Filing 12

DISSOLVED AND VACATED PER #36 ORDERORDER - 1) Pltf's #4 Motion for Temporary Restraining Order and/or Preliminary Injunction is GRANTED to the extent that a Temporary Restraining Order is issued as stated herein. 2) Dft's are restrained from enforcing the current suspension from athletic competition against Pltf or from otherwise using the suspension to prevent Pltf from participating in the Olympic trials commencing 6/27/2008. 3) The Court has further considered the pleadings and the record in this case and concludes that there is presently no need for for security under Fed.R.Civ.P.65(c). 4) This Order shall remain in full force and effect for (10) days unless this Court specifically orders otherwise. 5) A hearing on Pltf's Motion for Preliminary Injunction is hereby set for 6/23/2008, at 8:30 AM in Courtroom 4 South. Signed by SENIOR JUDGE LACEY A COLLIER on 6/20/2008. (laj) Modified on 6/24/2008 (laj).

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G A T L I N v. UNITED STATES ANTI-DOPING AGENCY INC D o c . 12 IN THE UNITED STATES DISTRICT COURT FOR THE N O R T H E R N DISTRICT OF FLORIDA P E N S A C O L A DIVISION J U ST IN GATLIN, P l a i n ti f f , v. U N I TE D STATES ANTI-DOPING A G E N C Y , INC.; UNITED STATES TR AC K AND FIELD ASSOCIATION; UNITED STATES OLYMPIC COMM I T T E E , I N C. ; INTERNATIONAL ASSOCIATION O F ATHLETICS FEDERATIONS, Defendan ts. _______________________________________/ ORDER T H IS CAUSE comes before the Court on Plaintiff's Motion for Temporary R e s t r a in i n g Order and/or Preliminary Injunction. Doc. 4. Plaintiff certifies to the Court that, with the probably exception of the International Association of Athletics Federations, all D e fend ants have been served or will be served today with copies of the complaint and the m o t i o n . Doc. 8. Case No. 3:08-cv-241/LAC/EMT T h e Court, having considered the pleadings and record in this case, and for good cause s h o w n , has determined that Plaintiff should be granted a Temporary Restraining Order as stated in this Order. P l a i n ti f f filed this action pursuant to Title III of the Americans with Disabilities Act o f 1990 (ADA) and Section 794 of the Rehabilitation Act of 1973, claiming that as one who s u f f e rs from the disability of attention deficit disorder, he is being wrongly excluded from p a r t ic i p a ti n g in upcoming Olympic athletic events. This Court finds that it has jurisdiction ove r the subject matter and the parties to this action. The Court has balanced the four factors appropriate for consideration of a temporary r e s tr a i n in g order. As with a preliminary injunction, a party seeking a temporary restraining o r d e r must establish: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if relief is not granted; (3) that the threatened injury outweighs any harm relief would inflict on the non-movant; and (4) that entry of relief would serve the pub lic interest. Siebert v. Allen, 506 F.3d 1047, 1049 (11th Cir. 2007) (citing Schiavo ex rel. S c h i n d l er v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005)). Further, a temporary r e s tr a i n in g order "is an extraordinary and drastic remedy that should not be granted unless t h e movant clearly carries its burden of persuasion on each of these prerequisites." Suntrust B a n k v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001) (citing Canal Auth. v. C a l l a w a y , 489 F.2d 567, 573 (5th Cir.1974)). The decision to grant or deny a temporary r e s tr a i n in g order "is within the sound discretion of the district court and will not be disturbed Case No. 3:08-cv-241/LAC/ EM T Page 2 of 7 a b s e n t a clear abuse of discretion." Int'l Cosmetics Exch., Inc. v. Gapardis Health & Beauty, I n c ., 303 F.3d 1242, 1246 (11th Cir. 2002) (quoting Palmer v. Braun, 287 F.3d 1325, 1329 (11 th Cir. 2002)) (internal quotation marks omitted). Based on the pleadings and the record in this case, the Court finds that Plaintiff has d e m o n s t r a te d a substantial likelihood of success on the merits of his case. Plaintiff, a r e n o w n e d Olympic athlete, challenges the fact that he is currently made to serve under a s u s p e n s io n from athletic competition at all public events sponsored or administrated by D e f e n d a n t s , which would include all Olympic and Olympic-qualifying events. The Olympicq u a l i fy in g events are scheduled to commence on June 27, 2008, with the Olympic Games to f o l l o w in August of 2008. The length of Plaintiff's suspension, four years, was based on the d e t e r m in a t i o n that he had committed a second violation of Defendants' "anti-doping" policy. P l a i n ti f f challenges the validity of his first violation, without which his current penalty would n o t have been enhanced, and would therefore have necessarily expired by this time.1 Wh ile Defendants have denied Plaintiff's challenges to his enhanced suspension, they h a v e done so with great tribulation and with clear recognition that "[i]f ever there were a While Plaintiff states that without the enhancement his suspension would end after two years, or on May 25, 2008, the Court notes that in what was apparently the last arbitration decision on the matter, Plaintiff's commencement date for the serving of his suspension on the second violation was changed from May 25 to July 25, 2006, apparently the date upon which "Mr. Justin Gatlin voluntarily accepted a provisional suspension." Doc. 5, ex. h. This decision would seem to have the practical effect of mooting this case since Plaintiff's two year sentence would expire after the conclusion of the Olympic trials and only two weeks before the commencement of the Olympic Games. However, given the scantness of the record as to this matter, the Court is not in a position to speculate as to whether this ruling is indeed in effect and whether this would moot the motion and the case. Further, even if this