Doping In Sports -By Tuale Charles Ajuyah

Abstract

Recent years have seen major athletes being caught with doping. The use of performance-enhancing drugs is considered one of the major crimes in sorts. This act is considered cheating and unethical in sport. An increase in the number of sportsmen being caught in anti-doping screening has raised a debate on whether the use of steroids should continue to be prohibited. Various sportsmen and other stakeholders in sports have made convincing arguments against prohibiting steroids and other performance-enhancing drugs. This article, therefore, highlights the effect of doping in sports and possible measures that can be implemented to drastically reduce its use amongst athletes.

Introduction

Doping has become a crucial and multifaceted issue in the sports world, which merits serious deliberation, as experts are still striving to comprehend how and why it happens, and how to stop it. Sensational revelations in the press reflect the gravity of a worrying situation resonating in most sports disciplines, such revelations were evident with American sensation Sha’Carri Richardson, who tested positive for Cannabis on July 1, 2021, from a sample collected at the U.S. Olympic Team Trials on 19 June 2021. This ruled her out from competing at the Olympic games. A few weeks later, on the morning of 31 July 2021 news filtered through that a Nigerian Athlete, Blessing Okagbare had been suspended by the Athletics Integrity Unit (AIU)[1] after she had tested positive for human growth hormone (a prohibited substance) following an out-of-competition test on 19 July. This was a massive blow to Nigerian hopes of more Olympic medals at the Tokyo games as she was a favorite heading into the semi-finals of the Women’s 100m Olympics race. These two incidents have the same recurring theme in the world of athletics and sports generally, Doping.

Beckmann’s sports dictionary describes doping as the use of performance-enhancing substances (PED/PES), which would place the athlete in a superior position than they would normally have obtained[2].

According to the Anti-Doping Convention of the European Council – “Doping in sport” means the administration or use of doping agents or doping methods by athletes[3]. The doping agents or methods referred to have been banned by the Anti-Doping Agency and appear on a list of ineligible substances[4].

This article seeks to enlighten on the meaning, impact, current positions, and legal ramifications of doping in sports.

To put it crudely, everyone uses PED. From the Lawyer who takes coffee/caffeine to keep awake, or aging men who use Viagra to perform at the expected levels, or those in the US Air force who are allowed to take Adderall to keep them focused and alert. So why then is the act so frowned upon in Sports?

One school of thought argues that it contravenes the principle of fairness and equity in sports. Opponents who choose not to use performance-enhancing drugs, will not be competing on an equal playing field. The use of PED poses one of the principal threats and challenges to sports today because it threatens the integrity and credibility of sports in its entirety. They argue that Sporting competitions are supposed to be a showcase of a person’s natural ability, their mental strength, and how far they can push their bodies whilst performing against some of the best athletes in the world who use their natural abilities, unaided by PED. This, it is argued, is when sporting competitions and events are most competitive and enthralling. Rightly so, sporting competitions should and tend to frown at the use of PEDSs because it means possibly awarding the athlete with undeserved medals and prizes for their supposed achievements, while such athletes have ‘cheated’.

One thing is clear, athletes recognize the effectiveness of PED, those who use it, depending on the sport practiced and the physical attributes it requires admit that it benefits them in terms of recovering from an injury, increasing body recovery capacity after training, increasing muscle mass and strength, decreasing fat tissue, increasing endurance and more. This leads to the second school of thought which speaks on the long-term negative health effects athletes who use PED may suffer such as liver and kidney damage, baldness, skin discoloration, testicular shrinkage, a higher voice, infertility, and breast growth. For women, it could have adverse effects such as deepening of the voice, breast reduction, menstrual cycle irregularities, and facial hair growth. PED also leads to emotional distress, severe mood swings, hallucinations, and violence on and off the field.

Away from thoughts and opinions, a logical question to be asked is what the rules that govern doping in Sports are, and who made/makes these rules? The World Anti-Doping Agency (WADA) is a global institution established by the International Olympic Committee (IOC) based in Canada. Its aims and objects include promoting, coordinating, and monitoring the fight against doping and illicit drug use in Sport. WADA is also tasked with the scientific research, education, and development of anti-doping capacities. Paramount to the agency’s work is the establishment of the World Anti-Doping Code. WADA administers its powers over all athletes through this Code.

