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Drug cheats set for Olympics reprieve

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David Bond | 15:49 UK time, Thursday, 6 October 2011

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?

Comments

  • Comment number 1.

    Personally, if I got a ban through taking a "male enhancement' product I would never want to show my face again...

  • Comment number 2.

    If you've 'done the crime and served the time' then you should be able to compete at the highest level of any sport but on condition that if you fail or miss a drug test again then you will never compete anywhere in the world of sport again. If the BOA are saying that atheletes are 'ambassadors' for their country in sport and should be perfectly clean, what are the BOA going to do when 'time-served' atheletes from other country's turn up for the 2012 Olympics next year? Say 'you cant compete here because you took drugs and we dont allow ours to come back and compete so you cant.' I know that its up to other nations to decide who to select and so on and some of them will be drug-cheats, caught or yet to be caught, but there has to be a level playing field the world round without country opting out here there and everywhere. If GB ahteletics were a major force in world atheletics then I could understand, to a point, the stance of the BOA but we need every top-class athelete we can get. We have a few major 'players' in track & field but the rest are there to make up numbers, as we have seen time and again. I hope Chambers and Davd Millar take on the ruling by the BOA and win because then we might have an outside chance of a couple of medals.

  • Comment number 3.

    2: So you want an olympics to see which country has the best drugs. Brilliant.

  • Comment number 4.

    Why doesn't the BOA just not give visas to those who've failed tests?

  • Comment number 5.

    If he does manage to compete in London then those watching should show their disapproval. I've not heard of booing at an athletics event but this could be a perfect way to show watch Britain thinks of cheats.

  • Comment number 6.

    #4 Absolutely brilliant suggestion. There must be a way in immigration law of refusing to admit people who have been banned as it is a criminal act of fraud.

    Please, the government, do something so that we don't have to have these people appearing at the olympics.

  • Comment number 7.

    i swear that this attitude has been around since the dawn of time.
    Eve eats the poisoned apple, Eve gets punished, does the snake who offered and persuaded her into having the apple get punished? Not a jot

    Tackle the people who are dishing out the drugs, not the athletes who through their own choice or by being persuaded are taking them. Its all very well saying just ban them all but this doesn't tackle the problem of the suppliers still being at large and probably most of the cheats are as well

  • Comment number 8.

    If the BOC want to stand by their ban of Chambers and Millar then they must ban all drug cheats by not allowing them to compete at 2012 and when the IOC take the Olympics away they can say they stood by their principles and we can all say well done. Is this going to happen.........don’t be silly of course it’s not they will be the two faced hypocrites we know they are by continuing to ban GB competitors and welcoming the other countries former drug cheats with open arms. The gold medal for biggest hypocrites goes to the BOC.

  • Comment number 9.

    I never understand the argument that the BOA should do away with it's ban simply to fall in line with other countries. Why should we abandon our principles just cos other countries do. If British athletes face stronger sanctions that actually makes me rather proud.

    2. Are you seriously suggesting that decisions should be based on whether individuals are potential medal winners? Your analysis is also incorrect - Chambers wouldn't even make the final let alone win.

  • Comment number 10.

    I am slightly less militant about people such as Christine Ohuruogu being banned for a missed test, however people like Millar and Chambers, who have admitted using performance enhancing drugs, should be banned from the Olympics. As for "I didn't know it was in the male enhancement product I bought" that is a complete load of crap. He is meant to be a professional athlete, surely the term "male enhancement" might suggest there is something in there that shouldn't be.

    We want clean sports.

  • Comment number 11.

    Very interesting to note the different approach of the BOA and USOC to banned athletes. We try to keep ours out of the Olympics - the Americans doing everything they can to get their athletes in.

  • Comment number 12.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • Comment number 13.

    Why give people doubts over the validity of results in athletes by allowing drug cheats back in?

    They know the risks and should be made to pay for their crimes.

    I wonder if this guy hadn't been from one of the most powerful nations in the world (not just in sport) he'd still be allowed to compete?

  • Comment number 14.

