Tag Archives: Doping

Drug Abuse in Auto Racing

October 5, 2015

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By Brian Howarth – Thompson Rivers University 2L JD Student

Doping and drug abuse are well-known issues in the sporting realm. The headlines are dominated by major scandals, such as Lance Armstrong and Alex Rodriguez. North American doping and drug abuse scandals are mostly discussed in the context of major sporting arenas, like the National Football League or Major League Baseball. However, doping and drug abuse are prevalent concerns in other, perhaps less publicized, areas of sport, such as auto racing. The Federation Internationale de L’Automobile (FIA) governs some of the largest auto racing leagues in the world, namely Formula One and the World Rally Championship.

There are key pieces of anti-doping regulations within the (FIA) regulations. There is a prohibited list, international standards for therapeutic use exceptions, international standards for testing and investigation, international standards for the protection of privacy and personal information, and international standards for laboratories.

The FIA, interestingly, does not govern some of the popular North American auto racing leagues like, IndyCar Racing League or the National Association for Stock Car Auto Racing (NASCAR). IndyCar has a substance abuse policy that outlines, among other things, a ban on performance enhancing drugs, which according to section XIII(A)(2)(a) of the IndyCar Substance Abuse Policy, comes with a penalty of a year’s suspension on first violation. This is compared to only a 60 day suspension for non-performance enhancing drugs. Although NASCAR’s rulebook is not as public as that of IndyCar’s or the FIA’s, it has a similar substance abuse policy. NASCAR has had to rely on its use several times, mostly for simple drug infractions, though there has been a case of performance enhancing drugs.

AJ Allmendinger, a race car driver that has struggled to find a solid and successful home, causing him to jump around numerous leagues over his years, was amongst the first high profile drivers to fail a drug test. When in NASCAR’s Sprint Cup Series, while on contract with Penske Racing, he was randomly tested pursuant to the substance abuse policy. In both his sample A and B of the test he was found to have amphetamines in his system, which is included as a banned substance on NASCAR’s prohibited substance list. In July 2012, on the eve of the Daytona race, Allmendinger was suspended indefinitely.

This highlights that no sport is immune from doping scandals. NASCAR would not release the specific substance; still Allmendinger claims it was just a mistaken consumption of Adderall. Luckily, Allmendinger was admitted into the “Road to Recovery” program for substance abuse offenders in NASCAR. After completion, Penske Racing was helpful in securing him rides, and in August 2013 JTG Daughtery signed him to a three year deal. Allmendinger may have been a victim of poor timing, but the quick response and harsh punishment handed down by NASCAR illustrates the seriousness of the offence.

This wasn’t the first time NASCAR had to deal with a drug scandal, in 2009 Jeremy Mayfield tested positive for methamphetamines. Mayfield immediately brought an action against NASCAR in the State of North Carolina “asserting claims for defamation, violation of the North Carolina Persons with Disabilities Protection Act, unfair and deceptive trade practices, breach of contract, and negligence”. However, Mayfield was not successful in either the Superior Court or the Court of Appeal. This case prompted a massive overhaul of NASCAR’s substance abuse policy.

NASCAR’s 2009 Substance Abuse Policy did not specify any prohibited drugs but did craft a memo in 2008 in which methamphetamines were listed as banned substances. The pre-2009 rulebook covering substance abuse was only a couple of sentences long. The 2012 version has expanded it to at least nine pages; similar to IndyCar, NASCAR uses Aegis Sciences Corp to handle the testing and transportation of samples.

Although not all drug abuse is necessarily performance enhancing, the cases mentioned above highlight the need for important change regarding the regulation of drug abuse and performance enhancing drugs. Mayfield’s case brought to light the growing concerns of drug use in auto racing. Although the anti-doping policies have not been frequently tested, with the growing number of cases in other sports it is quite likely that auto racing will follow suit.

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Is Criminal Law Really the Solution to Doping?

November 17, 2014

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By Stephanie Leong – Thompson Rivers University 3L JD Student

The German government last week presented a bill that would make doping in sport a criminal offence, punishable by up to three years imprisonment. Some of the early details of the proposed legislation are that it would only apply to professional athletes who receive federal funding; foreign athletes caught doping in Germany could be imprisoned; and that doctors who provide drugs to athletes could be punished with up to ten years in prison.

The purpose of this legislation is unquestionably to further punish athletes caught cheating and provide a greater deterrent to athletes who may consider using performance enhancing drugs. As a country, Germany has a dark history of doping relating back to the Cold War period when East German athletes were subjected to inhumane and widespread state-sponsored steroid use. More recently, decorated German cross-country skiing Olympian turned biathlete Evi Sachencacher-Stehle was disqualified from the Sochi Olympics after testing positive for a banned stimulant.

Sports and politics inevitably interact with each other. National governing bodies for sport are partially funded by government initiatives, not to mention the national pride associated with the Olympic Games. With sport being so integral to culture some European countries including Italy, Spain, and France have taken initiatives to bring doping under the jurisdiction of criminal law, making it akin to a drug offence. Although this may initially seem like a useful tool in the fight against doping, on further review making doping a criminal offense proves problematic.

In many countries an accused in criminal proceedings is guaranteed the presumption of innocence, no punishment without proof of intent, and a right to a fair hearing. Incorporating doping into criminal law proves difficult in all of these areas. The World Anti-Doping Agency (WADA) Code is the ultimate authority in doping disputes. The Code operates on a standard of strict liability so there is no presumption of innocence, in fact there is a presumption of fault as an athlete is responsible for all substances that enter their body (Code Article 2.1.1). In contrast, section 15 of the German Criminal Code provides that unless expressly stated, only intentional conduct shall attract criminal liability. This is consistent with the criminal law principle nulla poena sine culpa (no punishment without guilt) which is a foundation of criminal law.

