Jack Anderson: Legal approach to doping blurs the moral code

The prevalence of doping in sport has been once again to the fore in recent weeks, writes Jack Anderson.

Jack Anderson: Legal approach to doping blurs the moral code

The International Olympic Committee (IOC) banned Russia from the 2018 Winter Olympics because of evidence of state-sponsored doping.

Chris Froome, four-time winner of the Tour de France, is facing allegations that he breached anti-doping regulations relating to his asthma medication.

Tyson Fury, boxing’s former world heavyweight champion, recently settled a case with the UK’s Anti-Doping Agency (UKAD).

And, this week, the 2017 world athletics 100 metres’ champion, Justin Gatlin, has been implicated in reports about the trafficking of ‘designer’ performance-enhancing substances.

All four stories give us a depressing insight into the reality of doping in modern sport and the apparent inability of the World Anti-Doping Agency (WADA) to make any headway in catching cheats.

The gap between the authorities and cheating athletes is illustrated by the most recent official WADA figures.

In 2016 anti-doping agencies worldwide carried out 300,565 dope (blood and urine) tests. The number of adverse analytical findings (AAFs) — more commonly known as positive tests — emanating from these samples was 4,822 or 1.6%.

In 2017, a study, originally commissioned by WADA and carried out by researchers at the University of Tübingen in Germany, estimated, based on anonymous surveys of elite athletes competing at the 2011 World Championships in Daegu, South Korea, and the 2011 Pan-Arab Games held in Doha, Qatar, that the prevalence of doping was between 30% (in Daegu) to 45% (in Doha).

The year has ended with the IOC’s ban on Russia. The evidence supporting the ban, relating to an extraordinary conspiracy at the Sochi Winter Olympics of 2014, has been well documented. Two points though have gone slightly under the radar.

First, the Sochi doping conspiracy echoes back in history to the conduct of East Germany (GDR) and other Soviet bloc countries in the 1970s and 1980s. The Stasi files from the GDR revealed that many of the athletes involved either did not know about or were given little choice in ingesting industrial levels of anabolic steroids.

Many GDR athletes were experimented upon and have suffered severe chronic health problems.

We have yet to fully explore the scientific depths of what Russia athletes may or may not have been given in recent years.

Yes, it is difficult to extend them any sympathy; nevertheless, what allegedly happened at Sochi serves as another reminder that the primary concern about the unregulated use of drugs in sport — from elite sport to those who may be taking them in gyms across Ireland — relates to the long-term health consequences.

The second point of note from the Sochi conspiracy claims is that much of the evidence came from whistle-blowers within the Russian anti-doping system.

Watch in 2018, not whether Russian sport meets the various technical conditions now expected of it by WADA and the IOC, but how it treats the whistle-blowers. The latter, as we have seen in an entirely different context in Ireland, is the truer test of genuine institutional reform.

Chris Froome.

Chris Froome.

Chris Froome’s travails relating to possible misuse of his therapeutic use exemption (TUE) for asthma has also been widely discussed.

The medical research shows that the percentage of elite athletes with asthma is not markedly above population norms. Nonetheless, both the range and timing of TUE exemptions sought by athletes are concerning.

To be blunt, the key question for Froome and Team Sky is whether they are using the TUE process as another one of their infamous ‘marginal gains’?

More generally, the TUE process has long provoked disquiet as to how some of the fittest people on the planet appear, paradoxically, to need extensive medication for underlying conditions.

Evidence given in the Maria Sharapova case, which saw her banned in 2016 for 15 months, showed that prior to taking meldonium, a drug used to treat heart conditions, she was using 30 different medications and supplements.

Whatever about possible drug use in non-contact sports and for all the disappointment suffered by Froome’s rivals when they see his bony bum take off past them on a Tour stage, it cannot be compared to receiving a punch from a doped heavyweight boxer.

That is what makes the recent settlement between Tyson Fury and UKAD so odd.

Fury had been facing a lengthy ban relating to both a positive and missed test but UKAD, for reasons that remain unclear, agreed to backdate his ban, allowing him to restart his career.

One possible explanation relates to the fact Fury warned UKAD that if he was cleared by an independent anti-doping tribunal he would sue them for loss of earnings — which in his case would have run into millions — and also defamation. This tactic is likely to be repeated by others in the future.

Tyson Fury.

Tyson Fury.

Legal tactics aside, from boxing to rugby, punches or tackles received from a doped opponent clearly present an aggravated danger in contact and combat sports.

Arguably, there is scope for future litigation emanating from a player injured by a doped opponent and which might encompass the vicarious responsibility of the employing clubs and governing sports bodies.

Most recently of all, an English newspaper sting on doping has implicated world champion sprinter Justin Gatlin. The people involved seem to be bit-players in Gatlin’s wider entourage and Gatlin has vehemently denied the allegations.

Newspaper stings of this nature must be treated with caution. Last week another English newspaper revealed a possible fix of the third Ashes cricket test based on the barely credibly bragging of two Indian ‘fixers’. There was no fix. England were just plain awful.

The Gatlin allegations seem similarly thin. He has been banned twice for doping infractions and attracted significant attention this year when he ruined Usain Bolt’s final farewell to athletics by winning the World Championships 100 metres in London.

Bolt got a standing ovation from the crowd. Gatlin was booed. The comparison is not that easy though and reflects, I think, that between Kennedy and Nixon in US politics in the 1960s.

Kennedy was, like Bolt, the America many voters liked to project — charismatic, a natural; Nixon was, however, closer to the greyer reality, as is Gatlin.

Finally, many of the solutions proffered to counteract doping in sport are legal in nature — longer bans, greater surveillance of athletes etc.

As a member of the IAAF disciplinary tribunal, I have become familiar with them, though one of the problems may be that approaches to doping in sport have become too legalised.

The prevailing attitude appears to be the narrow one that if a substance is not on the prohibited list you can take it.

In fact, to paraphrase Ben Johnson — if you don’t take it; you won’t make it.

Consideration of what the ethical thing to do is, like many clean athletes, a distant second.

Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne.

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