The Sports Law & Policy Centre | Regulating Doping in Sport
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Regulating Doping in Sport

By Vidya Narayanaswamy

Introduction

The regulation of doping is not a new concept in the area of sports law. However, this area of sporting regulation also has to evolve to keep pace with changes such as technology advances. Moreover, as the monetary value for winning sporting competitions becomes more lucrative, some athletes are willing to put ethics and even the law to one side for their moment of glory. Accordingly, international and national sporting bodies have adopted a strict approach in ensuring all athletes abide by anti-doping regulations. If they fail to adhere to these guidelines, such athletes face the risk of life bans from their chosen sport alongside fines and other penalties. This article will discuss the current regulatory framework with respect to anti-doping, with particular emphasis on the situation in India.

Background

The Olympic Movement Anti-Doping Court of 1999 expounded that doping can be classified under either of the following categories:

  1. the use of an expedient (substance or method) which is potentially harmful to athletes health and/or capable of enhancing their performance, or
  2.  2. the presence in the athlete’s body of a Prohibited Substance or evidence of the use thereof or evidence of the  use of a Prohibited Method.

According to the definition adopted by the International Olympic Committee (IOC) and subsequently the World Anti-Doping Agency (WADA) (discussed below), doping is a strict liability offence. This means that an athlete is culpable of doping if he/ she uses such prohibited drugs or is found to have such substances in his/her system.There are theoretically no shades of grey. That is, based on the scientific methods of detecting substances in an athlete’s body, they either have such drugs in their system or they do not

World Anti-Doping Agency

To ensure consistency with respect to the regulation of anti-doping in sports, the WADA was established in 1999 as a result of the momentum built up from the IOC. WADA released its anti-doping code (“Code”) in March 2003, which states “[t]he Code is the fundamental and universal document upon which the World Anti-Doping Program in sport is based.” WADA’s core functions involve scientific research into anti-doping, education and training of athletes and the community, development of anti-doping capacities and monitoring of the Code. WADA is also responsible for putting together the annual list of prohibited substances and methods that athletes are not allowed to take or use.

The Code sets out both mandatory rules which need to be incorporated verbatim as well as rules which are considered guiding principles. This structure is said to ensure that the fundamental regulations of anti-doping are consistent across national sporting bodies around the world, while the other sections of the Code accommodate for slight substantive amendments that may be necessary in different contexts and in different jurisdictions. The following sections of the Code may not be derogated by any national body, nor can any substantive amendments be made; Articles:

  •  1 (Definition of Doping);
  •  2 (Anti-Doping Rule Violations);
  •  3 (Proof of Doping);
  •  9 (Automatic Disqualification of Individual Results);
  •  10 (Sanctions on Individuals);
  •  11 (Consequences to Teams);
  •  13 (Appeals) with the exception of 13.2.2, 17 (Statute of Limitations) and

In order to maximise the impact of the Code across all countries, the Code was implemented through the UNESCO International Convention against Doping in Sport, which was adopted by a total of 191 governments in October 2005 and came into force in February 2007. Many of the countries that have ratified the Code have established a national body to oversee the implementation of anti-doping regulations and policies.

National Anti-Doping Agency

In India’s context, the Ministry of Youth Affairs and Sports established the National Anti-Doping Agency (NADA) as an autonomous body with the objective of acting as the independent anti-doping organisation for India. One of NADA’s first actions in striving to achieve this objective was to accept and adopt the WADA Code by passing the NADA Code with substantially the same substantive provisions.

The Preamble of the NADA Code states that both athletes and athletes’ support personnel shall accept these rules as a condition of participation and shall be bound by them. As such, as a precondition to participating in any sport at a national or international event, or as part of a national sporting federation, all athletes must abide by the NADA Code. Accordingly, athletes have certain obligations to fulfil under the NADA Code, including the fact that they must be aware of, and comply with all anti-doping policies and rules applicable to them under the NADA Code. Ignorance of these rules is no excuse. Moreover, athletes shall take full responsibility, in the context of anti-doping, for what they ingest and for any substances they use. This includes an obligation to notify any medical practitioner of their obligation not to use any Prohibited Substances (as specified under the Prohibited List in the WADA Code) and take additional responsibility to ensure that any medication that they take does not fall under the list of prohibited substances. Finally, athletes must comply, as far as the regulations insist, with the anti-doping authorities and their applicable National Federation with respect to sample collections conducted to ensure that they have not used prohibited substances.

