Spot the GAL...

GAL is everywhere; or at least, the demand for it is. From the fantasy football world of the UEFA Champions League (via the Guardian):

The Arsenal striker Eduardo has been banned for two Champions League matches by Uefa having been found guilty of diving during the second leg of their play-off against Celtic.

Uefa's disciplinary panel made the ruling after a teleconference. The panel said the Brazil-born Croatia forward deceived the referee when he was awarded a penalty after a challenge by Artur Boruc, the Celtic goalkeeper, last Wednesday.

Arsenal this evening condemned the "arbitrary" nature of Uefa's decision, but have not yet revealed whether they will contest the ban. A statement on their website read: "The club is disappointed with Uefa's decision to suspend Eduardo. We have been informed that we will receive a "reasoned decision" from Uefa by Thursday of this week. Once we receive Uefa's rationale, we will make a decision on the next steps.

"We have been deeply frustrated by the perfunctory and apparently arbitrary process that Uefa has followed in this instance. We believe it is imperative that Uefa's explanation for its decision provides clear and comprehensive standards that will be consistently enforced. It is also critical that Uefa provides specific details of the processes it plans to adopt in reviewing all games under its jurisdiction."

Anyone interested in the actual incident that has caused this controversy can see it here. Seems a pretty clear cut case of "simulation" (the preferred euphamism of the Italians for this particular form of cheating); Arsenal's point, however - which seems to be that given the prevalence of this sort of thing in the sport, UEFA are going to have a busy time in the future in their efforts to adopt a consistent and coherent line on this - is both true and interesting...

GAL fun in the world of international cricket...

I have been meaning to post for a while now on some of the always entertaining (and often GAL/relevant) machinations of international cricket governance. An interesting storm is brewing in this field once again: the Board of Control for Cricket in India (BCCI) - a hugely important actor in this sector given the popularity of cricket in India and the vast sums of money that can now be generated there around the sport - has decided that it will side with the views of its elite players and refuse to become a signatory to the WADA Code.

Interesting issues of public/private governance are raised here. The WADA is a formally private body, but its Anti-Doping Code is of major public significance, not least after having been formally incorporated into the UNESCO International Convention Against Doping in Sport. According to Gordon Farquhar of the BBC, the Indian Sports Minister and its Olympic association are lobbying the BBCI to change its mind. The BCCI is, however, preparing to propose instead to the International Cricket Council that all cricketing bodies leave the WADA system and adopt a cricket-specific anti-doping code. This seems an unlikely outcome, but given the extraordinary popularity and finaces of the new 20/20 Indian Premier League, I suppose that anything is possible. Will be watching this space over the next few weeks, in any event..

More on the ski-jumping...

I am currently in summer mode, in a mountain retreat, hence the lack of action on here of late (no posts for a month! Worse than I had thought...): I actually have to go into the next town to get online. While my world has regressed to the stone age, however, that of GAL continues apace, and as such I will be making an effort to post at least once a week from now on – if only to cut down on the catching up I will have to do when I get back to the real world.

Talking of catching up, here’s something I should have posted a few weeks ago: a quick follow up to the controversy in Canada over the IOC’s decision to exclude women’s ski-jumping events from the next Winter Olympics, despite the fact that it has organised equivalent men’s events (see my previous post here). On the July 10th, the Supreme Court of British Columbia in Canada handed down its judgment: perhaps unsurprisingly, there will be no women’s ski jumping at the next Winter Olympics. More surprising, however, and of no little interest from a GAL perspective, is the judge’s reasoning in coming to this judgment.

The arguments, put briefly, were as follows: the complainants alleged that the decision to hold men’s but not women’s events in ski-jumping constituted unlawful discrimination under the Canadian Charter of Rights and Freedoms. They recognised the the International Olympic Committee was not subject to the Charter; however, they argued that the Vancouver Organising Committee (VANOC) was (despite the fact that it is a formally private body), and that as such it could not organise an Olympics on Canadian soil that had one event but not the other. They also recognised that VANOC did not have the power itself to organise the inclusion of a women’s event (only the IOC can decide on which events are included), but that a finding that VANOC was acting unlawfully would in effect compel the IOC to take remedial action. Thus, in effect ,the claim was that a domestic court should make a “bottom-up” demand for GAL within a private global administrative body.

