Tag Archives: Doping

Doping and CAS

December 13, 2015

0 Comments

By Mario Checchia – Thompson Rivers University JD Student

The World Anti Doping Agency (WADA) Code (the “Code”) provides the Court of Arbitration for Sport (CAS) Appeals division exclusive jurisdiction over doping related appeals. Unless changes are made which remedy the concerns raised in this article, it is the opinion of this author that the CAS is not the appropriate forum for doping related matter. Olympic athletes and other athletes who are members of sport federations that submit themselves to the authority of CAS, such as FIFA, do not have a choice in whether or not to adhere to the jurisdiction of the CAS since the mandatory arbitration clauses are within their contracts. If they refuse to sign they are not permitted to compete.

The mandatory submission of these sports federations to the authority of the CAS and the implications of a finding of the use of a banned substance by the CAS is why the appropriateness of this arbitration body must be addressed. As Maureen Weston has said in her journal article “Doping Control, Mandatory Arbitration and Process Dangers for Accused Athletes in International Sports”, doping violations can impact an athlete’s career and long term reputation. Take for example, the women’s 100m breaststroke world record holder in 2008, Jessica Hardy. Hardy had actively worked to ensure that her supplements did not contain any banned substances by going as far as having a dialogue with the manufacturer along with consulting her coaches. In an unfortunate turn of events, lab technicians claimed Jessica’s nutritional supplements contained clenbuterol without her actually failing a drug test, just weeks before the Olympic Games in Beijing which forced her to withdraw. The CAS would go on to reduce Hardy’s suspension to one year down from two years; however, Hardy was still unable to compete in the 2008 Olympic Games and her reputation will be scarred with that adverse finding against her.

The CAS is not the ideal court for handling doping related charges for a few reasons. These include the CAS’s burden of proof, the rules of evidence, and the unbalanced playing field.

The WADA Code’s burden of proof is termed as ‘comfortable satisfaction” – greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The exact meaning of this standard is still unclear. Although it is WADA that outlines the standard, it was the CAS which developed it and it will be the CAS that will refine it, according to Michael Straubel in “Enhancing the Performance of the Doping Court”.

One may argue that because of the seriousness of the charges of a doping related offence and because the state also punishes this conduct, doping matters should be classified as criminal, and in turn the standard should be that of criminal proceedings. The similarity in penal approach between criminal proceedings and sport doping matters was acknowledged in Demetis v Federation Internationale de Natation (27 May 2003) CAS 2002/A/432; however, the standard in sport doping matters is not ‘proof beyond a reasonable doubt’. This is further evidenced in the case of Pechstein v International Skating Union (25 November 2009) CAS 2009/A/1912 [55] which involved a 2 year ban on the 5 time skating champion. The ISU, without a positive drug test, imposed a ban based on blood passport values that were abnormal. Pechstein argued on appeal that because of the seriousness of the offence the standard should be very close to proof beyond a reasonable doubt, however, the court went with the ‘comfortable satisfaction’ standard.

There are problems with an arbitration body hearing matters which deal with matters that ought to have criminal procedures in force. Arbitration was created in the commercial realm to solve civil type disputes and therefore do not typically hold satisfactory rules of evidence, and the CAS is not an exception to this. The rules of evidence in CAS in relation to adverse findings in the absence of a positive drug test should itself be sufficient to discredit the CAS as the proper appeal body for doping related charges.

Additionally, there are foundational concerns with the CAS handling doping related matters. The structure of arbitration assumes the parties are on a level playing field but this would not be the case in most doping related disputes as the athletes tend not to have access to the level of advocacy or scientific experts as the sports authority.
When the CAS remedies these concerns only then should the arbitration body be considered as the authority for appeals regarding doping related matters.

Continue reading...

‘Comfortable Satisfaction’ – The Issues Inherent in a Middle-Ground Evidentiary Burden

December 13, 2015

0 Comments

By Callan MacKinlay – Thompson Rivers University JD Student

The World Anti-Doping Code (WADC) has outlined within it many articles on how to make out a doping infraction. Article 3.1 states that the burden of proof on the tribunal for making out an anti-doping rule violation is that it must be satisfied to the ‘comfortable satisfaction’ of the tribunal. This is claimed to be greater in all cases than a ‘balance of probabilities’ but less than ‘beyond a reasonable doubt’. I would argue that while this burden might seem fairer at first glance than a balance of probabilities, it is really just masquerading as a more stringent burden when in practice it operates exactly the same as a balance of probabilities.

