Wednesday, March 5, 2008

Athletics and GAL: The Case of Dwain Chambers

The complex world of sports regulation throws up more than its fair share of difficult administrative relations and GAL issues; and none more so than the complex anti-doping regime pertaining to participation in the Olympic Games (for a detailed analysis of some of the issues involved from a GAL perspective, see this IILJ Working Paper by Alec Van Vaerenbergh).

The latest issue concerns the British sprinter Dwain Chambers, and his ongoing attempts to rejoin the athletic circuit after testing positive for steroids. Chambers served his mandatory 2-year ban, came back to athletics (with significantly less problems than he now faces), left to play American Football, and then sought to return to athletics again. This time, however, he found that attitudes within the UK had hardened to those who had taken drugs in the past, and has faced many calls to retire. He will represent the UK at the World Indoor Championships this week - although the selection committee made clear that they only agreed his selection extremely grudgingly, as they were legally bound - by their own rules and procedures - to do so.

Most interesting from a GAL perspective, however, is the conflict brewing over whether or not he will be allowed to represent the UK at the Beijing Olympics this summer. The British Olympic Association's (BOA) rules are clear: nobody who has tested positive for drugs will ever be eligible - barring the existence of certain mitigating circumstances - to represent the UK at the Games. It seems likely, however, that Chambers will seek to challenge the very legality of this rule, on the basis of its incompatibility with the Code of the World Anti-Doping Agency (WADA), which provides a mandatory 2-year ban for a first offence (Art. 10.2). The former head of that Organization, Dick Pound, has today supported such a claim, noting that

As a matter of law, I think the BOA would be on pretty shaky ground... If the BOA sought to deny me a place in the 2008 Olympic team on the basis solely of my earlier drugs offence, I would say that they don't have the power to do that... The BOA is a signatory to Wada's code - those are the rules that govern doping infractions - and the sanction for a first offence is a two-year suspension.

This provides us with an interesting set of administrative relations: on one hand, we have a private national body that is effectively exercising a number of public functions (e.g. rule setting), that is subject to a number of international rules (in particular, the World Anti-Doping Code, to which it is a signatory). Here, then, it looks like we have an atypical form of what Kingsbury, Krisch and Stewart have called "distributed administration" (where global regimes are administered by national bodies); atypical in the sense that the domestic regulatory authority is in this case a private body. Also, however, we have the nature of the international standard setter itself (WADA), a hybrid public-private body composed of representatives of the Olympic movement and governments. The relation between the two is the issue in question - and, in particular, whether the BOA is entitled to enforce stricter penalties than the WADA Code, or whether, in seeking to do so, it is in effect acting ultra vires.

According to the BBC, the BOA - the only national Olympic body to insist upon a lifetime ban for drugs cheats - is refusing to countenance backing down on this issue, and it looks as if the High Court in England will be asked to provide the ex post review function in this case, as a case before the Court of Arbitration of Sport would not be heard before the Olympics. Which means we should be have a definitive answer on the issue - from the standpoint of an English court at least - within the next few months. Watch this space...

3 comments:

Anonymous said...

The case is very interesting and it becomes even more relevant if we consider that in some countries the national olympic commitee is not simply a private body, but it is a public administration.

Euan MacDonald said...

Good point; the issues involved would be even more acute in cases in which the rules of a hybrid international body effectively trump those of a national public authority. It will be worth looking to see whether the private nature of the BOA is a relevant factor in any eventual judicial decision...

Ismael said...

Hey guys, I think we will have soon some CAS decisions about that, because Chambers has just won a silver medal in Valencia World Indoor Championship! And he strongly wants to go to Bejing! We will see..