As noted above, VANOC is formally a private body, although with signficant government involvement from the federal, state and local levels. The judge first inquired as to whether VANOC could be held to be “controlled” by the Canadian government (and there is an interesting review of the Canadian jurisprudence on the requirements of this for those interested) – holding, ultimately, that it could not. Despite significant input into decision-making and funding, the day-today running (“effective control”) was clearly that of the IOC.

(Incidentally, the judge also noted in passing - para. 14 - that there is a real difference between “effective” and “ultimate” control, dismissing the argument that the Canadian Government had the latter. Someone should really tell the EctHR…)

The other way in which the Charter can become applicable to a formally private body within Canada is if that body is conducting “a truly governmental activity”:

53. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.

54. In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature… In McKinney v. University of Guelph, … La Forest described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.

56…. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”. Historically, governments hosted the Games directly… While the historical role of government is not conclusive, it is one factor that supports the governmental nature of the Olympic Games.

61. Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.

62. In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.

63. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act…which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.

Noting, in passing, a 1984 US judgment that held that the the equal protection rights under the Fifth and Fourteenth Amendments of the U.S. Constitution were applicable to the Olympic Games in Los Angeles, despite the fact that these were run by the Los Angeles Olympic Committee (the equivalent of VANOC), the judge thus held that VANOC is carrying out a governmental function, and as such is bound by the provisions of the Charter: “A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.” (para. 72)

The next question, then, was whether there had been discrimination. Here, the judge found in the affirmative: that, even although the women’s event failed to meet the IOC’s universality requirements (i.e. enough countries participating to a high level), this was also the case for the men’s event, which had been given a special exemption due to its historical presence in the games. All agreed, however, that the IOC, albeit the source of the discrimination, could not be brought before the Canadian court under the Charter.

113. The plaintiffs argue that by implementing the direction of the IOC not to plan, organize, finance, and stage a ski jumping event for women, VANOC imports the IOC’s discrimination… It is the plaintiffs’ view that the IOC can make decisions that draw distinctions between the benefits it provides to men and women in its activities in Switzerland, but VANOC cannot implement discriminatory decisions in carrying out the Olympic Programme in Canada.

It is at this final point, however, that the judge disagreed – finding that mere implementation of a decision over which the body in question had no control could not itself create a violation of the Charter:

121. VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women‘s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.

123. In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.

124. I acknowledge that there is something distasteful about a Canadian governmental activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC’s conduct that is challenged here. It must be remembered that, in addition to not having control of the impugned decision, VANOC supported inclusion of women’s ski jumping and remains ready and willing to host such an event should the IOC change its decision. There may be exceptions to the general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend, but if they exist they would be extremely rare, and this is not such a case.

132. There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is neither subject to the jurisdiction of this Court nor governed by the Charter. The plaintiffs. application is, therefore, dismissed.

An interesting case, then, and much of interest from a GAL perspective, both in terms of the public/private issue and the possibilities of domestic “bottom-up” demand for GAL from domestic courts in relation to global bodies – even if the judged ultimately baulked at the latter. It is also interesting to speculate on what the wider effects of this decision would be, as there is nothing in the judgment to suggest that it should be limited to the Charter’s governance of sports, or indeed of private bodies carrying out governmental functions more generally. For example: in theory, Canada has no formal control over a UN Security Council Resolution mandating the freezing of an individual’s assets on the gorunds of suspected links to terrorist organisations. Would the application of the Canadian Charter of Rights and Freedoms be just as easily circumvented in this context, I wonder? We are told that the ski-jumpers are currently considering an appeal, so it may be tested futher yet...

GAL and... women's ski-jumping

As if to prove that there is almost no conceivable field of human activity that is not of at least potential interest to us here at the GAL blog, an interesting situation is developing in Canada with regard to its hosting the 2010 Winter Olympics. In a nutshell, a group of female ski-jumpers has brought a claim before the Supreme Court of British Columbia, claiming that the fact that men can compete in this event at the Olympics while women can't is discriminatory, and in particular in violation of Canada's Charter of Rights and Freedoms.

