Filing 36

ORDER - 1) The #4 Motion for TRO entered by the Court on 6/20/2008, is hereby DISSOLVED and VACATED. 2) Pltf JUSTIN GATLIN's #4 Motion for Preliminary Injunction is DENIED. Signed by SENIOR JUDGE LACEY A COLLIER on 7/24/2008. (laj)

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G A T L I N v. UNITED STATES ANTI-DOPING AGENCY INC D o c . 36 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. By Order dated June 20, 2008, the Cou rt granted the motion to the extent that it issued a Temporary Restraining Order p r e v e n t in g Defendants from enforcing the current suspension from competition such that P l a i n ti f f would be allowed to participate in the Olympic trials commencing June 27, 2008. O n June 23, 2008, the Court held a hearing on the motion, wherein all parties appeared Case No. 3:08-cv-241/LAC/EMT e x c e p t the Defendant International Association of Athletics Federations (IAAF). Upon due c o n s i d e ra t i o n of the pleadings and the record in this case, the Court has determined that for j u r is d i c ti o n a l reasons the motion for Preliminary Injunction is due to be denied. " A federal court not only has the power but also the obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises." Sammie Bo nne r Const. Co., Inc. v. Western Star Trucks Sales, Inc., 330 F.3d 1308, 1311 (11th Cir. 2 0 0 3 ) (quoting Fitzgerald v. Seaboard System R.R. Inc., 760 F.2d 1249, 1251 (11th Cir. 198 5)). Under the Ted Stevens Olympic and Amateur Sports Act (Amateur Sports Act), Congress provided the United States Olympic Committee (USOC) with exclusive jurisdiction o v e r all matters concerning this country's participation in the Olympic Games. See 36 U.S.C. 220503(3). As courts have indeed held, issues regarding whether an athlete is eligible to particip ate in the Olympic Games or any of its qualifying events are reserved solely for the U S O C , and the courts have no jurisdiction to entertain a private right of action that might i m p i n g e upon an eligibility determination. See Slaney v. The Intern. Amateur Athletic F e d e r a t i o n , 244 F.3d 580, 594-595 (7th Cir. 2001); Lee v. U.S. Taekwondo Union, 331 F . S u p p . 2d 1252, 1256-1257 (D. Haw. 2004). Because Plaintiff's motion seeks preliminary r e l ie f which is directly aimed at lifting his current suspension in order to allow him to particip ate in the upcoming Olympic trials, the Court is preempted from taking jurisdiction ove r the matter. Case No. 3:08-cv-241/LAC/ EM T Page 2 of 7 Plain tiff's course of administrative remedies resulted in arbitration before the interna tionally based Court for Arbitration for Sport (CAS), which might arguably take this c a s e beyond the reach of the Amateur Sports Act, but it does not change the result. 1 Pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral A w a r d s , ("New York Convention"), claims that have been properly submitted to arbitration a n d ruled upon by entities such as CAS are barred from relitigation in this forum. See 9 U . S. C . 201-08; Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 143 4, 1440-44 (11th Cir. 1998). It is beyond dispute that Plaintiff properly challenged his suspension on grounds that D e f e n d a n t s ' actions violated his rights under the Americans with Disabilities Act and the R e h a b i l it a t io n Act of 1973, the very grounds he raises in this motion. As these matters have b e e n decided, Plaintiff is precluded from raising them here unless he can show that the CAS d e c i s io n falls within one of the identified exceptions. While Plaintiff makes no attempt in this regard, the Court notes that the only conceivable exception is where enforcement of the award would be contrary to public policy. See Industrial Risk, 141 F.3d at 1442 n.8. This, how ever, is a very slender exception reserved for decisions which violate the "most basic n o t i o n s of morality and justice . . . ." Slaney, 244 F.3d at 593 (quoting In Fotochrome, Inc. v . Copal Co., 517 F.2d 512, 516 (2d Cir. 1975)). Decisions found to be "arbitrary and This remains a somewhat debatable proposition because, even if Plaintiff were to be successful in vacating the CAS decision, he would still be faced with the prospect of petitioning the USOC to overturn its own decision as to his eligibility to compete (if it did not do so itself), which as has been established is beyond the jurisdiction of the Court. Case No. 3:08-cv-241/LAC/ EM T Page 3 of 7 1 c a p r i c i o u s " do not qualify under this exception. See Industrial Risk, 141 F.3d at 1443. A l t h o u g h as expressed herein and in the previous Order, the Court takes exception to the d e c i s io n s made by Defendants and the panels sitting in arbitration over this matter, and i n d e e d finds their actions to be arbitrary and capricious, the Court does not find these wrongs to rise to the level of moral repugnance as is required under the law for the Court to consider p i e r c in g the veil of the jurisdictional issue. It appears, as Defendants indicate, that Plaintiff's r e m a i n in g avenue for relief lies with the Swiss Supreme Court, which may in its discretion e l e c t to review the case. N o n e t h e l e s s , the result of