This could be seen as being unfair on the athlete as they haven’t had the opportunity to present their case as to why they had tested positive to a banned substance. Test B could confirm their innocence but if hasn’t yet been tested by this point they are still banned and alleged to be guilty. Test B could prove their innocence but in the majority of cases this tends not to be the case, sample B just confirms the banned substance found in the athletes’ body.
This method doesn’t follow the idea that is prominent in English Law of ‘innocent until proven guilty.’ It relies purely on the fact that a substance has been found in an athlete’s body. At this stage there is no opportunity for the athlete to offer explanations of how or why the substance was in their body.
Alternatively, if an immediate ban weren’t imposed on the athlete then other competitors would not be competing on a level playing field. The alleged competitor would have an unfair advantage for longer until the outcome of sample B was known. This puts governing bodies in an awkward position because it wouldn’t provide consistency. If the alleged athlete then went on to prove their innocence it would be seen as a success not to ban them until after the outcome of sample B. But if the athlete were found to be guilty then other athletes would find the process unfair, as it put them at a disadvantage when competing during the time the athlete should have been banned.
The way governing bodies have overcome the problem of a competitor having an unfair advantage is the retroactive cancellation of performances during the period that they should have originally been suspended for taking a banned substance.
This method may help to rectify the problem but it also causes a problem because if the ban should have been in place during trials for a major championship then consequently another athlete would have missed out at the chance of competing due to the athlete being allowed to compete in the trials because they weren’t given the initial ban.
Even though governing bodies are committed to ensuring that drugs and doping is eradicated from sport, there is still concern as to whether they should be subject to the provisions of the Human Rights Act 1998.
Drug tests have proved to be a positive action ensuring that cheats is eliminated from sport, but there is still a problem relating to the recent implementation of the Human Rights Act 1998. Within the act there are 2 main articles that may be problematic in the area of drug testing. Article 8 that deals with the right to privacy. Under Article 8 ‘everyone has the right to respect for his private and family life, his home and his correspondence.’
Doping methods, which involve testing of human fluids, can be seen to be evasive, so infringe on a persons right to privacy. These tests may not be unlawful as the Act ‘recognises the legitimate interests of other persons…preservation of a level playing field for the benefit of all other competitors.’
According to the Human Rights Act 1998 s6 (3) ‘The act relates primarily to the activities of ‘public authorities’, which includes courts and tribunals and other persons certain of whose functions are functions of a public nature.’ Governing bodies are consistently regarded as being private bodies by the courts so this suggests that they may not be subject to all the provision of the Human Rights Act 1998.
Governing bodies may find a problem with this argument because courts when considering any matter that contravenes principles under HRA 1998 have disregarded previous concepts such as ‘private and public bodies’. If following this concept governing bodies will be subject to provisions of the HRA 1998
This means that governing bodies have to be constantly aware of potential implications that their procedures may have in terms of the Human Rights of athletes. There are particular elements of the Human Rights Act 1998: Article 6: the right to a fair trail and Article 8: the right to respect for private life that governing bodies will have to consider when using methods to control and establish doping. Governing bodies will need to ensure that when they wish to carry out a test they are doing it for the ‘pursuit of some legitimate purpose.’ In addition the governing bodies have to establish that the outcome cannot be achieved by other means which are less intrusive to the athlete and don’t contravene the Human Rights Act 1998.
Governing bodies have started to do out-of-competition testing; this is to ensure that athletes aren’t relying on substances whilst training for major events and competitions and then proceed to stop taking them just before the competition so that if they are selected for a drug test during a competition they aren’t identifiable in samples.
This brought about the introduction of out-of-competition testing. Athletes now have to register where they will be throughout the year so that they are available for testing with immediate notice. A test can be demanded within 24 hours notice. If an athlete can’t be found, or refuses to turn up for the test than they are presumed to test positive and face the consequences of being banned.
Rule 4.7 and 4.8 of the Amateur Swimming Federation of Great Britain (ASFGB). “A person on the register who fails to notify ASFGB of any change of address or location where he may be contacted for a doping test at anytime within 48 hours of such a change may deemed to have committed a doping offence.”
This method adopted by governing bodies provides a fairer scheme and prevents unfair advantage over the course of the competitive year. The problems with this method could be if the athlete doesn’t turn up for a drugs test for a legitimate reason, they are automatically presumed of cheating without being tested positive for using a banned substance.
By suspending an athlete it makes that person ineligible to compete in major competitions and may also have financial implications of not receiving appearance fees and win bonuses.
Governing bodies have two ways of dealing with the problem of sanctions and suspensions. Many have ‘compulsory suspensions’ where the athlete is suspended until the outcome of sample B is known. This had the advantage that it ensures consistency to every athlete.
A disadvantage of this approach is that it doesn’t give the governing body the time to ensure the safety of Sample A’s result, which could prove to be a problem if the test later proves to be negative.
In sport now there are vast sums of money dependant on games and athletes. By using various methods such as urine and blood samples it would eliminate some of the cheats and make a fairer competition. The governing bodies tend to be heavily criticised if the tests are proved to be wrong, many athletes will then go down the route of litigation in order to get compensation for lost earnings while they were suspended by their governing bodies.
An example of this was the Swiss athlete Sandra Gasser, who was tested positive by the IAAF; she was banned for two years, during which she claimed to have lost $250,000 in endorsements and appearance fees. She claimed the IAAF ignored her claims and evidence of lack of intent asnd knowledge and that she may have been sabotaged.
