London 2012 Olympics: BOA drug cheat bylaw may hit bureaucratic stalemate

Robust: Lord Moynihan is holding firm on his view on drug cheats (Photo: AP)

It has occasionally been said of Lord Moynihan, the combative and committed chairman of the British Olympic Association, that he could start an argument in an empty room.

He has had no need to search for an opponent in the deepening row with the World Anti-Doping Agency, but if he is to put the uncertainty over the legality of the BOA’s life-ban for convicted dopers to bed, he may have to win the argument in an empty chamber.

The row between the two agencies is on one level very simple.

Does the BOA have the right to bar convicted drugs cheats from its Olympic team for life, on the basis that it is free to choose who is eligible to wear the Team GB vest? Or is it, as WADA maintain, bound to respect the universal code, under which all doping sanctions have to be uniform, rendering the life-ban illegal?

A simple question perhaps, but the dispute risks being swallowed in rhetoric and the bureaucratic mire of global anti-doping and dispute resolution.

The International Olympic Committee found to its cost last month that it has to bow to WADA on doping, when American sprinter LaShawn Merritt’s ban from London 2012 under IOC Rule 45 was overturned at the Court of Arbitration for Sport.

That case has established a precedent that WADA believes renders the BOA bylaw defunct. CAS ruled that the IOC’s rule was a sanction not an eligibility test, and therefore invalid, and WADA believes the same logic applies to the BOA.

To prove it WADA asked Michael Beloff QC to look at the case and he agreed that the BOA was “non-compliant” with the code. WADA sent that opinion to the BOA which construed it as a challenge and called for a ruling from CAS.

In theory this was probably the least bad solution, a chance to test the bylaw without the emotional baggage and personal stress that a challenge from an athlete would bring.

But for reasons that are not yet clear but probably blend politics, legal nicety and personal animus, WADA appear unwilling. Its director general David Howman told Telegraph Sport on Wednesday evening that he had no intention of being a party to a CAS arbitration.

But without two parties there can be no arbitration, which takes us back to Moynihan and the empty chamber. With no arbitration the bylaw stands, for now, a move interpreted as an expert calling of WADA’s bluff by the former sports minister.

Perhaps. Few in the doping and Olympic community think WADA can be described as bluffing when their hand includes a considered legal opinion from one of the most experienced lawyers in sport, and an apparently clear precedent in the Merritt case. But for now, its deadlock.

One question worth addressing is why, if WADA does not want to pursue arbitration, why has it taken this course?

The reason is that this weekend WADA’s board is required to compile a list of which of its signatory agencies are compliant with its code. It goes through this process every two years, a deadline that persuaded it to seek clarification from the BOA, which as a national Olympic committee is signed up to the code.

With the status of the bylaw uncertain and in WADA’s opinion illegal, the BOA risks being declared non-compliant, an embarrassment at the very least for an NOC about to host an Olympics.

The consequences could in theory be much worse. WADA can take internal measures against non-compliant countries, barring them from committees and its board.

The IOC and international federations can take tougher action. London is lucky, for example, that it has already won the hosting rights to the Games because non-compliant countries are barred from bidding for them.

In theory London could even lose the right to stage them. According to the WADA code “other consequences may include the ineligibility to host events, cancellation of international events and symbolic consequences.”

None of these are likely to be invoked, but to find a way through this mess someone will have to back down. That will be hard given the bad blood on both sides.

Moynihan’s highly critical speech calling for fundamental reform of WADA and describing it as “toothless” has caused offence and annoyance at the agency’s Canadian headquarters.

Howman responded by describing it as an inaccurate and emotional “tirade”.

Neither has WADA done itself any favours in its public statements, which last night contained one significant inaccuracy and a misinterpretation. WADA claimed that it had not had any contact with the BOA since October, ignoring the letter and legal opinion sent to Charlotte Street this week. It also denied challenging the BOA to go to CAS, something that Moynihan did not allege.

WADA has also apparently changed its mind on the issue, an irony given its over-riding interest in consistency. In 2009 WADA told the BOA the bylaw was compliant. This October, following the Merritt ruling, they ruled it was not, a view emphasised this week.

Finding a way out of the muddle will not be straightforward but without a challenge the bylaw will remain. Everyone I have asked inside the Olympic movement in the last 48 hours thinks it will fall at the first challenge.

But Moynihan’s commitment to it, backed by the support of 90 per cent of British athletes and, one can assume, majority public opinion, is sincere and deeply held. And, for the time being, it looks like being successful.