The International Olympic Committee (IOC) argues that the women's sport is not developed enough tobe included in the Olympics. The Vancouver Olympic Organizing Committee argues that the decision was made by the IOC, which is immune from jurisdiction before Canadian courts. According to the BBC, the key issue will be showing that the Canadian government has effective control over the Organizing Committee, which will thus render the Canadian Charter applicable. The Plaintiffs' Memorandum of Argument can be found here. Certainly, much time is spent arguing that VANOC is controlled and financed by the Canadian Government. Just as much time, however, is spent on the discrimination claim itself, and the fact that the women train and sacrifice just as much as the men, and thus deserve equal recognition. And it does not shy away from emotive language: "At its core, VANOC's failure to plan, organize, finance and stage even one ski jumping event for women is an affront to the human dignity of the Plaintiffs" (para. 181).

Loads of interesting issues here: the discrimination claim; the immunity claim; the role of domestic courts in effectively applying domestic law to decisions of an international organisation; the public-private dimension ever-present in controversies involving the IOC; and the liability of domestic members of global organisations for activities and decisions of the latter. What is the legal nature of the Vancouver Organizing Committee? Is it a Canadian Government Agency? An autonomous NGO? An IOC "field mission"? We'll be keeping a close eye on this one...

Chambers loses appeal against BOA by-law

And it ends with a whimper. Dwain Chambers has lost his appeal for a temporary injunction against the British Olympic Association's lifelong ban for anyone who has previously tested positive for banned substances. The judge apparently had some critical words for Chambers' legal team, and in particular relating to the last-minute nature of the request (which could have been lodged at any time in the last three years, as the issue that has arisen was entirely foreseeable), holding that

Many people both inside and outside sport would see this bylaw as unlawful. In my judgment, it would take a much better case than the claimant has presented to persuade me to overturn the status quo at this stage and compel his selection for the Games.

I have not yet been able to get my hands on a copy of the judgment (anyone?), but from how the matter is being reported in the press at least, it seems that ultimately there was very little of GAL relevance in the case, with the main focus being on the suggestion that banning Chambers would have constituted an unfair restriction on trade. A curious argumentative platform, given that the Olympics remains an amateur competition, and no prize money is awarded.

I'm still hoping, however, that the actual judgment will show that the issue of the incompatibility of the BOA by-law with the WADA Anti-Doping Code, to which the BOA is a signatory, was raised and discussed. The media is only really reporting the trade angle, along with some pretty irrelevant arguments as to whether Chambers was the UK's best chance of a medal in the 100 metres, and whether he is a suitable role-model for athletics in general. Will post more if/when the actual judgment becomes available...

Chambers: 2 weeks and counting...

Dwain Chambers has taken his case against the British Olympic Association (BOA) before the High Court in England, seeking a ruling that the Association's by-law banning anyone who has ever tested positive for drugs from competing in the UK Olympic team for life is itself illegal. There have been successful challenges against individual bans; this, however, is the first time that the legality of the rule itself has been challenged. See my previous posts on the subject here and here.

It remains to be seen, however, just how much of GAL-relevance will emerge in this case. His legal team have stated as follows:

The basis of Mr Chambers claim is that the bylaw is an unreasonable restraint of trade in that it goes further than is reasonably necessary for protecting the interests of BOA and the public. And further, that the bylaw is inherently unfair and unreasonable given the surrounding circumstances.

This statement thus seems, at first glance at least, to confine the issues very much to domestic administrative law. The key question for our purposes is, to what extent will the conflicting international rules, embodied in the WADA Anti-Doping Code and supported by the International Association of Athletics Federations (IAAF) and the International Olympic Committee (IOC), feature in the deliberations of the High Court? They provide, in Art. 10.2, for a two year ban for a first offence, with a lifetime ban to follow the second time.

One issue, then, is whether this sets a minimum standard in the fight against drug abuse, or the definitive balance between the rights of the individual involved and the legitimate public goal of eliminating drugs from sport. Another is whether the rules of global private (the IOC) or hybrid (the WADA) bodies can have "direct effect" over the bylaws introduced by national administrative authorities, whether formally public or private in nature (in the UK, for example, the National Olympic Committee is a private body; in France and in Italy, on the other hand, they are public in nature).

In any event, the High Court will have to act quickly on this; the BOA has to finalise its team by the 20th of July...

