THE law is sometimes said to be an ass.
That’s certainly true this week in the case of sport’s final referee, the Court of Arbitration in Lausanne. CAS threw global anti-doping initiatives into disarray by ruling that Olympic legislation is illegal in excluding drug cheats from the next Games following conviction.
They said the International Olympic Committee’s stance was “invalid and unenforceable”, and so immediately compromised sanctions and eligibility issues from the IOC and World Anti-Doping Agency downward. It is also a body-blow to the British Olympic Association, and to UK Athletics.
According to Jacques Rogge, the IOC president: “Doping is one of the most serious threats the Olympic movement has ever seen. It undermines all we stand for. It endangers the health of athletes. It undermines the credibility of results. It risks drying out the recruitment of sport as, one day, parents might refuse to send their children to sports clubs.”
All undeniable. CAS has handed the forces of darkness a huge victory, one which may expose the BOA to challenge in British courts. Any number of lawyers would surely offer services pro bono, just for the profile it would win them.
David Millar, the Scottish cyclist, and sprinter Dwain Chambers are among those who may feel encouraged to challenge the BOA in court. There are any number of bleeding hearts pleading that their ilk have served their sentence and are rehabilitated. Yet no apologist can demonstrate that these athletes do not still benefit from the years of training during which they overloaded their system with banned substances. Honest competitors deserve protection.
A BOA bylaw excludes for life anyone who has served a doping penalty longer than six months, though their appeals procedure has granted more reinstatements than it has declined.
UKA yesterday said that they “operate within the rules of the sport”, but felt unable to comment on the CAS verdict. Hardly surprising. Their 2009 anti-doping review, conducted by Dame Tanni Grey-Thompson, was endorsed in its entirety by UKA’s management board. It pressed for a doubling of the current two-year doping suspension. UKA has a long-standing policy of excluding such athletes from its events – also endorsed by the management board. They would not comment yesterday on whether that policy might continue. Understandably, for it could now also be open to legal challenge, as we predicted more in early August.
In July, a court in the canton of Vaud upheld a restraint of trade complaint from French athlete Hind Dehiba. She is a convicted user of a blood-boosting agent, but the court ordered that she be invited to compete in Lausanne, capital of Vaud, seat of the IOC and perhaps more pertinently in this instance, of CAS.
They could hardly then be expected to defy Swiss law, and it was a no-brainer that CAS would rule in favour of LaShawn Merritt. The American Olympic and 2009 World 400m champion was seeking to compete in London, in defiance of the IOC exclusion clause. Merritt was convicted for steroid use (in a male-enhancement cream), but now will be eligible to stand up on the 2012 start line. It would be almost laughable were it not so deflating for the anti-doping lobby.
Hundreds of competitors worldwide (33 US track and field athletes alone) are now no longer ineligible for 2012.
CAS was established not least because of a belief in the integrity and impartiality of Swiss law, now shown to be flawed. However, if doping is the threat which Rogge believes, then he should take appropriate steps.
That might start by talking to the BOA, and with an investigation of how the UK legal system might view the matters shirked by the Swiss. We challenge Colin Moynihan, BOA chairman, to issue an invitation to Rogge.
That could pave the way to moving the IOC headquarters to a country prepared to uphold what is decent and appropriate in sport. UK courts have yet to insist that convicted paedophiles be allowed to continue working with children, or drink drivers to remain at the wheel. UK police and lawyers with dishonesty convictions lose their jobs, and professional bodies disbar offenders for all manner of offences. Drug cheats should be no different.
The BOA believes their bylaw – based on eligibility, making offenders unselectable – is lawful, consistent with UK and European competition legislation and restraint of trade and human rights law. Yet that all seems like semantics. If it’s not, all the IOC need do is ask every member nation to enact the same BOA bylaw. Then we will see who has the stomach to take a stance against drugs.
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