Doping in Sport: past, present and future

A brief history of doping…

Doping has not always been prohibited in competitive sports; in fact the Ancient Greeks found it acceptable to use performance-enhancing drugs during the original Olympic Games[1] when competing for prizes.[2] It was not until the doping-related deaths of Tour de France cyclists Knut Jensen in 1960 and Tommy Simpson in 1967 that things changed. 

Inevitably, pressure mounted on sporting agencies to take action against doping. In 1967 The International Olympic Committee (IOC) established the Medical Commission with the following three guiding principles: ‘protection of the health of athletes, respect for medical and sports ethics and equality for all competing athletes.’[3] The following year the IOC conducted its first drug testing at the Olympic Games.

Despite the introduction of anti-doping legislation and tests for drug use, Tour de France riders and Olympic athletes became increasingly adept at circumventing the controls, and finding better alternatives that could not be detected. An infamous incident occurred at the 1978 Tour de France, where Belgian rider Michel Pollentier attempted to use an intricate system of tubes concealed on his person that included someone else’s ‘clean’ urine for his drugs test. This exemplifies the lengths riders would go to in order to achieve marginal gains in performance.

The World Anti-Doping Agency (WADA) was first established in 1999 pursuant to the terms of the Lausanne Declaration on Doping in Sport. WADA was set up to promote and coordinate the fight against doping in sport internationally.[4] At this stage the aims of anti-doping legislation shifted focus to ensuring clean and fair competitive sports.

Following the discovery of American cyclist Lance Armstrong’s doping scandal in 2012; the WADA code has been revised. A US Anti-Doping Agency (USADA) report accused Armstong, a member of the US Postal team, of running one of the most sophisticated performance-enhancing-drug rings that had ever been seen in professional sports. Armstrong admitted to using erythropoietin (EPO) and blood transfusions in an attempt to increase stamina, as well as testosterone to increase strength, for all of his Tour de France successes[5]. Following the scandal, testing of blood and urine changed from being during competitions, to being taken several times during the year. A biological passport was developed using this information: this is a record of an athlete’s baseline blood and urine levels. Any fluctuations in these levels during subsequent testing would be a red flag for possible evidence of doping.

What is the current legislation on doping?

The 2015 WADA Code defines doping as ‘the occurrence of one or more of the anti-doping rule violations set forth in Articles 2.1 to 2.10’[6]. A notable sufficient condition for violation of WADA’s World Anti-Doping Code is a detectable or threshold level of a banned substance, its metabolites or markers in a test sample. Therefore from the moment the Russian tennis star Maria Sharapova tested positive for the generic prescription medication Meldonium, she was in violation Articles 2.1.1 & 2.2.1 of the code. As such, the findings of the International Tennis federation tribunal, that Sharapova was unaware at the time that she was taking a banned substance, are rendered immaterial by these articles. Meldonium is a cardiovascular medication, mostly unlicensed in the West, which may improve delivery of blood to body tissues and therefore exercise capacity.[7] Sharapova had no further recourse as she had failed to obtain a therapeutic use exemption (TUE) under Article 4.4.1.

Punishments for doping

Article 10.1 states that if an athlete is found to have violated an anti-doping legislation rule during or in preparation for an event, they will be disqualified of all the results obtained in the event and will forfeit any medals, points and prizes won.[8] The period of ineligibility, following a violation of a rule, varies from 2 years, 4 years or a lifetime ban. During the period of ineligibility, the athlete will be withheld any sports-related financial support or benefits. The IOC and the International Paralympic Committee (IPC) both have the power to ban an entire country from competing at their respective Games.

After an investigation on Russia revealed state sponsored doping on an unprecedented scale. The IOC deferred the decision to take aggressive action to the individual sports federations, such as the International Association of Athletics Associations (IAAF). The IAAF placed a ban on Russian athletes from competing in track and field for Russia at the Rio 2016 Olympics. Further to this, the IPC decided to blanket ban Russia from the Paralympics, as well as suspending the Russian Paralympic Committee’s (RPC) membership to the IPC. Following the IPC’s decision, the RPC appealed to Court of Arbitration for Sport (CAS).

