1st Draft

pg1
Graham Sprason
Should Sports Law, especially Dopingviolations, become moreincorporatedintothe laws of thelandlike theyhave in other jurisdictions
thus improvingthe socio-legal linkbetween thetwo concepts of law?
Table of Cases
“Adrian Mutu v FAPLAC” (Football Association Premier League Appeals Committee) (2005), CAS/A/786 …pg36
“Albert & le Compte v Belgium” (1982)5 EHRR 533 …pg31
“ASADA v Marinov” (2007)CAS2007/A/1 …pg24
“Barbera, Messeque & Jabardo v Spain” (1988) 11 EHRR 360 …pg31
“Baxter v International Olympic Committee(IOC)” (2002) Arbitration CAS2002/A/376 …pg8
“Canas v ATP” (2005) CAS 2005/A/951 …pg31
CAS Advisory opinion, FIFA & WADA, CAS 2005/C/976 and 986 (2006) …pg22
“Claudia Pechsteinv International SkatingUnion” (2009)CAS2009/A/1912 …pg11
“Camilleri v Malta” (2000)ECHR App No. 51760/99 …pg31
“Campbell v MGN” [2002] EMLR 30 …pg30
“de Haes & Gisels v Belgium” (1997) 25 EHRR 1 …pg31
“Deutsche Eisschnelllauf Gemeinschaft e.V. v International Skating Union” (2009) CAS 2009/A/1913 …pg11
“Gautrin et al v France” (1998) ECHR App. No 21260/93 …pg31
“Handyside v United Kingdom” (1976) 1 EHRR 737 …pg32
“Jones v WRU” (1998) CA …pg34
“Korda v ITF” [1999] APP.L.R. 03/25 …pg31
“Muyldermans v Belgium” (1991) 15 EHRR 204 …pg31
“NZRL v Tawera” (2004) N.Z.S.D.T 12/04 …pg38
“R v Amir (Mohammad), R v Butt (Salman)”[2011]EWCA Crim2914, [2012] 2 Cr. App. R (S.) 17 …pg7, 46
“R v Billinghurst” [1978] Crim LR 553 …pg7, 46
“R v Brownbill” (2004) Unreported …pg46
“R v Davies” [1991] CrimLR 70 …pg46
“R v Roberts (Theo Archebold)” [2005] EWCA Crim 3281 …pg37
“Raducan v International Olympic Committee (IOC)” Arbitration CAS Ad Hoc Division (Sydney) (2000) 2000/011…pg8

pg2
Graham Sprason
“Sunday Times v United Kingdom” (1979) 2 EHRR 245 …pg32
“Theakston v MGN Ltd” [2002] EWHC 137 (QB) …pg30
“Van Kuck v Germany” (2003) ECHR App No. 35968/97 …pg31
“X v Netherlands” (1979)16 DR 184, 189 …pg32

pg3
Graham Sprason
Table of Statues (English unless Stated)
Le Code du Sport 2006 (France);
Article 232‐21
Article 232‐25
Article 232‐26
Articles 232‐9 and232‐10
Article 313‐1
The AustrianStGB (Strafgesetzbuch,the GermanCriminal Penal Codes) 2007
s.147
s.298
The Australian Sports Anti‐DopingAuthorityAct 2006
The Crimes Act of NewSouth Wales s 178BA (Australia) 1900
The Crimes Act of Victorias.82 (Australia)1958
The EuropeanSocial Charter1961
Article 1
The Human Rights Act 1998
Article 6
Article 6(3)
Article 8
Article 8(2)
Article 10
Article 14
Rights brought home; TheHumanRights Bill (Cm 3782)
The Misuse of Drugs Act 1971

pg4
Graham Sprason
Schedule 2 Part 1
s5 (1)
The Offences Against thePersons Act 1868
s.20
The QueenslandCriminal Code s 408C (Australia) 1979
The UN Covenant on Civil andPolitical Rights 1966
Article 14 (ss6)
The WorldAnti-DopingCode 2003
The WorldAnti-DopingCode 2009
Article 2.3
Article 4.4
Article 6.2
Article 10.5.3

