David Millar hints he may not compete in Olympics even if BOA lifetime ban overturned

Lacticlegs wrote:

Can anyone explain CAS's stance to me in a way that makes sense?

BOA's lifetime ban for cheats should be the gold standard. Either they want to end the doping farce or they don't. There's no middle ground here, surely?

I like David Millar - as an athlete and as a spokesman. But he blew it, and his olympic participation should be a moot point. Surely a sovereign country should have the right to ensure they field a clean team, and a spotless reputation.

It's simplistic I know, but if the risks for being caught doping (ie - you're out of the sport, period. And sponsors can demand their money back) outweighed the benefits by a disproportionate amount, I'm fairly sure that would end the problem. Or at least reduce it to a near inconsequential level.

I'll try and keep this short (edit - I failed - sorry)

There is no CAS stance as such. Its job is to make rulings on matters of dispute, or as it is doing in the Millar case, to rule on the validity of existing rules.

In short, WADA has called into question the validity of the BOA bylaw; the BOA has gone to CAS to have the legality of it determined one way or another.

The BOA Bylaw 25 (from 1992) predates the World Anti-Doping Code (WADC, 2004), to which the BOA is a signatory.

www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-The-Code/WADA_...

In the introduction to the WADC, it is stated that it was formulated "To ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping" and "to provide a uniform, global approach to the issue of doping, and how offenders should be punished."

Here's the crucial bit. Article 23.2.2 lists a number of Articles of the WADC and says "No additional provision may be added to a Signatory’s rules which changes the effect of the Articles enumerated in this Article."

One of those listed in Article 23.2.2 is Article 10, "Sanctions on Individuals."

So to put it simply, a signatory to the WADC cannot seek to provide an additional sanction that goes beyond what is contained in the WADC.

Part of WADA's argument therefore is that the BOA's bylaw constitutes an additional sanction, and that because the BOA is a signatory to the WADC, it is invalid and unenforceable.

The BOA's argument is that it is not a sanction, but rather a selection policy. Personally, I find it hard to believe that the CAS will agree. That also seems to be the opinion of most leading sports lawyers who have spoken about the case.

Olympic qualification and ultimately selection depend on the athlete's performance; there's a strong argument tat what they did a decade ago should not and cannot form part of that.

Look at the LaShawn Merritt case, which is what led to WADA claiming that the BOA Bylaw is invalid, and the BOA asking the CAS to rule on it.

Merritt, defending Olympic champion in the 400m, faced being excluded from London 2012 because he subsequently served a 21 month ban.

Rule 45 of the Olympic Charter, aka the Osaka Rule, said that returning athletes who had served a suspension of six months or more could not compete at the Games following the expiry of their ban.

But, the IOC is a signatory to the WADC. Moreover, the Olympic Charter specifically incorporates the WADC. So not only was the Osaka Rule invalid with the WADC, it was also, by extension, in conflict with the provisions of the Olympic Charter itself.

Again, in the light of that decision it's very difficult to see how the BOA can defend Bylaw 25 (and another point here is that it has been successfully challenged a number of times over the years, as well as being amended so it no longer applies to athletes whose ban resulted from Whereabouts infringements (eg Christine Ohoruogu - the woman's Beijing 400m champion, quite by coincidence).

The other issue you talk about is the length of ban. There are arguments for increasing the typical maximum ban for a first offence from two years to, say, four (the UCI among others has pushed for this in the past).

However, but there is one very solid reason why bans, certainly for a first offence aren't longer (or even for life) - you are in effect giving the athlete involved a very strong case under human rights law to argue that they are being denied their right to earn a fair living.

So the length of the ban is in effect a compromise, which on the one hand has to provide sufficient penalty and deterrence, but on the other doesn't give rise to challenges outside the sporting legal framework (worth noting that a huge amount of the Swiss Federal Courts caseload now is from appeals from CAS, very often kicked out, as happened with Valverde - it will only rule on matters of procedure etc).

One other point worth making - the likes of Moynihan and Coe and other of the more vocal supporters of Bylaw 25 competed in an age when doping was seen as a very black and white issue, divided between the good guys in the West, and the bad guys in the East. They also competed in an age in which (officially at least) the Olympics were for amateurs only.

Followers of cycling in particular know that doping doesn't respect national boundaries (although whether you get sanctioned for it may depend on where you come from...), and that no two dopers are alike - you have the ones who have doped since amateur days, ones who were encouraged, coerced even, by team mates and management, ones who remain enignmatically silent after returning from a ban, ones who continue to deny ever having doped (rightly or wrongly), ones who go onto dope again - and then you have someone who stands up, admits their mistake, and tries to help others avoid suffering the same fate.

Doping isn't black and white, but the law should be. For that reason, and the ones outlined above, I don't see how the CAS can rule that the BOA bylaw 25 is valid.

(nb All opinions are personal ones).