According to online reports, the proposed law will only allow prosecution for athletes who fail both A and B sample testing. If the goal of the legislation is to stop all doping this may prove ineffective. Recent statistics published by USADA (United States Anti-Doping Agency) show only 0.003% of all samples tested in 2013 contained a banned substance. However, positive tests are not the only way to catch dopers under the WADA Code.

Under Article 2.2 of the Code, proof can be established by any reliable means, including admissions, witness statements, or other analytical information, meaning an athlete can be convicted of a doping offence without ever producing a positive test. Non-analytical evidence can also be purely circumstantial, something criminal law does not usually see as determinative. Requiring positive samples may be the only way to ensure fairness to the accused under this law, however it is probably not the most effective means of catching dopers.

Athletes are entitled to a fair hearing under Article 8.1 of the WADA Code which should include a timely hearing, fair and impartial panel, ability to be represented by counsel (at an athlete’s expense), and ability to present evidence. This article also allows for an expedited process for hearings held at during events. The benefit of sport arbitration courts are that they have specialized knowledge of lex sportiva and are efficient.

Criminal law courts in contrast cannot be hurried, especially when penal consequences are involved. Due process in criminal matters often provides an accused the right to appeal a judgement, which can be a lengthy process. Situations are foreseeable where an athlete charged with a doping offence awaits trial but before conviction is still permitted to compete. WADA’s system of mandatory provisional suspensions is far more effective in this manner (Article 7.5).

At its earliest, this law will come into effect in the spring of 2015. Before then, the bill must be debated in parliament where its necessity will be scrutinized. Perhaps more importantly, they will determine how and whether it can be practically implemented, because as demonstrated there are many questions remaining to be answered.

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The Lasting Effects of Performance Enhancing Drugs: What does this mean for sport?

October 24, 2014

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By Brittany Corwin – Thompson Rivers University 3L JD Student

In 2013, University of Oslo’s Professor of Physiology, Kristian Gundersen, and his team of scientists found that athletes’ muscles can retain the performance-enhancing benefit of anabolic steroids well after the athlete has actually taken the steroids.

Gundersen’s team studied the effects of steroids on mice, saying that the same mechanism is at work in human muscles and that other performance-enhancing drugs would have similar long-term benefits. He recently explained to the BBC that when a person takes anabolic steroids, they develop more nuclei within muscle cells that allow the muscle cells to grow bigger and stronger when trained. If steroids are taken away, muscle mass will be lost but the nuclei will remain inside the muscle fibers and it will be much easier to return to the same strength after a period of not training.

Effective January 2015, the World Anti-Doping Agency (WADA) Code, will double the doping ban to four years for athletes found guilty of doping. This will be an increase from the previous two-year ban for a first major offence, with athletes banned for life if tested positive again.

If performance-enhancing drugs have lasting effects, this invites the question of whether the new four-year ban is really enough? Regardless of whether or not the athlete is now clean, an unfair advantage may persist for the rest of their athletic career even though subsequent testing will come back negative.

The BBC piece comes in response to the past summer in which US track and field athlete, Justin Gatlin, ran the fastest ever 100 meter and 200 meter times by a man in his thirties. Not to mention that out of seven 100 meter races in the summer, Gatlin held six of the fasted times and he ran the fasted ever one-day sprint double consisting of the 100 meter race and then the 200 meter race an hour later. These results came after Gatlin served two suspensions for testing positive for doping – the most recent being for four years in 2006.

These extremely fast finishes were subject of great controversy for fellow athletes. Britain’s 2011 400 meter hurdles world champion, Dai Greene, told BBC that “He’s [Gatlin] over the hill as far as sprinting is concerned – he should never be running these times .…” Greene further went on to say that since Gatlin had to sit on the sidelines, unable to train or compete during his suspension, there has to be some other explanation for his incredibly fast times at his age. He suggests that either Gatlin is still doping or the drugs he did take are still hard at work.

As a previous positive doper, Gatlin’s recent success upon his return to the sport could arguably be a direct result of his past doping, as Greene suggested. If this is the case, this leads one to wonder whether the world of sport can truly ever be clean if previous dopers are still reaping the benefits of their previous drug use.

If the benefits of doping are life long, then whether WADA instills a four-year ban, or a 10-year ban for doping, is irrelevant. Sure, a four-year ban to an athlete may seen like a lifetime, but how can the fairness of sport be upheld if regardless of their punishment, athletes are returning from their doping bans with an advantage over those athletes who have never doped?

According to their website, WADA “…was founded with the aim of bringing consistency to anti-doping policies and regulations within sport organization and governments right across the world.” In order to uphold their mandate, future research needs to be conducted into the long lasting effects of doping to address the extent to which the drugs have an effect on the athlete in the future and the impact it will have on sport in general.

These athletes who use performance-enhancing drugs are cheating and while they do receive penalties for this, as previously mentioned, their cheating should not allow them to later succeed as a clean athlete. It is possible that prior doping – for which they have already been sanctioned and suspended – could be contributing to current success due to the long-lasting effects of doping. In order to uphold the preventative measure of doping sanctions, the WADA Code needs to accommodate for any long-lasting effects of doping. Future research will hopefully help answer the difficult question of just how WADA is to do this.

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Contractual Difficulties – Why isn’t there blood testing in the NBA or NFL?