were the case, the Court would also be open to investigating the arbitrariness of the decision given that, as far as appearances go, the decision seems suspiciously designed to moot the very sort of legal action against Defendants that Plaintiff raises in this action. Case No. 3:08-cv-241/LAC/ EM T Page 3 of 7 1 l a c u n a in the rules, and a unique set of facts, this case should qualify." Doc. 5, ex. g at 40. I n a nutshell, Plaintiff's first violation occurred despite the fact that the substance found in Plaintiff's system was and is clearly recognized as proper for his diagnosed condition, a t t en t i o n deficit disorder, and that by all accounts, it is undisputed that Plaintiff completely f o l l o w e d the protocol established at the time for managing his intake of medication before c o m p e t i n g . Thus, while Plaintiff tested positive for the substance, all those involved at the t im e concluded that Plaintiff at most had committed a technical or "paperwork" violation, t h a t he had neither cheated nor intended to cheat by taking his medication according to the pro per regimen, and that Plaintiff simply was not at fault. This is important because, without a finding of fault on this first violation, Plaintiff wo uld not be subject to an enhanced penalty under the current rules. However, because at t h e time of Plaintiff's first violation the rules did not require a formal determination of w h e t h e r an athlete was at fault, no such determination was ever made.2 Defendants, in c o n s i d e ri n g the second violation, nonetheless maintain that they cannot revisit the first v i o l a ti o n and formally determine that Plaintiff was not at fault. In what can only be c h a r a c te r i z ed as a procedural mire, Defendants suggest that Plaintiff may try yet another r o u n d of administrative appeals to the discretion of the various Defendant agencies in an a t t em p t to gain a beneficial ruling in this regard. Also, because Plaintiff was subsequently "reinstated" after his first violation, which lifted his suspension so that he could resume competition, this apparently resulted in less incentive to all concerned to pursue the "fault" issue any further. Case No. 3:08-cv-241/LAC/ EM T Page 4 of 7 2 In the midst of this intractable situation, it is abundantly clear that, if anyone were to actua lly deal with the facts of this case head-on, they would readily conclude, formally, that Plaintif f was not at fault for the first violation, and would as a consequence end his s u s p e n s io n immediately. The only obstacle to this result appears to be a "musical chairs" s i tu a t i o n in which nobody appears willing to take that step. In addition to the substantial likelihood that Plaintiff would succeed on the merits of his case, the Court finds that irreparable injury would result were Plaintiff not to be granted r e l ie f . Time is obviously of the essence in this case as Plaintiff will be unable to compete in t h e Olympic trials and will therefore lose his chance to participate in this year's Olympic G a m e s unless Defendants are enjoined from enforcing his suspension. Given this, the b a l a n c e of harm weighs in Plaintiff's favor as there is little to perceive in the way of harm to Defendants should Plaintiff be allowed to participate in the trials. Finally, it is evident that t h e public interest would be served since otherwise the country, indeed the world, would be w r o ng f ul ly excluded from watching one of its great athletes perform. Fi na lly, the Court henceforth issues this Temporary Restraining Order because time is clearly of the essence in this case, and preparations needed to carry out this Order are likely s i g n i f icant. This Order issues with the understanding that, as per Rule 65 of the Federal R u l e s of Civil Procedure, all parties will have an opportunity to be heard at the hearing on Pla intif f's M otio n for Preliminary Injunction as scheduled herein. Case No. 3:08-cv-241/LAC/ EM T Page 5 of 7 Th eref ore , IT IS HEREBY ORDERED as follows: 1. P l a i n t i f f Justin Gatlin's Motion for Temporary Restraining Order and/or Preliminary Injunction (doc. 4) is GRANTED to the extent that a Temporary Restraining Or der is issued as stated herein. 2. De fend ants United States Anti-Doping Agency, Inc.; United States Track and Field Association; United States Olympic Committee, Inc.; and International Association of A t h l e t ic s Federations, together with their agents, servants, employees and attorneys, and all p e r s o n s in active concert and participation with them, shall be and they are each temporarily r e s tr a i n e d from enforcing the current suspension from athletic competition against Plaintiff Justin Gatlin or from otherwise using the suspension to prevent Plaintiff from participating i n the Olympic trials commencing June 27, 2008, as referenced in the motion. 3. T h e Court has further considered the pleadings and the record in this case and c o n c l u d e s that there is presently no need for security under Fed.R.Civ.P. 65(c) in any amount. 4. This Order shall remain in full force and effect for TEN (10) DAYS unless this Co urt specifically orders otherwise. 5. A hearing on Plaintiff's Motion for Preliminary Injunction is hereby set for M O N D A Y , JUNE 23rd, 2008, at 8:30 A.M., in Courtroom Four South, United States Co urth ous e, One North Palafox Street, Pensacola, Florida. Case No. 3:08-cv-241/LAC/ EM T Page 6 of 7 6. P l a i n ti f f shall immediately serve Defendants, their agent(s), or their counsel with a copy of this Order and all relevant documents, and within twenty-four hours shall c e r t if y to the Court that he has done so. En tered this 20th day of June, 2008, at 2:00 p.m.. IT IS SO ORDERED. s/L.A. Collier Lacey A. Collier S e n i o r United States District Judge Case No. 3:08-cv-241/LAC/ EM T Page 7 of 7

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