Drugs & Doping in Sports

John O'Leary

• Publisher: Routledge-Cavendish
• Year: 2013
• eBook ISBN: 9781135338954
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Doping is undoubtedly one of the most controversial issues within sport. Doping scandals wreck the careers of sportsmen and women, they can bankrupt governing bodies, infringe personal liberties, threaten livelihoods, tarnish images, galvanise the European Union, undermine the Olympic Movement and invoke invective from politicians.

In recent years, sports law has developed into one of the most exciting and challenging legal disciplines and the importance of the law in doping matters has been heightened by the influx of money into sport and the development of sport as a global economy.

Drugs and Doping in Sport brings together work from leading academics, practitioners and administrators, analyses contemporary socio-legal and political themes related to doping in sport. It provides a challenging and often controversial view of doping issues and confronts political and legal orthodoxy, supplying the reader with a unique insight into this fascinating area of academic study.

CHAPTER 1 THE STATE OF PLAY

John O’Leary

The Sydney Olympics was heralded by many, including Juan Antonio Samaranch, President of the International Olympic Committee (IOC), as the best Games ever. From a British perspective, the Games were certainly successful in terms of medals won, but perhaps the plaudits were meant in a wider context: the Games appeared to run smoothly, sportsmen and women appeared complimentary – certainly nothing comparable to the transport and accommodation problems encountered in Atlanta – and relatively few competitors ‘cheated’.¹

Not all breaches of the rules of sport are considered to be cheating. Most breaches, such as the false start, the faulty baton change or the walker who ‘runs’, are dealt with instantaneously by officials. The penalty imposed for this type of breach may be the subject of a challenge by the competitor, but this is unusual. Almost invariably, there is no intention on the part of the competitor to break rules of this nature. However, the reason for their exclusion is axiomatic – they flout the principle of fair competition. These banned activities, identified by the rules of the relevant sports governing body, are reinforced by a general consensus that the behaviour is undesirable.

Conversely, some activities that may have the hallmark of cheating about them are deemed legitimate. Although one might argue, for example, that technological advantages such as high-tech bicycles, swimming and running suits and the sophisticated drinks of some marathon runners are cheating, in that they establish an advantage which may be considered unfair; they are not necessarily examples of cheating as prescribed by the governing bodies.

One area, however, where the outlawing of activities by the governing bodies of sport has become synonymous in the minds of the public with cheating is doping. Cheating is one of the fronts on which the crusade by the IOC against doping is fought. The unyielding position adopted by the IOC and governing bodies is based on the premise that doping is wrong, although the logic which underpins this rather simplistic statement of principle is, at least, a little shaky. In 1999, the IOC restated its stance in a press release:

The IOC wishes to reiterate its total commitment to the fight against doping, with the aim of protecting athletes’ health and preserving fair play in sport. Any declarations which go against these principles are both wrong and misplaced.²

In order to achieve these lofty ideals, a complex structure of institutions and mechanisms has been developed. Initially, governing bodies of sport felt free to impose, through contract, any system of regulation they deemed fit. These anti-doping rules were often drafted without legal advice, containing unworkable provisions and inappropriate sanctions. The law has played an active role in refining them and the courts stand as final arbiter should those rules remain unlawful.

Today, the campaign against doping by the governing bodies is a systematic one. Rules cover testing both during competition and outside. Positive tests are tested again, in the presence of the competitor or representative. All national governing bodies provide a system of hearings and appeals. There are further appeals to the international governing body. If the case is proven against the competitor, there are penalties that can be imposed. These would normally allow some latitude for a first offence. The penalties and other regulations are contained in the rulebooks of governing bodies and are freely available.

Governing bodies and doping control agencies, the bodies charged with the task of actually administering the tests, have a difficult and unenviable task. Get the testing wrong and, increasingly, legal action will follow. An inevitable consequence of the increased rewards available³ to sportsmen and women is that banned competitors are far more likely to seek to overturn bans and fines of national governing bodies in appellate tribunals and courts of law. Sandra Gasser, a Swiss athlete who tested positive and was banned for two years by the International Amateur Athletics Federation (IAAF), was estimated to have lost over US $250,000 in endorsements and appearance fees. The cost to the IAAF of defending the legal action was more than £100,000. The US courts initially awarded Butch Reynolds $27 million in damages and American shot putter Randy Barnes commenced an action for $55 million after suspension for a positive drugs test.⁴ If the constitution or procedures of the national governing bodies are defective, then athletes are now in the financial position to commission highly paid lawyers to exploit those flaws.