November 23, 2013

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By Charlie Livermore – Thompson Rivers University 2L JD Student

Earlier this year, just a day after it was announced that no new players would be selected for the Baseball Hall of Fame, Major League Baseball (MLB) announced that they were going to begin using in-season blood testing to detect human growth hormone. The Commissioner of the National Basketball Association (NBA) stated he “expected” blood testing to be phased into professional basketball this season. National Football League (NFL) commissioner Roger Goodell soon after announced he likewise thought blood testing would take place this season.

It appears neither the NBA or the NFL will test anyone for HGH this year.

Despite the optimism of the Commissioners, recent reports suggest a deal between the respective players unions and their league counterparts is still far away. The NFL is inching closer, with agreements in principle reached, but talks have stalled over the internal appeals process. The NBA Players Association seems ready to postpone the fight over blood testing for seasons to come, with a deal nowhere near ready.

Two facts help to put this dispute into context. Human Growth Hormone is undetectable in urine tests and players in both sports are recovering from injuries faster than they ever have.

I asked Travis Tygart, the CEO of the US Anti-Doping Agency, why the NFL doesn’t have blood testing yet. He said that the players union, in their ongoing labour negotiations, sees blood testing as a detriment which they are willing to accept, but would need something in exchange. Blood testing is a bargaining chip, just like off-season practices, concussion protocols, or any of the other (relatively) small things a billion-dollar employer negotiates with its labour force.

I’m sure this is all true. But it seems there might be more to the story. As with steroids or other performance enhancers, part of the issue surrounding enforcing the ban on HGH is its perception by players. But in some ways HGH doubles down on the conceptual justifications made by players and sports commenters towards Performance Enhancing Drugs.

HGH is a naturally according hormone, key in stimulating muscle growth. It is prescribed for a variety of medical issues. In a sporting context, HGH is thought to increase speed of recovery from injuries, even though this claim isn’t totally confirmed by science.

For some, HGH isn’t really cheating. Numerous commentators have wondered why we don’t let athletes use HGH to recover from injuries. When a running back tears their ACL on a cut, or a linebacker rips their bicep attempting a tackle, they are looking to get back on the field as fast as they can. A substance which helps recovery could be perceived by athletes not as performance enhancing, but performance allowing – they can get back to what they do, faster.

Conceptually, using HGH for injury recovery might not be thought by athletes as making someone more than they are, but as returning them to who they were. Tommy John surgery, European genetic knee therapies, and other recovery techniques that seem “unnatural” are routinely employed by athletes looking to get back in the game, without violating any rules.

What do these possible justifications have to do with a contractual dispute between the players union and the league? The reason players in the NBA and the NFL are pushing back so aggressively against blood testing may simultaneously be more simple, and more complicated, than we thought.

Put simply, more players are probably taking HGH than most people realize, and testing would expose its widespread use as a recovery aid.

But there is likely a more complex aspect. Players, and their representatives, may not perceive testing for Human Growth Hormone as a valid or worthwhile endeavor. Many probably see HGH as tool used to compete in an increasingly difficult field, a field where injuries end careers, and everyone is just trying to keep up. Is an unjust law a law at all? St. Augustine didn’t think so, and the NFLPA probably thinks likewise, even if not explicitly.

The job of players unions is to make sure employed athletes aren’t contractually obligated to do anything more than they have to, and the forced removal of a vial of blood from a few hundred oversized men every other Sunday is probably an obligation worth protecting against.

But in two leagues where no one can agree on what cheating actually is, where entire cities depend on the knees of their quarterbacks, and where the public pressure to recover form injuries is obsessive, it seems like something else might be going on here. As far as management and labour disagreements go, this one might be more complicated.

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High on the Horse – Doping in Horce Racing

October 21, 2013

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By Miranda Schmold – Thompson Rivers University 3L JD Student

Ben Johnson, Marion Jones, Ross Rebagliati, Alex Rodriguez, Joe Canseco, and of course, Lance Armstrong, have all become household names, not only for the achievements in their respective sports, but also for the doping scandals that have propelled many of them to worldwide notoriety. These world class athletes, and in some cases, Olympians, have all experienced, in one way or another, the public outrage at their use of performance enhancing or banned substances. But what if we started to associate doping with athletes like “I’ll Have Another,” “Animal Kingdom,” “Super Saver,” or “Mine that Bird”? These of course are neither the names of human athletes, nor have these athletes been associated with doping, but rather are the names of the winning horses from the past four Kentucky Derby horse races. I use these names as examples of what we could start seeing in terms of the newest athletes associated with doping in sports.

The horse racing community was rocked by a doping scandal on April 9, 2013 when fifteen horses in Moulton Paddocks, UK tested positive for the prohibited anabolic steroids stanozolol and ethylestranol. Although the use of performance enhancing substances in racehorses is nothing new, what brought this scandal to the world stage is the fact that these fifteen horses are part of the mega-racing enterprise belonging to the monarch of Dubai, Sheikh Mohammed bin Rashid al-Maktoum. Sheikh Mohammed established the horse racing operation, Godolphin in 1992, which has since grown into 5,000 horses, in stables across 12 countries, who compete in races worldwide. Godolphin is worth billions and boasts winnings from over 200 top-level races. Mahmood Al-Zarooni was the trainer of these horses, who at the time was operating out of Godolphin’s Newmarket stables and was the one everyone looked to for answers.

The British Horseracing Authority (BHA) is the United Kingdom’s regulatory body. In a tribunal held near the end of April 2013, the BHA found that Al-Zarooni had breached their Rules of Racing. Although Al-Zarooni claimed he was not aware that he was using prohibited substances, the BHA nonetheless found him guilty. A BHA disciplinary panel gave Al-Zarooni an eight year ban and the horses that tested positive are not permitted to race for six months. Sheikh Mohammed has since outlawed the import, sale, purchase and use of steroids in equine sports in the United Arab Emirates (UAE) and has made the use of anabolic steroids on sport horses a criminal offence. This has had the result of implementing even stricter rules than those employed in Britain.

