A lesson in how not to enhance performance

By Jonathan Walters, Solicitor at Charles Russell LLP

IN THE murky world of drugs abuse in sport, there have been many weird and wonderful excuses put forward over the years for the presence of prohibited substances in an athlete's sample.

HARBOURING HOPE: Olympic 400m champion LaShawn Merritt is still hoping to defend his crown at London 2012 despite the IOC insisting he will be banned (Reuters)

In the last year alone, we have heard the extraordinary (and truthful) defence put forward by Richard Gasquet, the French tennis player, for testing positive for cocaine, which he put down to kissing a girl called Pamela in a Miami nightclub who had taken the drug earlier in the evening, Alberto Contador's contaminated meat defence, and now, perhaps most extraordinarily of all, LaShawn Merritt's explanation following his positive test for DHEA.

In a relatively unreported hearing, the American Arbitration Association (AAA) adjudicated last year on the case of US athlete LaShawn Merritt, the reigning Olympic and World Championship 400 metre champion. Suppressing their sniggers, the panel accepted Merritt's contention that his positive tests were caused by ExtenZe, a product he had purchased in his local 7 Eleven store after a night out to help him "last longer and stay firmer...with his lady friend."

Despite the ExtenZe packaging clearly listing DHEA as an ingredient, Merritt had in his haste failed to check the label. Also in his favour was the fact that he had taken the medication during a break from training and without intent to enhance his (athletic) performance in any way.

On this basis, the panel found that Merritt has shown "no significant fault or negligence" under the World Anti-Doping Code and reduced the standard penalty of a 2 year suspension to 21 months with a pre-dated start date so as to end in July 2011: conveniently enough, one month before the World Championships.

This conclusion followed similar logic to the Gasquet case (where there had been found to be "no significant fault or negligence") and a line of other cases involving the Court of Arbitration for Sport and the AAA in which athletes had come to have banned substances in their bodies for reasons totally unrelated to sport or sport performance.

So far, so straightforward. However, there are a couple of angles to the Merritt case which will no doubt demand closer attention over the coming years. The first is that it is difficult to reconcile the finding of no significant fault with the fact that DHEA was clearly listed on the product label.

Previous decisions have found significant fault and negligence where: a tennis player had taken nutritional supplements without taking adequate steps to check them; an athlete had consumed a glucose product labelled as containing a prohibited substance, which was listed in French, a language which the athlete could not read; and a swimmer had ingested a contaminated supplement without enquiring as to its contents. A case of home-town leniency shown to Merritt by the American Arbitration Association?

Of wider significance is the eligibility of Merritt to compete in the Olympics. As reigning Olympic 400m champion, there is clearly great interest in him defending his title but, despite his ban ending in 2011, his chances of appearing at London 2012 appear to have been scuppered by a rule of the International Olympic Committee, which states:

"Any person who has been sanctioned with a suspension of more than six months by an anti-doping organization for any violation of any anti-doping regulations may not participate...in the next edition of the Games...following the date of expiry of such suspension."

The IOC is not alone in implementing a rule of this type: a similar rule of the British Olympic Association prevented our very own Dwain Chambers from competing at Beijing.

Plainly, there are decent arguments for the existence of this type of rule (or ‘eligibility criteria' as the IOC likes it to be known), not least given the perceived values of the Olympic movement to which integrity and fairness are integral. However, there are many, including those actively involved in stamping drugs abuse out of sport, that look less kindly on additional Olympic bans.

Why is this? Well, for one, the great success of the World Anti-Doping Agency over the past decade has been in establishing a uniform drugs code, procedure and punishments across virtually all sports globally. It is this certainty and level playing field which has helped to eliminate bias and leniency in certain sports and countries. By implementing an additional ban, the IOC challenges this uniformity and reduces the authority of the World Anti-Doping Code.

Perversely, it has also led to the reduction of bans imposed on athletes in some cases due to the fact that the Olympics ban only kicks in if an athlete is banned for six months or more.

Fearful of the legal challenges that may be put forward by athletes whose marketability, ability to compete and earning power will be compromised by a six month ban leading to automatic exclusion from the Olympics, there have been instances where drugs panels have imposed lighter sentences on guilty athletes. In other words, the IOC rule is in fact hampering effective anti-drugs enforcement.

This is an issue likely to gather momentum. In the Merritt case, the panel was damning in its view of the IOC rule and opened up grounds for a potential legal challenge to the rule on the basis that the IOC, as a signatory to the World Anti-Doping Code, has agreed not to implement rules which contradict the Code. Dressed up as ‘eligibility criteria' or not, the rule plainly is a contradictory.

Readers are advised to watch this space for further developments. What price Chambers and Merritt lining up in the starting blocks in London in 2012?