The job of the sports administrator, therefore, is an exacting one. The brief must be to eliminate the possibility of legal challenge wherever possible. In Chapter 2, of this volume, Andy Gray of the Amateur Swimming Association examines the responsibilities of governing bodies to produce fair and workable anti-doping regulations.

Although the governing body formulates its regulations, the task of administering the doping test system itself is, in most instances, franchised to another body detailed with the task of overseeing the testing of competitors. In Britain, this function is performed by the Ethics and Anti-Doping Unit of UK Sport. The unit carries an enormous burden of responsibility, testing in the region of 5,000 sportsmen and women a year, across a range of sports, applying various regulations that the governing bodies deem appropriate for their particular sport. The unit is recognised, primarily, for its policing function. The duties are broader than this in practice, however, for its responsibility for proving innocence is arguably as important as, if not more important than, catching the cheats. In Chapter 3 below, Michele Verroken, Director of Ethics and Anti-Doping at UK Sport, explains the competing rationales behind the work of the Unit.

In order that doping and other sport-related disputes, as they arise, can be contained within the sporting world, the Court of Arbitration for Sport (CAS) was conceived in 1981. The working group charged with its formulation was headed by Judge Keba Mbaye, a judge at the International Court of Justice, now President of the CAS. The court is based in Lausanne, but ad hoc committees were formed for the Atlanta and Sydney Olympic Games, the Commonwealth Games in Kuala Lumpur and the Nagano Winter Games. The idea of these ad hoc committees was to deal with any disputes arising from the various games within a 24 hour period. With the exception of the Fédération Internationale de Football Association (FIFA) and the IAAF, all major sports governing bodies now use the CAS as their forum of final arbitration.

The CAS consists of up to 150 arbitrators, who apply the various rules of the governing bodies. Matthieu Reeb, counsel to the CAS, acknowledges that ‘the CAS has not finished growing’.⁵ This is perhaps true both structurally and jurisprudentially. In Chapter 4 of this book, Michael Beloff QC, a CAS arbitrator, analyses the emergence, traceable through CAS judgments, of a body of sports jurisprudence, or lex sportiva.

In doping cases, the nature of the actions against athletes have a quasi-criminal character. The sportsman or woman stands accused of a drug ‘offence’, the action being prosecuted by the governing body. However, there are some marked differences in the standards and burdens applied. Take, for example, the recent case of Dougie Walker, one of a number of recent high profile nandrolone cases that have also involved famous international athletes such as Linford Christie, Dieter Baumann and Merlene Ottey. Walker escaped a ban from Athletics UK. David Moorcroft, Chief Executive, confirmed that Walker was cleared because he made no knowing attempt to enhance his performance. The concept of mens rea, or ‘guilty mind’, is well known to criminal lawyers. Although there is a considerable difference between doping proceedings and criminal trials, many lawyers have suggested that the strict liability provisions of many sports governing bodies are fundamentally unjust. Strict liability in doping regulations allows a governing body to ban an athlete without showing that the athlete intended to take the substance – a positive test is sufficient. The rules of the IAAF do allow, in exceptional cases, for the governing body to find the athlete ‘not guilty’ if there is sufficient evidence to warrant such a finding. However, without such evidence, it would usually be insufficient for the athlete to claim that he or she did not know how the substance got into their urine. Despite the obvious concerns over a rule of this nature, the English High Court in the case of Gasser v Stinson⁶ did hold that a strict liability rule was lawful, bearing in mind that it may be the only way to police the doping problem effectively. It may, therefore, seem a little odd that Walker should be cleared, and understandable why the IAAF would be perplexed at the decision. The IAAF certainly thought so, and Walker was subsequently banned.