The World Anti-Doping Code (WADC) is a document that provides a framework of all anti-doping regulations, rules, and policies of organizations and authorities. Articles 1 and 2 of WADC define doping as ‘including the presence or use or attempted use of a prohibited substance or its metabolites.[5]

The World Anti-Doping Code, despite encompassing all sports across several nations, stands as just a code as the name implies, and is therefore unenforceable. Due to this fact, WADA enforces its provisions through the United Nations Educational, Scientific, and Cultural Organization (UNESCO). UNESCO further developed The International Convention against Doping in Sport,[6] in compliance with Articles 11 and 12 of the World Anti-Doping Article, to combat the growing rate of doping in the world of Sports.

“No effort must be spared to highlight the harmful effects of doping, which is both injurious to health and contrary to the sporting ethic, or to protect the physical and mental health of athletes, the virtues of fair play and competition, the integrity of the sporting community and the rights of people participating in it at any level whatsoever.”[7]

UNESCO has a zero-tolerance policy for defaulters on its mission to ensure the mainstreaming of values and rights-based approach that ensure a clean, honest and equitable environment in Sports. The organization achieves its objectives through a three-pronged approach.

The first is International Cooperation. The efforts to protect ethics, integrity, and values while combating Doping in Sport would not be achievable without the aid of nations. The organization has managed to garner a total of 188-member states since the global convention[8] came into force on 1 February 2007. The provisions established a much-needed legal and regulatory framework for the enforcement and monitoring of Doping in Sport. Secondly, the organization assists governments of member states in developing anti-doping programs and provides advice on the implementation of the Convention. It also supports efforts to expand the evidence base feeding into anti-doping policies, particularly in the areas of trafficking, nutritional supplements, and health consequences of doping. Thirdly, the organization develops anti-doping education and prevention programs fostering fundamental sports values and informing young people of moral, legal, and health consequences of doping.

The preceding paragraph introduces the central focus of this article; The Legal Consequences of Doping. Doping violations are treated as a strict liability violation, rendering the mens rea element irrelevant once a prohibited substance is detected in an athletes’ system. In Foschi v Fina[9], the defendant and her team denied knowledge of the banned substance in her system but the Court of Arbitration for Sports on appeal noted that “In doping cases, it would be practically impossible for a Sports Federation to prove how a banned substance arrived in the athlete’s body … Any such requirement would be the end of any meaningful fight against doping.”[10]

The WADA Articles are also expressed in their provisions “that findings of possession or use of prohibited substances have strict liability attached, and it is not necessary to demonstrate intent, fault, negligence or knowing use on the part of the athlete”.[11]The strict liability attached to doping is a necessity as it must be highlighted that any change that permits intention would lead to a floodgate of illicit/banned substance use as managers, coaches, teammates and even the athletes themselves could find many dubious ways to avoid penalties for doping.

The strict liability applied to Doping in Sports may seem harsh to the athletes and it does have its detractors, however, it is clear that it is essential to prevent a modern-day Sporting culture that encourages external pressure (from coaches, teammates, family, or even Governments) for the athlete to find alternative means to achieve sporting excellence which most times would be the use of PED. There have already been cases of coaches giving athletes prohibited substances in their food and drinks without their consent – C v FINA[12], or team doctors who prescribe certain substances without consulting the prohibited list – National Wheelchair Basketball v International Paralympic Committee.[13]

Aside from the strict liability associated with Doping in Sports, there is heavy reliance on circumstantial evidence. Even more so than in a typical civil or criminal case. The case of United States Anti-Doping Agency v Collins[14] highlighted the important role circumstantial evidence plays in detecting and penalizing doping in cases where specialist drugs have been consumed (in this case steroid tetrahydrogestrinone) and could not be detected by the testing procedures. In this case, circumstantial evidence such as blood tests for testosterone levels and those showing elevated hematocrit and hemoglobin, statements, and documents from the organization’s files were all used as evidence to identify when doping had occurred.

Modern-day science has reduced the need for circumstantial evidence as the case in reference happened 20 years ago, however, there exists a lasting competition between those who create new doping techniques and the organizations who search for permanent ways to detect them. Regrettably, those inventing and finding new ways to diverse doping techniques are constantly ahead, as seen in the cases of  Baxter v International Olympic Committee (IOC), award of 15 October 2002; and Squizzato v FINA[15]; Puerta v ITP[16].

