SBJ/November 7-13, 2011/Opinion

IOC’s Rule 45 overturned, not forgotten

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Dozens of athletes hoping to compete in the next Olympic Games can breathe a sigh of relief.

The Court of Arbitration for Sport has unanimously invalidated the International Olympic Committee rule that bars any athlete who has received a doping suspension of more than six months from competing in the next Summer or Winter Olympic Games.

This decision overturns a 2008 decree issued by the IOC to the national Olympic committees, titled “Regulations Regarding Participation in the Olympic Games — Rule 45 of the Olympic Charter.” In the 2008 decree, the IOC executive board issued the following with respect to an athlete’s participation in the Olympic Games:

Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.

On its face, this rule, which has come to be known as Rule 45, is clear. But not all athletes and sporting nations agreed with the validity of the advisory opinion from the IOC.

For one, reigning U.S. Olympic 400-meter champion LaShawn Merritt challenged the validity of Rule 45. Merritt, who was suspended for two years in 2009 for failing a drug test for steroids, which he blamed on the use of a male enhancement product, argued that Rule 45 had the effect of double jeopardy. Under Rule 45, an athlete who has already served his or her sanction would effectively be punished again by also missing the Olympic Games. He further argued that Rule 45 did not align with the World Anti-Doping Agency code, a contractual agreement binding its signatories, including the IOC, in accordance with its terms. Merritt’s argument was backed by a number of anti-doping agencies, including the U.S. Anti-Doping Agency, and its colleagues in Denmark, Norway, Japan, New Zealand, South Africa and the U.K.

The IOC, however, argued that the rule was not a sanction against an athlete, but was an eligibility rule designed to protect clean athletes.

The CAS decision outright rejected the IOC’s Rule 45 as invalid. The decision further provided that the rule was not in compliance with the IOC’s own charter, and the sanctions imposed under the WADA code, which was designed to eliminate inconsistencies in doping adjudication. As the arbitrators noted, this issue is a matter of contract, and the IOC is “bound to comply with [the code’s] terms.”

The ruling has paved the way for Merritt, along with several other athletes who have had doping violations, to possibly compete in the 2012 London Olympic Games, including U.S. swimmer Jessica Hardy and U.S. 100-meter sprinter Mike Rodgers, who tested positive for methylhexaneamine earlier this summer.

Hardy was the poster child for why Rule 45 arguably added a punitive sanction to her doping suspension, and was not in line with the WADA code. Hardy, who tested positive for clenbuterol at the U.S. Olympic Trials on July 23, 2008, was banned for two years. Her ban was ultimately reduced to one year by the CAS appeal panel when it was determined that her positive test came from a contaminated supplement. Rule 45, however, turned the one-year sanction into a life sentence having almost cost her the chance at both the 2008 Beijing and 2012 London Games.

Despite this major victory for athletes like Hardy, the substance of Rule 45 will likely not disappear. The WADA code is scheduled for review in 2012-13. The IOC will likely suggest changes to the code as a consequence of the CAS decision so as to turn Rule 45 into a punishment of eligibility, as opposed to an additional sanction imposed under the code. Any changes would then need to be approved at the WADA World Conference in Johannesburg in November 2013. In the meantime, however, the U.S. Olympic Committee and its athletes can breathe easy. They now have certainty as they prepare for the London Games.

Brent J. Nowicki (bnowicki@hodgsonruss.com) is an associate at the law firm of Hodgson Russ in Buffalo, where he represents professional athletes in various aspects of their careers, including the defense against alleged doping violations.

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