Even though Athletics UK cleared Linford Christie of a doping offence, the repercussions of the positive test continued to affect him. The IAAF, unhappy with Athletics UK’s apparent reluctance to act on the positive test, instigated its own proceedings. Clearly, the relationship between the different levels of governing body is problematic. It is also hard on Christie, whose suspension by the IAAF meant that he was refused access to Australian State-owned athletics facilities that he wished to use to train his team of athletes. Australia has a policy of refusing facilities to athletes serving suspensions for doping related offences. The ban seems unreasonable on Christie in two ways. First, the suspension covers Christie’s ability to compete – not to coach. Secondly, until the IAAF conducted its hearing, Christie could not have been ‘guilty’ of any offence. Unlike the law, where there is a presumption that one is not guilty until proven otherwise, it seems that sport applies the more questionable presumption of ‘no smoke without fire’. In Chapter 5, below, JanWillem Soek considers the rights of sportsmen and women to fair hearings and the degree to which a competitor’s doping hearing will be conducted in a way that is consistent with trials under national law.

In order for a governing body to regulate doping in sport, it is necessary that they be able to identify accurately which substances are not permitted. ‘Banned lists’ can be exhaustive, giving not only a list of substances outlawed, but also their metabolites (further substances present as a result of the body converting banned substances) and other related substances.

The list of banned substances has been the subject of considerable controversy. The reported decrease in positive tests in Sydney could be accounted for by a strategic move by some competitors away from detectable drugs to undetectable ones, such as human growth hormone. At the World Swimming Championships in Australia in January 1998, events were overshadowed by the alleged discovery of synthetic human growth hormone in the luggage of Chinese breaststroke swimmer Yuan Yuan. Yuan and her coach have received 15 year bans for trafficking in performance enhancing drugs. As well as being on the International Amateur Swimming Federation’s (FINA’s) list of banned substances, it is also an offence to import the substance into Australia. The national courts have the power to impose fines of up to £20,000 for this offence. Human growth hormone is favoured by drug taking athletes over anabolic steroids because it produces greater improvements in performance and is also difficult to detect. However, human growth hormone is significantly more expensive than other drugs on the banned lists of sports governing bodies. Steroids are becoming the poor man’s alternative. If this theory is correct, expect to see a decrease in positive tests among First World countries but a maintained level of positive tests among poorer athletes from poorer nations. As Andrew Jennings predicted before the Atlanta Games:

Two classes of dopers can be expected in Atlanta. Rich athletes can afford the drugs that don’t show up in tests: human growth hormone, erythropoietin – which increases the number of red blood cells and so provides more oxygen in competition – and other hormonal drugs taken in dosages so low that they clear the body in hours. They’ll stay ahead of the testers with new versions of steroids coming out of commercial and illicit labs. Poor athletes who rely on steroids that show up in tests and who don’t come off them well before competition are the most likely to be caught.⁷

Equally, the list contains some substance that, at first sight, may seem incongruous – cannabis being a good example. Had not Ross Rebagliati been able to convince the ad hoc CAS that the detected presence of cannabis in his urine was as a result of passive smoking, he would have been stripped of his snowboarding gold medal for ingesting a substance that could not have enhanced his performance. In Chapter 6, below, Roger Welch considers the efficacy of banning ‘recreational drugs’ and, in particular, the impact of such positive tests on sports employees.

Although drug regulations are supposed to protect the rights of clean competitors, one might sympathise with them if the testing programme caused them some concern. The ‘A’ test of Diane Modahl showed significant levels of testosterone in her body. Testosterone makes an athlete stronger and more aggressive. However, it does little to aid endurance – one of the key characteristics of a successful middle distance runner. Modahl emphatically denied taking any drug. In the time between her suspension and ultimate absolution, the case revealed a catalogue of medical, procedural and administrative problems that could well undermine a competitor’s faith in the system. In Chapter 7, of this volume, David McArdle looks at the Modahl case and examines its legacy from the competitor’s perspective.