Canada has had issues in the past with using different burdens of proof in civil cases. In Sylvan Lake Golf & Tennis Club v. Performance Industries ABQB 1999 479 (CanLii), the court stated that in order for rectification of mistake to be made out, the party claiming it had to establish their evidence by a proof of ‘beyond a fair and reasonable doubt’. This was stated to be above ‘a balance of probabilities’ but below ‘beyond a reasonable doubt’.

However, this was later thrown out in the case of FH v McDougall [2008] 3 SCR 41, where the Supreme Court ruled that there is only one standard of proof in the civil context: ‘a balance of probabilities’. This is likely because other standards or ‘shifting standards’ are uncertain and make the law less clear. The evidence must simply be sufficient to make it more likely than not and the test is made out.

For the WADC, the ‘comfortable satisfaction’ burden is just as uncertain as any other standard that claims to be a middle ground between the civil and the criminal standard. For example, if you are leaving your house and you think that it might rain, what standard do you use to determine if you should take your umbrella? Do you use beyond a reasonable doubt? Unlikely, because, depending on the local climate, you could always have a reasonable doubt that it might rain, thus you would always take your umbrella with you. Do you use a balance of probabilities? It is much more likely that this is the standard the average person uses in their everyday lives. If you check the traffic and it says that there is a 51% chance that your usual route will be slower, you will take your backup route. If it says 30% or 20%, then you probably won’t take your backup route. Where does comfortable satisfaction lie? Do you take your backup route if you are comfortably satisfied that it will be slower during your commute? How is that different from a balance of probabilities? If the traffic report says there is a 51% chance of traffic on your usual route, I could easily take my backup route with the justification that I am comfortably satisfied that it will be faster than my usual. If the report says it has a 20% or 30% chance of being slower, could I still claim to take my backup route with comfortable satisfaction?

In summary, ‘comfortable satisfaction’ is a problematic burden to use. While the WADC claims that the burden is higher than ‘a balance of probabilities’ I am not sure that its plain usage really fits that description or that the case law makes it out. If anything can be shown from the case law, especially for those cases involving innocent anti-doping violations, ‘comfortable satisfaction’ is not much different from a balance of probabilities in the ease with which the WADC can make out the violation. Unless the World Anti-Doping Association wants to change its burden to the criminal standard of ‘beyond a reasonable doubt’ I suggest they stick with the well-established civil standard and not make up new ones.

 

Continue reading...

Hope for Russia in 2016 Olympic Games: ‘The greatest investigation in the history of WADA’

December 9, 2015

0 Comments

By Jasmine Dhillon – Thompson Rivers University JD Student
An unprecedented sanction in Olympic movement has befallen. The International Association of Athletics Federation (IAAF) voted 22-1 in favour of suspending the Russian Athletics Federation for alleged ‘state-sponsored doping’. The 323-page WADA Independent Commission report outlined several accusations, which include the Russian doping lab destroying more than 1400 blood and urine samples, and taking money to cover up positive tests.

According to Travis Tygart, CEO of US Anti-Doping Agency (USADA), it’s the greatest investigation in the history of the World Anti-Doping Agency, which formed in 1999. He stated to BBC Sport, “are we going to end up regulating ourselves to be a toothless bureaucracy or are we going to roll up our sleeves and get into the field of play and win this fight for clean athletes? The eyes of the clean athletes are watching.”

Tygart’s concern is for the athletes who may not get the chance they deserve to compete in the 2016 Olympic Games in Brazil. “All my victories are honest, ‘clean’ and deserved,” says Yelena Isinbayeva, the world-record holder in the women’s pole vault and a two-time Olympic champion. “I have always followed and am following all the anti-doping rules precisely. To ban innocent and not connected to that doping scandal athletes from competing in international events and Olympic Games in Rio is not fair.” Athletes like Yelena and dedicated fans across the nation are hopeful that the situation will be resolved in time to see Russia compete in Rio.

But why has the world focused its eyes on Russia alone? Several other countries were found to be ‘non-compliant’ of the WADA code and are also currently suspended from international competition. Argentina, Ukraine and Bolivia were all found to be using non-accredited laboratories and Andorra and Israel lacked having correct rules in place.
Perhaps it’s because Russia is and has always been a major player in sport. Or maybe, to paraphrase Russian President Vladimir Putin, it’s America’s attempt to subdue Russia. The main reason however is due to a German documentary titled “Top-secret Doping: How Russia makes its Winners” that was made public last year. It laid out the institutionalized nature of doping in the country compelling WADA to investigate.

