What is doping in sport? (doping in sports pt. 2)

The previous FlagPost in this series explored the reasons why particular substances and methods are included on the World Anti-Doping Code Prohibited List (the WADC Prohibited List) and hence banned in sport. This FlagPost examines the legal definition of ‘doping’ in sport provided by the World Anti-Doping Code (the Code).

So what is doping?

Since the turn of the 20th century the term ‘doping’ has referred to the practice of enhancing performance through artificial means, such as the use of foreign substances.
However doping is not (and has not been for many years) confined to the return of a positive test result for substances or methods on the WADC Prohibited List. Doping includes a variety of anti‑doping rule violations (ADRVs) related to an athlete’s whereabouts, test tampering and evasion, as well as use, possession and the trafficking of substances or methods on the List. The Code defines doping as:  
"the occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.8”

What are the eight ADRVs that constitute doping?

  1. Presence of a prohibited substance in an athlete’s sample (the colloquial conception of doping)
  2. Use (or attempted use) by an athlete of a prohibited substance or method (that is, using a substance or method on the List without testing positive)
  3. Refusal to submit a sample for collection after being notified or evading notification
  4. Failure to file athlete whereabouts information or missing scheduled tests
  5. Tampering with any part of the doping control process (for example, trying to switch urine or blood samples)
  6. Possession of a prohibited substance or method
  7. Trafficking a prohibited substance or method
  8. Administering a prohibited substance or method to an athlete, or assisting, encouraging, aiding, abetting or covering up an ADRV
Only the first ADRV relies solely on urine or blood sample test results to confirm an adverse analytical finding. As noted by the Australian Sports Anti-Doping Authority (ASADA) ‘an ADRV can be established against an athlete without a positive test’ and hence can be proved by a range of different types of evidence, including testimony from other appropriate people. The Lance Armstrong case (where he was banned for life by USADA largely on testimony from 26 people with knowledge of his doping activities) is an example of the use of non-test based evidence to prove ADRVs.
The recent Australian Crime Commission report into Organised Crime and Drugs in Sport has resulted in significant media attention and public interest in issues surrounding the supply, distribution and use of substances and methods on the WADC Prohibited List by athletes, and what might be done to combat doping in sports more generally.
The Senate Standing Committee on Rural and Regional Affairs and Transport conducted an inquiry into the Australian Sports Anti-Doping Authority Amendment Bill 2013 (the Bill) which, amongst other things, seeks to strengthen the investigative powers of ASADA. As part of this process, the Bill proposes to provide ASADA with coercive powers aimed at compelling individuals to answer questions, and provide information and/or things to ASADA where there is a reasonable belief that this will assist an investigation into a possible ADRV. This would strengthen the ability of ASADA to obtain non-test based evidence to pursue ADRVs.

How is doping proved?

The evidence required to prove an ADRV will vary, depending on:
  • whether the ADRV is one of ‘strict liability’(such as an ADRV based on an adverse analytical finding) or
  • if the ADRV has a ‘fault element’ (for example, a non-presence ADRV).
For a non-presence ADRV, such as tampering, possession, trafficking or administration, both the physical (conduct) and fault (state of mind) elements must be proved.
For an adverse analytical finding, the presence of a prohibited substance in a sample is a WADC strict liability offence, which is proved by the physical elements alone (that is, the adverse analytical finding alone is proof). As explained by WADA this means:  
This applies even when the athlete unintentionally or negligently used a prohibited substance or method on the List. Under the Code the defence of honest and reasonable mistake only applies to the imposition of the sanction - the offence remains (see below).
As recent events involving the Essendon AFL and Cronulla NRL football clubs demonstrate, there can be confusion about the nature of supplements or drugs, and if they are banned. This has led to concerns about the application of strict liability ADRVs in the context of inadvertent doping by athletes. Athletes are responsible for ensuring that any substance that they ingest is not included on the List.
However the sanctioning process must consider the circumstances surrounding any ADRV, providing some flexibility in terms of the sanctions applied to athletes who inadvertently commit an ADRV.

What standard of proof is required?

An ADRV is proved when the evidence establishes the elements of the ADRV to the ‘comfortable satisfaction’ of the tribunal, bearing in mind the seriousness of the allegation. In other words, the more serious the alleged ADRV, the stronger the evidence must be before the tribunal can be comfortably satisfied the ADRV is proved.
This standard sits between the civil (on the balance of probabilities) and criminal (beyond reasonable doubt) standards of proof. Despite adverse commentary overseas, this sliding scale of proof is a long-established Australian legal principle known as the Briginshaw test (named after the High Court Case). In our next flag post we will examine what happens once an ADRV is detected.


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

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