Liability laws undermine O'Connor's defence
Despite the irregularities that surrounded the sampling process in this case (with the spectacular theft of a sample from a laboratory in England), the Judicial Committee felt it could rely on the combination of urine and blood tests, respectively the A and B samples.
In the Committee's opinion the relevant provision of the Veterinary Regulations allowed it to rely on this combination.
The FEI will no doubt be relieved at this outcome, given that procedural flaws can often derail a case.
Nevertheless, they would be well advised to take measures to ensure that something of this nature does not happen again. It can only be a matter of time before a Judicial Committee or a court decides that flawed testing procedures will scupper any subsequent case taken against a competitor.
Cian O'Connor will take comfort from the Judicial Committee's conclusion that neither he nor his veterinary surgeon, Mr Sheeran, was involved in an attempt to affect the horse's performance.
This finding supports the claim that the substances found in Waterford Crystal were the result of treatment applied to the horse quite some time prior to the Olympic Games.
It may seem strange that the Judicial Committee could find a competitor guilty and penalise him accordingly when it has found that he did not attempt to enhance the performance of his mount. The answer lies in the strict liability regime that most sporting organisations, including the FEI, knit into their doping rules.
The strict liability policy means that a competitor is guilty of doping irrespective of fault on his part. It is not necessary to prove that he or she intended to gain an advantage or that he or she knew or ought to have known that a prohibited substance was present.
The effect of the strict liability rule is that once a banned substance is found in the competitor's (or the horse's) system the offence is complete, irrespective of any culpability on the competitor's part.
The standard explanation for strict liability rules is that they are necessary to ensure competitive fairness in sport.
In equestrian sports, animal welfare is an additional consideration. Given the difficulties faced by administrators in combating doping it is felt that strict liability rule are vital: the fear is that those engaged in doping could too easily plead ignorance in an effort to absolve themselves of blame.
On this view a strict policy is required to overcome the problem of unmeritorious pleas of moral innocence. At the same time it is believed that placing the onus on athletes should ensure that they take greater care to ensure that they are free of prohibited substances.
The cost of strict liability is that it may result in injustice in individual cases. A competitor might take every precaution possible but could still inadvertently ingest a prohibited substance. In that case there can be little doubt about the athlete's moral innocence but he or she will fall foul of the doping code.
In the case of some sports (including equestrian sports) the string is lessened by a flexible system of penalties under which a more lenient sentence may be delivered where there was no attempt to gain an unfair advantage.
In the case of other sports, such as swimming and track and field, strict liability is accompanied by mandatory penalties often involving a substantial suspension.
Cian O'Connor is not the only rider to have suffered as a result of the policy of strict liability. Earlier this year the Judicial Committee found against the German rider Ludger Beerbaum who, as a result, was also disqualified from the Athens Olympics.
In his case a further consequence was that the German show-jumping team, of which he was a member, was stripped of its gold medal.
In its Beerbaum ruling the Judicial Committee acknowledged some of the difficulties posed by current doping rules. The committee suggested it might be necessary to revise the FEI rules so that a distinction is drawn between legitimate treatment and medication used to enhance a horse's performance.
If the suggested revision does not take place it is possible that a court will step in and declare the rules to be in conflict with national legal policy. In the meantime, riders continue to be governed by rules that require the imposition of a penalty irrespective of personal fault.
Paul McCutcheon is head of the School of Law at University of Limerick.