Russia’s Olympic committee pledged to collaborate with IOC, WADA and other national Olympic committees in the drive to “eradicate doping.” Russia’s Sports Minister, Vitaly Mutko said Russian athletics will cooperate in “any way” to prove it’s clean. He is determined to comply with the IAAF rules and states, “we are ready to rebuild our whole anti-doping system.” IOC President Thomas Bach said Russia’s track and field athletes would be eligible for the Olympics only if the country falls into line with all global anti-doping rules and the reforms are verifiable. “The goal has to be Russia being compliant again with all the international anti-doping regulations. That is the important thing, so that we have an even playing field for all the athletes.” Although the IAAF and IOC have cracked down on Russia specifically, who is to say athletes from other countries aren’t doping? The hopes for an even playing field may remain uneven and ironically enough pose a disadvantage to Russian athletes.

If the suspension is not lifted in time for Brazil, there is still hope for clean athletes to participate under the Olympic flag as opposed to the Russian flag. This was an option provided to Indian athletes in last year’s Winter Olympics after their national Olympic committee was suspended for government interference.

Sadly, Bach quashes this hope by stating, “This is mere speculation. I cannot see this situation at the moment.” Even then, would an athlete really want to participate alone? Is the same sensation to win without your country’s flag wrapped warmly around your shoulders? The Olympic Games are unlike any other sporting event. It’s a patriotic phenomenon. In a quest to win an Olympic medal, to fulfill the hopes and dreams of a nation, athletes are put under tremendous pressure to perform, which often leads to succumbing to the use of performing enhancing drugs. In a regime such as Russia, I can only imagine the potential consequences of failing to meet these aspirations.

Continue reading...

The Rules and Regulations of eSports Are Lagging Behind Its Exponential Growth

December 4, 2015

0 Comments

By Casey Goodrich – Thompson Rivers University JD Student

Over the last few years there has been an enormous explosion in popularity for the eSports scene. The International – one of the biggest tournaments in the industry, featuring the game Defence of the Ancients 2 – is a fantastic example of the exponential growth that the industry has recently experienced. Last year, the International had over two million concurrent viewers and a prize pool of over $10 million. This year, the tournament had over 20 million people watching, with a prize pool of over $18 million. The winning team received $6.6 million, resulting in approximately $1.32 million for each player. With eSports becoming such a lucrative industry, it is truly puzzling how and why the rules and regulations are so poorly conceived.

A recent and perhaps unsurprising issue that has arisen is the use of performance enhancing drugs. In July, a professional Counter-Strike player publicly admitted in an interview that his entire team was using Adderall during tournaments. This prompted the Electronic Sports League (“ESL”) to implement drug tests for its competing players. It is disappointing that it took the ESL almost two decades to realize that drug testing was necessary for fair competition. Core skills for any professional gamer include possessing quick reflexes, swift reaction speed, and incredible concentration, all traits that are easily enhanced through over-the-counter medication, such as Ritalin and Adderall. Also factoring in that a large amount of the professional gamers are teenagers, who are vulnerable individuals that are still undergoing mental maturation, making the hands-off approach of the ESL even more alarming.

Another substantial issue that is prevalent in eSports is based on the contracts that professional players sign. A good proportion of the players are either teenagers or young adults; they are generally not advised to hire a lawyer, and there are very few agents looking out for players. The end result of this is that many players do not adequately review contracts and end up agreeing to inequitable deals, and are also not always paid what they are owed. Until eSports are run like a professional sport, there will be no resolution for this issue. The issue with eSports is that players don’t have the adequate representation and protection, so they sign their own contracts without the legal expertise necessary and frequently receive the short end of the stick.

An important distinction between eSports player contracts and other professional sports is that revenue is shared between players and teams in eSports, whereas it is a separate source of income for most other sports. The income comes from streaming, sponsor endorsements, and the developer of the game (which in turn can come from consumers who make purchases in the game that are contributed to the prize pool). So depending on the contract, a fixed salary and income is rarely guaranteed in eSports, whereas it is the norm for most other professional sports.