    By cheating, these athletes knowingly denied someone else a genuine (clean) chance at an Olympic medal and for that reason alone they should forfeit forever their chance to do the same!

  • Comment number 15.

    I feel like I've entered a Daily Mail forum!

    I struggle with the attitude of "I'm proud that we show no leniency towards drugs cheats", doesn't really show off the best attitude in the world. Someone like Chambers has admitted his mistakes, served his punishment, helped the authorities and now preaches about the dangers/perils of drugs use, yet still people call for him to be banned for ever from everything!

    What happened to one of the great British attributes of allowing someone to redeem their flaws in character/actions by doing things right?

    I know I'm not going to be popular, but hey ho! Just might be a bit more liberal than I thought I was! it is only sport (or entertainment at it's core) after all!

  • Comment number 16.

    Firstly I am not a fan of drug cheats. However as with life in general, once you have served you time you are allowed back into society. These atheletes have served their doping bans, and therefore why shouldn't they be able to compete once again.
    At no point does no 2 state that taking drugs is a good thing. Also David Millar is about as good as ambassador for clean sport that we have. Shunning him does no good whatsoever. Seriously most of of the comments on here are from people who seem to know nothing of sport or the people involved.

  • Comment number 17.

    Do you not think though that by missing a drug test Christine Ohuruogu had something to hide? Also I was under the impression it wasn't one missed test it was three (I could be wrong) and wasn't her excuse she didn't know what the time was?! Are we really expected to believe that a full grown adult woman who's probably had some sort of education can't tell the time?!

  • Comment number 18.

    Also i'm not condoning what either Millar or Chambers did and believe that had they not been caught they wouldn't have admitted it or spoken out in the way they have. They both now admit they were wrong and have since performed at the highest level without the use of drugs. No sport could ever claim to be completely clean and unfortunately this problem won't just go away but to stop someone competing that has already served a punishment seems a tad harsh.

  • Comment number 19.

    Although they may been caught and served their time, depending on the offence not all people are allowed to return to the profession they were once in so why should drug cheats be any different.

  • Comment number 20.

    Performance enhancing drugs change the shape and ability of the athletes muscles therefore giving them a unfair advantage throughout their careers and not just at the point at which they took the enhancement.

    Zero tolerance will ensure that honest atheletes get to compete fairly. It will not be perfect but it may persuade a few not to take the risk.

  • Comment number 21.

    if caught using banned drugs you should be banned not only from Oylmpics but all competitions .. you should never wear a GB vest again ...

  • Comment number 22.

    Two Olympics:
    1. Drug-Enhanced Olympics, no rules or regulations regarding athletic enhancing drugs.
    2. Non-Drug-Enhanced Olympics, clean and stays that way.

    People will cheat, since the dawn of games. Let's see them cheat against others that are good at it as well. Many of these elite athletes are not tested year-round (with the exception of the bikers, and maybe a handful of other events, swimming comes to mind). Trying to contain the source is impossible, and trying to suppress the pressure to win is impossible...

  • Comment number 23.

    Irrespective of whether the BOA describe it as part of their "selection criteria" or not, I find it hard to draw any conclusion other than their bye-law being a de facto ban and as such it will probably face the same fate before CAS. To my mind, that is no bad thing - much as I do not condone in any way what athletes such as Dwayne Chambers did, he has admitted his fault and served his official sentence (and, crucially, regained eligibility according to IOC guidelines). Continually barring him from the Olympics strikes me almost as being akin to double jeopardy, and also seems somewhat hypocritical in light of the fact that they'll happily let him represent Great Britain in every other athletics competition, including the World Championships, but not the Olympics. I'm not quite convinced by the logic in that one.

  • Comment number 24.

    Isn't using a legalised sports enhancing supplement and a an illegal one still cheating???

  • Comment number 25.

    fair play is a key British attribute, I am proud of our stance. Cheat,own up,serve two years is a policy for some athletes. Life time ban is right. BOA take a different approach to UKA hence world champs but not Olympics. Also no prize money at Olympics so removes restraint of trade challenge.

 

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