Need for Reform

There is a danger that WADA’s utilitarian approach to athletes rights, exemplified by the code, and justified by nebulous concepts such as ‘the spirit of sport’, has resulted in an imbalance between sport and the rights of athletes’. In my view, the current situation needs to change; From the sporting legislators point of view, an alternative to the current system of simply listing banned substances is needed. There has been a move toward a system which looks for general abnormalities in samples and I believe this is where the answer lies. This system will undoubtedly result in innocent athletes being caught up and tried for doping offences, however, the sporting community as a whole needs to move away from the stigma attached to a doping allegation and advocate thorough, impartial judicial proceeding. Athletes should be innocent until proven guilty and incur no ban for mere unfounded suspicion, prior to a hearing.

The current approach advocated by WADA needs reconstruction. I propose an altered version of the current system. The powers currently contained within WADA should be divided among three agencies; they could serve to act as a system of checks and balances. Each agency regulates the behaviour there counter-parts. This would ensure more democratic outcomes. The working relationship would resemble the legislature, executive and judiciary in Ireland, in terms of structure.

Any proposed overhaul must ensure that as sport increases its anti- doping regulatory framework the rights of athletes are protected and vindicated.

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Life time ban?

A system which operates a policy of handing out life time bans leaves little room for flexibility. The problem of doping in cycling has become so widespread that drastic action is needed and justified. With such a system in place there would be causalities, their would be innocents who, through stupidity and ignorance, are caught by the system. The question should be posed: Has the problem reached a level which necessitates such action? Drug cheats, in order to maintain their way of life, look to exploit any legislative shortcomings for their own gain. The system needs to be ‘excessively harsh’ to eradicate not only dopers but also the would-be dopers. The penalties for failure to comply with the rules must be so harsh that cheating becomes incomprehensible. Athletes at such a high level are subjected to so many controls that they are acutely aware of everything they ingest. Anybody who comes into modern sport or who aspires to participate in sport at its highest level must take responsibility. It is more important to protect innocent athletes from competing against dopers than to implement a flexible system to accommodate those lazy individuals who have failed to check the nutritional information on labels of food supplements correctly.

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A Fair Hearing?

The impartiality of the hearing process is governed by Article 8 of the World Anti Doping Code. Article 8 of the World Anti Doping code has potential for conflict with principles of natural justice. The goal of the article is to outline the standards expected and procedural entitlements of athletes accused of doping. The most controversial inclusion within Article 8 is provision number two; ‘fair and impartial hearing body’.

Most democratic nations presently employ a separation of powers. The separation of the executive, judiciary and legislator ensures that too much power is not vested in one organ. It operates as a system of checks and balances, each organ exercising a supervisory role over the other. The World Anti-Doping code fails to adhere to this separation of powers.

Failure to implement a separation of powers does not in itself symbolise corruption, however, if coupled with weak, ineffectual policies it can lead to a perception of corruption. The Irish interpretation of WADA guidelines (Irish Anti Doping Rules) has borne out a situation where an athlete may be tested by Irish Cycling to ascertain whether they have ingested a prohibited substance, the case will be prosecuted in the name of ‘Irish Cycling’ and Irish Cycling will make the determination on the athletes guilt. This situation is not compatible with the principles of natural justice.

Nemo iudex in causa sua has been long recognised as a fundamental principle of natural justice; it translates as ‘no man shall be a judge in his own cause’. This Latin phrase has direct implications for the Irish Sports Council. One of the cornerstones of our justice system is that justice must not just be done but it must also appear to be done. Applying this rationale to doping laws, regardless of whether justice is in fact done, the lack of separation of powers gives an objective perception of bias.

The UCI and WADA should lead the way and set an admirable example for athletes to follow. Currently the opposite is true. Successful anti doping legislation should be based on respect; respect by athletes’ for the rules but also a respect by authorities for the principles of natural justice. Without a system of mutual respect there exists little chance of winning the war against drugs.