These issues garner the impression that the regulatory framework governing eSports lacks both competitive integrity and ethical obligations to the players involved. One would think that the professional players that are helping to generate interest, popularity, and subsequently more sales of these games would be treated more fairly. It is plausible that the root of these issues is the absence of any universal, overarching organization to regulate this emerging industry. While the ESL is a large and influential organization, it does not have full autonomy over eSports, but rather regulates specific game tournaments. For certain popular games, such as Defence of the Ancients 2, the competitions are managed by the developers of the respective games (in this instance – Valve Corporation).

Interestingly enough, there is also currently no Players’ Association to represent professional players in eSports. The lack of a true regulatory organization, and no representation for players, has led to an imbalance in power and protection for players when negotiating deals with teams. Hopefully the recent growth and popularity in eSports will prompt stronger regulation and a universal organization to rectify these painfully apparent issues.

Continue reading...

Doping Infractions Have No Place In Canada’s Courtrooms

November 15, 2015

0 Comments

By Geoffrey Hamilton – Thompson Rivers University 2L JD Student

Doping in sport is now characterized as one of the most morally bankrupt acts that athletes can partake in. It has gotten to a point where countries are choosing to enact sports specific criminal legislation to prosecute those who have violated sections of the WADA code. Countries that have opted for this regime include Austria, Italy, and France. Austria’s sports specific legislation asserts that anyone who commits fraud by using any substance or method prohibited under the European Anti-Doping Convention faces up to 3 years in prison. This sentence can be increased up to 10 years if the ‘damage’ equates to more than 50,000 euros.

While Austria’s criminalization on the use of banned substances is extreme, many other countries have enacted legislation that criminalizes the trafficking of WADA prohibited substances. So while an athlete’s use of these substances may not result in a criminal sanction, more countries are becoming comfortable with associating doping control issues with criminal penalties.

Criminally charging athletes who violate the WADA code will likely not be permitted in Canada. Any sentence ordered under this hypothetical regime would undermine the fundamental principle of sentencing found in our Criminal Code which states that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

This can be broken down into two parts: the proportionality to the gravity of the offence, and the degree of responsibility of the offender. In regards to proportionality, an athlete who fails a doping test for the first time can face up to a 4 year ban. This not only amounts to a death sentence for most athletes’ careers, it also can cost professional athletes millions of dollars in earnings, sponsorships, and other sports related incomes.

The findings of all doping violations are made public. Seeing as how the public views these individuals’ actions as detestable, these former athletes could find it very difficult to attain some form of recovery by way of meaningful post-athletic employment. To add an additional fine or prison sentence to this reality would be irresponsibly punitive and would not amount to a proportionate sentence. Further, the additional burden of a permanent criminal record placed on these disgraced former athletes would all but eliminate any chance at allowing them to move on and perhaps one day make up for their mistake by becoming a productive member of society.

In regards to the degree of responsibility of the offender, athletes found to have banned substances in their systems are tried under the principle of strict liability. There is no defence; anything found in your system is your own responsibility. This seems irreconcilable with a criminal justice system that requires a burden of proof beyond a reasonable doubt. While there are some strict liability summary offences in Canada, none of them reflect the stigma or penalties associated with Austria’s sport specific fraud.

The only somewhat rational response to this difference would be for athletes who have failed drug tests to have a completely separate criminal trial where perhaps they could actually formulate a defence for why the substance was in their system. This would often result in long, convoluted trials that are associated with fraud in our Criminal Justice system. It would be a completely unnecessary burden on an already overburdened system for a non-violent offence that has no business in the criminal courtroom. These are just a few of the reasons why this type of legislation should not be enacted in Canada.

Continue reading...

Getting Back in the Game: Treating Injuries with Human Growth Hormone

November 14, 2015

0 Comments

By Stephen Kroeger – Thompson Rivers University 2L JD Student

In every sport there are athletes that try to get ahead by cheating the system. In the current environment, many players are using illegal steroids and human growth hormone (HGH) to improve their competitive advantage. These steroids give athletes an unfair advantage on their competition, leading to an uneven playing field. A common response when players are asked why they used steroids is that they had injuries they wanted to heal quickly and steroids or HGH was the fastest way to get off the training table and back in the game.

When athletes are injured (particularly high profile athletes), they can lose out on a huge amount of money. Moreover, their sponsors and teams can be at risk of losing and/or wasting potentially millions of dollars. A major knee ligament tear requiring surgery or a Tommy John elbow injury requiring surgery can take between 8-12 months of recovery time in order to get back in the game.

