The Interplay Between Professional and Olympic Sports

Although the Modern Olympic Games have been held since 1896, it was only recently that professional athletes were permitted to participate in the Olympics. Until the late 1980s, in a futile effort to prevent professionalization of the Olympics, only “amateur” athletes were deemed eligible by the International Olympic Committee to compete in the Olympic Games. Since then, the international federation or governing body for each sport has had the authority to determine whether professional athletes may compete in the Olympics or other international sports competition under its auspices. In the 1992 Barcelona Olympics, with NBA players participating for the first time, the U.S. “Dream Team” won the gold medal in men’s basketball.

In the 21st century professional athletes’ participation in the Olympics is commonplace, and many sports are dominated by professionals. All members of the U.S. “Redeem Team” that are competing in the Beijing Olympics are NBA players, and most players on the women’s basketball team are on WNBA rosters. The best athletes competing in sports such as softball, beach volleyball, track and field, and tennis are professionals.

But a professional athlete’s ability to compete in the Olympics may be prohibited by contract with one’s employer or the sport’s governing body. A professional club may be reluctant to allow a player to participate in the Olympics because of the team’s current need for his services (if the season is on-going) or concern that the player may be injured.

In FC Barcelona/Schalke 04/Werder Bremen v FIFA, the CAS ruled that professional soccer clubs have no legal obligation to permit their players to compete for their respective home countries in the Beijing Olympics. On August 6th the CAS set aside a decision by FIFA, the international governing body for soccer, requiring professional soccer clubs to allow players under the age of 23 to participate in the Olympics. Thus far, there is no published arbitration award, but the CAS panel’s decision is summarized in a press release on the CAS website. The CAS rejected FIFA’s contention that it was mandatory for all clubs to do based on “a long lasting and undisputed practice which had become a customary law for the clubs.” It also concluded that the Beijing Olympics is not included in FIFA’s Coordinated Match Calendar and that its Executive Committee had not specifically determined that professional soccer clubs were obligated to release players under 23 for the Olympics. Thus, each soccer club has the legal right and discretion to decide whether to permit these players to participate in the Beijing Olympics. However, soccer players validly entered by their respective national Olympic committees before the CAS award are eligible to participate in the Olympics.

It is interesting to note the CAS’ post-award informal effort to mediate the parties’ dispute. Its press release states: “In view of FIFA’s recommendation made to the clubs to release their players as well as of the Olympic spirit, the CAS call upon the good will and good sense of FIFA and the clubs to find a reasonable solution with regard to players who wish to represent their country in the Olympic Games.” Unlike a court, the CAS is able to mediate sports-related disputes and issue advisory opinions if requested to do so.

The Olympics Games do not necessarily represent the pinnacle of international athletic competition for all Olympic sports. And certain professional soccer players are not the only elite, world-class athletes unable to participate in sports competition that is part of the Beijing Olympics. Although the WNBA season and AVP volleyball tour are suspended to enable WNBA and AVP players to participate in the Olympics, the Major League Baseball season continues, thereby preventing current MLB players from being Olympians.

On a different but related issue, it is important to note that all athletes participating in the Olympics, including U.S. professional team sport athletes, are subject to a drug testing regime based on the World Anti-doping Code, which is more stringent than the current drug testing programs established by collective bargaining between U.S. major professional leagues and the corresponding player unions. Although I certainly hope that no U.S. professional athlete (or any others) test positive for banned substances during the Beijing Olympics, the standard sanction for a positive test (which may be reduced or eliminated based on proven mitigating factors) is a two-year suspension from Olympic and international competition in the sport. One wonders how a U.S. professional athlete’s club, league, or governing body would respond if he or she tests positive for a banned substance and raises some interesting questions. For example, the NCAA does not permit a student-athlete to participate in intercollegiate athletics during the time he or she is banned from Olympic or international competition, although intercollegiate sports participation is permitted after the suspension ends if the student-athlete is otherwise eligible.