Published on October 18th, 2010 | by Alan Abrahamson1
LaShawn Merritt’s fascinating legal drama
Beijing Games 400-meter track and field gold medalist LaShawn Merritt got 21 months for doping, a three-member arbitration panel ruled in a decision made public Monday. That’s not, though, the news from one of the most fascinating Olympic-themed sports law cases in recent memory.
As part of the case, a 7-Eleven clerk testified that she sold Merritt the male enhancement product ExtenZe on a number of occasions. The stuff that’s in ExtenZe is what he tested positive for. Again, though, that’s not the news. Merritt is, by all accounts, a first-rate young man. He didn’t intend to cheat. He made a really bad choice. Enough said.
At issue in Merritt’s case is a provocative, tough-on-doping rule the International Olympic Committee adopted two years ago.
The rule says that any athlete who gets hit with a doping-related suspension from competition of more than six months is banned from the next editions of the Winter and Summer Games.
Thus the bolt of news in Monday’s ruling, the three-member Merritt panel saying in a unanimous ruling that the IOC rule is too strong. The panel called it an “additional penalty on an athlete over and above what is provided for in the [World Anti-Doping] Code for a doping infraction.”
Like virtually all doping-related rulings, the Merritt matter is mired in citations and in criss-cross analysis that might well terrify even a first-year law student. It runs to 52 pages. Yet on the central point the ruling speaks with remarkably frank language.
“If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck,” the opinion reads in emphasizing its assertion that the rule is an impermissible additional penalty. It adds a few sentences later, “Any argument to the contrary is mere skullduggery.”
Bring on the appeal!
Off we go to the next and final tribunal, the Swiss-based Court of Arbitration for Sports, and the sooner the better, because this is a point of sports law that must not any longer remain unsettled.
In the big picture, and just being honest about the way Americans are sometimes perceived in the quiet corridors of international sport, the fact that this ruling comes from an American case, with American arbitrators assigned through the American Arbitration Assn., may not ultimately prove all that helpful to American athletes such as Merritt, or the likes of the swimmer Jessica Hardy.
But this, too, must be said: At least someone, somewhere was willing to confront the issue squarely. If it had to be an American panel, so be it.
One way or the other, it must be settled. To let it linger perpetuates a situation that’s not fair and not right, because — as in nearly all rule-oriented areas of life — it’s essential that there’s certainty about which way the rule cuts.
Merritt’s case makes for an excellent test. It offers a vivid reminder of how world-class athletes lead different lives than the rest of us mere mortals even as it raises a string of compelling questions.
The well-established rule in sports doping is that if it’s in your system, you’re liable for it. That is, and remains, the starting point for any discussion.
By now, any elite athlete surely must know that you play with fire if you buy anything at an American vitamin store.
By extension, now you have to be on guard at the 7-Eleven, too. So the case of LaShawn Merritt makes for a cautionary tale. The lesson: a world-class Olympic-sports athlete has to be on guard about almost everything he or she ingests.
Is that fair?
Is there any other way to do it? Almost surely not, because athletes and their lawyers have proven amazingly inventive in seeking to avoid culpability.
No question Merritt was negligent for not checking the ExtenZe label. No question it’s his fault the stuff — the substances DHEA and pregnenolone — got into his system. That’s why he got 21 months.
Then again, was he appropriately warned? Everyone in American society knows there are warning labels or signs about seemingly everything, everywhere. Should there be warnings about the potential adverse consequences to athletes on a “sexual functioning” product?
As the ruling Monday noted, the “privacy of an individual’s sexuality requires the greatest degree of [legal] protection. As such, the issue of sexuality rarely comes up in the context of doping in sport. In this respect, this is a truly exceptional case.”
Should issues of sexuality so matter? That would make for an exceptionally interesting debate.
Ultimately, though, that’s not why this case is, indeed, truly exceptional.
The IOC’s policy-making executive board, in June 2008, adopted the six-months-and-you’re-banned-from-the-next-Games rule. In Olympic legal jargon, the policy has come to be called “The Unpublished Memo.”
The standard suspension in a first doping offense is two years.
To cut through a lot of legal clutter, the issue with The Unpublished Memo is simple:
Is it only an eligibility rule? Or is it itself a second sanction on top of a significant suspension already issued in a particular case?
If it’s the latter, doesn’t that amount to double jeopardy?
As detailed Monday, Merritt’s suspension is retroactive to last October and runs through next July. Merritt would be eligible for track’s 2011 world championships, due to be held in August of next year in South Korea.
Should he also be barred from the 2012 Games? If he is barred, doesn’t that have the real-world effect of extending his suspension from less than two years to nearly three? Is that fair?
Yes, he could perhaps run in, say, Diamond League events. But not the Games? As his lawyer, Howard Jacobs, put it in an interview, “To say it’s anything other than a sanction is really to ignore how important the Olympics are.”‘
To frame the issue differently, consider the familiar saying — you do the crime, you do the time. Emphasizing that in this context these sorts of sports doping cases are not criminal and considering merely that such a saying is so well-known: Once you do your time, then what? Do you have the right to — using Merritt as the example — run again freely?
Or is appearing in the Olympic Games not a “right”? Is it a “privilege”? And if it’s a “privilege,” do organizers have the authority to set whatever conditions they wish for entry?
Clearly, the IOC has an interest in blunting athlete use of performance-enhancing drugs. No one disputes that. The issue is how to go about doing so fairly.
The three-member American Arbitration Assn. panel invited the IOC to take part in its consideration of Merritt’s case. The IOC declined, saying that if “any party intends to challenge any IOC decision, it may do so in front of the appropriate international jurisdiction, which is not the AAA.”
No matter which way the appeal finally goes, it’s worth remembering that any system of jurisprudence works best, and engenders the most respect, when it is grounded in common sense.
Thus the wish here is both that the appeal is rendered quickly, and that due attention is paid to these sentiments near the close of the ruling issued Monday (for ease of reading, broken here into two paragraphs instead of one) :
“… The principles of Olympism (i.e., respect for universal fundamental ethical principles such as fairness and human dignity) require a resolution of this issue sooner than later. Mr. Merritt should know where he stands in all aspects of his competitive career after the conclusion of this case, which would include appeals.
“His competitors in the United States should know. USATF and the USOC should know. Delaying the final determination of whether The Unpublished Memo conforms to mandatory provisions of the [World Anti-Doping] Code cheats athletes and sports organizations around the world.”