By Sean Griffin on SwimSwam
The Enhanced Games, a startup promoting an Olympic-style event without drug testing, filed an $800 million antitrust lawsuit on Wednesday, accusing several organizations of orchestrating an unlawful effort to discourage athletes from participating.
Filed in federal court in New York, the lawsuit names World Aquatics, USA Swimming, and the World Anti-Doping Agency as defendants. The Enhanced Games is seeking financial damages and a court order to halt what it describes as a coordinated campaign to target the organization.
In a statement from The Associated Press, Enhanced Games President Aron D’Souza stated the lawsuit was not a “publicity stunt,” but rather an attempt to fix “the real damage that’s being done” to swimmers and other athletes who are being steered away from the Games.
“Until this issue is resolved, it’s causing irreparable harm to our ability to sign athletes,” D’Souza said. “Athletes who are both ‘natural’ and ‘enhanced’ can compete at the games. That’s part of the narrative that makes this interesting. Can a ‘natural’ athlete beat an ‘enhanced’ athlete?”
Legal cases involving national governing bodies like USA Swimming can become complicated because these organizations are federally authorized monopolies. Their special legal status often shields them from typical antitrust challenges, making it harder to argue that their actions—such as limiting athlete participation—are illegal.
The lawsuit stems from a new bylaw adopted by World Aquatics in June, which bars individuals participating in the Enhanced Games from any roles or positions in World Aquatics and World Aquatics competitions.
Read the bylaw here.While the bylaw doesn’t name the Enhanced Games specifically, the onset of the Enhanced Games has precipitated the action. The new bylaw was voted on by the Bureau and has already taken effect.
The organization, at the time, said that it will make decisions regarding eligibility on a case-by-case basis.
While the ban only applies to World Aquatics hosted meets (such as the World Championships or World Cup), the organization is “encouraging” its member federations to enact consistent policies for national meets.
The by-law is not limited to athletes who participate in these events, but also includes “relevant persons” who “participated (in any capacity) in such event or competition.’ That includes coaches, like the Games’ head coach Brett Hawke, trainers, managers, training partners, doctors, or physiotherapists.
Those individuals will not be accredited for any World Aquatics event or competition, which impacts Hawke as a coach but could also impact him in his role in the media, which has earned him accreditations to several World Aquatics events.
The by-law explicitly says that the ban can only be challenged to the Court of Arbitration for Sport (though that clause itself could, theoretically, be challenged). Past attempts at sanctions beyond the scope of the World Anti-Doping Code have been struck down by the CAS.
In May, WADA warned athletes of the potential rules they’ll violate if they choose to take part in the Enhanced Games, and also called on governments and law enforcement to investigate if athletes who admit to taking PEDs “may be in breach of criminal laws or professional rules” in their home countries or where they compete.
“WADA warns athletes and support personnel who wish to participate in sport regulated by the World Anti-Doping Code (Code), that if they were to take part in the Enhanced Games, they would risk committing anti-doping rule violations under the Code. They would also put their reputations on the line, as they would risk forever being associated with doping. To be clear, WADA will encourage Anti-Doping Organizations to test involved athletes before, during and after this event, in order to protect the integrity of legitimate sport. WADA will also work closely with its Athlete Council to ensure that athletes are fully informed of the risks,” they publicized.
WADA also called on “all governments and law enforcement agencies” to assess whether athletes who admit to taking performance-enhancing drugs – or the physicians who supply or administer those substances – may be in breach of criminal laws or professional rules, whether in their own countries or wherever the event takes place.
While USA Swimming has not issued any bans, the organization warned athletes in a May letter that both USADA and WADA were closely monitoring individuals affiliated with the Enhanced Games.
“Even if you are not personally engaged in doping, affiliation with the Enhanced Games could significantly affect your ability to participate in future competitions due to U.S. Anti-Doping Agency (“USADA”) and World Anti-Doping Agency (“WADA”) rules and regulations. Therefore, we feel it is important to remind you of the relevant rules and risks surrounding doping activities within the Olympic Movement.”
USA Swimming also specified that participating in the Enhanced Games is not currently a rule violation in-and-of itself.
“Please note that any involvement can lead to anti-doping rule violations, as there are rules prohibiting association with certain individuals serving a period of ineligibility for an anti-doping violation. If you are considering participating in the Enhanced Games in any capacity, whether as a coach, athlete, official, or support personnel, or even in a governance or business capacity, we urge you to carefully consider the serious impact an anti-doping violation could have on your livelihood, future career, and reputation within the sport and the Olympic Movement.”
The Enhanced Games are actively encouraging athletes to participate even if they don’t use performance-enhancing drugs, allowing them to take aim at the world record for a cash prize. D’Souza has said he will cover the legal fees for any clean athletes who participate in the Games and are then banned from mainstream competition.
Thus far, four high-profile swimmers have committed to the Games: three-time Olympic medalist and three-time world champion James Magnussen, world record holder and five-time European champion Andrii Govorov, Olympic finalist and European champion Kristian Gkolomeev, and 2013 world champion Megan Romano.
Read the full story on SwimSwam: Enhanced Games Files $800M Lawsuit Against World Aquatics, WADA, And USA Swimming
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