** UPDATE **

I wondered if the timescales involved weren't a little too quick. In the pre-Olympic hearing, which will have to rule in time for final team selection in around ten days, Chambers is only requesting a temporary injunction against the BOA bylaw, which, if granted, would be sufficient to allow him to compete in Beijing. A full hearing would then be held later in the year, doubtless at a more leisurely pace. While, then, the forthcoming decision will not be final, it will nonetheless contain much of interest in terms of outlining the directions in which the opposing arguments will be formulated, and a prima facie decision as to their persuasiveness. For more detail, see here.

Can a double amputee compete in the Olympics? Pistorius v. the IAAF before the CAS

Apologies for two sports-related posts in one day, but a fascinating, if slightly strange, decision has just been handed down today by the Court of Arbitration for Sport (CAS) in Lausanne, relating to the right of a double-amputee sprinter to compete, using specially-designed prosthetic limbs, against able-bodied athletes in sporting events sanctioned by the International Association of Athletics Federations (including, of course, the forthcoming Olympic Games in Beijing). Oscar Pistorius, a 21-year old South African sprinter, is already the paralympic world record holder over 100, 200 and 400 metres.

The case before the CAS arose over whether Pistorius' use of the prosthesis known as the Cheetah Flex-Foot contravened IAAF Rule 144.2, which was newly amended in March 2007 (with, in the view of the Arbitration Panel at least, Pistorius' particular case in mind) to prohibit, inter alia,

(e) The use of any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device.

The IAAF then conducted a series of scientific tests on Pistorius in 2007, in order to determine whether his prosthetic limbs did in fact give him such an advantage, culminating, in January 2008, with an IAAF Council Decision (no. 2008/01) that

a. running with these prostheses requires a less-important vertical movement associated with a lesser mechanical effort to raise the body, and

b. the energy loss resulting from the use of these prostheses is significantly lower than that resulting from a human ankle joint at a maximal sprint speed.

On this basis, then, the IAAF concluded that the Cheetah Flex Foot was a device prohibited under Rule 144.2(e), and thus banned Pistorius from participating in international sporting events that it sanctioned. The case before the CAS raised three points, each of which is of direct and significant interest from a global administrative law perspective (see para. 53 of the Decision):

1) Was the process leading to the IAAF Decision procedurally unsound?
2) Was the IAAF Decision unlawfully discriminatory?
3) Was the IAAF Decision wrong in determining that the use of the Cheetah Flex Foot contravened Rule 144.2(e)?

It's hardly necessary, but to frame this in terms of global administrative law in particular, we have the administrative action of a private global regulatory body (the IAAF) affecting the interests of a private individual (Pistorius) held to account ex post by a private arbitration tribunal (the CAS). In many ways an entirely "private" dispute, then; yet the influence (we may even say the application) of the rules and mechanisms of public administrative law is simply undeniable. The three issues dealt with in the case run the whole range of those commonly raised in terms of court-based oversight of administrative action: the formal, due process question; the human rights-based non-discrimination question; and even the the possibility of a critical re-evaluation of the substance of the administrative decision in question. (Indeed, had counsel for Pistorius not dropped (see para. 55) his initial claim - that the IAAF didn't have the jurisdiction to adopt the decision in the first place - we would also have had a consideration of ultra vires, making a pretty complete set of administrative oversight questions).

Procedure
The actual Panel Decision itself is no less interesting than the facts promised it would be. The Panel spends some time dealing first with the procedural issue (paras. 56-71), and finds it wanting in a number of ways: finding that, for example, the second set of scientific tests was limited to finding only if the athlete had an advantage the part of the race in which he was strongest, and did not consider the balance of advantage and disadvantage over the race as a whole (para. 61); that the scientific experts nominated Pistorius had been denied participation, having effectively been "frozen out" of the testing process (paras 62-63); that the IAAF voting procedure was rushed and otherwise unsatisfactory, in that insufficient and inaccurate information was given to the IAAF Council (paras. 64-67); and that there was evidence of prejudice among some leading IAAF officials (para. 68).

There are two points of great interest in the Panel's Decision in this regard. Firstly, it seems clear that, despite the private nature of all parties involved, there is a public law sensibility being applied to the issue of procedural propriety. There is no attempt to evaluate the conduct of the IAAF according to its own standards (or those of an implied "contract" between that Organization and Pistorius); rather, the evaluation is informed by a more general sense of "fairness" and community expectation:

In the Panel's view, the manner in which the IAAF handled the situation of Mr. Pistorius in the period from July 2007 to January 2008 fell short of the high standards that the international sporting community is entitled to expect from a federation such as the IAAF (para. 77).