pg5
Graham Sprason
Chapter 1 - Introduction
The uses of illegal drugs are problematic in both society and in sport which result in sanctioning. However, they
have different repercussions depending on which capacity the drugs are used. Edward Grayson once famously
said that “…the law does not stop at the touchline…”1
If this is the case, why is it that there seems to be a
succinct socio-legal difference in the way the illegal use of drugs is applied to sanctioning in the different
facades?
Sport in general has, over recent times, become somewhat amalgamated with national laws , with examples
arising from decisions made in our own Courts. George Orwell once coined the phrase that “Serious sport is war
minus the shooting”. Violence on the sports field which exceeds the grounds of consent and that of recklessness
(volenti non fit injura) has now been rendered illegal by the judiciary as seen in the case of “R v Billinghurst”2
which is a prime example when the defendant was convicted for a s.20 Offences Against the Persons Act 1868
(O.A.P.A) offence because the force he used exceeded that which could be expected within the context of the
game, therefore breaching the boundaries of criminality. Similarly, the use of corruption in professional sports
has been brought before the Courts in the case of “R v Amir (Mohammad), R v Butt (Salman)”3. The three
cricketers were subsequently found guilty of spot-fixing and corruption which led to both a prison sentence and
a banning order by the International Cricket Council (I.C.C). Finally, and most recently, there is the highly
publicised and high-profile case involving John Terry and Anton Ferdinand which was based on a charge of
racially aggravated assault which occurred on the football pitch. Although subsequently found not guilty, the
Crown Prosecution Service (C.P.S.) felt there was enough of a public interest, coupled with a fan who was at the
game who heard the racist term used by the defendant, to bring the case to Court. If the boundaries of sport and
legality in terms of punishments mirroring that which are reflective of society’s views have been broken in
terms of on-field violence, corruption and race related offences, why does there appear to be such a heavy
stigma when the stance changes to the use of drugs in sport?
To gain a fair perspective of this I will explore the fallacy of sympathy aimed at the athletes in the wrong who
have used performance- enhancing products but have done so through no ill-gotten intentions but have still been
sanctioned through the grounds of the “Strict Liability” principles that encompass the punishments of the
1
Grayson, E andBond, C “Makingfoul playa crime” (1993)Solicitors Journal 693
2
[1978]Crim LR 553
3
[2011]EWCA Crim 2914,[2012] 2 Cr. App.R (S.) 17

pg6
Graham Sprason
sporting world and not the societal world we live in. The two highest profile examples of this involve 16 year
old Romanian Gymnast, Andrea Raducan4 and Scottish skier Alain Baxter5, both of whom had their respective
Gold and Bronze Olympic medals stripped from them, which gave way to a public outpouring of compassion
because,although they were found to have breached the regulations in place for one and all in sport to adhere to,
their cases invoked a mass outcry of injustice and incomprehension to the athletes because of the background
facts that caused the admission of the banned substances. If you were to sociologically compare the case of
Alain Baxter, who failed a drugs test through a prescribed cold and flu medicine of which the American version
contained the banned substance of Methamphetamine, to that of the case of Thomas Donelon, who along with
two others, on 30 July 2012 at Manchester Crown Court was found guilty of possessing and supplying class A
drugs to a 16 year-old girl who died from the intoxication of MDMA6,both men r received the same sanctioning
periods of three months, the former from competing in his sport and the latter from being a free man in society.
Which case carries the higher stigma of penalty? For the vast majority in the court of human opinion it would be
the latter, yet both men suffered the same exclusion periods. Why? How is this fair? Why does the socio-legal
perspective allow for this to happen?
These sanctions of course have to be governed by an authority that regulates the areas in which the regulations
are broken. This is where the World Anti-Doping Agency (W.A.D.A) comes into effect. Through this official
anti-doping agency they have produced the World Anti-Doping Code (W.A.D.C) which is in effect their version
of statutory legislation which sets out the guidelines with which all athletes must comply. The W.A.D.C is the
fulcrum of sanctioning sportsmen and women who fall foul of doping regulations. In W.A.D.A’s own words
“The Code is the core document that provides the framework for harmonized anti-doping policies, rules and
regulationswithin sport organizations and among public authorities.”7
With the benefits of hindsight and time
it became clear that this original version of the code needed updating. W.A.D.A duly obliged. By 2009 a new
code came into effect with academics citing the fact that problems arose because “…the 2003 Code was too
rigid, limiting too much of the ability of hearing panels to fashion sanctions that properly reflect the particular
circumstances…”8
Have the new guidelines papered over the cracks or have they actually been the medicine
4
“Raducanv International Olympic Committee (IOC)” ArbitrationCASAdHoc Division (Sydney) (2000)2000/011
5
“ Baxter v International Olympic Committee (IOC)” ArbitrationCAS2002/A/376
6
Methylenedioxymethamphetamineis a drug, orally takenthat produces feelings of increasedenergyandeuphoriawhere potentially
harmful levels can be reachedby repeatedMDMA administrationwithinshort periods of time. Cited
http://www.drugabuse.gov/publications/drugfacts/mdma-ecstasy
7
http://www.wada-ama.org/en/
8
Lewis, A and Taylor, J “Sport:Law andPractice SecondEdition”, Tottel Publishing(2010) at pg836

