Tag Archives: World Sports Law Report

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

0 Comments

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.
Continue reading...

World Sports Law Report’s: Tackling Doping in Sport 2011 (in association with UK Anti-Doping & Squire Sanders Hammonds, 16-17 March, London [DAY 1]

March 20, 2011

1 Comment

If there are any errors or inaccuracies these are from me rather than from the speakers.

Day 1  (http://www.tacklingdopinginsport.com/)

  1. Gene Doping in Sport: Background / history and update of methods of detection. Professor Perikles Simon (Johannes Gutenberg University, Mainz). The first lecture discussed the growing threat of gene doping within sport (defined as: ‘the abuse of gene transfer technology to enhance athletic performance’). The presentation went on to highlight how gene transfer of certain substances, for example Follistatin, had been demonstrated to significantly increase performance amongst laboratory mice. While research into this area is still ongoing, Professor Simon did suggest that it was possible to develop a test to detect the transgenic human DNA used in gene doping.
  2. Technological Doping: Assessing the competency of sport to regulate technology. Kris Lines (Staffordshire University) & Jon Heshka (Thompson Rivers University). This lecture presented an overview of how technology has been used to enhance sporting performance. Essentially the problem is that sport does not have a consistent and robust framework for regulating or even debating this issue. This leads to inconsistencies both within the same sport (eg the different treatment of clothing / venue design) and externally between different sports. To a certain extent, analogies can be drawn between the current use of technology in sport and the position of chemical doping in the early 1990s. The lecture finally analysed how a possible framework akin to the WADA Code could be used to regulate this area.
  3. Borderline Issues in Anti-Doping: Scientific and Medical Update. Dr Stephane Bermon (IAAF Medical  & Anti-Doping Commission). This lecture analysed how some areas of the prohibited list were not actually black and white, but rather several shades of grey. In particular, the lecture focused on three areas: Blood Spinning (where platelet rich plasma [PRP] could be manipulated through centrifugal force and then re-injected into wound sites to promote faster healing). Interestingly, while Blood spinning is allowed under s2.6 of the 2011 Prohibited List, the individual growth factors contained within PRP are still prohibited if used separately. Prohibition on the use of Hypoxic environments (used to simulate altitude training) was ethically difficult to justify given the benefits that athletes could receive passively from living at altitude.  Whereas all glucocorticosteroids (drugs used to treat inflammation) are prohibited in-competition by the 2011 list when administered by oral, intravenous, intramuscular or rectal routes, a compelling case was made that the decision to allow glucocorticoids out-of-competition was made on other grounds. 
  4. Keynote Speech – The Future of Anti-Doping. David Howman (World Anti-Doping Agency). The Keynote Speech has been widely reported by the media (http://www.guardian.co.uk/sport/2011/mar/16/wada-criminal-gangs-sport-warning; http://news.bbc.co.uk/sport1/hi/front_page/9426982.stm) however it is worth highlighting a number of points the Director-General made. The speech discussed how the UNESCO declaration on anti-doping was the fastest ratified international treaty in history, having been ratified by 156 countries (a theme developed later by Elise Auvachez). Several comments then followed that: It was hoped that the next rewrite of the Code would be athlete friendly and simpler; more focus should be placed on the W in WADA (World) and the agency’s interaction across more sports and countries; international sporting federations needed to do more to develop blood doping tests and collection in order to support the development of the biological passport across more sports; some scientists currently turned a blind-eye to borderline cases in order to avoid any potential legal challenge. There were also a number of more controversial suggestions mooted: Should NADOs (National Anti-Doping Organisations) test other countries athletes to prevent any conflict of interest? Should a reward system be introduced for catching drugs cheats? In relation to the British Olympic Association (BOA) policy on lifetime bans for drugs cheats, Howman lamented the fact that Dwain Chambers’ case was decided on process grounds rather than a substantive decision as there was still uncertainty in this area, in particular as to whether this policy amounted to double jeopardy (an extra doping sanction) or was a valid selection policy. It was hoped that the US request for a CAS Advisory Opinion in this area should provide this certainty. The sound-bite that a lot of the media picked up on however was the suggestion that the criminal underground controlled a significant proportion of world sport, in particular that there was evidence that doping control officers had been bribed (a statement that may have implications for London 2012, see Day 2).
  5. Importance of Education. Elise Auvachez (UNESCO). This lecture developed the theme of the UNESCO declaration and UNESCO’s wider role to build anti-doping capacity, advise on policy and to develop an education framework. The Fund for the Elimination of Doping in Sport was also discussed within this context. The need for such an education policy within schools was brought home strongly with the research that the fastest group of steroid users within the USA were young girls.
  6. Managing Risks of Doping. Sally Munday (England Hockey). This lecture was given by the CEO of England Hockey who having been through two recent anti-doping investigations, has proactively redeveloped their strategy in this area. The lecture brought home the conflict between protecting the rights of the athlete and the integrity of the sport, particularly where an athlete may have tested positive for their A sample, but negative in a subsequent B sample. The new 2010-13 strategy for the sport is a living and evolving document aligned to both the player pathway and UKAD and emphasised the importance of communication, clear roles and responsibilities.
  7. What governing bodies can learn from recent case law. Richard Harry (National Anti-Doping Panel – NADP). This lecture was an analysis of the composition of the National Anti-Doping Panel and its management by Sporting Resolutions UK. The NADP heard 37 cases since April 2008 (from a total of 107 cases heard in the UK during that period). The presentation discussed the breakdown of the yearly statistics for April 2008-March 2011 before drawing some general conclusions that many of the cases dealt with by UKAD concerned social / recreational drugs / stimulants, although the inadvertent use of supplements containing prohibited substances was becoming an increasing problem.
  8. Practical Demonstration of the Doping Control Process. UKAD. Thanks must go to the UKAD team for providing practical demonstrations of the doping control process. Watching a simulated doping sample being collected (well not literally – they used apple juice!) really made the process clear for people who had not undergone or witnessed testing before.
  9. Anti-Doping in Cycling. Pat McQuaid (UCI). This lecture discussed the structure of the UCI (annual budget CHF7.5m), its anti-doping programme (15,699 tests conducted during 2010) and in particular the introduction of the biological passport in cycling (a theme which continued on Day 2) and its advantages and limitations. A number of recent cases involving the passport scheme were also discussed. Pat did not discuss the Contador case in any detail although he did confirm that UCI had been passed the file and had until the end of March to decide whether they wished to appeal the decision of the Spanish Cycling Federation.  
  10. Status during ineligibility: Article 54 FIFA Anti-Doping Regulations. Volker Hesse (VIVA Sports Law). This lecture discussed the FIFA amendment to the WADA eligibility rules following a doping violation. Essentially, while FIFA follows article 10.10.1 of the WADA rules banning participation in organised training or events, it makes provision for footballers to engage in non-competitive activities and training in the final few months prior to the expiration of their ban. FIFA justifies this position by pointing to the fact that individual athletes can resume full competition immediately after the expiration of their ban (Claudia Pechstein is a recent celebrated example of this), while team players would need to re-integrate with the team and regain match practice, effectively prolonging their period away from competition. It would seem though that this policy is not implemented by other team sports such as Cricket, Rugby League and Rugby Union to name just a few, so is this a case of some sports being more equal than others?
  11. Round-table Discussion – Code Review. Led by UKAD Facilitators. This session was an interactive break-out session discussing a number of specific provisions of the WADA Code, in light of its forthcoming review in 2012: Strict Liability; Sanctions; Criteria for the List; Eligibility for training whilst banned; Aggravated / Substantial assistance.
  12. Using Intelligence to Combat Doping: Case Studies from the US. Travis Tygart (USADA). This lecture discussed the role of USADA and its success in combating doping through collaborative partnerships with US Law Enforcement Agencies. Travis was, however, clear to point out that while the USADA mission was to preserve the integrity of competition, inspire true sport and protect the rights of US athletes, its role was not to grow or to raise revenue for sport. What was particularly interesting about the USADA approach was their successful use of evidence other than that of positive test results, and the fact that 90% of American surveyed in a recent report view athletes as role models (a point also corroborated by Hugh Robertson MP on Day 2). A number of the reports mentioned in this speech can be found on the USADA website: www.usada.org
Continue reading...

