A decision of the Court of Arbitration for Sport (CAS) has thrown into question the conservative stance of the British Olympic Association, which forbids athletes that have been found to have ‘doped’ from competing in the Olympics.
The International Olympic Committee (IOC) introduced a rule in Japan on 27 June 2008 known as the ‘Osaka rule’ which prevented athletes sanctioned with a six month or more punishment for doping from competing in the next Olympic games.
The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:
Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.
The United States Olympic Committee (USOC) v International Olympic Committee (IOC) CAS 2011/O/2422 brought the validity and enforceability of the Osaka rule into question. One of the affected athletes, LaShawn Merritt, argued that the additional ban is unfair for two main reasons: because it violates the principle of double jeopardy, and because the imposition of an additional doping sanction was in contravention of the World Anti-Doping Agency (WADA) Code.
The IOC Olympic Charter Rule 43 states:
The World Anti-Doping Code is mandatory for the whole Olympic Movement.
The World Anti-Doping Code Article 10 considers ineligibility to be a sanction. Therefore, because the Osaka rule increased the period of ineligibility for the original doping violation (between six months and two years) to the number of days until the next Olympics Games, the IOC was not in compliance with the WADA Code and the rule had to be invalidated.
In contrast, Britain’s conservative stance prohibits athletes who have committed anti-doping rule violations from ever being selected for competition in the Olympics. This can be found at British Olympic Association (BOA) Bylaw 25, which states:
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.
WADA recently determined that the BOA, by law, violates the World Anti-Doping Code. WADA released a statement on December 13 2011 regarding the BOA’s impending challenge to WADA’s determination:
The World Anti-Doping Agency has noted the announcement of the British Olympic Association to lodge an appeal to the Court of Arbitration for Sport (CAS) against the decision taken by the WADA Foundation Board last month that declared the BOA non-compliant to the World Anti-Doping Code.
Like all signatories to the Code, the BOA has the right to appeal the decision of the WADA Foundation Board under article 13.5 of the Code.
WADA has received formal notification and the statement of appeal in this matter. As with all cases, and adhering to the proper and normal respect for the integrity of the legal process, WADA will refrain from commenting further until the appeal has been completed and a decision rendered by CAS.
The CAS panel left it open to WADA and the IOC to determine whether additional sanctions would occur in the future, but any new rule would need to be incorporated into Article 10 of the WADA Code when it next came to be reviewed.
The conflict between the BOA and WADA highlights an important issue in the field of sports law – how far should sporting governing bodies go to remove doping?
It can be seen from the recent decision that WADA’s view is that dopers should be punished for their misdeeds, but that such doping should not prevent them in the future from cleaning themselves up and representing their country once they have served their punishment. The BOA’s rigid approach demonstrates an uncompromising position towards doping. In laymans terms, ‘once a cheater, always a cheater’.
The BOA does not want to enable athletes that have taken shortcuts to success to represent their nation in the pinnacle of athletic sporting events. An issue raised by the USOC appeal is that once an athlete has been punished for doping, and they have served their punishment, shouldn’t they be allowed to compete again? The BOA, understandably, says not.
Rehabilitation is an important legal principle in sentencing those who have done wrong. If the rehabilitation principle is important, and it is used in terms of criminal behaviour, then surely it should also apply to lesser forms of wrongdoing. This would include doping in sport. It is acceptable for British athletes that have doped to re-enter athletic competition and compete at every level but not the Olympic level.
Selectively choosing which competitions the rehabilitation principle applies to suggests that the BOA’s approach is wrong on a fundamental level. It is punishment for punishment’s sake.