 Naturally, when the rules are breached, there are penalties attached to them. As it regards Doping in Sports, just like the strict liability applies to the test of proving wrong done, so are the penalties, as being found positive for a banned substance would render the athlete automatically disqualified from the competition if it is an individual Sport[17]. The athlete also loses all competitive medals, points, prizes, as they would be rendered fortified from the date of the positive sample[18].

Penalties for doping are understandably essential as they reduce the prestige of what was “won” while the athlete was on PED. They also coerce organizations and managers who have Doping tendencies to conform with the rules as these penalties render the athlete obsolete due to ineligibility from competing in any event organized by organizations who have embraced the provisions of WADA/WADC. Lengthy-time off competition, shame, loss of reputation, and endorsements are all strong vessels for deterring athletes from using PED. These sanctions become more stringent when the violation (which in most times includes both being in possession and the use of the banned substance) occurs on more than one occasion[19]. In cases where the violation occurs within a team sport, the major recuperations would involve when more than two members of the team are found guilty for using banned substances, as this would result in the team being disqualified from a competition, losing points, or other sanctions[20]. Once more, this might seem unfair, but the rules are set up to ensure athletes within teams are deterred from taking prohibited substances and a system where local agencies conduct regular testing of athletes. Consequently, these rules are set up to penalize the defaulting athletes, and in which case, in keeping with natural justice, most of the provisions provide for various appeal mechanisms. As a common-law right, procedural fairness provides such safeguards as the athletes’ right to compete has been impeded. When it comes to the adjudication proceedings, the WADC is not too dissimilar to the concept of general legal sy11stems as the concepts of unbiased decision making, natural justice, and equal punishment to crime ratio are prevalent. The IAAF (International Association of Athletics Federations) also ensures such safeguards for alleged violating athletes with a 3-stage process involving (I) a prompt suspension (ii) An opportunity for hearing and (iii) ineligibility from the competition[21]. This, along with the fact that the decisions of the Court or a disciplinary tribunal are irrefutable evidence of the facts against the athlete[22], aids in ensuring that athletes are treated in a just and equitable manner within the shelters of the principles of procedural fairness. This mechanism may allow athletes to overturn guilty verdicts on appeal, but it is pivotal that it exists, as it gives further validity and legitimacy to anti-doping laws and ensures even more International Corporation as it ensures the perspective of the alleged guilty athlete is heard.

With these safeguards, this article must emphasize that the law is not without its faults. It is clear from the start that in the initial stages of anti-doping campaigns there was little or no attention to the legal aspects due to the totalitarian nature of the sporting agencies organization, however, this issue was solved naturally as more money was plunged into sports, individuals and organizations had to find more ways to protect their interests. Moreover, judging from the scandals involving Russia at the 2012 Summer Olympics and the 2014 Winter Olympics (Russia has since accepted and no longer disputes their involvement in doping programs for those games as they take steps to reconcile with WADA). The Russian Athletics collaborated with the athletes by helping them circumvent testers as well as using ingenious means such as blood transfusion to raise hematocrit, which was widely undetectable a decade ago. It is clear that local agencies still have a heavy hand in providing doping substances to athletes.

Even those in charge of the anti-doping agencies are not far from controversy themselves, as former President of the International Association of Athletics Federations (IAAF) Lamine Diack discovered after he was found to have contributed to widespread bribery practices. There have been major cases of athletes being using PED that has led to disastrous results. Tom Hicks died as a result of using a mixture of cognac and strychnine during the Saint Louis marathon in 1904. Danish cyclist, Knud Enemark Jensen died after taking too much Roniacol at the 1960 Olympic games. Former Olympics champion Justin Gatlin was banned for 2 years in 2001 for testing positive for amphetamines, although this was reduced to 2 years on appeal. He would however go on to incur a 4-year ban in 2006 after he tested positive for testosterone which effectively led to his 9.77 World Record time being erased from the history books.

From the aforementioned, it is patent that domestic regulatory bodies and agencies have a part to play in promoting anti-doping culture as WADA does not have the necessary resources to cater to every single participant at a tournament/competition. However, WADA does have a global reach due to its funding by the Olympics movement, and the fact it nonetheless serves as a means of ensuring compliance with scientific research, education, outreach, and out-of-competition testing.

