On hypothetical CAS judicial activism

Sincerest apologies, but yeah, this is gonna be sticking in my craw for a little while.

Yes, I've been thinking about the caso once again. I'm not sure who said it, maybe a lot of people, but whoever it was or they were, they were miffed at my general indignance over the ban coming down despite the positive test being for a substance and a quantity at which everyone pretty much agrees there was no competitive advantage gained. "There's no threshold for clen," he, she, or they said, "so that's why dude was banned. END OF STORY!!!!"

Yeah, legally speaking, I guess so (and, well, I was here that morning watching the Tour of Qatar when the decision came down, so yeah, yeah it was). Unless I'm mistaken, the CAS' official opinion made a point of saying they basically had no choice, that the test was what it was, and no one disputed it, so there was no way he could get off.

But what if it didn't happen that way?

The term does have some currency elsewhere, but judicial activism is the brainchild of the good old US of A. Judges doing what they want because...well, because they can. Forgive the Americentrism, but with the possible, and I stress possible, exception of Canada, I don't know enough about anybody else's judicial system to compare it. Separation of powers into the executive, legislative, and judicial is fairly common among world governments, but the US government prides itself (at least in theory) on checks and balances, the system where no branch becomes more powerful than any other. The legislature can write and pass laws, but needs the executive to sign them. The executive can veto instead, and the legislature can then (again, at least in theory) override the veto. The judiciary can throw laws out as unconstitutional under judicial review. But the only real 'check' on them is getting their foot in the door in the first place. Supreme Court Justices have to be nominated by the executive and confirmed by the legislature, but once they're in, they're in until they die or retire. Many elected judges at local courts enjoy similar autonomy, running unopposed or all but unopposed every time they hit the ballot. In theory (again), the check on the judiciary is the people (in conjunction with the legislature) passing a Constitutional amendment, but that has happened only 17 times in a little over two centuries since the Constitution's infancy.

All that means is judges are pretty well and autonomous, which sometimes results in them giving rulings simply because those are the rulings they want to give. And the rest of the country? Like it or lump it.

CAS arbitrators are appointed by something called the International Council of Arbitration for Sport, which sounds a lot like another way of saying "judicial autonomy." They serve four-year terms, simultaneously from what I can tell, and are either renewed or not from each four year stretch on by this ICAS (their members, in turn, are appointed by the IOC and members of National Olympic Committee groups and International Federations. Not exactly the world's most transparent position).

So if the arbitrators assigned to a case made an 'activist' ruling, much like in the USA it seems very little would happen to them. Maybe they'd lose their jobs in four years, but maybe not, and who's to say that's really a punishment.

Getting back to the original point, it is indeed true that there is no threshold for clen, and there was never any debate about the adverse test itself, so that's why dude was banned. But there likewise seems to be little if any debate about the competitive advantage gained (none) by that miniscule amount of clen. So what if the judges had taken a stand against this lack of a threshold, and acquitted Contador on the basis that he had gained no unfair competitive advantage? What would have happened then? Would the entire anti-doping world have come crumbling down like a house of cards? Would WADA and the UCI have appealed to the Swiss Supreme Court? (OK, yeah, we probably know the answer to that question) Would it have stuck? Would you have seen it as fair? Would you have seen it as gross negligence? Do you think anything remotely like this ever will happen?

Of course the great irony is that WADA makes substantive changes the Code relatively frequently (they kinda have to), so in a few years' time I wouldn't be surprised if what got Contador stripped of two Grand Tours was no longer considered a violation (i.e. a threshold for clen is enacted).

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