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CAS/USOC Drop Bomb In War On Doping
Oct 6, 2011 - Craig Lord
IOC to seek tougher sanctions and a new Olympic ban on offenders in revision of WADA Code.
The Court of Arbitration for Sport dropped a bomb on the war against doping in Olympic sports today by ruling the 'Osaka' clause that bars from the Games anyone who has served a suspension of six months or more "invalid and unenforceable".
In a ruling that is significant in such cases as that of Jessica Hardy, the swimmer now free to be selected for the USA team for London 2012, CAS's panel of legal experts concluded in a case brought by the United States Olympic Committee, that "the 'Osaka Rule' was more properly characterized as a disciplinary sanction, rather than a pure 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)'.
Further, it noted 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".
At the foot of this file, below the CAS statement, we publish a list of some of the aquatic athletes who had been barred from any future Olympic participation but are now eligible once more as a consequence of the USOC action and CAS ruling.
Although USOC's intention was, at least in part, to protect athletes who may test positive for banned substances inadvertently, the effect of the ruling is to open the Olympic door to a vast wave of athletes - and rogues such as the coaches who helped them - who cheated and intended to cheat.
The action by USOC was taken with a view to overturning the Olympic ban on LaShawn Merritt, reigning Olympic 400m champion on the track. The move could also now lead to renewed pressure on federations and Olympic committees around the world, such as the 2012 host nation's British Olympic Association, to drop a bylaw that bans drug cheats for life. That could provide the likes of cyclist David Millar and sprinter Dwain Chambers with a route to London 2012 in the face of widespread belief that the ban on Olympic participation was a strong tool in the armoury of those fighting doping in sport.
Merritt received a 21-month suspension after testing positive in 2009 and 2010 for a banned substance he said was found in an over-the-counter male enhancement product. His ban ended in July and he competed at the world athletics championships in South Korea in August. Merritt's lawyer Howard Jacobs, the man who represented swimmers Jessica Hardy and Cesar Cielo, told the Reuters news agency: "He [Merritt] was really, really happy to have this question mark lifted. I think he is really energised to prepare for next year now." The question mark as to how a world-class athlete thought that a male-enhancement product was a fitting contribution to his preparations as a sportsman remains in place.
Millar, the British cyclist banned from all future Games under national rules, wrote on Twitter: "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." One would hope the sentiment stretches in his mind to all athletes, coaches, doctors and others too as they turn their back on methods of cheating in favour of clean sport.
British Sports Minister Hugh Robertson intends to keep Millar's ban in place, saying: "I have always supported the BOA ban, crucially 95 per cent of our athletes support the BOA ban and believe it is different from the IOC bylaw because inside that ban is a right of appeal which is not there with the IOC. I spend a lot of time these days with our Olympics teams and if you ask any of them what their view is, they will absolutely, every man and woman, back that ban. Olympic athletes do not want people convicted of doping offences back in their sport. It is very clear and I absolutely support the BOA case."
In keeping with that thought, the IOC expressed disappointment and said that it would seek tougher sentences in the new WADA code. In a statement, the IOC said: "The IOC fully respects the Court of Arbitration for Sport and will of course abide by its judgement. The IOC has a zero tolerance against doping and has shown and continues to show its determination to catch cheats. 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. When the moment comes for the revision of the World Anti-Doping Code we will ensure that tougher sanctions, including such a rule, will be seriously considered."
USOC CEO Scott Blackmun said: "This proceeding was handled with respect and professionalism from the outset as both parties sought clarity on the rule. Like the IOC, we are in full support of clean competition and stringent anti-doping penalties. 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."
Meanwhile, the underlying problem with Blackmun's message, as sincere as it may be, is that the world is home to some who will say 'see, Americans can test positive and get away with it … so, that makes it ok for us to do it too, as long as we make sure we have strong legal representation that can find the loopholes that let us back in the game(s)'.
Of late, the US Anti-Doping Agency's chief executive Travis Tygart said that he believed that the British Olympic Authority's policy of lifetime bans for drugs cheats was not in accordance with World Anti-Doping Agency WADA policy. He may have been right but the much bigger question is: which policy is the right one, given that one may hurt the innocent while the other lets the guilty off the hook?
The theme is one that FINA and its lawyers recognise well, the federation having rightly posed a similar question this summer past only to find its efforts frustrated by a CAS ruling that eroded further the notion and potential weapon of absolute liability.
The full statement from CAS reads:
Lausanne, 6 October 2011 - 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, rather than a pure 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 ineligibility provisions of the WADC, because it adds further ineligibility to the WADC anti- 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 Anti-Doping Code, which would allow other Signatories to consider such an amendment and possibly 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.
The award with the grounds is published on the CAS website www.tas-cas.org/jurisprudence.
The list of some of those who were suspended in recent years and would have been barred from the Olympic Games but no longer are:
The USA Diving imposed a sanction of 1 year ineligibility on the athlete which began on April 6, 2011, the day of the provisional suspension. On February 5, 2011, a diver Harrison Jones (USA) was tested positive to the substance Cannabis (Class S8 Cannabinoids) following a doping control test conducted with the occasion of the USA Diving Winter National Championships in Iowa City, Iowa.
On June 13, 2010, a swimmer Ante Krizan (CRO) was tested positive to the substance Methylhexaneamine (Class S6. Stimulants) following a doping control test conducted with the occasion of the International Swimming Competitions “Golden Bear”. The Disciplinary Committee of the Croatian Swimming Federation imposed a sanction of 9 months’ ineligibility on the athlete which began on June 13, 2010.