pg7
Graham Sprason
that has helped cure the cancer that belittles sport? If not, just how much of an effect would the impetus of
criminalising wrong-doing act as a deterrent which is the only way to eradicate the problem?
The sanctions are set out as part of their instruction by Anti-Doping regulatory bodies and are key to all anti-
doping provisions which are enforceable on all binding members. Without such governance it is held that;
“Sporting events would increasingly become tests of rivals' access to good pharmaceutical technology and
knowledge and their bodies' ability to use these chemicals efficiently.”9
All sub-divisions, such as the UK Anti-Doping Agency (UK Sport) must comply and produce the necessary
tests, punishments et cetera, if any regulations are ill-gained or made through non-compliance, or even if the
athlete wishes to contest a charge then W.A.D.A through the W.A.D.C will step in and enforce its policies upon
the case, usually through their own legal system sitting at the Court of Arbitration for Sport (C.A.S) in
Lausanne, Switzerland.
To give the idea more of a grounding there must be a comparative barometer. This indicator can be seen on a
worldwide perspective where many EU and foreign national countries have tested the waters, successfully in the
main, about associating criminal matters and services into sporting reprimands. Such publications and
investigations have brought about convictions which have been seen by many as a massive step forward into
breaking down any leftover concerns that sportsmen and women are not be criminally judged by their actions
regarding sporting prowess. Also, does the law follow the premise of “Blackstone’s Theory”10, where a person
may be guilty of the crime but the punishment does not, in the eyes of the reasonable man, reflect the culpability
even though with a test of this nature, you can only have a positive or negative result?
As sport is played by many in society, why do sporting laws not match those of collective national laws when
they are broken on the sports fields? With all this in mind, should Sports Law, especially violations regarding
Doping, become more incorporated into the laws of the land like they have in other jurisdictions thus improving
the socio-legal link between the two concepts of law?
9
Dixon, N. “Performance-EnhancingDrugs; Paternalism, Meritocracy, and Harm to Sport"Journal ofSocial Philosophy (2008)
10
It is better thanten guiltypersons go free thanone innocent person suffers

pg8
Graham Sprason
Chapter 2 – Criminal Law and the Foreign Approach
In context then, is criminalizing doping the way forward? The use of performance-enhancing substances in UK
Sport is not covered by criminal legislation. The substances used in sport are banned due to their performance-
enhancing effects which have the effect of reducing the competitiveness of that sport; however, they are not
viewed as controlled substances under the Misuse of Drugs Act 1971. In essence they may have an effect on the
sporting competition but they are not illegal.
“Clearly it would be extremely difficult to frame doping offences in sport under the Misuse of Drugs Act as that
would criminalise the general use of many products which when used by the general public have no criminal
element at all”11
This means that framing cheating in sport under the rules of serious fraud could be a potential way to go ;
however, whether it will be regarded as fair to provide athletes found guilty of doping with a potential 10 year
jail sentence may be viewed as taking it a little too far.
If doping in sport is the subject of a public prosecution by the criminal law, more resources such as the police
and criminal justice service will be able to investigate claims of doping rather than just the individual sport
which would be an obvious benefit, after all;
“This is much more likely to ensure that the investigation of drug cheats is to be much more thorough than it is
at present.”12
Also, from a comparative standpoint placing the emphasis on the advantages , the first thing that comes to mind
is that the legal framework of criminal law provides for certainty, clarification, independent and transparent
proceedings as well as consistency.This is not to say that the operative authorities in place do not provide this, a
criminal approach would certainly advance these aspects and elucidate any drawbacks to the system currently
implemented.
11
“Will an athlete who is caught usingperformance enhancingsubstances be guilty of a criminal offence?” Citedfrom
www.inbrief.co.uk/sports-law/athletes-doping-and-criminal-law.html (2011) Paras.9-10
12
www.inbrief.co.uk/sports-law/athletes-doping-and-criminal-law.html (2011) Para.14

