resolve disputes. In that circumstance, counsel can be tempted to give short shrift to discussions with opposing counsel and instead move directly to a call with the accommodating arbitrator. The result can be that nearly every issue—major and minor—is presented to the arbitrator for a decision. The danger is that the big issues can be lost among the minutiae. The better practice is to try to resolve minor issues with opposing counsel so that the arbitrator can focus attention on the important disputes.

Be Reasonable

Arbitrations are generally less formal than court proceedings. Most pre-hearing conferences take place by telephone. Hearings are held in a conference room rather than a courtroom and usually are not transcribed.

Nonetheless, less formal should not mean less professional. Not every issue needs to be treated as life-or-death, and counsel shouldn’t fight just for the sake of fighting. By statute, the grounds for reversal of an arbitration award are extremely limited. This puts matters such as admission of evidence on a different procedural footing than in a trial by jury, for example. Generally, the only evidentiary ruling that can be grounds for vacating an arbitration award is the arbitrator’s refusal to consider material evidence.1 Thus, the arbitrator will often admit marginally relevant matters into evidence with the proviso that the evidence will be given the weight it deserves. So it makes no sense for counsel to object to the admission of every item of evidence, particularly on grounds of relevance.

That does not mean that counsel should never make evidentiary objections. Well-founded objections can call the arbitrator’s attention to the weakness in a piece of evidence. Also, although it happens rarely, arbitrators sometimes exclude evidence. If evidence is plainly irrelevant and submitted simply to make the other side look bad and prejudice the arbitrator, for example, the arbitrator may well draw the line and exclude the evidence. And all arbitrators lose patience with repetitive evidence. So don’t stop making objections entirely. Just consider whether an evidentiary issue truly matters before making it a matter of mortal combat.

Don’t Over-Litigate

Arbitrators should manage arbitration proceedings as fairly, diligently, efficiently, and economically as possible. They owe that obligation to the parties in the matter before them, as well as to the integrity and trustworthiness of the arbitration system itself. Nonetheless, when counsel and parties complain that arbitration ends up being every bit as long and expensive as a court action, it is important to look not only at the arbitrator’s case management but also at counsel’s conduct. The length and cost of an arbitration proceeding can be directly proportional to the volume and nature of discovery (and resulting discovery disputes) and motions practice. Counsel plays a pivotal role in containing those factors. If counsel stipulate to 20 depositions per side, for example, the arbitrator may be reluctant to impose more stringent limits. Similarly, multiple attorneys may seek to file broad and expensive dispositive motions despite warnings that such motions are rarely granted.

“The better practice is to try to resolve minor issues with opposing counsel so that the arbitrator can focus attention on the important disputes.”

An experienced arbitrator has tools for managing a case efficiently regardless of counsel’s approach. But it is important for attorneys to recognize that arbitration is not just litigation in a different forum. The parties presumably included an arbitration clause in their contract in part because they wanted a faster and more cost-effective means of dispute resolution. Counsel should further those goals by asking only for the discovery they truly need and permission to file only motions that are well-founded, narrowly tailored, and reasonably likely to succeed.

Streamline Motions and Briefs

Arbitrators are most persuaded by written submissions that are well-organized, concise, and to the point. Flowery language, hyperbole, and attacks on the integrity of opposing counsel or parties don’t help. The logical presentation of well-sequenced arguments supported by facts and law is much more effective.

Here are some tips for motions and briefs:

■ Numbered paragraphs, bullet points, or charts can aid in presenting a well-structured and concise argument.

■ A few cases on point with their relevance explained at least parenthetically are more useful than string cites of many less relevant cases.

■ Providing PDFs of important authority with the pertinent language highlighted reduces the arbitrator’s time spent retrieving authority.

Use Experts Wisely

Expert witnesses can be just as useful in arbitration as in court trials. They can provide specialized knowledge and industry information that the arbitrator might not otherwise have. But be judicious and efficient when presenting an expert’s testimony. Although it is important to emphasize that an expert is the “real deal,” an arbitrator is unlikely to be swayed by an unduly detailed presentation of the expert’s credentials. The arbitrator wants to hear the expert’s opinion. Consider using the expert’s curriculum vitae as an exhibit that the arbitrator can read, and refer only briefly to the expert’s credentials during testimony.

Also, take advantage of the fact that an experienced and intelligent decision-maker is presiding. Don’t let the expert take an extreme position that, while purportedly favorable to the client, defies common sense, undermines the expert’s credibility, and may damage the trustworthiness of the entire case. Understand the expert’s analysis and look at it with a critical eye before the hearing.

Organize, Organize, Organize

Good organization—whether in legal writing, presentation of testimony, or arrangement of exhibits—is golden. Nothing makes an arbitrator happier than a well-organized and carefully pruned case presentation.

Organization, or the lack thereof, is most evident in the selection and presentation of exhibits.

“An experienced arbitrator has tools for managing a case efficiently regardless of counsel’s approach. But it is important for attorneys to recognize that arbitration is not just litigation in a different forum.”

Here are some best practices:

■ Take seriously the arbitrator’s request that counsel agree on joint exhibits. Typically, the authenticity and relevance of most exhibits are not in dispute. Make them joint exhibits, arrange them logically, and (if using hard copies) fit them into one notebook if possible. And only make a document a joint exhibit when all counsel are waiving objections to the admissibility of that exhibit. Objecting to the admissibility of a joint exhibit during a hearing causes confusion.

■ Pre-number exhibits and provide separate exhibit lists for joint exhibits, claimant’s exhibits, and respondent’s exhibits, with dates and descriptions. It is easiest to include all pre-numbered exhibits in the notebooks, whether stipulated or not. Then, at the end of the hearing, counsel can provide the arbitrator with an agreed list of all admitted exhibits so that all other exhibits can be removed from the notebooks.

■ Use one color of notebook for joint exhibits, a second color for claimant’s exhibits, and a third color for respondent’s exhibits, so that it is easier to refer to the notebooks at the hearing. Agree on notebook colors with opposing counsel, resting assured that the arbitrator will attribute no significance to the colors chosen. Label the spine and front of each notebook with the pre-numbered exhibits it contains.

■ Resist the temptation to take a “kitchen sink” approach to exhibits. If that proves impossible, at least organize exhibits in such a way that the documents likely to be used are in the first few exhibit notebooks (organized chronologically or in another logical sequence) and the others are in the last notebooks. (Odds are that the last notebooks will never be opened.) That arrangement minimizes the cumbersome juggling of notebooks for witnesses, the arbitrator, and counsel at the hearing.

■ Use excerpts of voluminous documents, highlighted as appropriate, but have one copy of the full original documents available at the hearing in case opposing counsel objects to the excerpts selected.

■ Use summary charts of complex information or information that requires reference to multiple different exhibits. List in the summary the exhibit numbers of the supporting documents, if applicable. Be sure to provide the summary exhibit to opposing counsel before the hearing along with the documents summarized so that opposing counsel has the chance to determine the summary’s accuracy.

■ Timelines and demonstrative exhibits can also be useful. Bear in mind that in a complex case, any presentation that clarifies the sequence of events is appreciated. As with summary exhibits, provide timelines and demonstrative exhibits to opposing counsel before the hearing.

Conclusion

The foregoing suggestions are not rocket science. In fact, many echo the advice for good advocacy typically given by judges to litigators who appear in their courtrooms. That advice is equally wise when applied to arbitrations. It serves all concerned to make the arbitrator’s—like the judge’s—life easier.

NOTE 1. See Colorado Revised Uniform Arbitration Act, CRS § 13-22-223(1)(c); Federal Arbitration Act, 9 USC § 10(a)(3).

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