CAS Got It Right – No Double Jeopardy for the Olympics

While the sport of track and field constantly seems intent on shooting itself in the foot, yesterday the Court of Arbitration in Sport issued a ruling that should help the sport in spite of itself.

The CAS ruling over turns the following IOC Regulation that was instituted on June 27, 2008:

“The IOC Executive Board, in accordance with Rule 19.2.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

1. 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.

2. 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”.

Basically stating that an individual that has served an anti-doping ban of six months or greater is ineligible to participate in the following Olympic Games. I have felt from the beginning that this constitutes a form of Double Jeopardy – that the athlete is being punished twice for the same offense – which, at least under U.S. law is not allowed.

While the IOC has argued that this regulation does not impose an additional “ban/suspension” but is instead a “condition of eligibility” for the Olympic Games, CAS saw differently. In rendering its decision CAS stated:

8.24 – The IOC Regulation provides for an additional disciplinary sanction (as characterized by the Panel in Part 8(ii) above) after the ineligibility sanction for an anti-doping rule violation under the WADA Code has been served. The Regulation thus provides for a period of ineligibility (non-participation) that is not provided for under Article 10 of the WADA Code. In so doing, the IOC Regulation constitutes a substantive change to the WADA Code, which the IOC has contractually committed itself not to do and which is prohibited by Article 23.2.2 WADA Code.

Interpretation: that the IOC regulation is indeed an additional suspension that is in violation of World Anti-Doping rules!

The immediate results of the ruling is that it will allow LaShawm Merritt to defend his Olympic title in London – should he make the U.S. team which IS a valid condition of participation in the Games. It also opens up the door for Dwain Chambers to challenge his imminent omission from the Olympic Games by the British Olympic Association, as they have taken a position of banning British Athletes from participation in the Olympic Games if they have served past doping suspensions. Chambers may find himself still barred from participation however, as the Olympic Charter allows for each National Olympic Committee to set its own rules as to how it selects its Olympic team. Something to watch as the calendar turns to 2012 – especially given that the Games will be held in Britain.

More long term, however, I would hope that this would bring the IAAF to the table with meet promoters to discuss the Double Jeopardy that meet promoters have placed athletes under with respect to participation in the larger meets “post doping suspension”. Just as myself and many others find it sad that the IAAF limits the ability of athletes to market themselves in pursuit of earning a living – via the ruling that disallows the placement of advertising on athletes uniforms – it is also sad, in my opinion, that athletes may also be precluded from earning lanes, and money in the better meets because of past suspensions.

IF it is the feeling of the sport that those that receive suspensions should no longer participate, then the sport should go to life time bans! If an athlete is not receiving of a lifetime ban however, then punishment received via WADA levied sanctions should be considered fair and substantial punishment. The idea of contracting with a Third Party to both test and levy sanctions in the event of positive tests is to take ANY partiality that either the federations or the governing body (IAAF) may have in the matter. It is not up to the sport to decide “winners and losers” in this regard, nor to exact additional punishments based upon the “feelings” or “partialities” of any of the parties involved in the sport – local federations, anti-doping agencies, governing body personnel, meet promoters or any others associated with the sport that may have vested interests. This serves to protect both the integrity of the sport, unless usurped, as well as the best interests of the athletes.

I know that many feel that “lifetime” bans are what is needed to “clean up” the sport. Understanding that “lifetime” bans would almost certainly require adherence to some sort of “strict liability” rules, this past World Championships could have been without: Yohan Blake, LaShawn Merritt, Shelly Ann Fraser Pryce, Christine Uhuruogu, Dwain Chambers, Justin Gatlin, and Daniel Bailey, among others. If you can live with that, fine, if not perhaps the cry for “lifetime” bans needs a bit more thought.

Personally I could go with “lifetime” bans IF the sport provides transparency in its anti-doping program to ensure that the athletes have adequate representation/protection AND that a proper drug testing program is FULLY implemented – blood testing in conjunction with blood passports for ALL athletes – run through WADA without outside interference. Something I will be discussing in greater detail during the off season.

Today, however, I applaud the CAS decision as it is a good first step in bringing some order to the anti-doping movement.