2 Hare Court Sports Law Group: Athletics Round-Up
Gavin Irwin explores recent developments in regulatory and disciplinary issues in the sport of Athletics
Despite the public health emergency, it has been a busy time for regulatory bodies in the sport of athletics.
Over recent years, materials science has revolutionised the performance of sports shoes, in particular, through the development of shoes containing carbon fibre plates and shock-absorbing foams.
In January 2020, World Athletics (‘WA’) imposed an immediate ban on any shoe with a sole thicker than 40mm or shoes that contain more than one such plate. The purpose of the ban was to eliminate possible unfair advantage accruing to athletes with access to new technologies not available to all.
In April and July 2020, WA announced further revisions to the rules governing shoe technology[i], stating that:
The purpose of these amendments is to maintain the current technology status quo until the Olympic Games in Tokyo across all events until a newly formed Working Group on Athletic Shoes, which includes representatives from shoe manufacturers and the World Federation of the Sporting Goods Industry (WFSGI), have had the opportunity to set the parameters for achieving the right balance between innovation, competitive advantage and universality and availability.
It remains to be seen whether any disciplinary action will be taken for breaches of the January prohibition although, with competition having been so heavily curtailed, and, quite properly, any focus on athlete welfare having been directed to more pressing public health concerns, that may be unlikely.
The independent Disciplinary Tribunal (‘DT’) of the Athletics Integrity Unit (‘AIU’) has not stopped its work as a result of the public health emergency – oral hearings have continued via video conferencing.
The role of the AIU is to protect the integrity of the sport of athletics, including by investigating and prosecuting breaches of integrity within the IAAF (now WA) Rules and Regulations (including the Integrity Code of Conduct).
The DT has published decisions in relation to a dozen cases[ii] heard remotely over the last six months. The most recent, in World Athletics v Salwa Eid Naser[iii] relates to events that have caused some controversy[iv].
On 4 June 2020, the AIU brought two charges against Ms Naser, the current world 400m champion, based on four alleged ‘Whereabouts Failures’ under the Athlete Whereabouts Information Regime, namely:
- a missed test against Ms Naser in relation to a failed attempt to test her in her 60-minute time slot on 12 March 2019 (not challenged by the Athlete);
- a filing failure against Ms Naser in relation to an attempt by a Doping Control Officer (‘DCO’) to test her on 16 March 2019, outside of her 60-minute time slot (not challenged by the Athlete);
- a second missed test against Ms Naser in relation to a failed attempt to test her in her 60-minute time slot on 12 April 2019 (challenged by the Athlete);
- a third missed test against Ms Naser in relation to a failed attempt to test her in her 60-minute time slot on 24 January 2020 (challenged by the Athlete);
At the remote hearing, on 6 October 2020, the AIU conceded that it could not succeed in establishing the commission of three Whereabouts Failures in relation to either charge unless they succeeded in establishing the 12 April 2019 Missed Test. This is because, effectively, three Whereabouts Failures would then not have occurred in a 12-month rolling period as is required to establish a violation of Rule 2.4.
On 12 April 2019, the DCO knocked on what he believed to be the door at Ms Naser’s registered address in Bahrain. It was not her door – it was a door to a broom cupboard very close to her door. The DT rejected any criticism of the DCO, finding that “[t]he numbering on the doors is extremely confusing” but concluded that, as a result, there was no missed test. No missed test on that date, no Whereabouts Failure.
Ms Naser did not, however escape criticism. The DT determined that, “[t]he Athlete should have in mind that the January 2020 Missed Test still stands against her” and strongly advised to her take personal responsibility (rather than relying on an agent) for the input of up-to-date contact details on the relevant systems (regrettably, she had not provided a telephone number and, consequently, the DCO was unable to establish whether she was, in fact, next door).
On 20 October 2020, Athletics Weekly reported that, “Salwa Eid Naser Escapes Ban on Technicality”[v]. The AIU has a right of appeal to the Court of Arbitration for Sport in Lausanne, Switzerland.