BOA lose bye-law appeal

BOA lose bye-law appeal
Published 05 May 2012

The British Olympic Association (BOA) has lost its appeal against WADA's ruling on lifetime Olympic bans for athletes found guilty of doping offences. The ruling opens the door for athletes serving BOA bye-law bans to compete at the London Olympics, subject to meeting relevant qualification criteria.

The hearing took place on 12 March 2012. The BOA's key submissions were, amongst others, as follows:

WADA agreed that the bye-law was a selection policy because it did not challenge it.

WADA argued that the submissions put forward by the BOA relating to the fairness, proportionality and necessity of the bye-law were irrelevant for the purpose of the arbitration. The question is whether or not the bye-law is characterised as an additional sanction over and above sanctions provided for in the code, and if it is characterised in this way it breaches Article 23.2.2 and is therefore invalid. Amongst others, WADA made the following submissions:

The decision

The panel found without hesitation that the BOA was not entitled to pursue its own policy and any policy must be pursued through the WADA code. BOA is a signatory to the code and therefore agrees to limit its autonomy and comply with the code. In particular, Article 23.2.2 of the code requires its signatories not to make any additional provisions which could change the substantive effect of the WADA code: which is to harmonize throughout the world a doping code.

It is clear that a doping sanction under the WADA code also triggers the application of the BOA selection policy, which leads to ineligibility. The bye-law therefore rests on the foundation of the WADA code, and is not divorced from the code as argued by BOA. It is also clear that notwithstanding arguments that the bye-law is a selection policy, the difference in wording is a distinction without a difference. Furthermore, whilst the appeals process is a good instrument to avoid disproportionate decisions; it does not change the nature of the consequences of the bye-law and its non compliance with the code.

Comment

The decision is not a surprising one, simply on a point of contract law. The purpose of the WADA code is to create a harmonized means of addressing and sanctioning doping and BOA's bye-law stepped outside of the code. You cannot have a situation in which a signatory NOC is entitled to operate independently of the code and to enforce rules inconsistent with the code: if it could, athletes would not be treated the same throughout the world. The BOA will obviously have reasons for bringing the appeal, but in truth it was an appeal that was never likely to succeed.

In the future, there remains the possibility that a rule not dissimilar to the defunct IOC Rule 45, will eventually be written into the code. The IOC (and indeed the BOA) is entitled to lobby for the incorporation of an additional sanction of inability to participate in the Olympic Games when the code comes under review. However, for now the BOA as a signatory NOC must comply and athletes such as Dwain Chambers and David Millar will be allowed to compete this summer.

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