Source: www.guardian.co.uk

The Court of Arbitration for Sport is to sit in judgment on the IOC's Rule 45 as one high-profile athlete branded a drug cheat leads race to gain entry into the London 2012 Games.

One man's lily-livered leniency is another man's common sense, not least when it comes to the debate over penalties imposed on athletes found to have broken anti-doping rules.

The absolutists argue no punishment is sufficient for "cheats" except a lifetime ban, while the "libertarians" (for the want of a better word) would rather there were no punishment or indeed no rules, not least because the policing of steroid abuse has proved so difficult through the years. Let them all "cheat", goes this mantra – at least we would have a level playing field.

And then there is the real sporting world, where difficult and complex concepts like natural justice, proportionality and fairness must be applied. It is into this world that the case of the American Olympian LaShawn Merritt arrived this week.

Merritt, the reigning world and Olympic 400m champion, was banned from the sport for two years – backdated to October 2009 – after he was found to have tested positive three times for a steroid found in a "male enhancement" supplement called ExtenZe. His punishment was subsequently reduced to 21 months by the American Arbitration Association, which ruled he had not taken the steroid with the aim of gaining a competitive advantage and therefore deserved a degree of leniency.

In making its ruling the AAA went further, challenging the International Olympic Committee's Rule 45, which states that any athlete who receives a drugs sanction greater than six months is automatically banned from competing at the next Olympics. In Merritt's case, this would mean he would not be able to take part in London 2012. According to AAA, this IOC sanction is out of kilter with the concepts of justice laid out in the World Anti-Doping Agency's rules on sanctions for drug offenders, being both disproportionately harsh and, in effect, double jeopardy because it punishes an athlete twice for the same "crime".

(The IOC has previously argued the ban imposed under Rule 45 is not a "penalty" but an "eligibility rule" – a piece of legal sophistry dismissed in the AAA's fascinating 50-page ruling as "mere skulduggery".)
The US Olympic Committee would obviously like to take the strongest team possible to the 2012 Games, but it is also keen to avoid expensive legal costs that might be incurred if an athlete, such as Merritt, sought to challenge any Olympic ban arising from Rule 45. In other words, with London looming so did the prospect of a rash of high-profile and potentially damaging legal actions as drugs "cheats" like Merritt sought to gain entry to the Olympics through the courts.

Against this backdrop it was no surprise last week when the IOC and the USOC announced they have asked the Swiss-based Court of Arbitration of Sport to sit in judgment on Rule 45.

Both organisations are looking for clarity, albeit a different kind of clarity, with the IOC seeking to uphold its current policy while the USOC, though not publicly stating a preference, would rather see it set aside.

Hardliners view the USOC's approach as typically self-serving (this is the organisation, after all, which stood accused of covering up the fact that more than 100 US athletes failed drug tests from 1988-2000 and so allowed them to continue competing), and note the contrast with British Olympic Association, which goes beyond Rule 45 and imposes a lifetime ban from the Olympics on athletes who have failed a drugs test.
Famously, Dwain Chambers's challenge to the BOA's rule in the run-up to the Beijing games in 2008 was thrown out by the high court, albeit that the judge suggested at the time that a stronger case than the one put forward by the sprinter's legal team might have had a chance of success.

Responding to the news that Merritt's case was to go before the Court of Arbitration for Sport, the BOA reiterated its backing for a lifetime Olympics ban , although was it possible to detect a softening of approach in these words from its spokesman? "We agree it is important to find the right balance in a rigorous anti-doping system that protects the health and well-being of the overwhelming majority of athletes who choose to compete clean while also introducing meaningful sanctions for those who break the rules," he said.
No one, not LaShawn Merritt and not even Dwain Chambers, could find fault with this statement of the obvious.
The difficulty comes, and the controversy will follow, when the Court of Arbitration for Sport decides where this balance falls.