Doping in Sport and the Law

Ulrich Haas, Deborah Healey, Ulrich Haas, Deborah Healey

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509905898
• Edition: 1
• Topic: Jura
• Subtopic: Medien- & Unterhaltungsrecht

This unique international legal and cross-disciplinary edited volume contains analysis of the legal impact of doping regulation by eminent and well known experts in the legal fields of sports doping regulation and diverse legal fields which are intrinsically important areas for consideration in the sports doping landscape. These are thoughtful extended reflections by experts on theory and policy and how they interact with law in the context of doping in sport. It is the first book to examine the topical and contentious area of sports doping from a variety of different but very relevant legal perspectives which impact the stakeholders in sport at both professional and grass roots levels. The World Anti-Doping Code contains an unusual mix of public and private regulation which is of more general interest and fully explored in this work. Each of the 14 chapters addresses doping regulation from a legal perspective such as tort, corporate governance, employment law, human rights law, or a scientific area. Legal areas are generally considered from an international and not national perspective. Issues including fairness, logic and the likelihood of compliance are explored. It is vital reading for anyone interested in the law, regulation and governance of sport.

Part I

The Evolution of the World Anti-Doping Code

1

The Myth of the Level Playing Field in Sport

DEBORAH HEALEY^*

The Special Place of Sport in the Community

The foundational values of sport, such as striving for personal best performance and excellence, coupled with the integrity of competition, ground its special role and standing, and its significant cultural importance in the community. These foundational features and its cultural significance are also the basis of its commercial value.

Doping in sport attacks these foundational values, calling into question the basic purpose and function, and, indeed, the actual relevance, of sport. Doping threatens the universal appeal of sport and its special place in the hearts of fans. In a commercial context, doping threatens the booming sports marketplace.

These views were echoed by David Howman, Chief Executive of the World Anti-Doping Agency (WADA), who recently stated:

Doping undermines the values of sport. The intrinsic value of sport, often referred to as the ‘spirit of sport’ is the celebration of the human spirit, body and mind, and is characterised by values such as ethics, honesty, respect for rules, self-respect and respect for others, fair play and healthy competition. If sport is void of these rules (and others) it might be argued that it is no longer sport.¹

There are a number of practical reasons why we prohibit doping. By eliminating doping, we strive to recreate a level playing field for sport from which the most skilful athletes or teams ultimately emerge as the winners of any particular competition or event. We have come a long way from the days when, to quote Michael Beloff, first Chair of the IAAF Ethics Committee, ‘a pacemaker was the most questionable thing that was being done’.² Since that time, media rights, gambling and big money have wrought changes to the imperatives of athletes and sports and the environment in which sporting events are conducted.

At a very basic level, doping can damage the physical health of athletes. As noted by Howman above, doping affects the integrity of competition. It provides unfair advantages to the drug taker over fellow athletes, so it raises basic issues of fairness. It undermines the commercial value of sport by destroying people’s interest in the triumph of the individual. This flows through to undermine the ‘brand’ of the athlete, the particular contest, the relevant sport itself and ultimately sport as an important cultural aspect of our society. It also undermines attempts at good governance within a sport, its competition and its teams. Addressing issues relating to doping in sport is thus crucial to the continuation of sport as we know it.

The World Anti-Doping Code (hereinafter the Code) and its related rules were implemented in 2004. They form an essential backdrop to consideration of doping in sport and are considered in detail in the chapters of this book. Through an amalgam of contract law, legislation and international treaty, they create a framework for dealing with doping in sport.

Illicit Substances in the Community

Of course, doping is not confined to sport. There appears to be a broader trend towards the use of illicit substances in the community generally, and this has heightened views about the importance of the Code. Again quoting David Howman:

[W]hen the curtain is drawn, what is revealed is a social problem of steroids in schools and amongst our security forces; the presence of the criminal underworld in trafficking prohibited substances; an unregulated supply of non-sanitized drugs through the internet and from profit-making opportunists (including many in local gyms); amateur athletes doping in recreational sporting events; young people taking steroids in a bid to look good; and, an overall challenge to the values of sport and its integrity through allied activities such as spot-or match-fixing, bribery and corruption.³

To this mix must be added the increased use of drugs by ‘wellness clinics’, which in simple terms seek to improve the performance of individuals in their daily lives.

Some of this conduct is illegal and some is not. All of these examples, however, suggest a growing tolerance within communities to the use of drugs on a daily basis. Nevertheless, this has not been reflected in our treatment of athletes under the regulatory framework of the Code, which might be described as detailed, definite and unforgiving. Arguably this is mainly because of the impact that doping has on the special qualities of sport outlined above, which position sport so favourably within the cultural and commercial life of our community. It is also true that were defences available to athletes, there would often be an excuse of special case or special circumstances to be made for athletes involved in doping in sport, with others around them seeking to take the blame, which would necessarily result in few contraventions of the Code and few penalties if such arguments were available.

Not all doping in sport is actually illegal. Ingesting products and engaging in methods which are prohibited by the Code are breaches of the Code, and it is the consideration of the Code which is the focus of this book.

Background to this Book

The writing of the book was set against the background of many national and international controversies over the last few years, including the Lance Armstrong affair, which continues to this day in a commercial context; the baseball player Alex Rodrigues; the findings of the Australian Crime Commission Report in Australia; and the controversial issues surrounding the major Australian sports of Australian Football (AFL) and Rugby League (NRL) and various of their participants.

The concept of this book was developed by the editors, and initial draft papers and ideas were workshopped at a Symposium of targeted participants at University of NSW Law in April 2014. The editors thank UNSW Law for funding the Symposium, and the participants for engaging so willingly and ultimately for their contributions to the book.