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World Anti-Doping Code. Provisional Suspensions

One of the foundations of natural or constitutional justice is that once an allegation affects an individual’s good name he/she is entitled to a complex, if undefined, set of procedural safe guards. An allegation of doping is an accusation which could profoundly affect the good name of the athlete involved. It characterises the individual in question as a dishonest person and compromises their integrity. This instalment will examine the merits of Article 7 of the World Anti Doping Code (Provisional Suspensions).

Article 7.2

‘A signatory may adopt rules, applicable to any event for which the signatory is the ruling body or for any team selection process for which the signatory is responsible, permitting provisional suspensions to be imposed after the review and notification but prior to a final hearing.’

The application of provisional suspensions is one of the primary areas where reform of the Code is needed. The Code empowers governing bodies to suspend athletes’ prior to any formal hearing. This action from governing bodies must be viewed against the backdrop of the severity of being accused of a doping offence. Imposing a period of suspension pending analysis of a ‘B’ sample is inherently wrong. At this stage only tentative evidence of any wrong doing exists. It is my respectful submission that the paramount issue in question relates to judging between two rights; balancing the rights of athletes’ to fair procedure against the right of WADA to advance its core objectives.

WADA, on the one hand, is endeavouring to eradicate drugs from sport, but in this instance, athletes’ rights are being compromised in the pursuit of utopia. WADA has decided that the consequences of allowing a suspected doper to continue competing, pending a formal hearing are too great. They have favoured a pre emptive suspension. In making this decision they have failed to fully appreciate the severity of the consequences that ensue for an athlete accused of doping.

The eradication of drugs from sport, especially cycling, is an uphill battle. The task is one which requires carefully formulated legislation; athletes’ rights are paramount in the battle against dopers. For authorities to compromise athletes’ rights in the pursuit of a clean sport (which is essentially vindicating athletes’ rights) is for them to lose sight of the rationale behind the anti-doping movement.

The introductory memorandum to the Code places heavy emphasis on the ‘spirit of sport’ and seeks to protect it. Surely, at the heart of the spirit of sport are the athletes’ and athletes’ rights, by implication. How can a Code which seeks to advance and preserve the spirit of sport also advance policies which fundamentally undermine the natural justice rights of athletes’? Although WADA is entitled to considerable credit for its work in the fight against doping, in this instance, they have failed to correctly access the merits of Article 7.

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Strict Liability. A flawed System?

This installment will look at the strict liability nature of anti doping within sport.

Article 2 is entitled Anti-Doping rule Violations. The key provisions within Article 2 include Article 2.1.1.

Article 2.1.1 reads: It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes’ are responsible for any prohibited substance or its metabolites or markers found to be present in their bodily specimen. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athletes’ part be demonstrated.

The pragmatic implications of Article 2 mean that the mere presence of a prohibited substance in the athletes’ specimen is proof of doping, unless the contrary can be proven. This has the effect of reversing the burden of proof from a traditional starting point of innocent until proven guilty, to a draconian, guilty until innocence can be established.

The consequences for an athlete convicted of doping are severe and can extend to incarceration. The scale of the problem is often cited as a rationale for the implementation of this strict liability rule. I would suggest that just because the problem is widespread it is not sufficient justification to reverse the burden of proof. Clarity is the main attraction of a system where the mere presence of a banned substance in an athletes’ system leads to a positive finding.

Imagine a situation where crime levels had increased to such a level that the legislature enacted laws where citizens could be convicted of murder despite having no moral culpability (moral culpability being one of two essential elements for murder, the other being a guilty act). Athletes’ are not given a chance to show a lack of intent or lack knowledge and receive bans for the mere presence of the prohibited substance.

WADA say that to prove intentional ingestion as well as presence of prohibited substance would undermine the fight against drugs. I would suggest that administrative inconvenience and disciplinary convenience cannot be advanced as legitimate reasons for the removal of the mens rea.. Athletes’ must be given an opportunity to show a lack of fault or intent. The raison d’etre for the World Anti- Doping Code is punishment for those administering substances with the express aim to improve performance. The current system punishes athletes’ regardless of their intention to improve performance.

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