For many in the horse racing world this has raised the question of, what can be done to achieve global uniformity in anti-doping rules in the sport of horse racing? Of course many associate the World Anti-Doping Agency (WADA) and its World Anti-Doping Code (WADC) to an international anti-doping regime applied to sports played by humans, but what about a regulatory authority governing those sports involving non-human animals? Horse racing does have an international body called the International Federation of Horseracing Authority (IFHA), but it mainly oversees breeding, racing and betting, not doping.

One option could be for the IFHA, BHA and other horseracing bodies to sign onto the World Anti-Doping Code. In 2003 the International Federation of Sleddog Sports (IFSS) did just that. The IFSS established and implemented their own anti-doping rules and procedures in compliance with the WADC, which apply to both human and canine athletes. In an effort to establish international and uniform anti-doping rules that apply to both human and equine athletes, it would benefit those involved with the sport of horse racing to either develop their own international anti-doping agency, or align themselves with the World Anti-Doping Agency and comply with their anti-doping code.

Establishing international and consistent anti-doping rules and procedures for the sport of horse racing has the benefit of not only protecting both human and horse athlete, but also maintaining the spirit of the sport. Through the promotion of anti-doping in sport, WADA seeks to preserve the spirit of sport, and signatories sign on with the understanding that doping is contrary to upholding this spirit. WADA values ethics, fair play, honesty, health, and respect for rules and laws, among others. Becoming a signatory to the WADC would benefit the sport of horse racing in many ways, again, through the protection of the health of their athletes, both human and non-human animals, and through embracing values of ethics, fair play, honesty, and others.

In an effort to keep names like “I’ll Have Another,” “Animal Kingdom,” “Super Saver,” and “Mine that Bird” out of the media and the doping scandals that seem to be plaguing the sporting community, horse racing should look to the development of an international anti-doping organization or join forces with the already established governing authority of WADA, this would hopefully lead to stories like the one involving Sheikh Mohammed becoming less frequent.

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Britain’s Steroid Dilemma – Not dangerous enough to criminalize but dangerous enough to be made safer

October 21, 2013

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By Kris Henderson – Thompson Rivers University 2L JD Student

The British Health Authority recognizes the adverse health effects of anabolic steroid use on the population and aims to make the population healthier. Their recommendation, however, is not a ban on all performance and physique enhancing substances. The National Institute of Health and Care Excellence (NICE), is instead recommending that gyms and other athletic training facilities provide sterile needles for individuals using intravenous anabolic steroids all in an effort to reduce the transmission of blood borne pathogens.

Providing clean needles for intravenous drug users is not a new concept, nor is it without its critics. The Vancouver safe injection site – InSite – located along East Hastings in the heart of Vancouver, Canada not only provides drug users with sterile needles, but staff provide first aid to individuals who fail to recognize their limit and overdose. Usually this consists of simply providing oxygen to the user. Helping two overdosed users in the safe injection site saves the provincial health authority the equivalent of InSite’s monthly operating budget as of 2010. The criticism of the site being open is therefore not cost of operation. The question is really what effect is it having on drug use? Drug use rates in Vancouver have not, by most accounts, seen a decrease since InSite began operating. Proponents of InSite, however, claim the true benefit comes from the reduction in blood borne disease transmission through the reduction of needle sharing. Other health authorities in Canada have also adopted clean needle programs to certain extents, all with differing measures of success.

It is easy to see that the potential clientele being served by this program in Britain would be drastically different that those being served by the clean needle programs in Canada. Individuals injecting themselves with anabolic steroids for the purpose of better athletic performance are obviously not the same ‘vulnerable population’ of heroin and other hard drug addicts being served in Canada. But to what extent does that matter? According to the NICE report, an estimated 70,000 people aged between 16 and 59 in England and Wales are thought to have injected anabolic steroids in the last year. While it is certainly not a staggering percentage of the population, it has proven sufficient to get the attention of the national health authorities.

Even if the clean needle program has no effect on user rates, any reduction in blood borne disease transmission can be measured as a success, both from a moral and government financing standpoint, as any publicly funded health care regime would see a decrease in costs associated with the treatment of these diseases.

This latest recommendation from NICE is sure to once again draw the ire of the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC). Drug laws in England were heavily criticized during the lead-up to the London 2012 Olympics. Unlike previous host countries that stiffened criminal laws regarding personal possession and use of anabolic steroids and human growth hormones, the British government refused to criminalize possession and use of many performance enhancing anabolic steroids. The government stance was that athletes who use these substances during competition should face severe penalties such as lengthy bans from competition, but not criminal sanctions.

The NICE recommendation will likely affect the use of steroids in the UK, but what are the broader implications regarding the public perception surrounding their use? While I have no hesitation in accepting that the program will likely reduce the transmission of blood borne diseases such as various strains of Hepatitis and the HIV virus, the provision of sterile needles to steroid users may have a larger impact on sport and culture in the UK.

The unintended consequences of reducing the risks associated with steroid injections is very different than that of hard drug use. Individuals crippled by hard drug addiction, it is argued, are less likely to consider the sterility of their needle before making their next injection, or even their first injection. Potential or regular steroid users, however, see a reduction in the potential health risks to an activity that is still legal. The government position is that users should face heavy penalties though steroids aren’t so dangerous as to warrant its criminalization but dangerous enough to be made safer.

Will we see anabolic steroid use in the UK rise as a result of implementing a sterile needle program? Only time will tell. What we know for sure is that those looking to prevent athletes from using anabolic steroids in Britain through deterrence will be fighting an even steeper uphill battle, with an even greater reliance on the WADA.