Derrick Rose is a NBA MVP player who has been in the news over the past few years suffering from various major injuries. According to Forbes, in 2014 he was ranked the 9th highest paid athlete in the world with a combined income (salary and endorsements) of just over $34 million, yet he missed 103 games in that season and the one preceding it. Owners and sponsors are not getting value and a return on their investment on players sitting in the press box, while fans of the teams pay a great deal of money to go to the games and are often unable to see their favourite players. This leads to fan apathy and can be devastating to the bottom line.

The 2015 version of the World Anti-Doping Agency (WADA) makes it illegal to treat injuries with banned substances, notwithstanding Therapeutic Use Exemptions. But why shouldn’t athletes be allowed to use HGH and other currently illegal therapeutic methods to recover quickly from a devastating injury? According to the Institute of Sociological research, “HGH can increase your recovery overall and … recovery speed. (HGH) is highly recommendable if prescribed by a professional … it can extend careers in every sport.”

Admittedly allowing HGH to treat injuries is a very difficult policy to implement in individual sports. However, in a team sport, which involves a league and a players union, there is the possibility of both parties agreeing to create language in a collective bargaining agreement (CBA) that would allow this process to be accepted. According to WADA, “If the medication an athlete is required to take to treat an illness or condition happens to fall under the Prohibited List, a therapeutic use exemption (TUE) may give that athlete the authorization to take the needed medicine.”

Instead of trying to sneak HGH past the drug testers, if it were codified as a TUE in the collective bargaining agreements to be used following major injury, HGH could be administered and monitored by a doctor who is aware of the risks associated with the drugs and able to effectively explain them to the player. Additionally, the players would be able to get quality drugs that are not illegally trafficked, cut with potentially dangerous substances, or may not be the drugs that the player thought they were taking. This would create a safer environment for the athlete to take the drugs and heal.

For example, in the National Hockey League (NHL) the penalty for HGH use is non-existent. It is very possible for players to use the drug to get an advantage with zero repercussions. Bill Daly, deputy commissioner of the NHL says that the league is committed to implementing testing for it, however that has been delayed. Should the league implement the test, as well as regulated use, it could create a safer league, limiting the ability of players to abuse the drug. If it was allowed following major surgery, under the guidance of a doctor the risks would be minimized, and the doctors would be able to safely administer the drug only if it was medically necessary. According to section 47.2(g) of the NHL CBA, the TUE process is to be consistent with past practice, “unless otherwise agreed to by the parties.” It is clear that both parties want the players to succeed on the ice so an agreement benefitting both parties should be obvious.

Leagues succeed because of players, and if they aren’t able to be out in the field of play, everyone loses.

Continue reading...

Juicers Beware – The Revamped NSAC and UFC Drug Testing Policies

November 11, 2015

0 Comments

By Dan Hutchinson – Thompson Rivers University 3L JD Student

In the early summer of 2015 things got much more difficult for fighters in the UFC using PEDs. This is due not only to sweeping changes being made by the Nevada State Athletic Commission (NSAC) but also a revamped drug testing policy put in place by the UFC itself. The changes come on the heels of a failed drug test by long time middleweight champion Anderson Silva. Silva’s failed drug test came as a shock to UFC personnel and fans alike, and has caused many to question how rampant drug use actually is in the organization. Such concerns have prompted NSAC to enforce a complete overhaul on their drug testing program.

On May 15th, 2015 NSAC rolled out many new drug testing measures including heavily increased punishments across the board for all number of drug testing violations. Some of the changes regarding the use of illegal substances include: a 9 month ban for the first time use of any sedative, muscle relaxant or cannabis, a 2 year ban for a first time use of any stimulant (amphetamines, cocaine), and a 2 year ban for a first time offense of anabolic steroids. After the third or fourth offense of any of the illegal substances the ban is life. NSAC regulates competitions of unarmed combat in the state of Nevada. Since Nevada is the epicentre for combat sports, it has become the state commission in North America which other state commissions and sports bodies, including the UFC, have worked to emulate.

Not to be outdone by NSAC, the UFC made significant changes to its own drug testing policy shortly after the announcement of NSAC’s changes. The changes made by the UFC were headed by Jeff Novitzky, the organization’s new Vice President of Athlete Health and Performance. Previously, Novitzky worked with the US Internal Revenue Service and the Food and Drug Administration and played a large part in the Lance Armstrong investigation. Novitzky terms the UFC program to be “the best anti-doping program in all of professional sports” and will be overseen by the US Anti-Doping Agency (USADA).