pg9
Graham Sprason
“…even though the creation of the World Anti-Doping Agency and the World Anti-Doping Code 2003 have led
to a certain degree of harmonization Criminalization of doping might insofar lead to desirable
clarification…”13
It could also be argued that the aspect of prevention and deterrent makes criminal law in sport doping superior
to the systemoperated by the sport’s governing bodies. Whether the threat of imprisonment for a doping offence
might really act that much more as a deterrent than a long ban at the peak of an athlete’s physical performance
career can surely be examined.
Of course there are certain pitfalls. With the decision in the “Pechstein”14, the advocates of this opinion have got
a further argument that the sports law system is superior: In this case concerning Claudia Pechstein, a German
speed skater, due to blood-doping, for the first time the legitimacy of the indirect proof via screening of the
biological passport was confirmed by the C.A.S. This facilitates the proof of a violation of anti-doping
regulation once more and deepens the gap between criminal and sports law.
“Whilst criminal liability isgenerally dependent on intentional and/or negligent behaviour,sports law offers the
comfortable principle of strict liability which basically results in a total responsibility of the athlete for any
substance, metabolite or marker found in his or her body regardless of the way it got there.”15
This principle therefore forms the basis of one of the arguments brought forward by opponents to a penalization
of doping: the system operated by the sporting bodies’ works. Once a substance has been found in an athlete's
body, a violation of anti-doping rules is deemed to be committed (Strict Liability). Furthermore criminal
sanctions, which exist only on a national rather than an international level, are feared to be likely to be
detrimental to competitiveness. Sportsmen/women from other countries might refuse to participate in sports
events in a country that allows criminal sanctions for doping if they feared prosecution.
Many feel that sports law is integrated by those who are behind breaching criminal law. Doping controls by
sporting bodies are rather effective in the individual case due to the aforementioned principle of Strict Liability.
13
“MakingDopingCriminal; The Austrian‘sports fraud’ provision andgeneral thoughts oncriminalizingdoping” The Universityof
Edinburgh LawSchool e-Journal (2010)Para.10
14
“Claudia Pechsteinv International SkatingUnion” (2009)CAS2009/A/1912 and“Deutsche Eisschnelllauf Gemeinschaft e.V. v
International SkatingUnion” (2009)CAS2009/A/1913
15
“MakingDopingCriminal – the Austrian‘sports fraud’ provision andgeneral thoughts on criminalizingdoping” TheUniversityof