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A Flaw in the NBA Doping Policy

October 2, 2013

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By Charlie Livermore – Thompson Rivers University 2L JD Student

Over ten years ago, a prominent member of the World Anti-Doping Agency research committee made a comment concerning the newly implemented steroid-testing program in the MLB labour agreement.

“It’s not a drug test. It’s an IQ test.”

The point was clear, and it’s a point that has been expressed by sports commenters many times since. Pro athletes often don’t fail drug tests because they take drugs; they fail tests because they fail to beat the system. And the system isn’t a hard thing to beat.

While baseball has been turned upside down since BALCO, and the NFL is under increasing scrutiny for steroid violations, one game has largely avoided the performance enhanced spotlight. The National Basketball Association has, for the most part, been relatively free of steroid scandal. Suspensions have occurred, but they are infrequent, inconspicuous, and largely restricted to players coming off the bench.

Defenders will occasionally argue basketball is fundamentally different than its harsher and more physical siblings, contending the game doesn’t lend itself to the advantages PEDs offer football or baseball players. This argument seems at best childishly naïve and at worst deeply irrational.

Basketball players would, of course, be better at their craft if they could run faster and longer, jump higher, and recover from injuries more rapidly. NBA insiders tend to agree; it isn’t that basketball doesn’t have performance enhancing drug users, it’s that they don’t get caught- and there are plenty of good reasons why.

Among the critics is WADA director David Howman, who has asserted the NBA believes they do not have the same issue with PEDs as other leagues, and “therefore haven’t addressed (doping) in quite the same way.” Other leaders in doping abuse have criticized the holes in the NBA’s current policy. There is no blood testing, no biological passports, and the system is vulnerable to microdosing (a practice recently made notoriously effective by Lance Armstrong’s medical team.)

It is commonly accepted that the Big Four professional sports leagues fall short of the  international anti-doping standard set by the Olympic movement and the WADA code, but the NBA has one gap in particular that deserves discussion: the timing and frequency of testing in the NBA is fundamentally flawed. And it’s flawed in a basic, and weird, and pretty stupid way.

According to the collective bargaining agreement between the Players Association and the League, which was revised in 2012, “all players are subject to four random tests each season” as well as “two random tests each off-season.”

If you believe the league sincerely wishes to prevent doping (which is a debate for another day,) the problem is simultaneously obvious and elusive. Players are only contractually obligated to give a sample four times per season, and those four times are generated randomly, regardless of when the previous test occurred. If a player’s number gets called four times before the season ends, it’s a legal certainty they will not have to give another sample until at least July. According to NBA writer Bill Simmons, it is a “running joke” in NBA circles that “once you pee in that fourth cup, you’re good to go.” The same applies, with only two tests, in the offseason.

While statistics dictate this can’t happen all that often, there’s no way to tell, and the rumors are that it does. If a player is looking to recover from a torn knee near the end of the season, bulk up during the summer, or supplement their training program with testosterone, they can use the timing of their contractual obligations to their advantage.

While certainly a dedicated doper could manipulate the toothless testing regime even when they still have required tests left, a more casual violator may see the chance to dope as a no-brainer if given such the indisputable opportunity this provision provides. In a grinding and exhaustive eighty-two game season, (long lamented by players for being too long,) it seems clear a few players, and more than a few trainers, would seize the chance to help their team with such a loophole. And they might be the type of players who don’t come off the bench- the type whose positive test could shatter professional basketball.

For an NBA player seeking a competitive advantage in the form of a banned substance, there are plenty of ways to beat the current system. Counting to four shouldn’t be one of them.

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Morality of Doping

October 2, 2013

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By James Wegener – Thompson Rivers University 2L JD Student

First off, I would like to just state that I am not advocating for doping in sports. Rather, the philosopher in me wants to explore this issue and consider the reasons for how the anti-doping rules came to be. When we talk about doping we are not really thinking about illegal drugs like heroin, cocaine, or marijuana – aside from cases like Ross Rebagliati. Rather, the prohibited list includes readily available pharmaceutical drugs, steroids, stimulants, human growth hormone, and sundry others. So how is it that these drugs, which can be taken legally in many circumstances, are banned in sports? And should they be?

The World Anti-Doping Agency (WADA) states that doping goes against “the spirit of sport” – that is, the celebration of the human spirit, body and mind. They list many characterizations of this, such as equality and fair play, character and ethics, health and excellence in performance. Somewhere in this list must lie the rationale for banning an increasingly growing set of performance enhancing drugs.

Fair play is an interesting point. On one hand, doping may give those taking performance enhancing drugs an athletic advantage over those who are not. It doesn’t create a level playing field. But on the other hand, if doping was allowed wouldn’t all athletes have the opportunity to take these drugs? It doesn’t make sense to say that doping is bad because it’s against the rules. Essentially all that is saying is it is against the rules because it is against the rules. This line of argument may explain why you shouldn’t dope in sports, but not the reason, not how these rules came about.

If equality is what we are looking for, then why not a league full of dopers? Requiring every athlete to dope up is extreme, and faces its own legal inquiry, but that is not what is needed for equality. Equality in sports certainly does not mean take a group of athletes that are all the same and see who comes out on top. No one is going to say that all athletes are equal. There are those like Tiger Woods and Sidney Crosby that are among the elite of the elite. They are at the top of their game, they are better than the vast majority of their peers. Rather, equality refers to equal opportunity or equal chance. Every player has the opportunity to be among the best in their sport. Of course, few will achieve this, while most will not. But if this is equality then why not open up doping to all athletes, not just those who cheat the rules? Would this not maintain the equal opportunity? Maybe it’s the rules that create an inequality as doping athletes continue to find new ways to mask results in tests, or find new performing enhancing drugs that aren’t yet banned.