this determination is quite troubling because M r. Gatlin is b e i n g wronged, and the United States Courts have no power to right the wrong perpetrated u p o n one of its citizens. As the United States Anti-Doping Agency (USADA), stipulated before the American Arbitration Association Panel (AAA) during its hearing on the 2001 test r e s u lt that forms the basis of Plaintiff's motion: Mr. Gatlin neither cheated nor intended to cheat. He did not i n t e n d to enhance his performance nor, given his medical c o n d i t io n , did his medication in fact enhance his performance. Do c. 5, ex. g at 11. The 2001 AAA Panel also observed: This Panel would characterize Mr. Gatlin's inadvertent violation o f the IAAF's rules based on uncontested facts as, at most, a "tec hni cal" or a "paperwork" violation." Case No. 3:08-cv-241/LAC/ EM T Page 4 of 7 I d . at 12. In 2006, the AAA Panel again reviewed the circumstances of the 2001 positive test a n d found: T u r n i n g to the 2001 doping violation by Mr. Gatlin, there ap p ears to be no question that he had a legal right to take the p r e s c ri p t io n medication that caused his first violation, he was appr opriate ly taking that prescription medicine to treat a prop erly diagnosed disability, and taking the medication outside o f competition was not a violation of the IAAF Code in 2001, n o r is it a violation now. I d . at 19. Y e t Mr. Gatlin was and is still being sanctioned because of this "paperwork" violation w h i c h , as stipulated, did not enhance his performance. Nonetheless, the USOC argued before this Court that the Committee stands apart from the actions of USADA, and neither c a n it or will it take action even in the face of this injustice. The basic argument from these De fend ants is that they are not interested in fairness for Mr. Gatlin; they are interested only in their rules. As stated by Mr. Christopher L. Campbell dissenting from the opinion of the 2006 AA A Panel: B y imposing sanctions on athletes like Mr. Gatlin who take m e d i c a t io n for their legitimate disability, the Anti-Doping O r g a n i z a ti o n s are willfully violating the law--behaving as if t h e y are above the law. In these circumstances, they are nothing mo re than bullies preying on the vulnerable. The federal g o v e r n m e n t should take a serious look at this practice. D o c . 5, ex. j at 1. Case No. 3:08-cv-241/LAC/ EM T Page 5 of 7 T h e defendants have threatened to appeal the orders of this Court. To assist any r e v i e w under the time constraints this case presents, the following is offered. Should the appe llate panel find that this Court does have jurisdiction, this Court would grant a preliminary injunction lifting the suspension of Mr. Gatlin based upon a continuing violation o f The Americans With Disabilities Act (ADA). The Court would find: 1. Mr. Gatlin suffers from a mental impairment that subs tantially limits one of the major life activities, learnin g; T h e USOC, USATF and the IAAF operate a place of p u b l i c accommodations; T h e s e defendants took adverse action against Mr. Gatlin in 2001 based on his disability and continue to do so; and R e a s o n a b l e accommodations have not been made. 2. 3. 4. A s a result, Mr. Gatlin's positive test in 2006 would be considered his first offense r e s u lt i n g in a maximum two year suspension from competition. Question would then arise a s to when the suspension began. The rule on the commencement of ineligibility period r e a d s in part: "Where required by fairness, such as delays in . . . aspects of Doping Control n o t attributable to the Athlete, the body imposing the sanction may start the period of Ineligib ility at an earlier date commencing as early as the date of Sample collection." Doc. 5 , ex. g at 15. The 2006 AAA Panel found that "there was an unusually long period of time betw een test and notification" clearly not attributable to Mr. Gatlin. Id. at 36. This matter w a s carefully considered by the Panel and they determined in fairness to begin the suspension Case No. 3:08-cv-241/LAC/ EM T Page 6 of 7 o n May 25, 2006. Of note, this date was between the dates proposed by Mr. Gatlin (April 22, 2006) and the USADA (August 15, 2006). Although the start date was later changed by the Court of Arbitration for Sport (CAS) w i t h o u t explanation, this Court would find the start of a two year suspension to be on May 2 5 , 2006, as did the 2006 AAA Panel, and that it would end on May 24, 2008. This Court would then find: (1) a substantial likelihood of success on the merits; (2) t h a t irreparable injury will be suffered by M r. Gatlin if relief is not granted: (3) that the t h r e a te n e d injury dramatically outweighs any harm relief would inflict on the defendants; and (4) that entry of relief would serve the public interest. Ac cor din gly, IT IS HEREBY ORDERED as follows: 1. T h e Temporary Restraining Order entered by the Court on June 20, 2008, is her eby DISSOLVED and VACATED. 2. P lain tiff Justin Gatlin's Motion for Preliminary Injunction (doc. 4) is DENIED. E N T E R E D this 24th day of June. 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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