NADA is directly responsible for the implementation of dope testing programmes in India, for athletes that compete at either a national or international level. Essentially, there are two types of tests that NADA oversees on registered athletes: in-competition and out-of-competition tests. For in-competition tests, the protocol for which athletes will be tested depends on the International or National Federation convening the event. Generally speaking, competition winners will be tested as a sample will be analysed in search for ‘in competition substances’ as specified by WADA. Moreover, a random selection of athletes may also be tested during a competition, consistently with the regulations of the relevant federation. The fact that out-of-competition tests take place means that athletes can be tested at any time and any place if they are registered as part of NADA’s testing pool, and usually all national and international athletes are registered in this testing pool. For the purposes of out-of-competition testing, athletes must keep NADA up-to-date as to their whereabouts so that random sampling may take place. It is fundamentally important that athletes keep NADA updated on any changes in circumstances as a failure to do so might be seen as an attempt to evade testing, thus resulting in a breach of the regulations and accordingly may result in a sanction.

If an athlete breaches any of the requirements or regulations under the Code, he/she is likely to face various sanctions. The NADA Code, under Article 10, outlines the penalties that may be imposed on athletes for violating the Code. In brief, if an athlete is discovered to have breached the regulations during an event, this may lead to the disqualification of the athlete, including forfeiture of all medals, results, points and prizes achieved in that event. If an athlete is found guilty of use of prohibited substances, he or she may be penalised with a ban of up to two years from the sport for the first violation. The length of this time ban may vary depending on the nature of the infringement. For example, if an athlete or athlete support staff is found guilty of trafficking, the sanction may range from four years to a lifetime ban from the sport for the first violation itself. The NADA Code also sets out a table whereby the length of the ban is set out if an athlete commits multiple violations, thereby leading to a more stringent ban, often a lifetime ban, from the sport.

Defences

It is important to note that although doping is a strict liability offence, to reduce or eliminate the period of suspension imposed on them, athletes may invoke certain defences. These include the defences of ‘no fault or negligence’, or ‘no significant fault or negligence’. These defences apply only in exceptional circumstances and not in the vast majority of cases. To avail of either defence, first, the athlete must prove how the prohibited substance entered his/her system. To prove the ‘no fault or negligence’ defence, the athlete must establish that he/she did not know or suspect, or could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had been administered a Prohibited Substance (Stylianou v. FINA, CAS 2003/A/ 447). As evidence, the athlete must prove that he/she has exercised “utmost caution” – that is, made/attempted to make inquiries, used caution to find out the nature of the substance he was using, made disclosures to his doctor, etc. To succeed under the ‘no significant fault or negligence’ defence, the athlete must establish that his/her fault or negligence was not significant in relation to the infraction, when viewed in the totality of the circumstances.

When practically applied, it is not an adequate defence to state that the athlete placed complete trust in the physician and/or coach. (Torri Edwards v. IAAF, CAS/OG/ 2004/003). Indian athletes who have tested positive in the latest round of dope tests conducted by the NADA are claiming contamination of their dietary supplements. However, the WADA’s stand on supplements is clear – taking poorly labelled dietary supplements is not an adequate defence in a doping hearing. Athletes are required to “be aware of the dangers of potential contamination of supplements and of the significant effect of the principle of strict liability.”

Conclusion

By ingesting prohibited substances, whether intentionally or otherwise, athletes don’t just stake their sporting reputation and career, but also harm their body and potentially reduce their lifespan. Athletes need to be educated about the harmful effects of spurious supplements and performance enhancing substances, as well as the method to distinguish between genuine and contaminated products. Athletes are liable under anti-doping rules by merely failing to take the necessary measures to investigate their nutritional supplements, medication and diet, even if they do not have the intent to ingest a substance to improve performance. Athletes therefore need to be made aware of what constitutes “utmost care”. The NADA should establish certain objective criteria and steps to determine what constitutes “utmost care” when consuming any supplement. While case law provides some guidance in this regard, athletes and support personnel often lack the requisite legal knowledge. Therefore, providing a document detailing the various investigations that need to be conducted by an athlete prior to consuming any supplement to ensure that there is ‘no fault or negligence’ on the athlete’s part, will prove useful.

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