If what we are looking for is excellence, then why not let performance enhancing drugs in the picture? Excellence is being the best you can be, pushing limits, and striving for greatness. When the list of dopers includes Mark McGwire, Lance Armstrong, Alex Rodriquez and Ben Johnson it’s hard to say that doping excludes excellence. Perhaps it is this very principle of excellence that leads to doping in the first place. Athletes are striving to be the best and doping gives them a route to achieve this goal. That is, unless you are going to say that you can’t have excellence with doping. If this is the case, then please return to the prior paragraph on fair play.

Undoubtedly, there are health risks that accompany performance enhancing drugs. But it is also true that many sports carry their own health risks anyways. How many athletes require shoulder surgery or work done on their knees? How many athletes retire at an early age due to health problems? These kind of scenarios are not uncommon. Being an athlete mandates a harsh level of wear and tear and stress, and all the effects that follow from that. How can we say that this type of damage and health risk is okay in the name of sport, but not doping in the name of sport?

Now, I am not unaware of the holes in many of my arguments. Someone could use the same type of argument I just used to try and justify no helmets in the National Hockey League – and just the same, it would be a poor argument. My point is that there are a lot of reasons given for why doping should not be, and is not, allowed in sports.But when you really examine it, it really seems like there is only one dominating reason for why doping is banned: it’s immoral.

Morality and social norms tell us that doping is bad and shouldn’t be allowed. It is the idea of ethics, character, and being a proper role model that leads us to this conclusion. We don’t want people thinking that they need to dope up to achieve greatness, in athletics or in any other field. We don’t want athletes to have to destroy their bodies even more in the name of sport and entertainment – and maybe even these points are debatable. The bottom line is, morality is the dominant force behind these anti-doping rules. I’m sure wonderful debate could go on about whether this is appropriate or not, but that is for another discussion.

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Exercising a public function: Spelman v. Express Newspapers [2012] EWHC 355 (QB)

April 18, 2012

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Redacted (public version) of the transcript: http://www.bailii.org/ew/cases/EWHC/QB/2012/355.html

Guardian newspaper report: http://www.guardian.co.uk/sport/2012/apr/16/rfu-environment-secretary-drug-taking

A lot has been recently written about Jonathan Spelman, a 17year old boy and son of a Cabinet Minister (Caroline Spelman is Member of Parliament and Secretary of State for the Environment, Food and Rural Affairs) and on the 16th April he was formally suspended from Rugby by the RFU for 21months for an anti-doping violation: http://www.rfu.com/News/2012/April/NewsArticles/160412_Spelman_judgment.aspx .

While the details of this anti-doping violation are now public knowledge, as is his unsuccessful fight to seek a privacy injunction barring reporting of this, what is perhaps more interesting is the Court’s view about sport.

 

The Background to the case

Jonathan Spelman played rugby for England U16 and for Harlequins RFC however he suffered a serious cruciate ligament injury in September 2011 which prevented him from playing. According to newspaper reports, he then ordered a series of steroids over the internet in an attempt to speed his recovery. The RFU name these substances as: testosterone, drostanolone (both anabolic steroids), growth hormone (GHRP6), human chorionic gonadotropin (HCG), clomid (clomiphene) and nolvadex (tamoxifen).

The Privacy injunction was an attempt to prevent the Daily Star Sunday (a tabloid newspaper) from revealing these allegations, an effort that subsequently failed. The resulting publicity in the media ultimately led to his voluntary appearance before the RFU’s independent disciplinary tribunal last month. Earlier this week, the tribunal reduced his anti-doping violation by three months to take into account his youth, immaturity and admission of guilt.

 

The Privacy Injunction attempt

Although the Daily Star Sunday did not yet have a fully written article, they were making enquiries of various parties to try to corroborate their information about Jonathan. After they approached these sources, they were contacted by the Claimant’s solicitors who instructed them to effectively cease and desist what they felt was an invasion of privacy and a political assault against Mrs Spelman.

By contrast, Express Newspapers argue that by giving full and prior notification of a potential story, they acted properly and responsibly, a principle that Max Mosley has previously campaigned on: http://www.guardian.co.uk/media/2011/jun/02/max-mosley-media-warn-subjects-expose . They also argued that Mrs Spelman was only an incidental aspect to the story [25] and that the key fact is that Jonathan is an elite sportsman who aspires to play at national and international level [66].

The initial hearing was on Saturday 11th February 2012, see here for a redacted judgment:http://www.bailii.org/ew/cases/EWHC/QB/2012/239.html and http://www.bailii.org/ew/cases/EWHC/QB/2012/392.html

As with many privacy cases, the crux of the case turned on the interpretation of the Human Rights Act 1998 and the balancing exercise that needed to be undertaken between the diametrically opposite rights enshrined by Article 8 (Right to respect for private and family life) and Article 10 (Right to freedom of expression). At [30], the Court confirmed that neither of the Articles took precedence over the other, instead, the importance of each right, the justifications for any interference, and the proportionality of any action should be carefully reviewed. The Court also re-stated the importance of maintaining open justice and the public accountability of the Courts [19].

See: http://www.headoflegal.com/2012/02/24/spelman-injunction-lifted/ for an interesting analysis of this balancing exercise.

As an aside, at [24], there is also an interesting discussion of the mechanics of how Sunday papers work and the exclusivity they prize over the daily titles that could effectively scoop them to reporting ‘their’ story if the injunction was discharged during the week .