The changes made by the UFC were very significant and funded by the UFC itself to a tune of “multiple millions of dollars” according to UFC CEO Lorenzo Fertitta. The program is modeled after the World Anti-Doping Agency (WADA) code and include: a 2 year ban for a first offense of non-specified substances as defined by the WADA code (anabolic steroids, HGH, peptides, blood doping drugs), a ban of 1 year for the first offense of a specified substance as defined by the WADA code (e.g. marijuana, cocaine), and a doubling of the ban with each subsequent offense. Additionally, aggravating circumstances such as egregious intent, conspiracy or agreements will be taken into account and could result in a stiffer penalty.

Both the UFC and NSAC’s changes include a stricter testing program and harsher punishments for those that fail these tests. However, some MMA fighters under the UFC banner have criticized these changes stating that even though they are harsher, it is still not enough and more needs to be done to protect the sport from PEDs.
Welterweight Matt Brown has argued the 2 year ban is not enough and believes there should be a minimum four year ban or, if he got his wish, a lifetime ban for first time dopers. This is due to the nature of the sport where serious injury is a very real possibility. Brown feels that one day someone in the UFC will be killed and if it is at the hands of a “known juicer” it’s going to be a much larger issue. He evocatively says, “I don’t want to be the dead one, because a motherf—-er was sticking needles in himself all day.”

Regardless of what Brown believes, USADA CEO Travis Tygart has applauded the UFC for its new program stating “the UFC has taken a bold and courageous leap forward for the good of its athletes in developing a comprehensive and cutting edge anti-doping policy expressly modeled on the key elements of the WADA anti-doping program and having it run by an independent and transparent national anti-doping organization.”

The new policies from both the NSAC and the UFC may seem harsh but when dealing with a sport such as mixed martial arts all care must be taken to ensure the safety of all competing athletes, not only the ones ingesting the PEDs but the others on the receiving end of the sport’s brutality. An unfair advantage due to doping in baseball could result in a ball travelling further but in MMA the result of doping could be much more severe when the entire sport involves inflicting pain on an opponent. Catching those who are using PEDs and banned substances is of the upmost importance in the sport of MMA and both the NSAC and UFC should be applauded for their new, revamped policies.

Continue reading...

Inadvertent Doping: The Dangers of Dietary Supplements in the USA

November 11, 2015

0 Comments

By Emma Harvey – Thompson Rivers University 3L JD Student

Ben Johnson, Alex Rodriguez, and Lance Armstrong are household names known for their athletic accomplishments as well as their notorious doping scandals. Their use of banned performance-enhancing drugs in sports has placed a spotlight on the perils of anabolic steroids, hormones, and stimulants. With that said there is still an aspect of doping that hasn’t garnered much attention, that is, the inadvertent doping through the use of dietary supplements.

Dietary supplements as the name would suggest are a dietary ingredient (i.e. vitamins, amino acids, minerals, herbs, etc.) intended to supplement one’s diet. They are sold online and in nutrition stores. Currently there is very limited evidence to suggest that supplements are at all beneficial, yet many athletes use them consistently as an integral part of their training program. Where there is hard evidence is in the fact that dietary supplements can and have led to both positive anti-doping tests and serious health issues.

The dangers of dietary supplements start with the fact that many dietary supplements aren’t technically dietary supplements, even though they may be labelled as such. So-called dietary supplements have been found to contain pharmaceutical drugs, stimulants, anabolic steroids, and other hormones. A recent study overseen by the non-profit coalition of dietary supplements, Informed-Choice, found that 25% of all supplements studied were tainted with a banned substance. Another study ran by the International Olympic Committee found that of the 240 American supplements tested, 18.8% contained steroids.

Most recently the attorney general of Oregon filed a lawsuit against GNC, which is one of the world’s largest retailers of all-natural dietary supplements, accusing GNC of selling adulterated and unlawful supplements. As for the harmful health effects, a 2015 study by the New England Journal of Medicine reported that dietary supplements send 23,000 Americans to the emergency department every year, with 10% of those cases requiring further hospitalization. Liver injury, kidney failure, strokes, heart attacks, psychiatric disorders, lung blockages, and death are only a few of a long list of potential health hazards.

