On 6 October 2011 the Court of Arbitration for Sport (CAS) decided that the International Olympic Committee’s (IOC) ‘Osaka Rule’ was non-compliant with the World Anti-Doping Agency (WADA) Code and thus invalid and unenforceable.
TThe Osaka Rule prevented athletes, who had been banned for a drugs violation for more than six months, from competing in the first Olympic Games following the end of their suspension. The CAS decision allowed a number of athletes, most notably the USA 400m Olympic gold medallist LaShawn Merritt, to be eligible for the 2012 London Olympic Games.
The Osaka Rule was named as such because it was decided at the IOC Executive Board meeting in Osaka, Japan in 2008. In 1992 the British Olympic Association (BOA) decided on a rule which has been deemed to be of a similar nature. This rule is held out to be part of the Team GB selection policy and states that if a person has been found guilty of a doping offence then they shall not thereafter be eligible for consideration as a member of Team GB in relation to any Olympic Games. This lifetime ineligibility is known as the BOA Bye-law.
In the 6 October decision CAS concluded that the Osaka Rule was an additional sanction rather than an eligibility criterion as it was barring participation in an event because of the athlete’s prior behaviour. The IOC and BOA are among the sporting bodies who are signatories to the WADA Code thereby agreeing to accept and implement all the provisions of the Code. Where one of these sporting bodies is found to be non-compliant with the Code, their actions or omissions would amount to a breach of contract with WADA.
Since the CAS decision the BOA has been under huge media pressure in relation to the Bye-law and speculation as to whether the affected athletes, such as Dwain Chambers and David Millar, will open new action against the BOA in light of the approach of the CAS.
WADA wrote to the BOA in October 2011 suggesting that in light of the CAS decision the BOA review the Bye-law. Although there appears to have been many public statements made by the BOA in support of the Bye-law, WADA has stated that they have not received a response to their correspondence. WADA are reported to have received an opinion from Michael Beloff QC of Blackstone Chambers to complete its compliance report in mid November. This report, and the resultant decision of the WADA Foundation Board, concluded that the BOA Bye-law was not compatible with the WADA Code.
Public statements made by Lord Moynihan, the Chairman of the BOA, are similar to those comments made by the judge in the matter of Dwain Chambers v BOA in 2008. The balance of convenience was considered where, for example, if Mr Chambers were to be awarded a place on the British team at the Olympics this would deselect another athlete, and this could not be in their interests. Lord Moynihan has raised that the selection policy is in the best interests of clean athletes, and it cannot be desirable that an athlete who has worked hard to compete - and done so clean - could lose their place to a person who has committed a drugs violation, in particular where that violation was of a dishonest nature.
In 2009 WADA endorsed the BOA Bye-law but, at that time, WADA believed the Osaka Rule to be an eligibility rule and therefore enforceable. The situation and approach has since changed due to the CAS decision of 6 October 2011. The BOA appear to have taken the approach that the action should be taken before CAS between the sporting bodies concerned and should not involve individual or groups of athletes. The BOA therefore lodged their appeal at CAS on 13 December 2011 against the decision of the WADA Foundation Board with the intention that the matter will be decided before the end of April 2012 in advance of the London Olympics.