The Court of Arbitration for Sport

CAS is an independent international institution involved in resolving legal disputes related to sports through arbitration. Rule 61 of the Olympic Charter states that all disputes in connection with the Olympic Games can only be submitted to CAS.[9] From 2016 an anti-doping division of CAS has judged doping cases at the Olympic Games.

The initial WADA report released on 9th November 2015 on Russia’s doping scandal showed cheating stemmed from intimidation and interference by the Russian state. The Russian Anti-Doping Agency (Rusada) and the WADA-accredited laboratory in Moscow were involved in the widespread cover-up of positive tests for doping. This extended to the Paralympic sport also and the Russian Paralympic Committee (RPC) failed to ensure compliance with the code. The CAS Panel dismissed the appeal as the IPC had not violated any procedural rule in the disciplinary process and the decision was proportionate.[10]

What are the challenges for the legal sector?

Some athletes have turned to microdosing to overcome the biological passport. For example, doping very small quantities of EPO may lead to statistically insignificant increases in baseline levels, which therefore go undetected. The aim is to achieve incremental increases in performance over the long term, without getting caught.[11] As the current testing methods do not catch everyone doping, the code’s ability to ensure a fair and level playing field for all athletes, is diminished.

The future of doping legislation: to criminalise or legalise?

Some critics have suggested that we legalise all doping and perhaps this would allow for ‘safe doping’ that could be openly monitored by accredited doctors.[12] By ensuring the substances used are properly regulated could reduce their potential harm.[13] They also argue that doping is no more harmful than the intense training regimes that athletes are subject to.[14] Contrastingly, Sir Craig Reedie the President of WADA has urged governments to criminalise doping, to act as a more powerful deterrent. In light of the doping scandal in Russia, there is an immediate need for more compliance measures within regulating bodies themselves, as well as need for more stringent testing, if the ban on doping is to continue. If the authorities responsible for ensuring there is no doping taking place, undermine the system by violating the code themselves, the system will not work. As Dick Pound, former President of WADA, stated: “it’s a people problem not a system problem.”

Written by Janani Rathakrishnan from LexisNexis Webinars team

 

Footnotes

[1] Larry D. Bowers, PhD, “Athletic Drug Testing”, Clinics in Sports Medicine, Apr. 1, 1998

[2] Sally Jenkins, “Winning, Cheating Have Ancient Roots”, Washing Post, Aug. 3, 2007

[3] International Olympic Committee (IOC), “The Medical Commission”, www.olympic.org (accessed August 30, 2016)

[4] World Anti-Doping Agency (WADA), “WADA History, “www.wada-ama.org (accessed August 30, 2016)

[5] Interview between Lance Armstrong and Oprah Winfrey on the Discovery Channel: https://www.youtube.com/watch?v=e_-yfFIiDao

[6] World Anti-Doping Code (2015) Art 1

[7] https://www.theguardian.com/sport/2016/mar/08/meldonium-maria-sharapova-failed-drugs-test

[8] World Anti-Doping Code (2015) Art 10

[9] p105 Olympic Charter 2nd August 2015

[10] http://www.tas-cas.org/fileadmin/user_upload/Media_Release_RPC_IPC.pdf

[11] BBC Panorama Catch Me If You Can: https://www.youtube.com/watch?v=i13u9PhjT_c

[12] http://www.telegraph.co.uk/sport/othersports/drugsinsport/11778747/Athletics-doping-crisis-is-just-another-reason-to-allow-drugs-in-sport.html

[13] http://www.telegraph.co.uk/sport/othersports/drugsinsport/11778747/Athletics-doping-crisis-is-just-another-reason-to-allow-drugs-in-sport.html

[14] https://www.theguardian.com/commentisfree/2015/aug/18/athletics-drugs-doping-iaaf-legalise

Filed Under: Arbitration , Sports

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