BOA set to lose lifetime ban case, says leading lawyer, as David Millar calls for more tests ahead of Games
BOA rule a sanction not a selection policy, says man who helped win landmark CAS ruling against IOC last year
A leading sports lawyer believes the lifetime ban from competing in the Olympics imposed by the British Olympic Association (BOA) on athletes convicted of doping offences will be ruled invalid by the Court of Arbitration for Sport (CAS) after a hearing due to take place next Monday. Should that happen, athlete Dwain Chambers and cyclist David Millar would be available for selection for London 2012.
Howard Jacobs was a member of the legal team that last October succeeded in persuading the CAS to rule invalid an International Olympic Committee (IOC) ban on athletes returning from a doping suspension from competing in the next Games, in a case brought by US 400m runner and Olympic champion LaShawn Merritt.
The CAS held that the ban, under Rule 45 of the Olympic Charter, constituted an additional sanction on athletes already punished for a doping offence. It also ruled that it was invalid under the World Anti-Doping Code (WADC), to which the IOC is a signatory, and the Olympic Charter itself, since it is deemed to include the WADC by incorporation.
While Millar, who served a two-year ban from 2004 to 2006 after confessing to EPO use, said last year that he did not intend to personally challenge the bylaw preventing him from being selected, the BOA has asked the CAS to rule on its validity after it was called into question by the World Anti-Doping Agency (WADA).
Jacobs maintains that the BOA is likely to lose the case. "When I heard the BOA's response to the cAS decision, what they were saying sounded a lot like what the International Olympic Committee were saying, trying to characterise the rule as an eligibility rule as opposed to a sanction,” he told the BBC.
"It was exactly the same thing as the IOC did in our case, so it strikes me that this type of characterisation is not likely to be successful.
"I think it's most likely that the rule will be found to be a sanction," he continued. "Then it will be a question, as it was in our case, of whether the rule is invalid.
"Essentially, all the anti-doping rules are bound by the concept that the penalty has to be proportionate to the offence.
"As you start adding additional penalties, you get closer and closer to the point where perhaps penalties are disproportionate.
"One of the arguments made in our case was that if the IOC and others want a rule like this, then the way was not to introduce it unilaterally but to attempt to go through the Wada process and have a debate among stakeholders.
"The legal minds could weigh in as to whether that type of rule would be enforceable or not."
Chambers had sought to have the BOA ban overturned in the High Court prior to the Beijing Olympics four years ago, but Jacobs believes that the CAS hearing will result in a positive outcome for athletes in his position.
"Frankly, Dwain Chambers, his situation was nine years ago," he explained. "He's served his penalty, he's come back, he's allowed to participate as a member of other British teams.
"To me, it doesn't make sense that you're going to keep him out of the biggest competition for his sport and somehow say that's not an additional sanction."
Millar, too, stripped of his 2003 world time trial championship when he was banned, has competed for Great Britain in the UCI road world championships since his return to the sport, winning silver in the same discipline at Geelong in 2010. The same year, he won Commonwealth gold in the time trial, representing Scotland.
Last year, the Garmin-Barracuda rider acted as road captain to the British team when Mark Cavendish won the rainbow jersey in Copenhagen. Cavendish has said he believes Millar is “redeemed” and should be allowed to compete.
Another member of the team that day, Bradley Wiggins, claimed with some justification that he had been quoted out of context by the BBC when it said that he had maintained that Millar should not be eligible for selection for the Olympics.
Since his return to competition Millar has become a leading advocate against the use of performance enhancing drugs, including sitting on WADA’s athletes' panel and helping British Cycling and UK Anti-Doping introduce systems to help prevent young athletes from making the same mistakes he did.
This week, he called on the IOC to fund a rigorous testing programme ahead of the Olympics, saying that current proposals, which will see 5,000 tests conducted starting 11 days prior to the Games and during the fortnight they are on, does not start early enough.
He also says that there is a big disparity in the approach taken by different countries, reports The Daily Telegraph.
"For drugs such as HGH and EPO, the window for using them is in the preparation phase, not actually during the Games or just before them,” Millar explained.
"They are hormonal-based which aims to make your body stronger to perform and you would be doing it in the two months beforehand, with the idea then to rest up and have a clean system going into the Games. That's how it works.
"The testing during the Games is a fantastic deterrent but it's a pretty stupid athlete who would be using drugs during the Games," he continued.
“The IOC need to research exactly what all the national anti-doping organisations are doing and if there is a fixed criteria of testing for competing nations.
"UK Anti-Doping are on top of it and we want the British team to be the cleanest team in the Olympics but what about all the smaller nations?
"Often a lack of funds is a problem when it comes to the number of tests a country can carry out.
"The IOC has all this money coming in from the Olympics so perhaps they should level the playing field for all athletes so that all countries carry out similar testing to the UK, Australia, USA and France," Millar added.
In a statement, the IOC said that it “is responsible for the testing programme carried out during the period of the Games which starts on the opening day of the village on July 16 and ends on the day of the Closing Ceremony.
"This programme includes systematic urine and blood post-event testing as well as random testing.
"In addition, it is worth noting that all actors of the Olympic Movement (national and international federations, national Olympic committees and national anti-doping organisations) usually intensify their testing efforts in the period leading up to the Olympic Games in order to ensure that only clean athletes make it to the Games.
"This pre-Games testing programme proved to be efficient prior to the Beijing and Vancouver Games," it concluded.