Athlete Failed To Exhaust Internal Remedies Before Seeking TRO

Oct 7, 2005

A federal judge in the District of Nebraska has denied an athlete’s motion for a temporary restraining order against the governing body of his sport, finding that he had not exhausted all internal remedies provided by the body to clear his name after testing positive for a prohibited substance.
Matt Mitten, the director of the National Sports Law Institute at Marquette University, noted that the finding was not surprising, since “courts are only going to intervene when there is threatened harm to the individual or the organization is not following its own procedures.”
He further theorized that the situation might have been different when the motion for a TRO was filed.
The plaintiff, Corey Gahan, is an accomplished roller skater, whose sport is governed by the United States Amateur Confederation of Roller Skating (The Confederation). Gahan was notified this summer that he had tested positive for a prohibited substance, a finding Gahan vehemently denied.
The Confederation maintains an appeals process involving a “confirmation” determination by the USADA Anti-Doping Review Board, followed by an arbitration hearing in the U.S. should an appealee request such a hearing after the review board’s determination.
The judge noted that counsel for the Confederation had represented that the “USADA Anti-Doping Review Board” will meet before Gahan’s competition; and an arbitration hearing in America will be held prior to the competition, should Gahan request such an arbitration, following the review board’s determination.
In his analysis, the judge noted that “the factors to be weighed in deciding whether to grant or deny preliminary injunctive relief, which I also apply to motions for temporary restraining orders, are:
(1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant;
(3) the probability that movant will succeed on the merits; and
(4) the public interest.
Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc).
“None of these factors favor Corey,” he wrote.
Specifically, the judge reasoned that the Confederation is subject to the USOC’s regulatory authority regarding the “’swift resolution of conflicts and disputes,’ such as the ‘doping’ dispute present in this case. Ted Stevens Olympic and Amateur Sports Act. 36 U.S.C. § 220521.
“As a result of the Act and related ‘due process’ procedures, the legal test for injunctive relief is very hard to meet. ‘Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly beached its own rules. That breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all internal remedies.’ Slaney v. The Int’l Amateur Athletic Fed’n, 244 F.3d 580, 595 (7th Cir. 2001) (quoting Harding v. United States Figure Skating Ass’n, 851 F. Supp. 1476, 1479 (D. Or. 1994), vacated on other grounds, 879 F. Supp. 1053 (D. Or. 1995)).
“Corey has not shown that the Confederation has clearly breached or clearly threatens to breach the rules. In fact, the contrary appears. The Confederation appears committed to following the rules to the letter of them. Corey has also failed to show that he has exhausted his internal remedies. Furthermore, Corey has failed to show that the review board process followed by an arbitration hearing is insufficient to protect his American rights, particularly given the fact that those proceedings can be concluded prior to Corey’s competition.”
Interestingly, the court noted that “the advanced state of technology throughout the world” makes it possible for Gahan to get a fair hearing, even thought he is in China. “I am confident that the arbitrator can deal effectively with time and distance concerns by using teleconferencing or videoconferencing devices should that become necessary,” he wrote.
This caught the eye of Mitten as well, who has written extensively on the intersection of drug testing and sports law. “This was one of the few times that a court has referenced technology, demonstrating a lot of faith that the appeal could be heard, even if the athlete is in China.
James Gahan, on behalf of Corey Gahan, a minor child v. U. S. Amateur Confederation Of Roller Skating, D/B/A USA Roller Sports; D. Neb.; Case No. 4:05CV3200; 8/18/05
Attorneys of Record: (for plaintiff) James B. Luers and Kevin L. Griess of Wolfe, Snowden Law Firm in Lincoln, NE. (for defendant) Adam J. Prochaska of Harding, Schultz Law Firm in Lincoln, NE.


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