jul.17.2008

By.Mark Gay-www.telegraph.co.uk

Dwain Chambers' lawyers face a number of serious obstacles in their attempt to clear him for competition in Beijing. The primary problem is the British Olympic Association bylaw stating that no athlete who has committed a serious doping offence can participate as a member of a BOA team.

The only way Chambers can get on the plane is by obtaining an injunction against that bylaw.

That Chambers has committed a serious anti-doping violation is not in doubt. His part in the BALCO scandal and his systematic use of the designer synthetic anabolic steroid, THG, is well documented. Therefore, Chambers must invalidate the BOA bylaw to compete.

He has chosen to base his challenge on an alleged breach of the common law restraint of trade doctrine. This is a contract law doctrine that states that any contractual provision which restrains trade is void and unenforceable, unless it can be shown to be reasonable.

To succeed, Chambers will have to prove two things. First, that there is indeed a restraint upon his "trade". Secondly, that such a restraint is unreasonable.

Both present barriers.

As regards the first point, no athlete is paid to participate in the Olympic Games. Indeed both the International Olympic Committee and BOA are not-for-profit entities.

Chambers would derive no direct financial benefit in his participation in the Games as there is no prize money or appearance fee.

There may be, however, an indirect benefit. Success in the Olympic Games can make people celebrities. They can endorse products and have personal sponsors.

However, it is doubtful that even successful participation in the Games is likely to help Chambers, even indirectly. The commonly held view is that he is soiled goods, so deeply tainted by his systematic drug abuse that no one will touch him.

The second barrier faced by Chambers is equally formidable. The BOA have a policy of zero tolerance of serious drug cheats.

How could such an approach be deemed unreasonable? It may be argued that it is not the approach adopted by the majority of other members of the IOC. However, it is the approach adopted by China, who are the hosts. As hosts of the next Olympic Games, it is arguable that Great Britain should be held to the highest standards, not the lowest common denominator.

Chambers will also have to address the argument that his participation denies a clean athlete the ability to compete and that the overwhelming majority of his peer athletes favour such a ban and regard it as being reasonable. Equally, he will have to deal with the fact that this bylaw has been in place for 12 years without complaint on his part. Indeed it was in place, to his knowledge, when he was systematically doping.

There is one final factor that stands in his way. In 1978, the High Court declared that the governing bodies are best placed to decide how their sports should be regulated.

The overwhelming weight of opinion in British sport is that participation in the Olympic Games is a rare privilege which should not be afforded to those who have breached sport's fundamental values. To convince a judge otherwise is the fight Chambers has on his hands.

Mark Gay is a partner and head of the Sports Group at DLA Piper UK LLP, a leading firm of international business lawyers