All Olympics doping offences are not the same, and should not all result in loss of a medal, writes Neville Cox.
The basic ethos of contemporary anti-doping policy is reflected in the new World-Anti Doping Code, a global document aimed at facilitating a concerted and unified fight against doping in sport by governments, national sporting governing bodies and international sporting federations and to which these bodies would subscribe.
The code (which has been incorporated in Ireland by the excellent anti-doping rules of the Irish Sports Council) adopts a "zero tolerance" policy to doping.
It stresses that a doping offence is committed whenever traces of a banned substance, or its metabolites, are found in an athlete's system - an approach also taken by the veterinary rules of the world governing body for equestrian sports, the FEI.
And it introduces a standard penalty, disqualification from an event in which the athlete tested positive and a two-year suspension for a first doping offence, unless the athlete can show that he or she bears no fault or negligence or no significant fault or negligence for the positive test, in which case the disqualification still stands but the suspension is reduced.
An athlete is deemed to be responsible for all substances that he or she ingests, and hence a claim that an athlete took what appeared to be an innocuous substance but which was contaminated with a banned substance is simply not a defence of any kind.
The strictness of these rules is defended by the powers that be in sport, who argue that if it was necessary to prove that an accused athlete intended to take drugs then the fight against doping would prove impossible, because athletes can proffer and have proffered the most ingenious explanations for their positive tests - many of which may be impossible to refute.
This argument is all very well, but it must equally be accepted that the strictness of these rules - which effectively treat all doping violations as equal irrespective of the malicious intention or otherwise of the violator (and incidentally, irrespective of whether the substance for which the athlete tested positive was actually performance-enhancing) - can lead to results that are intuitively unfair.
Take Andrea Raducan, the 15-year-old Romanian gymnast who won the overall gold medal at the Sydney Olympics, but was later disqualified when she tested positive for a banned stimulant contained in a cold remedy given to her for medicinal reasons by her team doctor.
Such unfairness is stark enough when what is at stake is pride and glory - as is the case for an amateur sportsperson. It is far more serious, however, when a professional athlete's career is on the line. After all, a sporting federation is in the unusual position of being the exclusive regulator of an entire industry, and a suspension imposed on a professional athlete - Rio Ferdinand, for example, who was enormously fortunate to have an employer which continued to pay his salary while he was suspended - prevents him from working in that industry in any capacity.
It is arguable that an approach which, in the interests of the smooth implementation of anti-doping policy, allows an athlete to be prohibited from engaging in his career because of an offence of which he is morally innocent is simply and deeply unfair, and sits uneasily with Irish and EU employment law.
Moreover, the argument that such an unsophisticated blanket approach to anti-doping policy is necessary for that policy to work is a flawed one. Enforcement of rules is not impossible where the moral guilt of those accused of their violation must be proven - if this was the case then our criminal justice system would have collapsed decades ago. It is just more difficult, and requires a greater level of judicious sophistication in the analysis by the enforcing agency of the relevant evidence.
So much is on the line for athletes accused of doping offences, however, that it is arguable that such sophisticated judicious analysis should be the very least expected of those implementing anti-doping policy.
The events surrounding Cian O'Connor and Waterford Crystal bring these arguments into sharp focus. Of course any discussion of the matter is premature pending the results of the B sample and of any FEI or Court of Arbitration for Sport hearing, but let us suppose that the B sample does show traces of the banned sedative (which was not performance-enhancing per se), and that the morally innocent explanation offered by Mr O'Connor and his vet for the positive test is accepted.
If so, Mr O'Connor will forfeit his gold medal just as Ben Johnson did when he tested positive for a performance-enhancing steroid. Yet the latter, by his own admission, had abused steroids for years
The fact that in the context of the Olympic results two sets of facts with such huge qualitative differences should lead to the same conclusion must give all reasonable observers pause for thought.
The point is that all doping offences are not the same, and the primary difference between different offences is the level of moral guilt of the athlete.
It is surely desirable that if an athlete like Andrea Raducan (or, speculatively, Cian O'Connor) is morally innocent of doping, then, unless the banned substance in the system of the athlete or horse had the capacity to have improved her or his performance in the event, no penalty should be imposed.
Something as precious as an Olympic gold medal should not be lost on a technicality, and where this happens, no worthwhile end, least of all the fight against doping, is served.
Dr Neville Cox BL is author of Sport and the Law (First Law, Dublin), and lectures in TCD on sport law, tort and comparative law.