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23 Nov 2015

Ready, Steady, Just Say No

When Sebastian Coe was elected President of the International Association of Athletics Federations (IAAF) in August 2015, he was undoubtedly aware that he faced a tough job in the twelve months leading up to the 2016 Olympic Games in Rio de Janeiro.  At the time, he described the publication of blood results obtained by the Sunday Times and German broadcasters ARD/WRD alleging widespread doping as a ‘declaration of war’ on the sport.

However, since Lord Coe’s election, matters have only got worse for international athletics. The World Anti-Doping Agency’s independent commission report released on 9 November 2015 recommended that Russia be banned from international competition, whilst former IAAF officials are under investigation in France in respect of alleged corruption. Lord Coe now has the pleasure of an appearance before the Culture, Media & Sport Select Committee to look forward to before the end of the year.

Following on from comments made by sports Minister Tracey Crouch on 27 October 2015 that the government were considering making the use of prohibited substances in sport a criminal offence, former sports Minister and former Chairman of the British Olympic Association – Lord Moyniham –  made an impassioned call for just such a law to be enacted in the UK, having previously attempted (unsuccessfully) to introduce an offence of supplying (not otherwise illegal) performance enhancing drugs, together with police powers to search athlete’s rooms at the Olympic Village.

It may seem odd that athletics, traditionally a less wealthy sport (particularly compared to those which routinely produce millionaire superstars such as golf and tennis) should attract such an apparent determination to cheat, at least in some quarters. However, despite the relatively modest financial sums at stake, the outcry following the latest developments suggests that there are strong feelings that doping is now a serious problem in need of a serious solution.

Does such ‘public interest’ in ensuring a good clean contest extend to criminalising those who put that in jeopardy? This is the case in (for example) France, Belgium, Austria, Italy and Spain, where there are criminal offences for the use (rather than the supply, trafficking or possession) of performance enhancing drugs in competition.

The heads of both the World Anti-Doping Agency (WADA) and UK Anti-Doping (UKDA) have noted that the existing penalties (which increased significantly in January 2015) for athletes are sufficient, and that they believe the focus should be on those trafficking and supplying prohibited substances.

Having said this, the WADA statement on the subject does acknowledge that “countries that have introduced criminal legislation for doping have been effective in catching athlete support personnel that possess or traffic performance enhancing drugs. It seems that, given the threat of being imprisoned, these personnel are often more cooperative with anti-doping authorities”.

It is worth remembering that it is not the use of recreational drugs which is illegal per se, but rather their possession and supply. There already exist criminal offences in the UK to prevent the trafficking and supply of controlled drugs, including some but not all substances prohibited in sport, such as amphetamines and anabolic steroids. By contrast, some entirely legal drugs available over-the-counter are prohibited in many sports (the most obvious example being pseudoephedrine, found in many cold and allergy remedies).

The introduction of a criminal offence for the use of performance enhancing drugs would therefore presumably be concerned with the altered outcome of the contest, rather than the risk to the user or to society.  One argument is that, by using a banned substance to enhance their performance, the athlete is defrauding his fellow competitors, spectators and his or her sport as a whole, although not to the same extent as, say, match-fixing. Indeed, the relevant offence in Austria is based on a fraud involving more than minimal harm resulting from the doping, with an increased maximum sentence where the value of the ‘fraud’ exceeds a specified level.

Where prize money is involved, the impact of such a ‘fraud’ becomes easier to measure. But is it appropriate to characterise cheating as fraud where there is little or no reward for victory, other than the victory itself?

It should also be noted that WADA’s Prohibited List also contains a number of recreational drugs (including cocaine, heroin and cannabis), some of which may have little to offer by way of performance-enhancement. This reminds us that at least part of the motivation behind anti-doping measures is to reinforce the ideal of sport as a ‘clean’ pursuit and that winners don’t use drugs. Whether those drugs helped or hindered the performance is irrelevant.

The lack of distinction between drugs which genuinely improve an athlete’s performance, and those which are simply frowned upon as being contrary to the ethos of sport and the idea of sportsmen and sportswomen as role models, means that legislators should think carefully before criminalising the sporting use of any and all of the substances on the WADA Prohibited List.

The focus on the athlete as the target for new sanctions also makes the assumption that he or she acted alone in the deception. As the WADA report suggests, doping can be a systematic and institutional problem. Would the additional threat of criminal  sanctions really empower the impressionable young competitor to Just Say No to the coaches who have huge influence over their future career?

There are now significant penalties within sport for those caught cheating (the new entry-level four year ban for deliberate offences will ensure a first-time athletics offender misses the next Olympic games), and the recent revelation would suggest that it is the monitoring and enforcement of the existing rules which needs attention. Equally, there are already criminal sanctions in the UK for those trafficking, supplying and possessing drugs which are considered harmful to users and to society. As much as it may pain those to whom fair play is sacrosanct, to criminalise what is essentially unsporting behaviour is probably overstepping the mark.

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