Scottish professional David Millar has welcomed today’s ruling against the International Olympic Committee’s Rule 45, which blocks athletes found guilty of doping from competing in the next Olympic Games after their ban ends, and said that it was time to harmonise rules across federations and countries.
While the Garmin-Cervélo pro is not affected directly by Rule 45, he is subject to a different type of Olympic ban as the British Olympic Association introduced a rule in 1992 stating that all sportspeople who were sanctioned for doping should face a lifetime suspension from the Games.
It is believed by some that today’s decision, which was the result of an appeal by the US Olympic Committee against the IOC’s ban on 2008 Olympic 400 metre gold medallist LaShawn Merritt, could leave the BOA’s lifetime sanction open to be contested.
Merritt tested positive three times during the winter of 2009/2010 for the steroid DHEA, claiming to have ingested it accidentally in what are somewhat bizarre circumstances. He was handed an 18 month ban and returned to competition in July.
Millar’s first reaction today was via his Twitter account, and while he didn’t refer to his Olympic ban, he welcomed the development. “CAS ruling on IOC Rule 45 a good thing for future of international sport. Only a matter of time till all countries respect WADA Code,” he wrote.
He later released a longer statement on the issue. Again, he didn’t comment directly on his own situation or indicate if he would try to get the green light to compete in next year’s London Olympics, but spoke in more general terms.
“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.
“We have a code that exists in world sport, it is called the WADA Code, it is constantly being revised in order to stay up to date with the latest anti-doping and judiciary developments. The WADA code sets the standard in sport and it is one that all national governing bodies should operate under.
“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.”
Wording of CAS ruling:
The CAS decision was in relation to Rule 45 but its broad terms could potentially leave room for an appeal on other Olympics-related bans. The ruling is as follows:
“Following the joint request for arbitration filed by the United States Olympic Committee (USOC) and the International Olympic Committee (IOC) with respect to the validity of the "Regulations Regarding Participation in the Olympic Games - Rule 45 of the Olympic Charter" (also known as the “Osaka Rule”), the Court of Arbitration for Sport (CAS) has issued the following decision :
“The IOC Executive Board’s June 27, 2008 decision prohibiting athletes who have been suspended for more than six months for an anti-doping rule violation from participating in the next Olympic Games following the expiration of their suspension is invalid and unenforceable.
“The CAS arbitral Panel, composed of Prof. Richard H. McLaren (Canada), President, Mr David W. Rivkin (USA) and Mr Michele Bernasconi (Switzerland), came to the conclusion that the “Osaka Rule” was more properly characterized as a disciplinary sanction condition of eligibility to compete in the Olympic Games. Such a disciplinary sanction is not in compliance with Article 23.2.2 of the World Anti-Doping Code (WADC), which provides that the Signatories of the Code may not introduce provisions that change the effect of periods of inielgibility provisions of the WADC, because it adds further ineligibility to the doping sanction after that sanction has been served. The Panel further held that, because the IOC made the WADC a part of its own governing statute (the Olympic Charter, under Rule 44), the “Osaka Rule” is in fact a violation of the IOC’s own Statute and is therefore invalid and unenforceable.
“The CAS Panel also emphasized that if the IOC wanted to exclude athletes who have been sanctioned for doping from the Olympic Games, it could propose an amendment to the World Doping Code, which would allow other Signatories to consider such an amendment and possibility to adopt it. If so, no ne bis in idem issue (prohibition against double jeopardy) would be raised, as the ineligibility would be part of a single sanction. Moreover, the principle of proportionality could be met because only one adjudicatory body would be in position to assess the proper sanction for a certain behaviour, taking into consideration the overall effect of the sanction to be imposed.”
It would be up to lawyers to decide if excerpts such as “such a disciplinary sanction is not in compliance with Article 23.2.2 of the World Anti-Doping Code (WADC), which provides that the Signatories of the Code may not introduce provisions that change the effect of periods of ineligibility provisions of the WADC, because it adds further ineligibility to the doping sanction after that sanction has been served,” give ample room for appeal.
IOC accepts but will push for change; BOC insists ruling doesn’t affect its lifetime ban:
The USOC welcomed the decision, as expected, but insisted that it was not soft on the doping issue. “Like the IOC, we are in full support of clean competition and stringent anti-doping penalties,” it stated. “This decision does not diminish our commitment to the fight against doping, but rather ensures that athletes and National Olympic Committees have certainty as they prepare for London.”
The IOC, which essentially was defeated by the USOC in the appeal, said that it “fully respects the Court of Arbitration for Sport and will of course abide by its judgment.” However it also made it clear that it wasn’t fully satisfied and that it could push for a change in the WADA rules in future.
“The IOC has a zero tolerance against doping and has shown and continues to show its determination to catch cheats,” it said. “We are therefore naturally disappointed since the measure was originally adopted to support the values that underpin the Olympic Movement and to protect the huge majority of athletes who compete fairly.
“The rule was in our view an efficient means to advance the fight against doping, and we were somewhat surprised by the judgment since we had taken an advisory opinion from CAS on the rule and been given a positive response."
“When the moment comes for the revision of the World Anti-Doping Code [2013 – ed.] we will ensure that tougher sanctions, including such a rule, will be seriously considered.”
As for the BOC itself, which could be affected if Millar, the athlete Dwain Chambers or others in a similar position appeal, it insisted that it didn’t feel that today’s ruling was relevant to its case. “It is tough but it is fair,” said BOC chairman Colin Moynihan, speaking of its lifetime ban. “It has a strong appeal mechanism. Fundamentally the BOA byelaw addresses eligibility and is not a sanction.
“This is a by-law introduced with support of the athletes for the athletes. It has consistently had 90 percent support from the athletes.” He said that the World Anti-Doping Agency had previously stated that the association's anti-doping laws complied with the global standard, showing a letter from WADA to prove his point.
It will be up to athletes and their lawyers, and ultimately CAS, to decide if this is indeed the case. Longer term, it appears that a global ban could potentially become part of the WADA Code itself.
As for Millar, he has said in the past that he was not willing to challenge the BOC ruling as he realised it could cause a lot of negative reaction. He served a two year ban for using EPO, and since his return has spoken out against drug use. He has an image as someone who has accepted he made mistakes, and will know that there is a chance that a personal appeal to CAS could backfire in terms of public reaction.
That said, if Chambers or another athlete successfully appeals, he could get the green light anyway if the BOC’s ban is overturned. Right now, though, the Scot remains ineligible for London 2012.