In Nigeria, the Federal Executive Committee (FEC) in November 2019 announced that the process for domesticating the International Convention against Doping in Sport into Nigerian Law had begun. The success of anti-doping programs would be determined by how keen local athletics Federations would be ready to relinquish the autonomy and jurisdiction of their athletes to the WADC. A lack of cooperation from these Federations would invariably lead to inconsistent results in the need to reduce doping among athletes. More so, International collaboration reiterates the theme of Sports Law complying with normative law principles like International Agreements and provisions being ratified by local authorities before being enforced in an ‘alien’ jurisdiction. Nigeria would be advised to take an example from the pact between Australia and China, the ‘Anti-doping Agreement’ which was aimed at increasing frequent testing. Such pacts are the future tools for promoting anti-doping culture and mutual accountability between nations. This aids in raising the prestige of these nations at the International level and ultimately ensures the principles of fair play in Sports.

In conclusion, depending on legislative measures within a country, PED can be obtained from just over the counter in most pharmaceutical shops. Again, for a substance to classify as ‘performance enhancing’ it must tick two of three criteria (I) to improve performance (II) to present a hazard to the health of the athlete, and (III) to violate the spirit of sport. To minimize doping in sports, a collective effort towards sharing information and initiating programs, especially at the grassroots level, to educate kids, athletes, and all those involved in sports that doping is an unnecessary and unethical act, posing a real threat to the integrity and future of Sports.

Today, most of the banned substances can be easily detected, with the existence of Rules and Codes, as well as Anti-Doping Procedures and Biological Passports making doping more and more difficult. However, Anti-doping agencies will always be behind the perpetrators of doping as new undetectable substances with pharmacological properties similar to those banned will continually be produced. To finish off, human nature, along with the social and economic pressures of professional sports means that athletes will continually look for ways to be ‘better’ which means the goal of eradicating doping may ultimately be futile.

BIBLIOGRAPHY

LEGISLATURE

Article 2 of the Anti-Doping Convention of the European Council

World Anti-Doping Agency, 2015

Article 2.1.1 World Anti-Doping Agency, 2015

Article 3.2.3 World Anti-Doping Agency, 2015

Article 9, World Anti-Doping Agency 2015

Article 10.7.1, World Anti-Doping Agency 2015

Article 10.8, World Anti-Doping Agency 2015

Article 11.2, World Anti-World Doping Agency 2015

International Association of Athletic Federations, 1999, rule 59

2005 United Nations Economic, Social and Cultural Organization’s International Convention against Doping in Sport

1976 United Nations Economic, Social and Cultural Organization’s International Convention against Doping in Sport

CASES

CAS 95/141 215 C v FINA

(CAS/15S6) 41-42 Foschi v Fina

CAS 95/122 National Wheelchair Basketball v International Paralympic Committee

CAS2006/A/1025 Puerta v ITP

CAS 2005/A/830 Squizzato v FINA

USADA v Collins AAA No 30 190 00658 04)

BOOKS

Beckmann O. Beckmanns Sport-Lexikon: A-Z. Leipzig: Beckmann; 1933.

ONLINE RESOURCES

World Anti-Doping Agency list of banned substances https://www.wadaama.org/sites/default/files/resources/files/2021list_en.pdf  (last viewed 18th August 2021)

[1] The AIU was established by the International Associations of Athletics Federations in 2017 to combat doping in athletics.

[2] Beckmann O. Beckmanns Sport-Lexikon: A-Z. Leipzig: Beckmann; 1933.

[3] Article 2 of the Anti-Doping Convention of the European Council

[4] World Anti-Doping Agency list of banned substances https://www.wadaama.org/sites/default/files/resources/files/2021list_en.pdf (last viewed 18th August, 2021)

[5] (World Anti-Doping Agency, 2015).

[6] 2005 United Nations Economic, Social and Cultural Organization’s International Convention against Doping in Sport

[7] (UNESCO, 1978).

[8] Supra 3

[9] Foschi vFina (CAS/15S6).

[10] (Foschi v Fina (CAS/15S6) 41-42

[11] World Anti-Doping Agency Article 2.1.1

[12] CAS 95/141 215

[13] (CAS 95/122

[14] USADA v Collins AAA No 30 190 00658 04)

[15] CAS 2005/A/830

[16] CAS2006/A/1025

[17] Article 9, World Anti-Doping Agency 2015

[18] Article 10.8, World Anti-Doping Agency 2015

[19] Article 10.7.1, World Anti-Doping Agency 2015

[20] Article 11.2, World Anti-World Doping Agency 2015

[21] International Association of Athletic Federations, 1999, rule 59

[22] World Anti-Doping Agency, 2015, art. 3.2.3