UK: Will CAS Find Merritt In BOA Olympic Criteria?

Last Updated: 4 January 2012
Article by Paul Shapiro

In the last edition of The Score, we reported on the decision to ban LaShawn Merritt, the reigning Olympic 400m champion, for 2 years for testing positive for steroids, which he claimed was consumed through the use of a sexual enhancement drug. When London 2012 begins Merritt will have served his ban and on 4 October 2011, a Court of Arbitration for Sport ("CAS") panel ruled that Merritt can compete at these Games and in doing so declared that an International Olympic Committee ("IOC") by-law preventing him from competing was unenforceable.

There were two layers of anti-doping regulation at play in this case. Firstly, the World Anti-Doping Agency Code (the "Code") which is the core document for harmonised anti-doping policies globally. Secondly, the IOC's so called "Osaka Rule" which bans athletes sanctioned with a suspension of more than six months for a violation of any anti-doping regulation (including the Code) from competing at the following Olympics. The IOC passed this rule on the basis that it was not an anti-doping policy per se (as these would expressively have to conform to the Code) but a criterion chosen by the IOC relating to an athlete's eligibility to compete at the Olympics, much like an age restriction.

Eligibility criteria or a sanction?

The Merritt decision was reported in the press as a 'victory for drug cheats', but in reality it was a basic legal analysis of whether the Osaka Rule was a sanction or eligibility criteria, as the IOC had contended. The undertone of the IOC's submission also appeared to be that because the Olympics is a unique institution which has the enshrined principles in its Charter of 'creat[ing] a way of life based on the joy of effort, the educational value of good example and respect for universal fundamental ethical principles,' it merited different treatment from other sporting events. The IOC further argued that an athlete prevented from participating in the Olympics by virtue of the Osaka Rule may nevertheless take part in another athletic competition occurring concurrently.

The CAS panel rejected each of the IOC's submissions. In its view, it was perfectly clear that the Osaka Rule went much further than eligibility. Simply put, if you fell under its remit, you were prevented from competing and therefore faced sanction.

Double Jeopardy?

The next question the panel considered was whether Merritt was being punished twice. The principle of non bis in idem (essentially double jeopardy) states that a party cannot be tried and convicted twice for the same behaviour. Was this the case with Merritt?

As a signatory to the Code, the IOC is contractually bound to comply with its terms and must accept its mandatory parts without substantive change. The Osaka Rule provided for an additional disciplinary sanction and thus constituted a substantive change to the Code. Merritt was being punished under the Code and a second time by the Osaka Rule. The panel noted that the Olympics is the ultimate goal for many athletes and, having already served a period of suspension, the Osaka Rule has the effect of further penalising the athlete and extending the suspension.

The Merritt decision confirms the universality of the Code and removes the special status of the Olympics in this regard which seems appropriate for a modern, professional Olympics with a commercial programme commensurate to the World Cup and other major sporting events.

Future developments

The panel made it clear that there was nothing preventing the Osaka Rule being incorporated into the Code directly. In future, we would not be surprised to see proposals for an amendment to the Code along the same lines as the Osaka Rule. IOC president Jacques Rogge has indicated that he will lobby for exactly that, but with the Code next due to be reviewed in 2013, London 2012 may be the last Olympics where the Merritt decision has an impact.

Will we see Dwain Chambers at London 2012?

The British Olympic Association ("BOA") has its own set of by-laws which prevent drug offenders from being selected for the British team. In November 2011, WADA declared this BOA rule non-compliant with the Code. This left the BOA in a difficult state of limbo as, while WADA does not have jurisdiction to rule the bylaw invalid and enforce its removal, it would be embarrassing at the least for the BOA to be in an unresolved dispute with WADA over its compliance with the anti-doping code going into London 2012.

On 13 December 2011, the BOA announced that it has filed an application with CAS for a ruling on the by-law's compliance with the Code. It appears likely that the BOA will argue that the by-law does not relate to eligibility (as the Osaka Rule did) but to selection. Additionally, it can soften any restraint of trade argument by pointing to the availability of an appeals procedure, thus distinguishing it from the Merritt case.

Awaiting the decision are, of course, Dwain Chambers, and also David Millar, the former cycling world champion. Greco-Roman wrestling fans will also be waiting on tenterhooks to see if Balazs Kiss, the Hungarian wrestler, benefits from the CAS decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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