“RULE 45”: Is LaShawn Merritt Banned from the London 2012 Olympics?
by: Matt Lane
October 21, 2010
Editor's note: Matt Lane an 11-time All-American at William & Mary who was 4th at the 2000 and 2004 Olympic Trials at 5k is an attorney who practices Sports Law at Preti, Flaherty, Beliveau & Pachios in Portland, Maine and Boston. He competed for Nike and the Nike Farm Team until 2006. We're grateful he wants to share his knowledge of sports law with the LetsRun.com faithful.
Under the decision released by the American Arbitration Association (the North American Court of Arbitration for Sport) on Monday, LaShawn Merritt will not compete again until July 2011. Following the decision that resulted in a 21-month period of ineligibility for Merritt, debate has centered around what will happen to Merritt in 2012. On Tuesday, the IOC clearly indicated that Merritt would not be eligible for the London Olympic Games under IOC rules.
In July, there was some discussion on “the Boards” about an IOC rule that banned from the next edition of the Olympic Games any athlete who received a suspension of more than 6 months. The discussion quickly revealed that this rule was misunderstood and elusive for anyone interested in finding or reading it.
Much has been made about so-called “Rule 45.” In June 2008, the IOC Executive Board sent a letter signed by IOC President Jacques Rogge to the National Olympic Committees, including the USOC, regarding participation in the Olympic Games that included the following:
[a]ny person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Winter Olympic Games following the date of expiry of such suspension.
On its face, “Rule 45” is clear. An athlete, like Merritt, will be ineligible for the Olympic Games in 2012. However, many believe that this “rule” contravenes the World Anti-Doping Code. As a signatory, the IOC has the legal obligation to conform with the Code which makes clear that a signatory cannot add rules that change the Code’s effect.
The arbitration panel in Merritt’s case agreed. In its decision, the panel discussed the validity of the IOC’s “Unpublished Memo.” In its decision, the panel notes that the Code grants authority for the panel to decide the “appropriate consequences” for anti-doping violations. “The Unpublished Memo imposes a ‘Consequence.’ Pursuant to the Code, this Panel has the authority and jurisdiction to determine whether that ‘Consequence’ is appropriate.” The panel found that application of “Rule 45” to Merritt, after the expiration of his 21-month sanction, would be “an additional penalty . . . [and] not an appropriate consequence under the Code."
Despite appearances, this decision does not invalidate “Rule 45” because the IOC was not a party to the case. The IOC was invited to participate, but it declined. The IOC was also not a party in Jessica Hardy’s case that was decided in May (editor's note: Jessica Hardy was a swimmer banned from the Olympics), another case that may very well implicate “Rule 45” in 2012. Until the rule is properly challenged, the IOC’s statement from Tuesday, that the rule “is still valid and applies to all athletes,” remains true. As regards the IOC, the Merritt and Hardy decisions are merely advisory . . . for now.
Any formal challenge to “Rule 45” will likely come in the weeks leading up to the 2012 Olympic Games. Most likely, Merritt will be one of the USA’s best 400m runners in 2012. A challenge to “Rule 45” would almost surely arise if Merritt were to make the Olympic Team, have his name submitted by the USOC, and then be declared ineligible by the IOC. In addition, if Merritt were named to the Olympic Team, another athlete could bring an arbitration seeking to enforce “Rule 45” and prevent Merritt or any other athlete subject to “Rule 45” from taking up a spot on the team.
Despite indications in many CAS decisions that “Rule 45” is invalid, and that the IOC, as a signatory to the World Anti-Doping Code, cannot issue such additional punishments, the issuance of “Rule 45” may be a win-win for the IOC. The reality is that many view “Rule 45” as a positive step in the direction of clean competition. Through “Rule 45,” the IOC has taken a tough stance on doping violations. It is up to others to tell the IOC—and many in the general public—that this stance is illegal. Regardless of the outcome, the IOC can stand on its attempt to provide a substantial deterrent and to seriously punish doping offenders.
In light of the Merritt decision and others in recent months, it is probable that, if formally challenged, “Rule 45” will be invalidated because it is an additional punishment in contravention to the provisions of the World Anti-Doping Code. This would be the right decision.
My colleague, Paul J. Greene, Esq., has published an article this month in the Entertainment and Sports Lawyer, a publication of the American Bar Association, astutely describing the debate that currently ranges around “Rule 45.” His article, Is the International Olympic Committee Above the Law?, can be read here
Matt Lane is an attorney who practices Sports Law at Preti, Flaherty, Beliveau & Pachios in Portland, Maine and Boston. Matt was an 11-time All-American at William & Mary and competed for Nike and the Nike Farm Team until his “retirement” in 2006. His prs are: Mile 3:57.57, 5000 13:25.38, 10000 28:00.01, Marathon 2:17:32. He can be reached at (207) 791-3262 or [email protected] More sports law news and analysis from the Preti Sports Law Group can be found at http://pretisportslaw.blogspot.com/.
 The “rule” is not in the Olympic Charter or the World Anti-Doping Code, but earned its colloquial name because it was issued pursuant to Rule 45 of the Olympic Charter.
 The Hardy decision can be found at:
See Section 3.6 on page 28 in which the IOC’s possible participation is discussed in detail.
 Two advisory opinions relevant to the “Rule 45” debate are discussed in the Merritt decision. In the IOC Advisory Opinion, a CAS panel found “Rule 45” valid because it was not a sanction rule, but an entry rule. However, in the IAAF advisory opinion, a different CAS panel found that a similar rule prohibiting participation in the European Championships was invalid and was indeed a penalty rule, not an entry rule. The Merritt panel noted that any argument that “Rule 45” is not a punishment is “mere skulduggery.”
 The author notes his considerable experience with the anguish of a 4th place Olympic Trials finish having done so at 5,000 meters in 2000 and 2004.