pg10
Graham Sprason
However, the efficiency on the individual case basis is contrasted by the inability to uncover the structure of
organized crime that underlies the systemof sport doping.
The position of sporting organizations however is that, even though there is an enforcement deficit, there is no
gap in law itself that would have to be closed by the implementation of supplementary criminal law in relation
to doping. It can be contended that the strongest argument in favour of a criminalisation of doping is the simple
circumstance that criminal law relies upon public prosecution.
“This means that doping can be investigated more effectively if it is prohibited by criminal law - due to
enhanced legal powers, equipment,knowhow and manpower of the public investigation services (police, public
prosecution) - than the sporting bodies could ever achieve it on their own”16
This is the reason why it is often said that sporting bodies, in their fight against doping, face an enforcement
deficit. Doping controls by sporting bodies are rather effective in the individual case due to the aforementioned
principle of strict liability.
There is also the idea that we adopt a criminal-based approach into sporting sanctions. By doing so we would be
adopting criminal justice mechanisms and being firm in denunciation of dishonest conduct in sport through the
use of criminal charges against athletes and sports managers, which will challenge the culture of greed and
illegality more directly than is achievable through administrative sanction and education. After all this
advantage would be for viewers and participants alike because;
“When doping in sport is regarded not only as a breach of the rules of sport, but also as an offence against the
public generally, we may regain faith in sportsmanship.”17
So, what of the idea of Sports Fraud? Prosecuting cheats, managers and possibly medical staff under a charge of
fraud may create an environment which requires them to think twice before injecting performance‐enhancing
drugs. The idea has been referred and championed previously by the former W.A.D.A Chairman who stated
that cheating is similar to fraudulent behaviour because;
“…they steal, in effect, from fellow competitors, whose own results are thereby lowered…”18
16
“MakingDopingCriminal – the Austrian‘sports fraud’ provision andgeneral thoughts oncriminalizingdoping” TheUniversityof
17
McKenzie, C. “The use of criminal justice mechanisms to combat dopingin sport” BondUniversitySports Lawe-Journal (2007) Para.38

pg11
Graham Sprason
Top athletes are still prepared for the risk. They do so because the repercussions for using drugs in sport are not
dire. This approach would severely diminish the prospects of clean athletes, such as Belgian champion Tom
Boonen, who was famously left by the side of the road in the 2006 Tour de France crying, because he felt he
simply could not compete on a level playing field with those whom he felt were cheating. As is funding of an
athlete and/or the higher the prospect of wealth and fame is the greater assumption of risk. This automatically
raises the question of whether sports organisations are still capable of tackling the problem of doping on their
own or whether we have reached a point where legislative intervention has become necessary.
“The centre of many tempered debatesis the necessity of additional criminal sanctions,especially criminalizing
the possession of performance enhancing substances and the creation of a special criminal offence such as
‘sports fraud'.”19
To effectively scope and possibly utilise the idea of criminalising drugs used in sport, a fair comparison must be
made to other nations who have implemented this approach and illustrate just how effective, or ineffective, they
have been in their tactic. Equally, what is the crime and what have been the sanctions permissible for anyone
who has contravened the rules where;
“In a small but increasing number of countries, domestic anti-doping legislation has been passed, specific to
sport, that gives national authorities to bring disciplinary proceedings against transgressors…in some cases to
bring criminal charges…”20
Austrian law has made inroads into this: besides tightening the already existing Anti-Doping Act there now
exists a new type of offence – Sports Fraud. Legislation passed for enactment on January 1, 2010, conducted
that doping in sport is qualified as serious fraud under section 147 of the Austrian StGB (Strafgesetzbuch, the
German Criminal Penal Codes). The new clause 1a stipulates that any person who commits fraud - entailing
more than insignificant damage - by cheating for the purpose of doping in sport by using a substance or method
forbidden under the Anti-Doping Convention will face up to three years imprisonment. If the damage caused
exceeds €50,000 the range of punishment goes up to a maximum of ten years. 10 years jail for doping? The
deterrent factor has increased exponentially, so is the idea of ‘sports fraud' the way forward? Will tougher social
penalties be the medicine that cures the doping malady? On paper, you would safely assume so with many
18
Pound. R, “Inside theOlympics” (Wiley, 2004) at pg60CitedLewis, A andTaylor, J “Sport: Law and Practice Second Edition”, Tottel
Publishing(2010) at pg837
19
20
at pg921

