Why Rule 45 should be thrown out
It's hard at times to focus on the fairness of the anti-doping adjudication process. After all the lame excuses, rationalizations and downright dishonesty we've heard from athletes who cheated, it's tempting to say they're getting the system they deserve no matter what inequities may exist.
That's a wrong-headed way to look at things, however. The upcoming Court of Arbitration for Sport ruling on the International Olympic Committee's Rule 45 is a case in point. If it's struck down, fairness will be the winner -- and isn't fairness supposed to be the bedrock ethic of competition?
CAS is expected to issue a decision on or before Sept. 30 in what is commonly referred to as "the LaShawn Merritt case," although that label is inaccurate. The track star is simply the most prominent U.S. athlete affected by the rule, which bars any athlete who receives a doping sanction of six months or more from competing in the next Olympic Games.
The U.S. Olympic Committee worked with the IOC to have the issue arbitrated in what USOC spokesman Patrick Sandusky described as a cooperative process despite the substantive disagreement between the two sides. A CAS panel heard arguments last month. The USOC was represented by Howard Jacobs, the lawyer who has defended many high-profile athletes in doping arbitrations, including Merritt, and by its own counsel.
The U.S. Anti-Doping Agency, joined by anti-doping bodies from Denmark, Norway, New Zealand, South Africa, Japan and the United Kingdom, backed the USOC's position in an amicus curiae or "friend of the court" brief. Various other entities, including the French and Swiss national anti-doping agencies and the Netherlands Olympic Committee, filed their own individual briefs in support of the USOC.
What's at stake and why does it matter?
A quick recap: Merritt is the 2008 Olympic champion in the 400-meter event. Late in 2009 and early in 2010, he tested positive out of competition on three different occasions for a banned steroid that, as he readily if sheepishly admitted, was contained in a penile enhancement product he bought at a convenience store. Merritt issued a statement saying he had been "foolish, immature and egotistical," and added, "Any penalty I may receive for my action will not overshadow the embarrassment and humiliation I feel." He was suspended for 21 months and began competing again this season.
At last month's world championships, Merritt was overtaken by Grenada's Kirani James in the 400 and finished second, then ran a thrilling anchor leg in the 4x400 relay, passing two other teams to win gold for the United States and reconfirming he is in the conversation for Olympic selection.
Except that right now, Rule 45 knocks him out of contention. Opponents point to several flaws in the rule:
• There is no appeals or waiver mechanism built into it.
• It paints inadvertent offenders like Merritt and intentional, unconfessed dopers with the same brush.
• Most importantly, it contradicts the sanctioning guidelines spelled out in the World Anti-Doping Agency code that all signatories are supposed to live by.
The IOC, on the other hand, views Rule 45 as an eligibility issue and the Games as an invitation-only event where inclusion is a privilege, not a right.
Over the past few years, a number of countries have tried to layer their own restrictions on top of the WADA rules. Perhaps the best-known is the British Olympic Association's lifetime ban for any athlete convicted of a doping offense. It's unclear whether a CAS ruling that knocked down Rule 45 would force a repeal or prompt re-examination of such sanctions. The way it's written will probably dictate that.
Rule 45 is a theatrical get-tough doping statement that won't deter any athlete who has already weighed the risk/reward ratio of cheating and opted for the dark side. The rule has the effect of negating the generally thorough and nuanced work of the arbitrators who impose sanctions, and its impact from a timing standpoint is ludicrous.
If an athlete happens to be busted at a certain point in the four-year Olympic cycle, his or her extra double-jeopardy suspension might add up to a matter of weeks. Had the rule been applied to swimmer Jessica Hardy, suspended one year for unknowingly ingesting a tainted supplement, it would have robbed her of the ability to compete in the Olympics three years after being eligible to race again.
Last spring, the IOC exempted Hardy from Rule 45, stating that since it was passed three days before her 2008 infraction, she couldn't have known about it. This was absolutely the correct outcome for Hardy, but the reasoning seemed bizarre: Is a rule only a rule when it's embedded in someone's consciousness? Would a cop stop writing a ticket because a driver was unaware of a recent change in the speed limit? It isn't provable, of course, but the waiver smacks of the IOC realizing it had an indefensible position and trying to wriggle free.
Any reasonable adjudication process distinguishes between individual cases, leaves room for argument and has at least some potential to protect law-abiders and bring about positive change. Strike three. Rule 45 should be out.
Bonnie D. Ford covers Olympic sports for ESPN.com. She can be reached at firstname.lastname@example.org.
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