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Clarification sought on validity of controversial bylaw following LaShawn Merritt decision last month

The legality of a controversial British Olympic Association (BOA) rule prohibiting athletes who have been banned for doping to be selected for Great Britain at the Olympic Games is to be decided at the Court of Arbitration for Sport (CAS) in a case brought by the World Anti-doping Agency (WADA). A decision in favour of WADA would open the door to David Millar potentially participating at London 2012.

The BOA’s board yesterday voted unanimously to ask CAS to rule on the validity of its Bylaw 25, which prevents athletes found guilty of a doping offence from being selected to represent the country in the Olympics. That followed news that WADA itself had decided to challenge the bylaw at CAS, viewing it as non-compliant with the maximum two-year ban under its own code.

The decision to go to CAS follows a war of words in recent days between the BOA’s chairman, Colin Moynihan, and WADA president, John Fahey, and comes a month after an expert in sports law had described the BOA’s bylaw as being “on shaky ground” after a CAS ruling in a separate case involving Olympic 400 metres champion LaShawn Merritt of the United States.

In that case, CAS held that Rule 45 of the International Olympic Committee’s Charter, which bans athletes who have served a doping ban of six months or more from competing at the next Games after returning from their ban, was invalid.

The grounds for that decision were that the rule placed athletes in a position of double jeopardy, that is being punished twice for the same offence, and also because the World Anti-doping Code (WADC) is deemed to be an integral part of the Olympic Charter, meaning that the rule was in conflict with the Charter itself.

Following that ruling, both Millar and another athlete banned from representing his country at the Olympics, the sprinter Dwain Chambers, said that they did not plan to challenge the BOA’s bylaw. Shot putter Carl Myerscough is also subject to the ban.

If CAS were to rule that it was invalid, however, there would be no legal obstacle to Millar being selected for next summer’s Olympics and on sporting grounds alone there is a compelling case for his inclusion.

As road captain in the road race at the world championships in Denmark in September, the Garmin-Cervelo rider co-ordinated the efforts of the British team in ensuring that Mark Cavendish came away with the rainbow jersey.

Moreover, with Great Britain having secured two places in the individual time trial, there are compelling reasons for him to line up alongside Bradley Wiggins in that event.

Stripped of the world title he had won in Canada in 2003 once his use of performance enhancing drugs had come to light, Millar was back on the podium in Geelong last year, when he won silver behind Fabian Cancellara, and shortly afterwards added Commonwealth gold in Delhi.

Since coming back to the sport in 2006, he has been a passionate advocate against the use of drugs, and he also sits on WADA’s athletes committee.

While many fans have welcomed him back to the sport, many seeing him as having succumbed to the pressure of a drugs culture endemic in the sport at the time, equally there are many who will never forgive him for having cheated in the first place.

Should he be selected, that would inevitably mean the exclusion from the squad of five riders, two of whom will also take part in the time trial, of a rider with an unblemished record – possibly Team Sky’s Alex Dowsett, who has hopes of targeting the latter event.

Great Britain is the only country whose national Olympic committee currently imposes a lifetime ban on athletes convicted of doping offences. However, earlier this year, the Italian national cycling federation introduced rules preventing riders with a doping record from competing in national championships or representing the country in world championships.

BOA chairman Colin Moynihan confirmed that the organisation had received a letter from WADA asking it to drop its bylaw and maintained that the country would "vigorously defend any challenge to the selection policy," reports the website, More Than The Games.

"It is a remarkable challenge from WADA in the absence of any challenge form a British athlete," commented Moynihan, after a unanimous decision by the BOA to request a hearing at CAS on the issue.

"We are responding to WADA, WADA clearly indicates that the BOA is not compatible with the WADA code, but we believe we have been compatible and that our selection policy remains robust.

''The Board agreed it will vigorously defend the interests of clean athletes by seeking a hearing before the CAS to bring clarity and closure to this issue."

CAS is likely to hear the case early in the new year, with Moynihan confident that the BOA can defend its position because it represents "a selection policy not a sanction," according to advice from Adam Lewis QC.

"The BOA hopes that raising this issue in this way will ensure the world of sport has an open and honest debate about the status and future of the anti-doping movement," Moynihan added.

"We think it is time for the debate to move forward; the overwhelming majority of athletes compete clean and they should be treated fairly across the world," he went on. 

"We want to see all 204 countries which compete in the Olympic Games to be as robust as the BOA on this issue.

"It is unacceptable that over 60 per cent of the countries in the Olympic Movement have anti-doping policies that are non-compliant with the WADA code. 

"It is unacceptable that WADA has spent hundreds of millions of dollars trying to clean up drugs in sport and yet the processes of detection are letting athletes down and the sanctions for those guilty athletes are getting weaker not stronger. 

"As Steve Redgrave said 'A two-year ban for doping is almost saying it is acceptable.'

"I hope the integrity of the BOA's position serves as a catalyst for the rest of the world to follow suit in our resolution and determination to defend our selection policy on behalf of our athletes and uphold the principles of fair play and clean competition upon which it was founded," he concluded.

Previously, WADA President, John Fahey had hit out at what he saw as unfair criticism by Moynihan of the organisation’s role.

"It is disappointing to read the BOA president's comments, some of which are misinformed and inaccurate, and many of which have been addressed by WADA stakeholders in the last code review, or by WADA in its present activities," he commented.

"Following the CAS decision in the Merritt case, determining Article 45 of the IOC charter to be an extra sanction and accordingly to be non-compliant, the IOC immediately informed WADA that the article would be nullified.

"Upon receipt of this decision, WADA immediately and diligently requested the BOA to examine its selection rule in light of the CAS ruling, on the basis that it might also be seen as an extra sanction, and hence non-compliant. So far, WADA has not received any correspondence in reply."

Should a decision from CAS go against the BOA, Moynihan, who himself won Olympic silver as cox to the Great Britain men’s eight at Moscow in 1980 and later became Minister of Sport under Margaret Thatcher, accepts that there would be no further barrier to the three athletes affected from representing Great Britain at next summer’s Games in London.

"If we win it draws a clear line in the sand for the bylaw and our selection policy for 2012," he told Sky Sports News.

"If we lose then equally the message to all athletes will be very clear.

"The three athletes who might be eligible for selection would be likely to compete. That's a very clear consequence of us losing."

Born in Scotland, Simon moved to London aged seven and now lives in the Oxfordshire Cotswolds with his miniature schnauzer, Elodie. He fell in love with cycling one Saturday morning in 1994 while living in Italy when Milan-San Remo went past his front door. A daily cycle commuter in London back before riding to work started to boom, he's been news editor at road.cc since 2009. Handily for work, he speaks French and Italian. He doesn't get to ride his Colnago as often as he'd like, and freely admits he's much more adept at cooking than fettling with bikes.