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LawMelting potThe Sports LawyerThe Sports Lawyer: ‘In truth the BOA’s drug ban appeal was never likely to succeed’

The Sports Lawyer: ‘In truth the BOA’s drug ban appeal was never likely to succeed’

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THE SPORTS LAWYER is actually a posse of Britain’s brightest lawyers, from the Sport & Media team at the UK law firm, Thomas Eggar, who will be contributing features, analysis and insight on a regular basis on the key sports law issues of the day. In TSL’s latest column, Andrew Nixon reflects on the British Olympic Association’s failed appeal against WADA. x

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By Andrew Nixon

4 May 2012

The British Olympic Association (BOA) has lost its appeal against WADA’s ruling on lifetime Olympic bans for athletes found guilty of doping offences. The ruling opens the door for athletes serving BOA bye-law bans to compete at the London Olympics, subject to meeting relevant qualification criteria.

The hearing took place on 12 March 2012. The BOA’s key submissions were, amongst others, as follows:

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  • As an autonomous governing body it is entitled to determine its own selection policy.
  • It is not a National Anti-Doping Organisation (NADO) as defined in the WADA Code and as such the BOA is not constrained by the code in determining its selection policy.
  • The wording of the bye-law, and its very title (Membership of Team GB) makes it clear it is a selection policy.
  • There is nothing in the policy to suggest its aim is to impose an additional sanction for a doping offence.
  • The bye-law’s purpose is to pursue Olympic ideals and it does this by defining who can compete for Team GB and who cannot.
  • Non selection under the bye-law is different to a disciplinary sanction, as non selection flows not from the doping offence, but the athlete’s categorisation as a drug cheat.
  • There is an appeals procedure, and as a result the bye-law does not impact on every person.
  • WADA agreed that the bye-law was a selection policy because it did not challenge it.

WADA argued that the submissions put forward by the BOA relating to the fairness, proportionality and necessity of the bye-law were irrelevant for the purpose of the arbitration. The question is whether or not the bye-law is characterised as an additional sanction over and above sanctions provided for in the code, and if it is characterised in this way it breaches Article 23.2.2 and is therefore invalid. Amongst others, WADA made the following submissions:

  • The decision did not intrude upon the autonomy of the BOA; indeed, respecting the BOA’s autonomy means enforcing the BOA’s contractual commitment under the WADA code.
  • The BOA’s responsibility as a signatory was not to include any provision which contradicted or changed the WADA code.
  • WADA did not agree with the bye-law; it simply decided not to challenge it pending a ruling from a competent tribunal.
  • The WADA code is not restricted to the defined term of anti-doping organisations and the BOA is obliged to comply with UKAD in initiating, implementing and enforcing the doping control process in the UK.
  • The wording of the bye-law is of no consequence; simply because it is not suggestive of a sanction does not mean that it is not a sanction as a matter of substance.
  • The bye-law has all the aims of a doping sanction, even if its main purpose is non sanctioning.
  • The BOA’s own evidence suggests that the bye-law is in place to ensure the toughest of sanctions for illicit use of banned substances.
  • Comments made by the BOA’s chairman and athletes point to its use as a deterrent.

The decision

The panel found without hesitation that the BOA was not entitled to pursue its own policy and any policy must be pursued through the WADA code. BOA is a signatory to the code and therefore agrees to limit its autonomy and comply with the code. In particular, Article 23.2.2 of the code requires its signatories not to make any additional provisions which could change the substantive effect of the WADA code: which is to harmonize throughout the world a doping code.

It is clear that a doping sanction under the WADA code also triggers the application of the BOA selection policy, which leads to ineligibility. The bye-law therefore rests on the foundation of the WADA code, and is not divorced from the code as argued by BOA. It is also clear that notwithstanding arguments that the bye-law is a selection policy, the difference in wording is a distinction without a difference. Furthermore, whilst the appeals process is a good instrument to avoid disproportionate decisions; it does not change the nature of the consequences of the bye-law and its non compliance with the code.

Comment

The decision is not a surprising one, simply on a point of contract law. The purpose of the WADA code is to create a harmonized means of addressing and sanctioning doping and BOA’s bye-law stepped outside of the code. You cannot have a situation in which a signatory NOC is entitled to operate independently of the code and to enforce rules inconsistent with the code: if it could, athletes would not be treated the same throughout the world. The BOA will obviously have reasons for bringing the appeal, but in truth it was an appeal that was never likely to succeed.

In the future, there remains the possibility that a rule not dissimilar to the defunct IOC Rule 45, will eventually be written into the code. The IOC (and indeed the BOA) is entitled to lobby for the incorporation of an additional sanction of inability to participate in the Olympic Games when the code comes under review. However, for now the BOA as a signatory NOC must comply and athletes such as Dwain Chambers and David Millar will be allowed to compete this summer.


Sport short

ECB tightens qualification rules

The ECB has increased the qualification period for cricketers born abroad to play for England from 4 years to 7. The rule will apply to male cricketers who arrive in England after their 18th birthday and will not apply to those who come to the country before adulthood. The governing body will retain some flexibility and can reduce the residency period to 4 years for players who either come from a non full member country or who arrived in England prior to 25 April 2012.

 

Andrew Nixon is an Associate in the Sport and Media Group at Thomas Eggar.

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