Tag Archives: wada

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

December 13, 2015

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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.

 

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

December 9, 2015

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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.

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Extreme Weight Cutting within the UFC

November 22, 2015

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By Azadeh Taghizadeh – Thompson Rivers University 2L JD Student

There has always been an issue within the sport of fighting that is so widespread that it is seen as part of the sport. It is the issue of weight cutting, and over the years athletes have gone to extreme and dangerous lengths to cut large amounts of weight in a short period of time. Many people have had serious complications from it, and some even have died. Given the seriousness of this issue, should there be any regulations against extreme weight cutting?

The World Anti-Doping Code offers some insight to an approach which may be analogous to the case at hand. WADA prohibits substances that fall within at least two of the three requirements: (1) Medical or other scientific evidence, pharmacological effect or experience that the substance or method alone or in combination with other substances or methods, has the potential to enhance or enhances sport performance; (2)…represents an actual or potential health risk to the Athlete; (3) … violates the spirit of sport. Weight cutting could be classified under the first two requirements.

Firstly, extreme weight cutting can enhance sport performance since those who cut weight end up being in weight classes that are much lower than their actual weight, which inevitably gives them an unfair advantage on actual fight day when they have gained their weight back, while the other opponent may be much closer naturally to that weight class. For example, Chris Weidman, a UFC fighter who fights at 185 pounds (lbs) under the middleweight division, is naturally 205 lbs, which should classify him for the heavyweight division.

Heavyweight class has one of the largest weight differences. It runs from 205-265 lbs. Most fighters who are at 225 lbs cut weight to make the light heavyweight class. Unfortunately for those who are around 235 lbs, it may be harder to cut enough weight to be in the light heavyweight division and they may potentially end up fighting someone who weighs 265 lbs. Those who are at 265 lbs may actually be 285 lbs and cut enough weight to be eligible for the heavyweight division.

Not only can this large gap be an advantage for the heavier opponent, but can also be a violation of the second WADA Code requirement that the method not represent an actual or potential health risk to the Athlete. Cutting such as large amount of weight in a short period of time can have ill effects on the athletes body, both psychological such as mood swings, hormonal imbalances and eating disorders, as well as physical such as dehydration and in extreme cases, death, due to a heart attack, stroke or kidney failure.

In 2013, 26-year old Leandro “Feijao” Souza, a Brazilian MMA fighter, died due to a stroke right before his weigh-in for a scheduled fight in Rio de Janeiro. He was to lose 33 pounds in one week, and according to MMAFighting.com, Souza was taking Lasix, a diuretic pill, which is prohibited under the WADA Code.

Recently, Johny Hendrick was hospitalized due to his weight cutting issues. He had kidney stones and intestinal blockage. He weighs around 200-215 lbs and was to cut down to 170 lbs for his fight.

Given the commonality and dire effects of weight cutting, steps are now being taken to start to control weight cutting within the UCF and other amateur fighting sports. The United States Anti-Doping Agency (USADA) has announced that fighters will no longer be able to rehydrate using intravenous (IV) methods. Also, within the amateur arena, Arkansas has been the first state or province within North America to enact weight-cutting rules. Arkansas State Athletics Commission has now stated in Chapter 1 of the Rules and Regulations of Extreme Rule to Reduce Weight Cutting in the Amateur Class of Combative Sports: “Any Amateur Combative Sports fighter shall not gain more than .075 (7.5%) of his advance weigh-in body weight, and in no case, shall any fighter be allowed to gain weight sufficient to move up more than ONE published weight class for his specific sport.”

Hopefully these regulations will be the start of controlling this transparent issue of weight cutting within the sport of fighting and the widespread habit will become controlled and less extreme.

 

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Doping Infractions Have No Place In Canada’s Courtrooms

November 15, 2015

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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.

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

November 14, 2015

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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.

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Juicers Beware – The Revamped NSAC and UFC Drug Testing Policies

November 11, 2015

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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.

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

October 18, 2015

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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.

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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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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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