Norman Brook: Why I was right to oppose BOA lifetime Olympic drugs ban
Monday, 30 April 2012
Around the time I joined the NOC, the new World Anti-Doping Agency (WADA) was developing a global set of rules for anti-doping titled the World Anti-Doping Code.
They were consulting widely through National Anti-Doping Agencies and National Olympic Committees.
Linked to discussions on the proposed WADA Code, the members of the NOC were asked to reaffirm the BOA's "Bye-law [sic] of the National Olympic Committee: Eligibility for Membership of the Great Britain Olympic Team of Persons Found Guilty of a Doping Offence" which provides that: 'Any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic Team.'"
During this debate, I was one of only two NOC members that raised concerns over whether the bylaw which was clearly not compliant with the proposed World Anti-Doping Code would stand a legal challenge. I felt the bylaw could be challenged by an athlete as a restraint of trade based on the BOA bylaw not conforming to the agreed world standard. There was a strong view that the bylaw should remain in place and be defended if subjected to such a challenge.
Surprisingly, the bylaw was not challenged by an athlete until just before the 2008 Olympic Games when Dwain Chambers unsuccessfully sought an urgent interdict against the BOA bylaw on the grounds of restraint of trade.
Whilst some felt that the courts had upheld the bylaw, I read the judgement differently. In refusing to grant an injunction to temporarily suspend the lifetime ban before a full hearing, Mr Justice Mr Mackay said "Many people both inside and outside sport would see this bylaw as unlawful" and "In my judgment it would take a much better case than the claimant has presented to persuade me to overturn the status quo at this stage and compel his selection for the Games."
This seemed to me to leave the door open to further action.
Again surprisingly there was no further legal challenge to the bylaw initiated by banned athletes.
The challenge was instead to come from WADA which required the bylaw to be set aside as it was not compliant with the WADA code and the BOA as a signatory had agreed to adopt the code without substantive change. The BOA's case would be that their bylaw was an eligibility rule and not a sanction for an anti-doping case.
As the dispute was referred to the Court of Arbitration for Sport (CAS), it seemed inevitable that the BOA could not successfully defend the bylaw. International Olympic Committee (IOC) Regulation - Rule 45 or "The Osaka Rule" - was of a similar nature and it was also argued that it was an eligibility clause and not an anti-doping sanction.
CAS took a different view in this case stating: That the IOC Regulation [Rule 45] is more properly characterised as a sanction of ineligibility for a major Competition, i.e. as a disciplinary measure taken because of a prior behaviour, than as a pure condition of eligibility to compete in the Olympic Games"
Against the background of that ruling it seemed clear that the BOA would be forced to set aside the bylaw.
My fears all those years ago that the BOA bylaw would be overturned in a legal challenge appear to have come true even if not quite in the way that I thought it might.
The fight against doping in sport needs a universal set of rules and I am pleased to see that the BOA intend to campaign for tougher sanctions against "deliberate drug cheats" through amendments to the WADA Code.
I am less comfortable with the idea that the code might be changed to allow NOCs to set their own rules. If tougher rules are needed they should be part of the code.
Norman Brook was the chief executive of British Triathlon between 2001 and 2007. He now lives and works in South Africa, where he runs Brooks Sport and Leisure, a successful consultancy business. To find out more click here.