On June 26, 2010, the diver Juan Guillermo Uran (COL) was tested positive to the substance Cocaine (Class S6. Stimulants) following a doping control test conducted with the occasion of a diving competition in Cartagena, Colombia. The Federación Colombiana de Natación imposed a sanction of 2 years’ ineligibility on the athlete which began on June 26, 2010.
On November 5th, 2010, the FINA Doping Panel held a hearing in regard to the case of Mr. Maxim Shcherbakov (RUS) for alleged violation of FINA DC Rule 2.4 - a combination of three filing failures within an eighteen-month period. The FINA Doping Panel, after judging the personal circumstances of the athlete, has decided according to FINA Rules DC 10.3.3 a period of one (1) year ineligibility, starting on 5th November 2010.
The FINA Doping Panel has decided that Ms. Nuria Diosdado (MEX) shall be ineligible for one (1) year after the violation of the FINA Rules DC 2.1. The suspension is commencing from 8th September 2010. All competitive results obtained by the swimmer from 25th July 2010 shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes. The athlete was tested positive to the substance Clenbuterol (Class 1.2 Other Anabolic Agents) with the occasion of the XXI Juegos Deportivos Centroamericanos y del Caribe held in Mayaguez
On July 18, 2008, a water polo player Andrea Mangiante (ITA) underwent in competition doping control test which gave an atypical result with a T/E Ratio > 4. The athlete’s longitudinal profile evaluation resulted in values that were highly likely to be consistent with the administration of exogenous testosterone. The National Anti-Doping Tribunal CONI in view of articles 2.2 and 10.2 of the WADA Code imposed a sanction of 2 years' ineligibility on the athlete which began on July 5, 2010.
On May 1st, 2010, a water polo player Matthew Zammit (MLT) was tested positive to the substance Stanozolol (Class S.1 Anabolic Agent) following a doping control test conducted with the occasion of the Men’s Qualification Tournament for the 2010 European Water Polo Championships. The FINA Doping Panel held a hearing on August 20th, 2010 in Lausanne (SUI) in regard to this case. The FINA Doping Panel found that the athlete committed fault and negligence by taking allegedly unknown pills from personal trainer. In the light of the strict liability of the athlete, the FINA Doping Panel has decided that Mr. Matthew Zammit (MLT) shall be ineligible for two (2) years after the violation of the FINA Rules DC 2.1 starting from the date of the provisional suspension that is June 22nd, 2010. All costs of this case shall be borne by the Aquatic Sports Association of Malta in accordance with DC 12.2.
On January 30, 2010, a water polo player Thomas Tsakirakis (GRE) was tested positive to the substance Stanozolol (Class S1a Anabolic Agents) following a doping control test conducted with the occasion of the Hellenic Championships. The Board of Hellenic Swimming Federation imposed a sanction of two (2) years’ ineligibility on the athlete which began on February 12, 2010.
On March 29, 2009, swimmer Vania Neves (POR) was tested positive to the substance Prednisone (Class S9. Glucocorticosteroids) following a doping control test conducted with the occasion of the Campeonato Nacional Piscian Longa, Portugal. The Disciplinary board of the Portuguese Swimming Federation imposed a sanction of 2 years’ ineligibility on the athlete which began on June 17, 2009.
On May 27th , 2010, a water polo player Salem Hussain Shaheen (KSA) was tested positive to the substance Cannabis (Class S8 Cannabinoids) following a doping control test conducted with the occasion of the water polo competition. The Saudi Arabian Anti Doping Committee imposed a sanction of 2 years’ ineligibility on the athlete starting on June 17th , 2010.
On May 27th , 2010, a water polo player Waleed Ali Alghmdi (KSA) was tested positive to the substance Cannabis (Class S8 Cannabinoids) following a doping control test conducted with the occasion of the water polo competition. The Saudi Arabian Anti Doping Committee imposed a sanction of 2 years’ ineligibility on the athlete starting on June 17th , 2010.
On April 25th, 2009, a synchronised swimmer Mariana de Oliveira Marques (POR) was tested positive to the substance Methylprednisolone (Class S9 Glucocorticosteroids) following a doping control test conducted with the occasion of the National Championships of Synchronised Swimming. The Disciplinary Board of the Portuguese Swimming Federation imposed a sanction of 9 months’ ineligibility on the athlete starting on July 8th, 2009.
On May 10th, 2009, water polo player Sebastien Verdoucq (CAN) was tested positive to the substance Cannabis (Class S8 Cannabinoids) following an in-competition doping control test conducted during Water Polo match. The Water Polo Canada imposed a sanction of 2 years’ ineligibility on the athlete starting on December 11th, 2009.
The FINA Doping Panel has decided that Ms. Nikolett Szepesi (HUN) shall be ineligible for one (1) year after the violation of the FINA Rules DC 5.5.2 and DC 2.4. The suspension is commencing from 22nd January 2010. All competitive results obtained by the swimmer from 22nd January 2009 shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.
On September 2009, the swimmer Lorena Araujo Rezende (Brazil) was tested positive to the substance Stanozolol (Class S.1 Anabolic Agents) following a doping control test conducted with the occasion the Troféu José Finkel in Florianopolis, Brazil. The Brazilian Swimming Confederation imposed a sanction of two years' suspension on the competitor and the cancellation of all the results obtained during the competition, including forfeiture of medals and prizes.
The FINA Doping Panel has decided that Mr. Alexander Morgunov shall be ineligible for two (2) years, commencing on 5 June 2009. On the 22nd of March 2009, the swimmer Alexander Morgunov (RUS) underwent an out of competition doping test in Calella in Spain. The analytical report showed the presence of prohibited substances belonging to Class S.1.1.b Anabolic Androgenic Steroids, namely: Norandrosterone and Noretiocholanolone.