The second interesting, if slightly odd, feature of the Panel's Decision on the procedural issue is that, immediately after having made this finding, they go on to conclude that it "makes little difference, if any, to the outcome of the appeal" (para. 78). The proceedings before the CAS in this case were a de novo process, in which the facts are to be evaluated anew, "in a judicial manner", on the basis of the evidence and submissions of the parties in the case. The question remains, then, of why the Panel spent the time it did making the finding that the IAAF process was insufficient, only to find this issue irrelevant to the case...

Non-discrimination
Pistorius also argued that the IAAF Decision breached the legal requirement of non-discrimination, in that they did not seek to find an appropriate alternative solution to allow him to participate in IAAF-sanctioned events on an equal basis with all able-bodies athletes. Interestingly, the Panel deals with this (presumably pursuant to Pistorius' claim) in terms of the newly in force Convention on the Rights of Persons with Disabilities (see my earlier post on this Convention here).

The issue was not, however, whether the Convention was binding directly on the IAAF, but rather (apparently, the Decision isn't very clear on this point) whether it could be said to form part of the law of the Principality of Monaco, to which the IAAF is subject (as it has its seat there). This seems like an extremely weak argument, and was dismissed by the Panel. Not only did the Convention only enter into force in May 2008 (after the contested IAAF Council Decision in January), but Monaco has neither signed nor ratified it. Moreover, the Convention requires only that States "take appropriate measures" with "a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities". Hardly directly effective, or even particularly mandatory, language; and in any event, the "equal basis" requirement is precisely the question at issue in the contested IAAF Decision. All in all, then, the non-discrimination claim here seems to have been a bit of a non-starter; the attempted reliance on the new Convention is interesting, if a bit... odd.

Substance
Entertainingly, the Panel derides the amendment to IAAF Rule 144.2 ("without implying any criticism of the draftsman") as being a "masterpiece of ambiguity" (para. 80). In general, however, they find that the advantage conferred must be an overall net advantage; the fact that the prostheses help in one part of the race must be balanced against any part in which they are a hindrance (i.e. the Cheetahs help Pistorius gain speed over the final straight, but they actually impede his speed over the first 200 metres compared to an able-bodied athlete. This must be taken into consideration, and wasn't in the key stage of the IAAF's scientific testing). There was agreement that the burden of proof fell on the IAAF in the case, and that the relevant standard of proof was the "balance of probabilities" (paras. 86-87). On the basis of the scientific evidence available, the Panel concluded that the IAAF Decision had failed to satisfy even this burden of proof; on this basis, it revoked Decision 2008/01 with immediate effect, allowing Pistorius to compete in international IAAF-sanctioned sporting events.

An interesting judgment, then (even if the Panel insisted (paras. 101-104) on limiting any precedential value by stressing that this judgment applies only to this particular athlete using these particular prostheses; and that, moreover, should new evidence come to light, the IAAF would be entirely entitled to reintroduce its prohibition), and one that demonstrates with exceptional clarity the relevance of public, administrative law mechanisms to even ostensibly entirely private realms of global regulatory governance.

Chambers to take case against BOA to High Court

Like him or loathe him, it's great news for GAL: the BBC is reporting that Dwain Chambers has initiated proceedings before the High Court in England against the life ban imposed on him by the British Olympic Association (see my earlier post for more detail), arguing that a life ban for a first offence is illegal under the WADA Anti-Doping Code, which provides only for a two year suspension (with a life ban for a second offence). This will furnish us with an interesting insight into whether the standard-setting of a hybrid public-private global administrative body can be upheld in court as superior to those of a national administrative body (a private body in the case of the BOA, but other national Olympic associations - such as, for example, in Italy - are fully public bodies).

What makes this now particularly interesting is that Chambers has recently begun to cooperate fully with UK anti-doping authorities, providing them with a letter from Balco supplier Victor Conte detailing his precise drugs regime, and how he managed to evade the testers for so long. Whether the BOA will argue that this proves that his first time being caught was not his "first offence", or whether instead they will take it as an opportunity to soften their stance as a reward for "good behaviour", remains to be seen. In any event, we'll be keeping a close eye on this one...

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...