By Courtenay Barnett
Dear beloved, I am perplexed and perturbed by the recent International Olympics Committee (IOC) ruling concerning Nesta Carter ( member of the 2008 4 x 100 Jamaican relay team at theBeijing Olympics).
My sermon deals briefly with the background to and the outcome of the findings; and then I shed a few tears, wiped from my computer screen, before I dispatched this lament.
Nesta Carter happens to have been one of Usain Bolt’s team mates in the 4 x 100 meters relay race in which the team won a gold medal ( one of several thereafter) and set a world record ( one of many) and Bolt in the process launched himself further into the stratosphere of athletics international stardom.
Simply stated, the governing body for international athletics accused Carter of cheating by way of having taken a performance enhancing drug in 2008. Subsequently, after an appeal, Carter lost his case and in consequence lost the gold medal which he and his team mates won. Since Carter is compelled, along with Bolt and the other members of the team, to return the medal to the IOC, there is a reduction in Bolt’s overall gold medal haul. ‘Collateral damage’ for Bolt; embarrassment for Jamaica. Carter lost his final appeal to the International Olympic Committee Disciplinary Panel – and- procedurally that is as far as he can go.
However, viewed through a lawyer’s eyes and based on fundamental principles of natural justice, there are a few problems arising, which can honestly be placed and posed as questions:-
A. Why does it take fully eight(8) years before the allegation about drug cheating is raised against Nesta Carter, regarding the Beijing Olympic games?
B. Why is it that prior drug tests effected at the time in 2008 when Carter competed in Beijing gave him and all his team mates a clean slate and did not produce any evidence of drug cheating, but must now be reversed?
C. Was the stimulant methylhexaneamine, said to be found appearing in a retest in 2016, expressly on the ‘ban list’ of substances that athletes were prohibited from using in 2008?
Issues A and B relate mainly to factual content; issue C goes more to substantive and procedural matters.
So far as issue C is concerned an accused person is entitled to have a fair hearing and in matters of serious allegation, such as under the criminal law or where an infraction will have a serious deleterious impact on a person’s reputation and/or life generally, then the rule against retrospectivity applies. In the world of the Olympics and Olympic athletes the rule, as an element of the Rule of Law, would translate in the individual athlete’s mind to mean a reasonable expectation that, in any competition their actions therein must be considered by a future Tribunal or Court only by reference to the Rules or Laws applicable at the time of the competition. One cannot be held guilty of an ‘offence’ which at the material time of the factual event in question, was then not an offence. It is an apparent violation of this Rule, in a somewhat peculiar set of circumstances, which seems to have adversely impacted Mr. Carter.
When issues of banned substances arise then, in the absence of absolute strict liability ( i.e. purely factual culpability as distinct from intentional wrongdoing – as a consideration distinct from the ‘retrospectivity rule’) the following seems to be precursory matters that should be taken into consideration for fair adjudication and fair consideration as regards any alleged infraction:-
i) The substance should be specifically named and be clearly stated on an established accessible standard list which comprises the official list of banned substances.
ii) The scientific tests applied should be rule based, consistent and credible so as to exclude any unintended appearance of the substance in a person’s system, such as being an innocent by product after digestion.
iii) Every alleged finding should be weighed in consideration whether or not the source of any alleged ingestion from a banned substance was from a source wherein the manufacturerhad or had not actually listed the ingredient on the container from which the substance was obtained (i.e. fairly weighing the mental, intentional aspect of the alleged infraction).
I cannot, in my legal mind, find any logical and/or acceptable reason for the IOC applying a ban retrospectively on a substance back to 2008 then penalising an athlete for taking same. Yet, put that one aside for a moment and consider the actual IOC reasoning at points 9 to 11 of its official Decision:-
” 9. This choice was made in view of the fact that during the transfer of the samples from the Beijing laboratory to the Lausanne Laboratory, the A-Samples were not individually resealed nor transported in sealed containers.
10. At that time, resealing of A-Samples (or transport in sealed containers) was not a requirement pursuant to the then applicable ISL (2008).
11. However, it was felt that the option to rely on the B-Sample constituted an additional precaution securing the strength and reliability of the analytical process.”
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brt iii – 005 1 international olympic committee ioc disciplinary commission decision regarding nesta carter born on 11 october 1985, jamaica, athlete, athletics
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So now there is a double-breach against the rule against evidential integrity and against the rule prohibiting retrospectivity. First, in 2008 there was no procedural requirement of strict evidential integrity of preservation of samples, concerning the nature of transportation of substances due for testing; secondly, there was no ban on the substance said to have been found in Carter’s system. Thus, with that existing factual situation – then – how in jurisprudential terms – is Carter legitimately found to have committed a violation of any then existing IOC rules? The mind boggles.
Finally, the IOC convicted Carter on this basis, as best I can discern:-
” 90….
In prior lists, including the WADA Prohibited List 2008, applicable in this case, methylhexaneamine fell within the scope of the general prohibition of stimulants having a similar chemical structure or similar biological effect as the listed stimulants. Under the then applicable system, stimulants which were not expressly listed, were presumed to be Non-Specified Prohibited Substances.
91. The Court of Arbitration for Sport (“CAS”) has confirmed that the presence or use of substances falling within the scope of generic definitions of the Prohibited List, can be used as a basis of establishing anti-doping rules violations.”
N.B. “stimulants which were not expressly listed, were presumed to be Non-Specified Prohibited Substances.”
So, it is “not specifically listed” and “non-specified” but it is still being interpreted as being specifically prohibited? I, at this stage of my life, do not knowingly drink alcohol ( that is a fact and decision of mine). However, I do drink coffee. So, for argument’s sake, I have a drink from a bottle labelled “Coffee Aphrodisiac Black”. I read the label and did not find any indication or statement that it had alcohol in it and then drank the contents. After love-making I am tested and it is found that I have a trace of alcohol in my system. Thus, I am found guilty and banned henceforth from….? Trite? Parallel? But – logical?
Yet, I am a preacher of sermons and a mere humble lawyer ( when not so preaching). Thus, probably an exalted logician and/or person with immaculate scientific training might proffer the explanation and answer to the question that my legal mind has been, so far, unable to fathom.
My concern is that Jamaica’s and the world’s first athlete to have delivered the triple- triple in the 100 – 200 and 4 x 100 meter races in three consecutive Olympics is to have his perfect record compromised and reduced when he has never been found guilty of any drug violation during the course of his some 15 years of an unblemished international career; but, his team mate, under the circumstances here described, is adversely to impact Usain Bolt’s record(s).
At this juncture I am heading to the Privy Council on the first of four matters intended to be heard on appeal. This process shall be making great demands on my time, so I am compelled to have a hiatus from my usual sermons. Interestingly, in the first matter, a murder appeal, I am advancing in argument the Joggee and Ruddock decision* regarding joint enterprise, where after 30 years the Privy Council and Supreme Court reversed their prior decision(s) and said that it had previously gotten the law wrong and were applying the wrong test. I am inclined to inform the IOC in the Carter case, likewise. At a later stage I shall report for resumed duties.
· R v Jogee [2016] UKSC 8
In closing and with a heavy heart I cannot, at all, on this occasion say Hallelujah – so:-
AMEN!
Courtenay Barnett is a graduate of London University. His areas of study were economics, political science and international law. He has been a practising lawyer for over thirty years, has been arrested for defending his views, and has argued public interest and human rights cases. He lives and works in the Caribbean.
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