The Prohibited List (doping in sports pt.1)

The February 2012 Australian Crime Commission report into Organised Crime and Drugs in Sport has resulted in ongoing significant media attention and public interest in issues surrounding the supply, distribution and use of drugs in sport, and what might be done to combat doping in sports more generally.
As recent incidents involving Essendon AFL and the Cronulla and Manly NRL football clubs demonstrate, there can be confusion about the nature of supplements or drugs, and whether they are banned in sport and/or are illegal and/or are regulated under other rules. This is especially true when it is the class of substances or methods that is prohibited under the World Anti-Doping Code (WADC) Prohibited List and when expert medical or scientific advice is needed to determine whether the specific type of product that is being used falls within such a class.

So why are some substances and methods banned in sport?
There is a long-standing view that the use of substances (such as EPO) or methods such as blood doping are cheating. The UNESCO Convention Against Doping in Sport states that the use of prohibited substances and methods by athletes needs to be eliminated because of ‘the consequences thereof for their health’ and also because it undermines ‘the principle of fair play’. The Convention articulates a goal of ensuring ‘the elimination of cheating and the future of sport’.
The WADC Code has force in Australia by virtue of the Australian Sports Anti-Doping Authority Regulations 2006 which introduce the National Anti-Doping (NAD) Scheme. The NAD Scheme imposes a requirement that all sporting administration bodies at all times have in place, maintain and enforce anti-doping policies and practices that comply with the WADC and the NAD Scheme. This includes the WADC Prohibited List, which is reviewed annually with a revised List taking effect on 1 January each year.
Under the WADC Code, a substance or method may be prohibited in two circumstances. The first is where evidence demonstrates that the substance or method has the potential to mask the use of other prohibited substances or prohibited methods. The second is where the substance or method to be prohibited meets two of the following three criteria:  
  1. evidence demonstrates the substance or method is performance enhancing or has the potential to enhance performance
  2. evidence demonstrates use of the substance or method poses an actual or potential health risk to users
  3. using the substance or method violates the spirit of the sport.
The ‘spirit of sport’ is characterised by: 
  • Ethics, fair play and honesty
  • Health
  • Respect for rules and laws
  • Respect for self and other participants
The view of the World Anti-Doping Agency (WADA) is that doping is fundamentally contrary to the spirit of sport. This view is supported by Governments, various national and international sporting bodies and Olympic Committees and the Australian public.

Arguments against the ban

Whilst the banning of certain substances and methods has broad institutional support, it is not universal. Some commentators suggest that if the use of prohibited substances and methods was legitimised and all athletes allowed to use them, no athlete would have an unfair advantage.
Other commentators draw attention to (suggested) contradictory stances taken by many sports in allowing technological advances that provide athletes who access them with a competitive advantage, and yet banning advances in pharmacology (which may be more accessible to athletes in poorer countries than costly technological developments). The 1989 Drugs in Sport Senate Report also noted that there was a level of hypocrisy in sports accepting the advantages provided by funding and facilities to some athletes, yet maintaining opposition to the use of prohibited substances and methods on grounds of ‘fairness’.
Others have suggested that many substances that are on the WADC Prohibited List have not been properly investigated (or have properties ascribed to them that are false). Taking this approach, the WADC Prohibited List should only contain substances that have been identified as performance enhancing through proven, measurable and reproducible effects. It is suggested that athletes may face sanctions for taking substances on the WADC Prohibited List that have not enhanced their performance.
It has also been suggested that scientific or medical evaluation of substances would lead to a list of proven performance enhancing substances, which can then be banned. Further, it has been suggested that should such a process be undertaken, it may result in a list that differs significantly from the current WADC Prohibited List.

Arguments for the ban

The counter to these arguments is that substances and methods are banned because of a combination of proven harmful side-effects to athletes that use them, their actual or potential performance enhancing effects, as well as the fact that the use of these substances and methods undermines the spirit of sport. Hence their use by athletes amounts to cheating as the taking of banned substances detracts from the concept of competing on a level playing field in sport.
Additionally many of the substances on the WADC Prohibited List are also tightly controlled through various narcotics, therapeutic drugs or customs laws and regulations across the globe
The next FlagPost in this series will examine the legal definition of doping in sport.


Flagpost is a blog on current issues of interest to members of the Australian Parliament

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