Rule 45 breached athletes' rights

October, 6, 2011
10/06/11
11:17
AM ET
A Court of Arbitration for Sport panel unanimously agreed that the International Olympic Committee must rescind Rule 45, the misguided attempt to layer additional sanctions on top of the World Anti-Doping Agency code. It boiled down, as many things do these days, to a contract matter. The WADA code is “a contractual agreement binding its signatories in accordance with private international law,’’ the arbitrators wrote, and the IOC is “bound by contract to comply with its terms.’’

I recently laid out the case against the rule -- which banned any athlete who served a doping suspension of more than six months from the next Olympic Games -- here. This is the right outcome for the dozens of Olympic-caliber athletes around the world who would have been affected in the near and far future, including LaShawn Merritt, the American 400-meter specialist whose case provided the impetus for the U.S. Olympic Committee to seek a ruling.
[+] EnlargeLaShawn Merritt
Andreas Solaro/AFP/Getty ImagesLaShawn Merritt will now have a chance to compete at the 2012 Olympic Games in London.

It remains to be seen whether the British Olympic Association will dig in its heels and try to prop up its own lifetime ban for athletes with past doping suspensions. Personally, I find it bizarre that Great Britain is happy to allow cyclist David Millar (a Scot, to be precise) to ride in the world championships but not the Olympic Games. Millar finished seventh in the time trial and was part of the platoon that helped Mark Cavendish win a gold medal at worlds last month. The distinction between his service to his nation in that event and his potential participation in London next year eludes me.

Millar has previously said he had no taste for a legal appeal, but perhaps he won’t have to go to that length now. Thursday morning, he composed an emailed statement. It read, in part:

We no longer live in a sporting world where we are governed independently by regional or national bodies, sport is now competed on an international stage bigger than ever before and for that reason needs to be governed by international all-encompassing rules.

… Whatever the sport may be, from playing with a ball on a pitch, running in lanes on a track, or even racing bicycles through our city streets, each competitor should be subject to the same rules. This is not to help the person who cheats or errs, it is there to protect the athletes who respect the rules. Each time those athletes step into competition they need to know that everybody they compete against is held accountable to one code.

Every doping case is different, as is every human being, we must not forget this. We expect fairness to be an integral part of the sports we watch, and yet fairness can be hard to find in the punishments of those athletes who make mistakes. A lifetime ban for a first offence does not encourage rehabilitation nor education, two things that are necessary for the future prevention of doping in sport.

I hope this decision will pave the way for the development of global sports, and to creating a system that all athletes and sports fans can understand and believe in.

The most obvious reasons to oppose Rule 45 were the legal principle of double jeopardy and the contradiction with the WADA code, which was written to eliminate inconsistencies in doping adjudication and punishment between nations and sports. It isn’t a perfect document in theory or practice, but the IOC signed it and needs to respect it.

However, there’s still an odd-bedfellows aspect to the notion that U.S. sporting and anti-doping officials would argue against harsher sanctions. USOC CEO Scott Blackmun issued a low-key statement reiterating that what that body sought was clarity. Rule 45 was about to have a domino effect that would have been impossible to manage -- how could the U.S. have kept an athlete like Merritt from competing in the Olympic Trials in his sport if he met eligibility standards in every other way? Thankfully, that scenario is moot now.

On the enforcement end, the brief filed by the U.S. Anti-Doping Agency (and joined by similar bodies from Denmark, Norway, New Zealand, Japan, South Africa and, yes, the United Kingdom) offers insight into some unintended and unwanted consequences of Rule 45.

Early on, the brief states that Rule 45 “actually hinders rather than aids the fight against doping.’’ How so? First and foremost, it could result in more lenient penalties. In cases where there’s wiggle room, hearing panelists -- whether they're independent arbitrators as they are in the United States or from national or international federations as they are in many other countries -- could be tempted to limit sanctions to six months to ensure a star athlete could compete in the next Olympics.

The brief went on to theorize that Rule 45 could dampen the chances of guilty athletes accepting suspensions without a fight (have we mentioned those fights cost a lot of money?) or on athletes providing information on other users or suppliers. That reluctance might deepen early in a four-year Olympic cycle, since Rule 45 extended suspensions arbitrarily, sometimes by a few months, sometimes by years.

The issue of additional Olympic bans could come up in the next regular WADA code revision, which would go into effect in 2013. My guess is that the same rationale expressed in the CAS ruling would apply, and the idea won’t get off the ground. The IOC, which expressed “disappointment” at Thursday’s ruling, will have to accept the concept that athletes are entitled to come back after serving their time.
Bonnie D. Ford covers Olympic sports for ESPN.com.

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