Published on October 6th, 2011 | by Alan Abrahamson2
Justice: ‘Six-month’ rule booted, appropriately
Doping in sport is corrosive. The international Olympic Committee has every right to want to be tough on doping. But you can’t occupy the moral high ground when you’re mired in legal quicksand.
From the get-go, that was always the problem with what is formally known as Rule 45, informally as “the six-month rule,” which took effect in 2008 and sought to ban any athlete hit with a doping-related suspension of more than six months from competing in the next Summer or Winter Games.
In a case that centered on American LaShawn Merritt, the 400-meter champion from the 2008 Beijing Games, sport’s top tribunal, the Swiss-based Court of Arbitration for Sport on Thursday unanimously decided that Rule 45 violated the World Anti-Doping Code — with which by the Olympic Charter the IOC must comply — and is thus “invalid and unenforceable.”
This is a victory for Merritt, who now gets to run in the 2012 London Games, assuming of course he makes the team at the U.S. Trials next year in Eugene, Ore.
It is a victory for the U.S. Olympic Committee, which brought the case on his behalf.
Mostly, it’s a victory for common sense.
Which, bluntly, the anti-doping system needs.
For that system to work, it depends most of all on credibility.
Rule 45 was a credibility-killer.
Typically, the IOC is very big on process and procedure.
Not so much in this instance.
In a bid to be tough on dopers, the IOC pronounced — in essence — we get to make the rules because they’re our Olympic Games and we make those rules our way and if you don’t like it, well, too bad for you.
That’s not fair play.
That’s why Thursday’s decision is so important.
The decision “further establishes the independence and legitimacy of CAS,” Howard Jacobs, the noted California lawyer who argued the case on behalf of the USOC, said.
“Of course, the big concern is that the IOC is the IOC,” he said. “For them to say, ‘It’s our Olympics and we create the rules’ — it’s comforting to know there’s a body to say, ‘Only to a point.’ “
The IOC, reiterating its “zero tolerance” in the campaign against the use of illicit performance-enhancing drug use in sport, issued a statement that said it was “naturally disappointed” and “somewhat surprised” in the CAS decision, saying it had believed all along the rule was an “efficient means to advance the fight against doping.”
The U.S. Anti-Doping Agency, joined by anti-doping bodies from Britain, South Africa, Japan, New Zealand, Norway and Denmark, had filed a brief urging CAS to find Rule 45 invalid, arguing that because it was inconsistent with the world code it actually “undermines the world anti-doping program.”
Also joining in, filing separate briefs backing the USOC: the Swiss Anti-Doping Agency; the French Anti-Doping Agency; the Dutch and Hungarian Olympic committees; the Spanish Professional Cyclist Assn.; and the Russian Biathlon Union. The Valparaiso (Indiana) University Sports Law Clinic also filed a brief supporting the USOC.
The IOC came to court by itself, asserting it had no need to produce such “friend-of-the-court” briefs. In this instance, it was probably because it had no such friends backing up its position.
So many other parties, however, were so interested in the USOC’s arguments because Thursday’s ruling holds the ruling to impact athletes well beyond Merritt and nations far beyond American shores. A British Olympic Assn. rule bans drug offenders for life from the Games. Now that rule surely will come under renewed scrutiny.
The IOC’s policy-making Executive Board enacted the six-month rule on June 27, 2008, just ahead of the Beijing Olympics. It came into effect that next month. London 2012, though, would have been the first Summer Games to have been fully covered by it.
If the IOC wanted to make this kind of rule, the way to do it would have been to seek an amendment to the WADA code. The obvious reality is, it’s far from clear the IOC could garner support for this kind of policy.
Because, simply, the rule makes no distinction between those who intend to cheat and those who, like Merritt, make a stupid mistake.
This always was the fatal flaw in the rule.
Merritt served a 21-month suspension after testing positive for a banned substance found in the male enhancement produce ExtenZe. He bought the stuff at a 7-Eleven. He made a bad choice. He didn’t intend to cheat.
Even though Merritt had already served that suspension, the IOC nonetheless wanted to bar him from the next edition of the Games. Rule 45 was an “eligibility” provision, it alleged.
Nonsense, the USOC and others responded. Rule 45 amounted to an impermissible double “sanction,” they said. You can’t serve a suspension and then get another suspension on top of that, which is what being banned from the next Olympics amounts to.
To the credit of the IOC and USOC, both parties agreed to bring the case to CAS this year instead of next — instead of letting it drag on, as litigation can tend to do. The two sides have not always agree in recent years on matter of procedure, much less substance. It might well have been chaos if this kind of case had come up next year, and this sort of “eligibility” issue had arisen — should Merritt, for instance, be allowed to run at the Trials?
As Scott Blackmun, the chief executive of the USOC pointed out in a statement, getting the case decided now ensured “certainty” amid preparations for 2012, and — again — the USOC deserves special mention for taking up the case, quietly and deliberately, and doing the right thing. Let’s face it — it was advocating for an Olympic champion, yes, but also for one convicted of a doping offense, and at the outset the USOC had no idea in which way that might ultimately play out in the court of public opinion.
Echoed Bob Hersh, the senior IAAF vice president, speaking at a news conference in Doha, Qatar, “I’m glad there is apparent resolution to something that is uncertain,” adding, “It was an important issue to resolve.”
An eight-hour hearing was held Aug. 17 in Lausanne, Switzerland, CAS’ base. CAS initially planned to issue the ruling last week but ultimately did so Thursday.
Even if it could be seen as an eligibility rule, the three-member CAS panel said, cutting through all the legal mumbo-jumbo to get to the essence, the rule obviously held the “nature and inherent characteristics of a sanction.” Therefore, the panel said, it violated the WADA code.