 

Unfettered Watchdogs

While the paper expressed the view that it would be cheaper to not contest the injunction, they felt that this would place serious constraints on their freedom of expression and their function as a ‘unfettered Watchdog in a democratic society’. Perhaps surprisingly, the Court broadly agreed and cited what it saw as two key paragraphs specifically applying and underpinning this principle in sport.

6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy.

7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

Resolution 1165 (1998) of the Parliamentary assembly of the Council of Europe on the Right to Privacy

And from the recent Grand Chamber case of Axel Springer AG v. Germany [2012] ECHR 227 (7 February 2012) [90]:

An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes….. but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no.44102/04, § 34, 8 June 2010).

The Court held that given this, and the fact that at least one of the facts was true (and thereby could act as a complete defence to any potential defamation action [60]), it would be in the public interest for the newspaper to publish. The Court did however recognise that such an article could be intrusive or offensive depending on how it was written [102] and reserved the right to award damages (including aggravated damages) for the disclosure of private information if the publisher could not justify its use [120].

 

Child Athletes

The rest of the judgment is comparatively unreported; however I would argue that it is actually the most interesting and far-reaching part! Essentially, the Court moved from the basic proposition that children enjoy no general rights to privacy simply because of their age [53], to suggesting that the fact that Jonathan was nearly 18 was irrelevant as the principles of the case and the public nature of his role would equally have applied by virtue of his status as an international U16 player [72].

While I would not recommend using Mr Justice Tugendhat’s comments at [68] to meet the Government’s legacy sport targets for youth sports participation:

The material benefits to those few children who succeed at the highest level can be fabulous. But these benefits may come at a high price. It is a matter of common knowledge that the effort to achieve the highest honours in sport can damage a person’s health and family life, and lead to an early death, or even to a life of misery when careers end early and in disappointment. But the price in terms of health and happiness may be paid even by the less successful performers (being the overwhelming majority, of course) without their ever obtaining the material or other significant benefits.

It is his subsequent comments that are potentially the most significant. At [69], Tugendhat J suggests that:

69….those engaged in sport at the national and international level are subject to many requirements which are not imposed on other members of the public. Matters relating to their health have to be disclosed and monitored, and they may have little if any control over the extent to which such information is disseminated. It is a condition of participating in high level sport that the participant gives up control over many aspects of private life. There is no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport.

He then proceeds to extend this principle even further beyond professional athletes to journeyman athletes who merely ‘aim for’ rather than necessarily achieve the highest levels of sport [70].  Strictly speaking this area of the judgment is obiter, however it does make me wonder how many current child athletes (and their parents) understand the responsibilities that this extension of the principle entails. Not only are national and international child athletes role models and can legitimately be subjected to public scrutiny, but so now are lower level younger athletes. How far does this diminution of reasonable expectation of privacy extend? County level? What about pupils competing in the National School Games? It will be interesting to see how this area develops.

One last paragraph that sports governing bodies may wish to address is the potential ethical and welfare concerns raised by the Court in [107] that:

…..the demands made on children for the benefit of sport have increased very greatly over that period. Whereas in the past there was relatively little money to be made out of sport by anyone, sport has in recent years generated huge revenues, mostly from broadcasting and other intellectual property rights. So there is a risk that those responsible for organising national and international sporting activities may have interests that conflict with the welfare of the children who participate, or aspire to participate, in these activities.

Is this Tugendhat J’s response to the furore over Tom Daley’s media commitments, or is he suggesting that greater work should be undertaken to ensure that young athletes in professional and elite sport are not just protected from abusive relationships, but from the pressures and responsibilities of playing sport itself?

Ironically, this judgment has only increased these pressures.

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World Sports Law Report’s: Tackling Doping in Sport 2011 (in association with UK Anti-Doping & Squire Sanders Hammonds, 16-17 March, London [DAY 2]

March 25, 2011

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If there are any errors or inaccuracies these are from me rather than from the speakers. The official WSLR review of the event can be found here: http://e-comlaw.com/sportslawblog/template_permalink.asp?id=386

Day 2  (http://www.tacklingdopinginsport.com/)

