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The CrossFit Games 2017 Drugs Policy – Fit for purpose?

The 11th annual CrossFit Games begins on Thursday this week at the Alliant Energy Center, Madison, Wisconsin. This is the first time the event has been held outside of California after 7 years at the StubHub Center in Carson.

The top 40 male and female qualifiers from the CrossFit Open, together with athletes competing in team events and age groups will compete over 4 days’ worth of workouts, one of which would be near impossible for most mortals.

As discussed previously on this blog, the CrossFit Games has come a long way since 2007 with prize money this year of US$275,000 on offer to the winner of the men’s and women’s open event. Sadly with the increased money, profile and sponsorship opportunities that come from winning there also comes an increased incentive to cheat.

Perhaps unsurprisingly then the event organisers have introduced for 2017 an updated  Drug-Testing Policy (the “Policy”).

Testing Pool

In recent years CrossFit introduced an out-of-competition drug testing programme in order to allow greater scrutiny of those athletes selected for the “Registered Athlete Testing Pool”. Those athletes selected for the testing pool must provide complete and accurate contact and whereabouts information quarterly, no later than one day prior to the beginning of each quarter and keep this updated throughout the year in much the same way as other elite athletes.

In respect of out-of-competition testing the Policy states that athletes will receive email notification of a test, which suggests that unannounced testing does not occur.

Contact and Whereabouts Information

Failure to provide or update their contact or whereabouts details, or providing incorrect or false information may result in the athlete being charged with a positive test and subject to sanctions. This happened in 2015 to Ryan Fischer who provided inaccurate information about his whereabouts and failed to cooperate with the collection agent resulting in a one year suspension from all competition.

Previously, an athlete would remain in the athlete testing pool until CrossFit informed them they were to be removed or they retired. They could only then return, and benefit from full competition privileges, after giving at least 6 months advanced notice.

Removal from Testing Pool/Watch List

A new addition to the Policy allows athletes previously in the testing pool, and who wish to take a leave of absence from competition, to be moved to the “Watch List” where they do not have to provide contact or whereabouts information but continue to be subject to out-of-competition testing at any time. If an athlete is moved from the testing pool to the watch list then are no longer available to claim prizes in any CrossFit competition and again are required to give at least 6 months advance notice before returning.

TUE

CrossFit employs a therapeutic use exemption policy for athletes – for more on which see here.

Breaches / Reporting / Sanctions

As with many other elite sports breaches of the Policy can be publically reported and appropriate sanctions handed out. CrossFit has made a number of such announcements on its website, most recently in respect of Natalie Newhart, who was handed a two-year suspension for an out-of-competition violation in March last year, and three competitors from the age group and team categories last September.

Appeals Process

Whilst the remainder of the policy is in line with what is to be expected it is perhaps the Appeals Process that stands out as being most behind the curve when dealing with elite athletes in other sports.

In the event of a breach of the Policy the current Appeals Process, which covers only two paragraphs is as follows:

  1. Within 72 hours of being notified of their violation, the athlete must provide written notice of their intent to submit a written petition of appeal. A request for relevant documents must be made within this initial written notice.
  2. The athlete then has 10 business days to submit the written notice of appeal explaining why they are not in violation of the Policy.
  3. Following a review of the athletes petition CrossFit will then “respond in a timely manner to provide a written response of its decision, including supporting reasons, either to deny or grant the appeal.”

The above procedure throws up a number of issues not least of which comes from the fact that there appears not to be an independent decision maker / appeals panel. If those who made the original decision are to rule upon any Appeal, in effect marking their own homework, issues of bias are sure to arise as no person connected with the original investigation or decision to charge the athlete should be involved.

Further, there appears not to be any right for an athlete to be heard in person, something that did exist, albeit only in “extraordinary cases” in the 2016 Drug Testing Program.

The Appeals Process should clearly set out the sequence of events to be followed in the event an athlete is charged.  It should provide a fair and proper opportunity for the athlete to be heard before an impartial tribunal taking into account the specifics of the sport and maintain sufficient flexibility in the process so as to make the proceedings as efficient and cost effective as possible. Provision should be made for, amongst other matters, at least the following aspects:

  1. Pre-hearing procedure/case management.
  2. Conduct of the hearing.
  3. Special rules relating to evidence.
  4. Powers of the Appeal Panel.
  5. Publication of decisions.
  6. Communication of the decision.
  7. Applicable law.

Only then will the interests of justice be met.

Whilst one must hope the above will continue not be a problem in the event there remains a low level of breaches of the Policy, it may cause issues if a ‘big name’ athlete was to miss out on a substantial payday and subsequently seeks to challenge the legitimacy of the Policy as a whole.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

Tim Lowles, Squire Patton Boggs Law Firm, Sport Litigation Attorney
Senior Associate

Tim Lowles is a Senior Associate in our Litigation Practice Group. Tim advises upon all aspects of commercial litigation with a particular emphasis on sport, contentious media and reputation management issues for companies, institutions and high profile individuals. He has been involved in a number of reported cases and was a member of the team which represented the Core Participant Victims in the Leveson Inquiry.

Tim has advised a number of household names from the sporting world on various issues ranging from contractual disputes to...

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