WADA legal challenge to BOA's lifetime ban; David Millar eligible for London 2012 if it's scrapped

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

by Simon_MacMichael   November 17, 2011  

Edinburgh Nocturne - David Millar with Castle backdrop .jpg

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."

13 user comments

Oldest firstNewest firstBest rated

Even if CAS rule against BOA's lifetime ban policy, thereby making Millar eligable for selection, surely the final choice whether to actually select him rests with BOA. Given their once-doped-forever-guilty philosophy, I can't see them deciding to select Millar if CAS rules against them - even if his experience and consistent form would warrant his selection. While any such ruling would make Miller available for selection, surely the final decision on team selection rests with BOA. As I understand it, no-one can force BOA to select an individual. Or am I missing something?

cavasta's picture

posted by cavasta [189 posts]
17th November 2011 - 13:49

like this
Like (1)

It's a difficult one. In the final sentence of the article, Moynihan seems to accept that if the BOA loses, the three athletes in question will represent GB.

The unspoken admission there is that if that does happen, you cannot use an athlete's past doping history in Olympic selection.

You have one of two British cyclist who in the two years preceding London 2012 has won world championship silver in an event in which Britain has two places next year. That alone would I believe see him selected were it not for his past ban.

He's also the third-ranked British rider in the WorldTour rankings for 2011, and there are five places in the road race. So he's certainly in the frame for that too (and remmeber, the two TT riders have to be in the road squad).

If the BOA loses, and Millar were not included in the team, I think he would have reasonable grounds, if he wished, to challenge that exclusion in court. That's because that exclusion would not appear to be justified on sporting grounds and could only be because of his history.

I don't think for a moment Millar would actually do that, but at some point in the future someone in similar circumstances would challenge it - perhaps in a sport such as athletics where individual results clearly show the difference between different athletes with Olympic qualification in the specific event reflecting that.

Reading between the lines of what Moynihan is saying, I think the message is, if we lose, we won't like it, but we'll draw a line in the sand and move on.

Simon_MacMichael's picture

posted by Simon_MacMichael [7484 posts]
17th November 2011 - 14:54

like this
Like (1)

Cavasta, I'm guessing that the responsibility of the selection committee is written so as to require them to select the athlete's most likely to achieve the most at the games, taken from the available pool - so then if Millar is put in the available pool, the selection committee wouldn't be performing it's duties and would be open to scrutiny (though I guess only internal scrutiny, subject to public pressure). So whilst BOA could just not select Millar, if he's clearly in the top 5 available for selection, they could get themselves in to trouble by not selecting him...

posted by step-hent [638 posts]
17th November 2011 - 14:57

like this
Like (2)

Interesting this, especially given the view of the rider himself. I wonder if Millar would take part even if he was selected?

Personally, I think life is a very long time. I'd let them serve their suspension and be done with it.

Pete

PeteH's picture

posted by PeteH [159 posts]
17th November 2011 - 15:11

like this
Like (2)

In theory the places are awarded by the national Olympic committee of the country in question, in practice for GB that means British Cycling.

Would Dave Brailsford and other senior staff want Millar in if bylaw 25 were abolished? I reckon so. I think Mark Cavendish would want him in too, and as the man the medal hopes rest on in the road race, I wouldn't discount his influence.

Millar's on record as saying he would love to compete at London 2012, but he's also said he won't be the one to challenge the bylaw.

Now, however, that WADA is bringing the action, which personally I believe they will win, that barrier is removed.

So, if he's eligible, I think he'll be selected. And if selected, I think he'll compete.

Simon_MacMichael's picture

posted by Simon_MacMichael [7484 posts]
17th November 2011 - 16:05

like this
Like (0)

Yeah Millar! Would love to see him riding in the Olympics. He's served his ban, and now does a huge amount towards reducing doping in cycling.

rrrrrrrrr.

posted by kaptnkrunch [57 posts]
17th November 2011 - 19:15

like this
Like (3)

As I understand the situation, Wada believe that some national sports bodies have avoided bans of 6mths or more so as to bypass the rule 45 mentioned above

onward ever onward

bikecellar's picture

posted by bikecellar [220 posts]
17th November 2011 - 20:32

like this
Like (1)

I support life-time bans.. I don't see why WADA actually wants to help a cheater either.

And mind you, that millar wasn't caught with suspicious blood values that were 0.001% above normal, but with the whole kit of syringes and what not.

When you've gone there, I think you're stepped way over the line.

For blatent doping cases like that I think there should be lifetime bans from cycling.

For those who say he has done so much afterwards to stop doping in cycling - well, you can do that without using drugs in the first place. Look at Thor Hushovd.

seabass89's picture

posted by seabass89 [235 posts]
18th November 2011 - 0:16

like this
Like (1)

Brailsford wanted to recruit Millar for Sky, but the drugs code there prevented it. I'm sure he would select Millar given half a chance. I would.

posted by low-fi [29 posts]
18th November 2011 - 1:12

like this
Like (2)

thinking about this, if you are the countries best time trialist but you are banned because of what is deemed an illegal bylaw, and even if the bylaw is repealed the selectors decide not to pick you.

Would you have grounds for taking the selectors to court for imposing the bylaw even though it has been repealed? Now if you were an also ran i don't see an issue, but if it is clear you should be going but aren't chosen...

God i hate it when Lawyers get involved.

mrmo's picture

posted by mrmo [857 posts]
18th November 2011 - 8:16

like this
Like (1)

I don't really care about Brailsford or Sky quite honestly.

He was banned and should have stayed banned for being a cheating bar steward. Of course now he's the voice for anti-doping, two-faced hypocrite to the extreme!

posted by Karbon Kev [652 posts]
18th November 2011 - 10:18

like this
Like (1)

The sport's full of riders who've come back from doping bans and who either deny they ever did anything wrong, or remain silent on the issue, get back on their bike and go on to win races.

Standing up and acknowledging what you've done, and then devoting a lot of your time to trying to move the sport away from the culture that led you to cheat in the first place, knowing that by doing so you're putting yourself in the firing line?

I reckon that takes a lot of bravery. Just my personal view.

Simon_MacMichael's picture

posted by Simon_MacMichael [7484 posts]
18th November 2011 - 11:31

like this
Like (1)

The only reason I care is my profound wish not to listen to or read any more of the pseudo-intellectual hypocritical twaddle Millar is now famous for.

Vin Cox

posted by Vin Cox [44 posts]
18th November 2011 - 22:13

like this
Like (1)