  1. Anti-Doping at the Olympic Games. Richard Budgett (London 2012). The first lecture discussed the planned anti-doping provision at London 2012. Just listening to the statistics in particular outlined the sheer logistical task ahead, indeed London plans to undertake the most number of blood and urine doping tests yet (6,200 tests total split as 5,000 at the Olympics, 1,200 at the Paralympics), reaching an expected peak of 400 on one day! (To put this into perspective, UKAD only conduct 7,500 annual tests!). For the first time at the Olympics, Blood and Urine will also be collected in the same room hopefully speeding up the process. One problem that was however raised in light of David Howman’s speech the day before was that all the Doping Control Officer’s (DCO) will be volunteers and the potential for this to lead to bribery?
  2. Anti-Doping at the Commonwealth Games. David Grevemberg (Glasgow 2014). This lecture presented an overview of the planned anti-doping provision at Glasgow 2014. What was noticeable was the stark contrast between the statistics for the two events: Glasgow will have 17 sports, 25 disciplines, 250 medal events, 71 Nations and territories and 11 days of competition, indeed the costs of the Olympic stadium alone would fund Glasgow’s entire budget. One issue that hasn’t yet been decided though was whether the DCOs were coming from London, foreign jurisdictions or from training Scottish medical staff and providing an anti-doping legacy after the Games.
  3. Keynote Speech – Legacy for Anti-Doping. Hugh Robertson MP (UK Minister for Sport and the Olympics). The Keynote Speech has been widely reported by the media (http://www.guardian.co.uk/sport/feedarticle/9550585; http://www.reuters.com/article/2011/03/17/us-olympics-london-doping-idUSTRE72G43Z20110317) however it is still worth highlighting a number of points the Minister made. The first point to note is that he felt that sport was facing twin threats from doping (possibly from more individual sports) and from corruption (possibly from more team-based sports). Combating these two threats was vital if sport was to retain its integrity. One throwaway comment that perhaps jars with the current England FA coverage is that he viewed all Olympic sports stars as role models [whether this is enforceable though is another matter!]. The Minister praised UKAD and encouraged its close relationship with law enforcement, interestingly though he suggested that they should focus not just on target athletes but on stemming the entire flow of drugs at the source. He also seemed amenable to pass legislation on this issue if it was needed in the future, and in echoes of David Howman’s speech called for a strengthening and harmonisation of clearer doping rules across Europe.
  4. Using intelligence to combat doping in the run up to the Olympic Games. Nicole Sapstead (UK Anti-Doping). This lecture developed the theme from both David Howman and Travis Tygart’s earlier presentations. Somewhat provocatively, the talk opened with the statistic that there were 498 days until London 2012, but 0 days to combat cheats and their entourage! An interesting rhetorical question was whether UKAD had failed if they detected a BALCO-esque scandal just before / during the Games, or whether this in fact represented a success? What was interesting from this presentation was how UKAD collates information, trends and intelligence into a central database in order to analyse doping patterns. Nicole also outlined how UKAD used both a tactical (directly focused) and strategic (wider education) approach to combating drug cheats. She also highlighted the success of the recent anti-doping reporting hotline (run through the independent Crimestoppers): 0800 032 2332 where callers can anonymously pass on information to authorities 24/7 (http://www.ukad.org.uk/news/report-doping-in-sport)
  5. Background to and experience of the [Biological Passport] programme. Michael Ashenden (SIAB Research). This lecture explained how doping cases no longer involved positive tests, but also now involved ‘non-analytical positives’ where other evidence / interviews / suspicions could be considered indicators of guilt. One such area is Biological passports. The passport relies on two cornerstones, the initial software filtering which highlights deviances from the norm, and the subsequent review of this data by a series of experts to rule out pathological or other non-doping factors. The presentation concluded with an exhortation to discover even more markers within the blood to test for in order to block any potential loopholes.
  6. Advancements in the use of biological markers in anti-doping control. Paul Scott (Scott Analytics). This lecture could best be described as a critical analysis of the current biological passport scheme and how it could be improved in the future. Some of the suggestions raised privacy / freedom issues, such as the ability to test at any time of day or night, but this must be balanced against the fact that athletes are not currently tested between 11pm-6am and if they declared their whereabouts for later the following day, it was possible to flush certain substances from their body. Tightening the window for analysis of samples would have financial and complexity implications, but effectively sport needs to decide whether it wanted to prohibit doping or to trade-off lower costs with less reliability. A greater use of “non-starts” rather than full doping violations was also suggested.
  7. Procedural issues in anti-doping proceedings. Antonio Rigozzi (Levy Kaufmann-Kohler). This lecture compared and contrasted the admissibility of evidence under Swiss law and the WADA Code, in particular whether the WADA Code could be supplemented by IBA Rules on evidence (www.ibanet.org). Some doubts still exist over the admissibility of polygraph tests, however there is a suggestion that CAS has applied the criminal rather than civil test and therefore its decision in this area is open to challenge.
  8. Potential civil liabilities arising from doping control. Stephen Sampson (Squire Sanders Hammonds). This lecture explored whether athletes could bring civil claims against an Anti-Doping Organisation (ADO) and/or Governing Body for irregularities or problems with the doping control process. A number of case studies were discussed, as was the position in the event of a material departure from WADA rules, however it was also noted that such an action was very unlikely to succeed, particularly if the ADO / NGB had acted fairly, proportionately and justly in accordance with the rules. Interestingly while the WADA Code has been used as a ‘shield’ to protect athletes from abuse, this proposition envisages it being used as a ‘sword’ to attack for a breach.
  9. Contaminated meat: A threat to athletes subject to doping control. Mike Morgan (Squire Sanders Hammonds). This lecture discussed whether clenbuterol from contaminated meat was behind a string of recent doping results, and if so what could be done about it. Arguably the problem lay both within the agricultural sector in particular countries (Taiwan, China, South Korea and Mexico in particular) [but clenbuterol was not at levels harmful to the health of the general population], and also inconsistencies in the legal treatment of the athletes contaminated by the drug. One interesting argument from the questions was whether meat could be treated along similar lines to supplements? Taken to its logical conclusion, this would suggest that under strict liability, an athlete could be to blame if they didn’t convert to veganism?
  10. The risks – recent experiences of a NADO. Aurora Andruska (ASADA). This session was a multimedia presentation on the recent Australian experience with the supplement Methylhexaneamine.  The presentation also analysed the media reporting of the issue and the subsequent repercussions for the four athletes that tested positive for the substance.
  11. Reducing the risk. David Hall (Informed Sport – HFL), Jeni Pearce (English Institute of Sport, England Cricket), Graham Arthur (UKAD). This final section was less a lecture and more a question and answer session on supplements. Two interesting things came out of this session in particular, the first is that there were two main areas where contamination occurred: Using contaminated raw ingredients; and where third party manufacturers had cross-contaminated the product with a prohibited substance. It was also useful to hear about the current EIS policy on supplements, where athletes can receive specialised nutritional advice, guidance and support for supplement use on condition of signing up to an agreed code of conduct. Importantly, the EIS did emphasise though that this programme was one of risk management and that athletes remained liable for what substances entered their bodies; indeed, it was impossible to test every sample although the EIS could minimise this risk by only using approved suppliers and by keeping a record of what supplement batch was taken in order to trace any contamination.
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