Drug cheats set for Olympics reprieve
There is no question that the decision by the Court of Arbitration for Sport (Cas) is a blow to the International Olympic Committee (IOC) and its president Jacques Rogge's zero tolerance approach towards doping.
Rogge championed the so-called Osaka rule, which banned athletes from competing in the first Olympics following conviction for drugs offences which carry a ban of at least six months.
On Thursday, that regulation - Rule 45 - was described by a three-man Cas panel as a violation of the IOC's own Olympic statutes and the World Anti-Doping Agency (Wada) code.
Accordingly, the panel found that Rule 45 was unenforceable. That clears the way for the man who challenged the rule - the American 400m Olympic champion LaShawn Merritt - to defend the title he won in Beijing at next year's Games in London.
Merritt is already running again, having served a 21-month ban for testing positive for a banned steroid.
He said he did not know that an over-the-counter male enhancement product he was taking contained the banned substance.
Merritt's return from suspension has been impressive, coming second in the 400m at last month's World Championships in Daegu, and he will be a contender for gold again in 2012.
Will the ruling allow previously banned athletes like Dwain Chambers to compete at London 2012. Photo: Getty
But the bigger question from Thursday's ruling is what does it mean for the British Olympic Association's (BOA) lifetime ban for serious drugs offenders?
Reading the Cas award, or judgment, it is clear that the IOC's argument failed because of a key legal principle, "ne bis in idem". This roughly translates as "not twice for the same". In other words, you cannot be punished twice for the same offence.
Because the IOC's statutes accept the binding nature of the Wada code, Rule 45 was considered a substantive change to that code. Had the IOC proposed an amendment to the Wada code that allowed for Olympic bans on top of other sanctions imposed for drugs offences, then it might not have violated its own statutes.
Put simply, the Cas panel is saying it is wrong for the IOC to create its own set of rules allowing for the punishment of doping offences when the IOC has already agreed to handle such offences in accordance with Wada's rules.
The IOC argued it could do this because its rule was a matter of eligibility and not a punishment. The IOC had the right, it said, to invite who it likes to compete in the Olympic Games. But Cas disagreed with this, saying the rule acted as a sanction.
Now, where does this leave the BOA? Like the IOC's Rule 45, its by-law is an eligibility issue. The BOA points to a distinction, though, arguing that it has the right to select who it wants to compete for Team GB at an Olympic Games.
It is not barring drugs cheats, simply not selecting them. This is an extremely nuanced point and it is possible that any court would view both the IOC and the BOA as having essentially the same effect.
In light of the CAS ruling, it does seem that the BOA law would now be vulnerable to a challenge. The second point - and this could become critical in any legal challenge - is whether that law complies with the Wada code.
The Cas ruling states clearly that the IOC rule was not compliant but the BOA says Wada approved its anti-doping regulations, including a section on the eligibility by-law, in March 2008.
I have obtained a copy of a letter from Wada's director of standards and harmonisation, Rune Andersen, and Emiliano Simonelli, senior manager of code compliance, to Lord Moynihan, the BOA chairman. In it, the Wada officials write:
"We have had an opportunity to review the rules... and we are pleased to inform you that the Rules are now in line with the 2009 World Anti-Doping Code."
Section 7 of the BOA's anti-doping laws do set out the by-law which states that "any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic team".
However, when I asked Wada on Thursday whether it had approved the BOA's rules, it made it clear it had indeed signed off on the BOA anti-doping rules but not their selection policy. Expect this to become a key argument.
The BOA's other line of defence is that it has an appeals mechanism. The vast majority of cases - 29 out of 32 - are successful and this, the BOA says, allows it to get around the issue of whether its lifetime ban is proportionate.
Banned athletes can appeal on the basis of mitigating circumstances or by arguing it was a minor offence. This way, the BOA argues, only the most serious offenders are barred from selection.
The Cas ruling makes no mention of appeals mechanisms and only refers to proportionality in passing. It is difficult to see what implications that might have for the BOA but the fact Cas has not spelled out the virtues of an appeals process cannot be helpful for the BOA.
All of this is largely academic, of course, unless someone actually mounts a legal challenge to the BOA by-law. So far, the two most high-profile British names barred from London 2012 - sprinter Dwain Chambers and cyclist David Millar - have not said what they are going to do.
If no-one takes the BOA on, then it will certainly not change the by-law voluntarily. But it is difficult to see it surviving long-term in the light of the Cas verdict.
Some may applaud that as a victory for common sense and fairness. But what sort of message will removing the BOA's by-law send to a movement that has been so badly tarnished by drugs?