Prettiest Ambush I’ve ever seen!!!

August 26, 2010

0 Comments

Jon and I had the following article, “Ambush marketing: FIFA’s rights protection programme” recently published in the World Sports Law Reports (WSLR).

“Amidst the buzzing of the Vuvuzela’s and the occasional officiating error, the 2010 FIFA World Cup South Africa will also be remembered for the expulsion of 36 orange mini-skirt wearing women from a match and
the subsequent prosecution (and then dropping) of charges against the two alleged ‘ringleaders’ behind the incident. Whilst titillating, this is not just a story about beautiful women being used to market a product. The real story is about the lengths to which companies will go to exploit loop-holes in the existing law and what implications these campaigns have for tackling counter-insurgency actions at future events. The article will conclude by examining how FIFA and Anheuser-Busch (the official beer sponsor) were so comprehensively ambushed that Bavaria rocketed from unmeasurable before the ambush to the fifth most visited beer website in the UK,  while Nike’s unofficial ‘Write the Future’ campaign was widely viewed as the most successful marketing campaign of the World Cup……”

The Editors have kindly allowed us permission to make the full article available on the blog as a pdf download: WSLRaug10lines[1]

The ‘Bavaria’ girls in question:

DimDim girls:

Continue reading...

Illegally streamed Premier league sites

January 29, 2009

0 Comments

The January edition of the World Sports Law Report reports that it has identified a number of sites illegally streaming Premier League matches:

“The FA Premier League (FAPL) has revealed that during the 2007/8 season, it identified 177 different sites ‘which contained or were connected to unauthorised streaming of Premier League football matches’. The FAPL made its announcement in response to the UK Government’s Department for Business, Enterprise & Regulatory Reform’s consultation on peer-to-peer (p2p) file sharing. The FAPL said that of those sites, 122 (63%) used p2p technology to distribute the content.”

Read the full article at:  http://www.e-comlaw.com/sportslawblog/

Continue reading...