3:31 PM CDT, October 6, 2011
Common sense won.
That is the essence of the landmark decision the Court of Arbitration of Sport announced Thursday, rejecting the International Olympic Committee's attempt to play by its own rules on Olympic eligibility of athletes banned for doping.
As a result, reigning Olympic 400-meter champion LaShawn Merritt will be able to run in the 2012 Summer Games if he makes the U.S. team at the Olympic trials next June.
And the British Olympic Association likely will face further challenges to its lifetime Olympic ban of athletes with past doping violations, most notably European champion sprinter Dwain Chambers and Tour de France stage winner David Millar.
The decision could also affect dozens of other athletes from several countries, including some 30 athletes other than Merritt from the United States. Of that group, only one other than Merritt -- hammer thrower Thomas Freeman, the 2010 U.S. champion -- has a good chance of making the 2012 U.S. Olympic team in their sport. Freeman got a one-year suspension beginning last April after a second positive test for metabolites of marijuana.
The CAS decision, first reported by the London Daily Telegraph and confirmed to me Wednesday night, throws out Olympic Charter Rule 45, passed by the IOC executive board June 27, 2008. That rule made an athlete ineligible for the next Olympics after getting a doping ban of more than six months.
The three-member CAS panel said Rule 45 was "invalid and unenforceable," a strong rebuke to the IOC. The ruling made it clear the IOC could not say one thing and do another by coming up with rules that countravened its own governing legislation.
As expected, the decision cited a conflict between the IOC rule and the World Anti-Doping Code (WADC), to which the IOC is a signatory. It referred to the idea that the rule constituted a form of double jeopardy, potentially extending the length of a ban mandated by the WADC by as much as three years where the Olympics are concerned.
The panel also said the IOC was in violation of its own governing statutes, since it had made the World Anti-Doping Code Rule 44 of the Olympic Charter.
Athletes whose anti-doping suspension under the code covers the period of the 2012 Olympics still are banned.
Merritt received a two-year ban after testing positive in 2009 for a banned steroid contained in an over-the-counter sexual enhancement product he admitted to taking.
After an appeal, the American Arbitration Association ruled the use of the banned substance was inadvertent, called the IOC rule double jeopardy and cut the suspension to 21 months. That allowed Merritt to run in August's world championships, where he won a silver medal in the 400 meters and a gold in the 4 x 400 relay.
The AAA decision did not affect the Olympic eligibility rule, which was certain to be challenged sooner or later. To avoid having it turn into a messy battle and seek clarity well before the London Olympics, the IOC and the U.S. Olympic Committee joined in asking CAS for a ruling on whether the IOC could impose the ban.
The CAS ruling used most of the same ruling as the USOC had in the appeal. The USOC asked the court to say Rule 45 was "illegal and unenforceable."
USOC chief executive Scott Blackmun said in a statement, "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 USOC always wanted Rule 45 overturned, as Blackmun reiterated by telling the Associated Press "we're obviously happy" that Merritt will have the chance to compete in London. The 25-year-old Merritt, also 2009 world champion in the 400, was to have a press conference Thursday afternoon in Atlanta.
In a statement distributed by his agent, Merritt said, "I am thrilled to have this uncertainty removed before the 2012 season."
In a tweet, Millar said, "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."
The U.S. Anti-Doping Agency and its counterparts in several other countries, including the United Kingdom, filed briefs in support of the USOC position, which attorney Howard Jacobs of Los Angeles presented to CAS, sport's "supreme court."
In a statement, the IOC said it was "disappointed" and "surprised" by the CAS ruling but would abide by the court's judgment.
"The rule was in our opinion an efficient means to advance the fight against doping," the IOC said.
IOC President Jacques Rogge had pushed hard for his organization to adopt Rule 45, disingenuously insisting it was an eligibility matter over which the IOC had control and not a sanction. According to people familiar with the case, when it became clear to Rogge his opinion was not shared by other top IOC officials, he agreed to the hearing before CAS so the matter would be resolved well before the London Olympics.
The inconsistency in the IOC's approach to Rule 45, from which there was no formal appeal, was clear in the case of U.S. swimmer Jessica Hardy, who, like Merritt, was represented by Jacobs.
Hardy lost her spot on the 2008 U.S. Olympic team after testing positive for a banned stimulant three days after Rule 45 became effective. Upon appeal from Jacobs, the IOC quietly decided likely ignorance of the new law at that point was an excuse, and it cleared Hardy to compete in London.
British Olympic Association officials have insisted their lifetime ban rule, in place for more than two decades, is defensible because it contains an appeals mechanism.
BOA chairman Colin Moynihan told a press conference Thursday his Olympic committee has no intention of getting rid of the rule.
If the British rule withstands further legal challenges, even now that Rule 45 has been thrown out, other national Olympic committees may decide to pass rules like Britain's. That could lead to the unseemly situation of nations trying to prove holier-than-thou status by adopting such a rule.
And the CAS ruling cited the possibility for the IOC to propose an amendment to the World Anti-Doping Code that would make the punishment for a doping offense include a ban from the next Olympics. CAS said such an amendment, if adopted, would eliminate the double jeopardy issue, as it would be a single sanction.
The IOC said, "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."
David Howman of New Zealand, general director of the World Anti-Doping Agency, said in an email Thursday that the next review of the code, which includes three rounds of consultation with all stakeholders, will begin at the end of this year and not be completed until November, 2013. That means it would not be implemented before Jan. 1, 2015.
Howman said it was "improbable but not impossible" for a change to be made before then but it "would require a lot of consultation and debate, which will obviously collide with the (usual) process. We have no example of this being sought in the past."
In a telephone conversation later Thursday, Howman added, "I don't think it's going to happen at the snap of a finger."
One final point: in the long run, the best thing about Thursday's ruling may be its showing CAS is independent of the IOC, which directly provides one third of its annual funding.
The other pieces all come from the Olympic movement -- from Olympic summer sports federations (one fourth), Olympic winter sports federations (one twelfth) and the Association of National Olympic Committees (one third).
But those funds also are traceable to the IOC, which deducts them from revenues each of those groups receive as a share of global TV rights.
"It was always the concern that given all the relationships in the Olympic movement if the IOC says, `It's our Olympics, and we do what we want to,' that someone has to stand up and say, `Not entirely,''' Jacobs told me Thursday afternoon.
Now we will have to see what happens when the IOC Empire Strikes Back.
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