The strict liability nature of the drugs regulations has caused problems for the nandrolone athletes, who have argued that there may be innocent reasons for their positive tests. However, there was a setback when a four month study led by Professor Vivian James of the University of London reported that there was no evidence to suggest that dietary substances can influence the production of nandrolone within the body. The report also rejected claims that nandrolone could be metabolised following the consumption of vegetables and meat. There are legitimate concerns over the number of positive tests for nandrolone in the last year. In 1998, there were four reported cases, and in 1999 the number rose to 17. David Moorcroft of Athletics UK advises athletes not to take supplements of any description. Athletics UK, like many other governing bodies, supports a system providing a helpline to competitors who are unsure as to which substances may or may not be taken. Anxiety amongst sportsmen and women persists, however. In Chapter 8, of this book, athlete Andy Curtis considers the anxieties of competitors and provides an athlete’s perspective on ways of lessening the concerns of compliance with the anti-doping regulations.

In an effort to ward off criticisms of the existing system of regulation, the IOC announced at the end of 1999 the establishment of the World Anti-Doping Agency (WADA) to ‘promote and co-ordinate the fight against doping in sport in all its forms at the international level’. The board is composed of between 10 and 35 members from, principally, the Olympic movement and public authorities. Those from the Olympic movement will represent the IOC, international sports federations and athletes. From public authorities there will be representatives from Member States of the European Union and the Supreme Council for Sport in Africa. The first Chairman of the Board has been confirmed as Dick Pound, Vice President of the IOC. As well as being seen as an independent body, WADA hopes to achieve a degree of uniformity in both the development of the rules and their implementation. These are, indeed, lofty ambitions. WADA has already been criticised for being identified too closely with the IOC and the IOC has done little to dispel this concern by the appointment of Dick Pound. In Chapter 9, below, Barrie Houlihan analyses the role of WADA and assesses its chances of success.

Harmonisation is the current buzzword of drug policy and an admirable ambition. It may, however, prove difficult to achieve. Governing bodies have been happy to go along with WADA thus far, but m...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• CONTRIBUTORS
• PREFACE
• ACKNOWLEDGMENTS
• TABLE OF CASES
• TABLE OF UK LEGISLATION
• TABLE OF INTERNATIONAL LEGISLATION
• TABLE OF SPORTS RULES AND REGULATIONS
• TABLE OF ABBREVIATIONS
• CHAPTER 1 THE STATE OF PLAY
• CHAPTER 2 DOPING CONTROL: THE NATIONAL GOVERNING BODY PERSPECTIVE
• CHAPTER 3 A TIME FOR RE-EVALUATION: THE CHALLENGE TO AN ATHLETE’S REPUTATION
• CHAPTER 4 DRUGS,LAWS AND VERSAPAKS
• CHAPTER 5 THE FUNDAMENTAL RIGHTS OF ATHLETES IN DOPING TRIALS
• CHAPTER 6 A SNORT AND A PUFF: RECREATIONAL DRUGS AND DISCIPLINE IN PROFESSIONAL SPORT
• CHAPTER 7 ‘SAY IT AIN’T SO,MO.’1 INTERNATIONAL PERFORMERS’ PERCEPTIONS OF DRUG USE AND THE DIANE MODAHL AFFAIR
• CHAPTER 8 RUNNING SCARED: AN ATHLETE LAWYER’S VIEW OF THE DOPING REGIME
• CHAPTER 9 THE WORLD ANTI-DOPING AGENCY: PROSPECTS FOR SUCCESS
• CHAPTER 10 HARMONISATION: A BRIDGE TOO FAR? A COMMENTARY ON CURRENTISSUES AND PROBLEMS 1
• CHAPTER 11 THE INTERNATIONAL OLYMPIC COMMITTEE, TRANSNATIONAL DOPING POLICY AND GLOBALISATION
• CHAPTER 12 THE DISCOURSES OF DOPING: LAW AND REGULATION IN THE WAR AGAINST DRUGS
• CHAPTER 13 DRUG TESTING IN AMATEUR SPORTS IN THE US
• CHAPTER 14 CRIMINAL LAW REGULATION OF PERFORMANCE ENHANCING DRUGS: WELCOME FORMALISATION OR KNEE JERK RESPONSE?
• CHAPTER 15 DRUGS,HEALTH AND SPORTING VALUES
• CHAPTER 16 DOPING SOLUTIONS AND THE PROBLEM WITH ‘PROBLEMS’
• BIBLIOGRAPHY