On the official list of compliant and non-compliant signatories to the World Anti-Doping Code, released yesterday, WADA has listed the British Olympic Association (BOA) as being “Non-Compliant”. This is on the basis of BOA bylaw number 74, the corrolary to the former IOC Rule 45 that the CAS ruled was invalid in October.
This rule, in short, states that any athlete who receives a doping ban of greater than 6 months would be subject to a one-Olympic suspension, regardless of when the ban was. The CAS ruled that the IOC tacking on an additional rule was in violation of the World Anti-Doping Code to which it was a party, and would amount to double-jeopardy on the offending athlete.
Representatives of the BOA have criticized WADA in the British media, stating that there has never been a time when the world was “softer” on cheaters, to which WADA retorted that the BOA was present at every major ratification, and has signed agreeing to the rules of, the World Anti-Doping Code. This includes the acceptance of ruling by the CAS as the final arbitor of any interpretations of the Code. WADA also pointed out that every National organization has the ability to effectively ban an athlete for an Olympic Games under the current rules, which allows for up to a four-year suspension, but that federations have rarely chosen to employ such a punishment.
This is not to say that the government of Great Britain, who signs separately from the BOA, is non-compliant. They have been ruled as such by WADA. This is specifically a non-compliance ruling of the British Olympic Association.
All other National Olympic Committees are compliant, though some governments are not. Among the most relevant governments non-compliant from a swimming perspective are Brazil, Portugal, Argentina, and Greece. This means, however, that all of those athletes (including swimmers) under the purvey of the National Olympic Committee fall within the bounds of the “compliant”.
As for what it means to be non-compliant (or the difference between being compliant as a government versus compliant as a National Olympic Committee), WADA responded thusly via email:
“WADA is a regulatory body and part of its mandate is to provide this compliance report. It is the up to the stakeholders – either sport or government – to decide what course of action to take with signatories deemed non-compliant.”
This all leads back to the key to the whole WADA and WADC situation. The groups that disagree with the rulings therein (much like we saw in the case of the Brazilian men and their furosemide tests) are the same ones who agreed to the WADC – either directly or through their representatives. If there is a sudden resentment about the policies of the Code, there is a method by which the Code can be changed, just like any other governing document, but simply ignoring it is not a viable solution.
The only seeming way, in the real-world, for one country to single-handedly violate the code with differing rules is to withdraw their support for the code (which requires 6-months notice) and then file an anti-trust suit when they are alienated from all international sporting infrastructure. And furthermore, at least in the United States, anti-trust suits against sporting organizations have failed miserably.
With that in mind, the only conceivable way for Britain to win this case with the CAS is to drum up enough international support for their viewpoint to produce an expedited amendment of the World Anti-Doping Code, which seems unlikely to happen prior to the next Olympics (especially given that the USOC were the “winning side” in the case that ruled the matter a violation of the WADC in the first place).
Expect ultimately for the BOA to make a point, and then back-down. The legality is pretty straight-forward (as someone who is not a lawyer but has actually read the entire code) – they don’t have a choice but to change it or follow it. Side-stepping it is not an option, and the CAS in this appeal will likely again state what they did in their original ruling – the BOA is wrong, but if they’re unhappy with the rules, then it is strongly urged that they consider changing the Code.
WADA’s Role vs. the IOC’s Role
As WADA stated in their response to the BOA, they, as a regulatory agency, can effectively never be wrong in cases such as these, so long as they are not overstepping the mandates written therein. All they do is produce reports and aid different international agencies in their implementations. They cannot even declare the British to be ineligible for the Olympics, as some media outlets have reported – only the IOC can do that based on the Olympic Charter.
All that WADA has done is provide a report stating that, based on an external CAS ruling, the BOA is non-compliant with the World Anti-Doping Code. See section 23 of the WADC for the ruling stating what WADA can and cannot do. All they can do is produce a compliance list and report it to the IOC, which is what they have done. It is now up to the IOC to decide whether or not to follow their Olympic Charter, amended in 2003 to require implementation of the code, to rule on the country’s eligibility. Therefore, the enemy of the BOA is not the World Anti-Doping Code, rather it is the Olympic Charter (which, incidentally, they have also ratified).
Once that concept has sunk in (and it’s one that takes some time to wrap your head around), this whole situation becomes much more straight-foward.