Dietary supplements are a very lucrative business, with sales totalling $36.7 billion in 2014. The Nutritional Business Journal predicts that the industry will reach $60 billion sales in 2021. Companies are marketing their products with a view for profits and a disregard for the health and safety of the consumers.

There are two explanations as to why a dietary supplement may contain a banned product. The first is by accidental contamination through poor manufacturing practices; the second is by intentional practice. I contend most fall within the second category. When companies sell pharmaceutical agents as dietary supplements they evade US Food and Drug Administration (FDA) scrutiny, testing, and regulations while maximizing their profits. Many companies market their dietary supplement product through misleading packaging. Guarantees are made to look like the product is certified and safe, when really they are just a decorative decal. Proprietary blends are used to avoid quantifying the individual ingredients, listing only the total blend amount and leaving the consumer unsure as to how much or little of an ingredient may actually be in the product. Lastly, a lengthy health warning in fine print may be included on the packaging to protect companies from liability.

Enabling the problem is the fact that there’s no organisation in place that can guarantee the safety, effectiveness, or quality of the dietary supplements. Congress defined the term dietary supplements in the Dietary Supplement Health and Education Act (DSHEA), categorizing it as a “food”. The “food” classification implies that the FDA cannot regulate the dietary supplement through a pre-market approval process like it can with drugs. If the FDA test a supplement and find a banned ingredient in it, the FDA can issue a letter of warning notifying the company that the supplement contains an illegal product and that it must be taken off the market. If companies fail to do so, the FDA has no mandatory recall authority, and may only initiate a seizure application for the dietary supplement. Though all too often companies’ responses are to fold the brand, make the dietary supplement disappear, then have it resurface with the same product formula under a new brand name. For an athletes’ personal reference, the United States Anti-Doping Agency (USADA) maintains a “high risk list” of supplement products flagged by the FDA.

Ultimately, athletes who choose to take dietary supplements do so at the risk of their athletic career as well as their health. There’s no denying the sizable need for the FDA to better regulate the dietary supplement industry, though this won’t occur without some sort of congressional action. For now, all an athlete can do to reduce risk is research the dietary supplements to become an informed consumer. With that said there’s still a chance an athlete may test positive for a prohibitive substance or become ill. The only sure way an athlete can eliminate the risk, is by eliminating the use of dietary supplements all together: eat clean; play clean.

Continue reading...

R. v Riesberry – horse racing, doping, fraud and the Supreme Court

October 22, 2015

0 Comments

By Chris Gall – Thompson Rivers University 2L JD Student

A unique case involving horse doping has reached the homestretch as it was heard by the Supreme Court of Canada last week. Here are the facts of the case: Derek Riesberry, a standardbred racehorse trainer, was caught by hidden camera injecting a performance-enhancing drug into a horse. Further, a syringe containing drugs was also found in his truck. He was charged with cheating and attempted cheating at a “game” as well as fraud and attempted fraud – all of which fall under the Criminal Code.

At trial, he was acquitted, with the judge ruling that horse racing is not a “game” within the meaning of the Criminal Code, and further, the Crown had failed to prove “deprivation” i.e. that anyone relied on his injecting or not injecting the horse with the drug. In essence, no monetary loss occurred from relying on the information so there was no deprivation and therefore no fraud. The charges of cheating were also dropped because the judge concluded horse racing was not a “game of chance or mixed chance and skill,” and thus did not meet the Criminal Code definition of a “game”.

The appeal court overturned the ruling and entered convictions on fraud, because he deprived bettors of an honest race and violated the rules of horseracing. The Supreme Court of Canada reviewed the meaning of “game” under the Criminal Code and raised questions concerning fraud, cheating, and whether horse racing involves chance.
There are three potential outcomes for Riesberry: 1) the fraud convictions are confirmed, 2) the fraud convictions are overturned, and 3) a new trial is ordered on fraud charges.

This case is being watched closely by the racing industry in Canada which insists doping is rare, however it is severe enough that six Ontario police officers have been seconded to the regulatory body for horse racing, the Ontario Racing Commission. This case also has implications throughout North America, where horse racing is still big business with $11 billion being bet on horses last year ($5.7 billion of that in Canada). It will be interesting to see how the issue of doping sorts itself out. One possible solution from the USA is the recently introduced Thoroughbred Horseracing Integrity Act of 2015, which seeks to grant authority to an entity created by the United States Anti-Doping Agency for making and enforcing rules as well as testing for drugs and medications used in horse racing.