Doping Regulation: Review of the Basic Assumptions

Chapter one seeks to analyse doping in sport and to explore briefly three major themes, asking basic questions about the implementation and operation of the Code. The chapter assumes that the regulation of doping is essential to the continued place of sport in our society and to the good governance of sporting organisations. It does, however, examine a number of issues about assumptions around the Code and its implementation in the best interests of sports and sporting participants, in the hope that we can continue to improve the framework for addressing doping in sport.

It first examines the basic proposition behind the prohibition on doping in sport which is embodied in the Code, itself an unusual mix of public and private regulation. It poses a number of seminal questions about notions of the ‘level playing field’ and the idea of pure competition in sport which the Code seeks to enforce. A second basic question is the ability of current scientific testing to determine who is actually doping. The chapter thirdly comments on the Code as regulation.

Finally, the chapter introduces and contextualises the remainder of the chapters. As noted, the Code is a mix of public and private regulation. It does not operate in a legal vacuum—it operates in the context of the legal environment as a whole. The remaining chapters themselves examine the Code through the lens of individual legal disciplines. Both this chapter and the book itself reinforce the truth that the Code itself, despite its complexity, is only part of the legal framework of doping regulation.

The Goal of the Level Playing Field

Anti-doping regulation (and the Code in particular) is based on the idea of the creation of a level playing field to allow pure competition in sport. But what if the level playing field, even in a generalised form, is a pipe dream?

Diverse evidence suggests significant shortcomings in the logic of the level playing field, including, for example, the innate differences in the inherent characteristics of individual athletes. This spans both their physical attributes and their gender identities. In an oft-cited article in the New Yorker in 2013, Malcolm Gladwell, celebrated author of influential works such as The Tipping Point and Outliers, asked whether it was time to reconsider some of the assumptions which underscore doping regulation and the way in which our quest for the level playing field is currently implemented.⁴ His major thesis was that: ‘Elite sport is a contest among athletes with an uneven set of natural advantages.’⁵ He was making the point that we want sport to be fair and take elaborate measures to make sure that no one competitor has an advantage over any other, but that despite this, there can never be a contest among equals due to the physical differences between individual competitors. This is even aside from the myriad performance-enhancing drugs and methods which exist today. And he gives a number of interesting examples in his article.

But physical characteristics are not generally regulated, nor are many forms of corrective surgery which might assist sportspeople to improve their performance. Major League Baseball allows laser surgery and tendon replacement surgery, but not drugs. Oscar Pistorius was ultimately allowed to run with his ‘blades’, which were deemed not to give him an advantage over other competitors. But surely they enhanced his own personal performance?⁶

On another score, sports have traditionally divided their competitions into those for men and those for women. They struggle to deal with issues relating to the integration of athletes across the gender spectrum, including those athletes who appear to be ‘men’ or ‘women’, but who have an atypical chromosomal makeup, and others such as those who are transgender, except on what appears to be a mainly ad hoc basis. Circumstances such as these suggest that athletes are not always easily pigeon-holed as ‘men’ or ‘women’ for the purposes of competition divided into those categories.⁷

All of these examples emphasise that to a significant extent, that there is no ‘typical’ athlete. For a level playing field to exist, arguably we would wish for a field of ‘typical’ athletes.

There are also questions about the ability of regulators under the Code to practically enforce the Code. This current discussion thus moves past the concept of the ‘cheating athlete’ to objectively consider what it is that the Code can actually achieve in terms of realising its goal, the level playing field. The level playing field is problematic in terms of the limits of scientific testing, and methodology used by WADA, although it is accepted that great efforts have been made to establish fair and appropriate mechanisms and to use cutting-edge technologies.

There is widespread evidence, however, that detection occurs only in the minority of cases. There is evidence that there are some substances which are not detectable, difficult to detect or detectable within a small timeframe only, that the performance of the various laboratories around the world is far from equal, that not all athletes are tested regularly and/or intelligently, and that not all samples collected from athletes are tested for all prohibited substances and prohibited methods. In addition, laboratories can only detect substances they are looking and analysing for. Without inside information of what is being used by the athletes in the field, the testers will—in many instances—not know what to test for, so the cheats are one step ahead of the testers. This creates very difficult issues for the testers.

There is also some evidence that some substances are more detectable when used by athletes of particular ethnicities. The most common urine test for detecting use of illicit testosterone by athletes involves the T/E ratio, and analyses the ratio of testosterone to epitestosterone, which is another hormone. Depending upon the relationship between the two, drug testers determine whether there is possible cheating. The Mail Online in 2014, in an article provocatively entitled ‘Born to Cheat. How World Class Athletes Can Take Drugs … and Get Away with it’, outlined shortcomings with the use of T/E ratios as a signpost to steroid use. While it had been suggested previously that there was a wide range of gene variants which may keep the T/E ratio low naturally, the article underlined the depth of the problem with the use of the T/E ratio as an indicator of doping. It cited a study purporting to show that the ‘doping with impunity gene’ is more widespread in some racial groups than others. For example, it stated that up to 81 per cent of some Asian populations had the ‘impunity gene variant’: 30–40 per cent of Chinese and Japanese; almost 80 per cent of Koreans; 10 per cent of Caucasians and 7 per cent of Hispanics. More information on this phenomenon is found in the fascinating book The Sports Gene by David Epstein.⁸ While it may be coincidence, Epstein states that figures show that countries which have higher rates of the gene are returning fewer positive samples.⁹ Epstein ultimately states that ‘if we want to be technologically savvy about drug-testing, we’d have to have genetically personalised testing’.¹⁰

None of this is to necessarily suggest that significant numbers of these groups of athletes are doping and ‘getting away with it’. Nor does it suggest that we should abandon the anti-doping progr...