Dougie Walker, the British athlete was found guilty of taking the banned substance Nandralone, he escaped a ban from Athletics UK because it was said by David Moorcroft that he hadn’t knowingly taken a banned substance to enhance his performance, the IAAF did impose a ban on Dougie Walker.
This is a case of how strict liability is used in cases. There is no need for the IAAF to prove mens rea or intention to take the nandralone; it just had to be present in his urine sample.
A criticism of strict liability is that it is unjust; the ‘prosecution’ doesn’t have to establish reasons as to how or why the substance was in the athletes’ body, they just have to prove that they took the substance knowing the consequences of it.
If applying this rule to cases then Diane Modahl’s can be used. She was found to have abnormal levels of testosterone in her sample.
If the prosecution had to establish mens rea then Modahl’s medical report would show that she suffered from two conditions which could cause abnormal levels of testosterone: ‘polycystic ovary syndrome’ and ‘5 alpha reductase.’ This would confirm that she didn’t know the substance was in her system or the consequences that it would have, but she was still banned from competing.
Diane Modahl argued that the way in which her test was carried out was unfair, but in initial test proceedings ‘the governing body is not faced, as a preliminary measure, with establishing the credibility of the test result.’ In Modahl’s appeal case she submitted evidence that proved that the test hadn’t been carried out properly in Lisbon in accordance to IOC proceedings.
Strict liability means an athlete can be found guilty of a violation and sanctioned without a sports governing body proving intent, or without the athlete being allowed to prove he or she was faultless. Even if the athlete can establish that they had no knowledge of how the substance entered their body it would be irrelevant under strict liability.
By demonstrating the idea of strict liability in doping cases, it shows how governing bodies need to review the system so that mens rea can be taken into account, allowing an athlete continue competing if evidence supports their lack of knowledge of how the substance was in their sample. This still causes problems for governing bodies because it removes the idea of a level playing field even though the athlete had no idea how the substance entered their system.
In applying strict liability it prevents the athlete from providing explanations of how the substance was found in their bodily fluids; blood or urine.
In looking at the other side of the problem with strict liability, which shows that without it, governing bodies would have to prove mens rea; this would make cases longer and allow athletes to have the foresight to say they unknowingly took it through medicines etc. If governing bodies didn’t follow the strict liability rule then one competitor could have an unfair advantage over other athletes for a longer period of time.
Sports governing bodies have recently started to encourage a more legal idea in the battle against drugs and doping.
The Court of Arbitration for Sport (CAS) was established in 1981, its role is to keep the problems within sport within the sporting field rather than going through the criminal proceedings. The Court is chaired by the Court of Justice and is based in Lausanne; it is also an ad-hoc committee that travels to all major sporting events so that it can give decisions relating to problems within 24 hours.
Some governing bodies such as FIFA and IAAF don’t use the Court of Arbitration for Sport to sort out their problems; they rely on their own framework of tribunals and enquiries.
The CAS works by providing rules and regulations which governing bodies use in accordance with those already in place, if an athlete is found guilty of cheating through drugs or doping then the sanction is administered by their governing body in accordance with what has been laid out by CAS.
Doping regulations tend to receive wide criticism because not all substances are banned in every country. The IOC set up the World Anti-Doping Agency (WADA) in 1999. Its aim was to “promote and co-ordinate the fight against doping in substances in all its forms at international level.”
The World Anti-Doping Agency comprises of members from the Olympic movements, mainly the IOC. It also has public authorities, which represent individual member states.
WADA is an independent body, which was established to ensure that the systems are regulated in each country and that the tests carried out are done fairly and consistency is maintained within the drug regulatory system.
Even though this was established to make the system unbiased and impartial it is still criticised for being too closely linked to the IOC. This could be due to the chairman of WADA also being the vice-chairman of the IOC.
All of the doping methods implemented by governing bodies have been successful in their own way in establishing and eliminating cheats from sport. The one problem, which they all face, is whether banning an athlete until it is 100% certain that they did cheat is fair and right.
By not banning an athlete it may cause others to miss out on opportunities and therefore doesn’t maintain a level playing field for all competitors.
When banning athletes it incorporates the problem of if the decision that has been made turns out to be incorrect, then an athlete has a justified reason to sue for loss of earnings etc.
Governing bodies may need to review how they carry out procedures relating to sanctions so that they remove the cheats without punishing innocent competitors.
A balance may never be found between bans imposed and fairness but as long as governing bodies have procedures in place to act as a deterrent, then that may in itself act as a method of achieving commitment to the removal of drug cheats from sport.
BIBLIOGRAPHY
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O’Leary. J., ‘Drugs and Doping in Sport: Socio-legal perspectives’ Cavendish 2001
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‘Strict liability- Drug rules of sports governing bodies’ Wise. A.N., N.L.J,
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‘Drugs in sport-chains of custody’ Grayson E., N.L.J 1995 145 (6679)
O’Leary. J., ‘Drugs and Doping in Sport: Socio-legal perspectives’ 2001 Cavendish
New Law Journal 2/8/96, “Strict liability- drug rules of sports governing bodies” Aaron N Wise
O’Leary. J., ‘Drugs and Doping in Sport: Socio-legal perspectives’ 2001 Cavendish