Another solution involves pressure applied by corporate sponsors. Scared by doping scandals in other sports, they do not want their brand associated with cheating or scandal. However, this is likely not enough. A real struggle comes from the veterinary business itself, where animal doctors prescribe and sell the drugs they administer. In this instance, the more drugs they prescribe the more money they make which raises issues of animal welfare as well. It is likely the courts themselves do not possess the power to compel real change. This poses a greater challenge when the potential health risks from doping are not faced by the person doing the injecting, and owners themselves may be unaware of what a trainer is doing. All bets are off until regulators, lawmakers, and industry insiders can work together and those in racing come clean.

Continue reading...

Publishing ‘Suspicious’ Blood Tests – Lining the Pockets of Media Outlets or Serving a Public Interest?

October 18, 2015

2 Comments

By Vivian Wilson – Thompson Rivers University 2L JD Student

On August 2, 2015, International Association of Athletics Federations (IAAF) blood test data was leaked and published by German Broadcaster, ARD, and British newspaper, The Sunday Times. These media outlets claimed that the data was leaked by a whistle-blower who was troubled by the content of the blood sample database. However, after conducting internal investigations, the IAAF stated that there was no whistle-blower and the data had been illegally obtained.

The leaked blood test data, purportedly containing ‘suspicious’ results, has put clean athletes, like Paula Radcliffe, in the spotlight and forced them to defend themselves by publicizing additional personal information, such as medical reasons for fluctuations in blood test results. The Sunday Times allegedly told athletes that if they failed to consent to the publication of the data, and did not disclose further information to show they were not guilty of cheating, they would cast doubt on their innocence. However, as Radcliffe stated in response to the Sunday Times coverage, providing additional personal information to explain the fluctuations in blood data leads to widespread media coverage of athletes’ names in connection with allegations of doping, causing further damage to their reputation, despite their innocence.

Under British law, blood test results are categorized as ‘sensitive personal data’ and are protected by the Data Protection Act 1998 (DPA). Also, the World Anti-Doping Agency (WADA) provides an International Standard for the Protection of Privacy and Personal Information, a mandatory international standard that all relevant people and organizations must adhere to, which gives a certain level of protection over privacy and personal data in jurisdictions where data protection requirements are less strict.

Sports law commentators, Abby Brindley and Edward Carder, note that if the Sunday Times held the blood data in the United Kingdom, they had a duty to comply with the DPA. Section 32 of the DPA has an investigative journalism exemption from those provisions that would prevent people from processing information for the purposes of investigative journalism where there is a reasonable belief that the publication is in the public interest. Further, the European Convention of Human Rights provides that journalists are able to process personal data without an individual’s consent where there is a public interest. These exceptions to the DPA and Article 8 of the European Human Rights Convention – the right to respect for private and family life – raise the question, is there a public interest here sufficient to allow for the Sunday Times and ARD’s disclosure of the blood data?

Doping in sport is typically thought of as the worst kind of cheating. It is sanctioned harsher in sport than acts like domestic abuse and other felonious behavior committed by athletes, but is this view warranted? What public interest is served here by exposing athletes’ private information, and in some cases forcing athletes to publicize additional personal information in order to clear their names?

The sensitive nature of cheating in sport and the damage that doping allegations can do to athletes’ reputations and earning potential, as well as their potentially devastating effect on the fans of implicated athletes, suggest that there is no public interest being served by publishing ‘suspicious’ blood data that casts doubt on the honesty of athletes.

Rather, doping accusations cause social harm by vilifying athletes who inspire and motivate people. For example, during Ben Johnson’s doping scandal, media outlets reported that Johnson left Canada “shattered,” “plunged [the nation] into embarrassment,” and caused his mother a “lifetime of grief and shame.” These media overreactions to Johnson’s doping exemplify the effect that doping scandals have on the public and the athlete’s reputation, and demonstrate the harm caused by allegations of cheating in sport with essentially no foundation in genuine public interest.

In conclusion, the August 2, 2015 publication of IAAF blood data does not serve a public interest but rather the economic interest of the media outlets that publicized the information. Therefore, their actions go against the DPA and the WADA International Standard for Protection of Privacy and Personal Information and should not fall under the journalism exceptions of the relevant UK and European law.

Continue reading...