Michelle de Bruin would not be given a four-year ban today

Michelle de Bruin would get considerably less  than a four-year ban today, writes Jack Anderson.

Last week, there was much media comment on whether a top-level athlete, who had served a two-year ban for doping, should be permitted to return to his sport.

That athlete’s name: Tyson Fury, former heavyweight boxing champion.

Whether the British Boxing Board of Control (BBBC) will grant Fury a licence to fight was, of course, overshadowed in Ireland by the Gerbrandt Grobler debate.

As a Limerick-born Munster supporter, I believe Grobler shouldn’t have been signed, and it’s hoped that the IRFU’s zero tolerance policy on this matter will return to zero.

Doping gives you an unfair advantage and can endanger your own health or, in the case of combat and contact sports, endanger the health of your opponent.

And that last point is of immediate interest in any discussion on Fury and Grobler.

Being hit by a doped boxer or rugby player strays into an area of danger that is not replicated in facing a doped athlete or cyclist. The damage that a steroid-enhanced boxer could do to another equates to a criminal assault or worse. While in rugby, illegally enhanced players are another problem for a sport already very mindful of the increasing impact of collisions and incidences of head injuries.

The aggravated threat from prohibited performance- enhancing substances in these sports must be met with enhanced levels of testing.

And that is why reports about a lack of testing in Irish schools rugby and low rates of testing in the English Premiership are concerning.

Moreover, the vacuum of testing data is then filled with conjecture about a ‘culture’ of doping in rugby, unfairly tainting all who participate in the sport.

That speculation apart, two years is clearly not enough for intentional steroid use in a collision sport. While the World Anti-doping Agency (WADA) has done a lot of work in helping to harmonise sport’s response to doping, and sentences can now stretch to four years, it may be time to give individual sports greater independence to impose longer sanctions for doping problems specific to their sport.

One idea worth reviving, though it has been challenged by lawyers, is that those who serve a lengthy doping ban be permitted to return to their sport but subject to restrictions; for example, they could be banned from selection for international duty or competing at major championships in their sport or at the Olympics.

Some advocate that players who intentionally take steroids should be banned for life. Life bans are currently available but generally only for repeat offenders. Attempts to ban players from their ‘profession’ for a first-time doping offence have been successfully challenged by athletes both at CAS and in the ordinary courts. The courts see life bans as disproportionate — a life ban is not just a playing ban; it bans that person from ever formally associating with their sport in any capacity.

Calls for lifetime bans for dopers in sport is a bit like calls by ‘law and order’ politicians for longer, mandatory sentences for criminals. Even though such sanctions have been proven not to work, populism not pragmatism wins out.

Doping isn’t, of course, a crime in Ireland — well, at least not yet.

It is likely that in March of this year, a British parliamentary committee of sport will recommend to the UK government that doping be criminalised, as it is in Germany and Italy.

Does the criminal law act as a deterrent to doping? France has one of the longest standing, anti-doping criminal statutes. Has it deterred doping on the Tour de France?

In countries like the UK and Ireland, it is illogical to think that criminalising doping, where the standard of proof required in court would be much higher than at a sports tribunal, might deter the dopers.

In any event, is a young athlete who has ingested a contaminated supplement really a criminal? Would such prosecutions be a good use of public money?

No, to both. Doping is sport’s problem not the criminal law, save in one specific regard. Several countries, Australia for instance, use the criminal law to target the trafficking and importation of sports doping products. In an era where steroid abuse in gyms is becoming a problem, this might be something to consider.

The Fury and Grobler debates also demonstrate the difference between a narrow legal view of doping and the broader ethical perspective.

The BBBC cannot say no to Fury’s return exclusively on the grounds of his previous doping record. If they did, he would argue that he has done his time and not allowing him back is an illegal restraint of trade.

In contrast, there was no legal compunction on Munster to sign Grobler and plenty of ethical reasons not to.

Is, however, our ethical sense of doping being skewed by a resigned acceptance that returning dopers are now just another part of the game? There are some recent examples to suggest that this is the case.

In 2016, Maria Sharapova failed a drugs test at the Australia Open. This year she helped launch it.

The recently announced 2018 Laureus Sports Awards’ (considered sport’s Oscars) includes a nomination for sportsman of the year for Chris Froome.

The nominees in the category ‘Comeback of the Year’ include Chapecoense, the Brazilian club that suffered after a tragic plane crash killed 19 in November 2016. A co-nominee is Justin Gatlin, who was handed doping bans in 2001 and 2006, but is the 2017 100 metres’ world champion. Seriously?

This week various Russian athletes are at CAS challenging bans that arose out of the report into claims of a doping conspiracy at the Sochi Winter Olympics in 2014. The key evidence is being provided by a whistleblower. Grigory Rodchenkov will appear by cyber-secure video link from accommodation provided by a witness protection programme. Is this what sport has become?

It is unlikely that last week was the last word on the Grobler affair. We have not heard from the player. That reminds us of another athlete who remains unheard.

Twenty years ago to the month, testers made their way to Michelle de Bruin’s house in Kilkenny. De Bruin eventually received a four-year ban for tampering with a sample.

Looking at the various precedents and challenges to anti-doping rules that have been made since, it’s very unlikely Michelle de Bruin would get four years today. She would get considerably less. Is that progress?

Jack Anderson is Director of Sports Law Studies at the University of Melbourne and an Adjunct Prof at the University of Limerick.


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