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Winning the war on doping.

Introductory

President George W. Bush declared 'war on terrorism' after 9/11 and President Jacques Rogge of the IOC declared 'war on doping' on taking office. Both 'wars' are ongoing and, in a number of respects, controversial.

Regarding the 'war on doping', which like its counterpart the 'war on terrorism is never far from the headlines, some commentators argue that, instead of banning the use of performance enhancing drugs in sport, athletes should be free to choose whether to take them or not. This would remove some of the alleged hypocrisy and inconsistency surrounding doping in sport on the part of a number of sports governing bodies. But this is missing the point of doping control--it is there to safeguard the health of the athletes and the integrity of sport itself. Doping and sport, like oil and water, do not mix!

Doping Control and the Ohuruogu Case

In enforcing doping control, there has also been much discussion on the application of the principle of strict liability, whereby an athlete is solely responsible for any banned substance found in his/her body. Accordingly, it is not necessary to show intent, fault, negligence or knowing use of the banned substance concerned on the athlete's part in order to establish a doping offence.

And also the rule of the British Olympic Association (BOA), and a number of other National Olympic Committees, which automatically excludes an athlete, who has committed a doping offence and received a ban, from competing in future Olympic Games--the dream of all elite athletes.

Both of these issues have come to the fore in the case of the British athlete, Christine Ohuruogu, the Commonwealth 400m champion, who has just received a twelve-month ban for missing not one but three out-of-competition doping tests and also faces a lifetime Olympic ban from the BOA. She is appealing against the latter ban and, as that is, therefore, sub judice, I shall refrain from commenting specifically on this aspect of the case. However, in general terms, lifetime bans of 'elite' athletes--that is, those who earn their livings from their sports--from competing may, according to the particular circumstances, constitute unlawful 'restraints of trade' and be void and unenforceable. And, although generally speaking English Courts are reluctant to intervene in sports disputes, they will generally do so where livelihoods are at stake, in order to determine whether the restraint was reasonable or not (see Gasser v. Stinson, High Court, 15 June 1988, unreported). But these are not easy cases to decide. In Gasser, the claimant was not, in fact, successful, the English High Court holding that the ban was reasonable in the circumstances.

Under the IAAF rules, and, indeed, under the anti-doping rules of other international sports bodies, and also in line with the WADA Anti-Doping Code of 2003 (see Article 2.4), failure to attend a doping test, without justification, is tantamount to failing such a test and is punishable accordingly--in the present case, a mandatory ban of twelve months.

Ohuruogu is reported to have been devastated by the ban and her coach, Lloyd Cowan, has said he is "disgusted" at the suspension, adding that it was "very harsh". Be that as it may, and although her failures to show up for the doping tests concerned have been put down to "forgetfulness" and the independent disciplinary committee, which found Ohuruogu guilty, has issued a statement saying that she "had no intention of infringing the anti-doping rules", the rules are the rules and must be obeyed, if the 'war' on doping in sport is to be won. Her forgetfulness on more than one occasion hardly shows a sense of responsibility or respect for doping control.

The strict liability rule has been defended on several occasions. Without it, it is generally argued, it would be virtually impossible to convict and punish drugs cheats. In other words, any anti-doping programme would be rendered nugatory. In perhaps one of the most celebrated and widely reported cases, namely, that of the sixteen year old Romanian artistic gymnast, Andreea Raducan, who, having won a gold medal, tested positive for a banned substance, which was attributable to two Nurofen tablets prescribed by her team Doctor for headache and congestion and taken by her, the Ad Hoc Division (AHD) of the Court of Arbitration for Sport (CAS) sitting during the 2000 Sydney Olympics (CAS AHD OG 2000/11) upheld the commission of the doping offence and the resulting ban, stating:

"The Panel is aware of the impact its decision will have on a fine, young, elite athlete. It finds, in balancing the interests of Miss Raducan with the commitment of the Olympic Movement to drug-free sport, the Anti-Doping Code must be enforced without compromise."

This decision was very much in line with previous CAS decisions in doping cases, not least the ruling in C v. FINA (CAS 95/141) in which the strict liability rule in doping cases was defended in the following terms:
 "... the system of strict liability of the athlete must prevail when
 sporting fairness is at stake. This means that , once a banned
 substance is discovered in the urine or blood of an athlete, he must
 automatically be disqualified from the competition in question,
 without any possibility for him to rebut this presumption of guilt
 (irrebutable presumption). It would indeed be shocking to include in
 a ranking an athlete who had not competed using the same means as
 his opponents, for whatever reasons."


In other words, the use of any banned substance distorts the result of the sporting event/competition concerned and, thus, the intention of the athlete regarding the presence of such substance is not relevant. It further follows from this that the fact that the banned substance was not taken to obtain a competitive advantage (as argued in the Raducan case) is also irrelevant--for a doping offence to have been committed requires only the presence of the banned substance in the athlete's body.

Conclusion

Should one feel sorry for Ohuruogu, who has said about the ban and its sporting consequences that "I really didn't expect my hopes and dreams to end this way"? I think not, because elite athletes know the rules on doping--in particular, the need to be available and to attend out-of-competition doping tests whenever required to do so--and also the serious consequences that follow from breaking them. Only in this way, in my view, can the 'war on doping' be won and the integrity of sport and the fairness of sporting competition maintained and safeguarded.
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Title Annotation:European Law: two Swimmers Drown the "Sporting Exception"
Publication:The International Sports Law Journal
Geographic Code:4E
Date:Jul 1, 2006
Words:1080
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