pg12
Graham Sprason
commentators in this specialist industry in agreement. Simply, making athletes punishable outside of the
sporting berth would be a fit and proper punishment to the crime where;
“A legal provision like sportsfraud would change this situation…the distortion of competition by participating
in an event after the consumption of performance enhancing substances would be punishable, this would
indirectly also criminalize the possession and use of doping substances itself.”21
This is a system that is tried and tested with limited results. Their German legislative counterparts tried to
implement the notion of sports fraud into their legal framework and the idea bore no fulfilment.
“In Germany a similar legislative proposal for the implementation of the special section 298 StGB
(Strafgesetzbuch) for sports fraud failed in 2007”22
France has adopted a middle path, strengthening their administrative processes whilst also criminalizing some
conduct connected with doping in sport. New legislation in April 2006 created more strident penalties for
infractors of France’s anti-doping policy. Under the Code du Sport, it is an offence not only to use substances or
processes likely to modify ability in an athlete artificially, but also to prescribe illicit substances to an athlete, or
to facilitate or encourage the use of an illicit drug by an athlete (Articles 232‐9 and 232‐10). Supplying a
prohibited substance to an athlete results not only in an administrative sanction to be imposed by a national
sports organization (Article 232‐21), but is now also a criminal act punishable by 5 years imprisonment and a
€75,000 fine (Article 232‐26). Athletes, however, remain free from penal sanction under the Code, being liable
only to administrative sanction by the national sports organization, although they can be punished by 6 months
imprisonment and a fine of €7,500 for refusing to comply with a lawful doping test or for failing to abide by an
administrative sanction imposed by the French Anti‐Doping Agency (Article 232‐25).
The limitations of the A.S.A.D.A Act in Australia and of the Code du Sport in France do not preclude the use of
criminal justice mechanisms. Each Australian State has criminal law statutes which provide that certain defined
acts are unlawful and punishable by imprisonment. France has the same. In lieu of new offences with which to
charge athletes possessing performance‐enhancing drugs, or drug paraphernalia, such as now exists in Italy, the
offence which most closely reflects the conduct of athletes taking drugs, as well as doctors, managers, or
21
22

pg13
Graham Sprason
attendants supplying or facilitating the use of performance‐enhancing drugs, is the offence of fraud. Fraud is
defined comparatively in Article 313‐1 of the Penal Code of France; in s 178BA of the Crimes Act of New
South Wales; in s 82 of the Crimes Act of Victoria; and in s 408C of the Queensland Criminal Code. Each of
these provisions makes it an offence to obtain money, property, services, a benefit, or an advantage, dishonestly
or by deceit. The offences are punishable by imprisonment for 5 to 10 years, and a €375,000 fine under the
French provision. A professional athlete’s ability to compete and earn a living in the sports industry is based on
his or her physical or athletic ability. Enhancing that ability through the use of drugs may be regarded as a
dishonest act.
“The drugged athlete falsely portrays his competence in securing a place to compete in a sporting event. The
very nature of sports competition means that one athlete is chosen ahead of thousands of others, even before a
major race is run.”23
If an athlete obtains a position in a team, or in a race, ahead of thousands ofothers,or maintains his place as an
elite athlete, whilst using drugs,he has deprived another, more deserving athlete, who is clean, from their
rightful place. Fellow athletes,sponsors,race organizers and the public are deceived by such conduct but;
“What A.S.A.D.A is not is a police or prosecutorial authority. A.S.A.D.A’s powers are limited their decree does
not create formal doping offences for which an athlete can be charged and tried in a court of law.”24
Both common law and civil law legal systems are investigating doping in cycling, but are handling it in different
ways. On one hand, the Spanish, Italian, and Belgian governments, and the French government formerly, are
involved in public law criminal justice investigations. On the other hand, in countries such as the United States
and Australia, inquiries into doping in sport are conducted as a matter of private law between the sportsperson
and the administrators of his sport.
In 1998 an investigation by French police into the Festina cycling team, resulted in a number of arrests. The
Festina team were caught by French customs officials with 250 batches of anabolic steroids and some 400
ampoules of the banned growth hormone EPO in the boot of the team car. The team’s director, doctor and
masseur were all charged under French law, each receiving suspended sentences and fines upon conviction in
2000. The criminality with which the French prosecutorial authorities were concerned was the trafficking of
23
McKenzie, C. “The use of criminal justice mechanisms to combat dopingin sport” BondUniversitySports Lawe-Journal (2007)Paras.
31-34
24
McKenzie, C. “The use of criminal justice mechanisms to combat dopingin sport” BondUniversitySports Lawe-Journal (2007)Para.18

pg14
Graham Sprason
drugs, not the cheating or fraudulent activity of the cyclists themselves. At the conclusion of the trial on the
charges, on 22 December 2000 in Lille, France, Voet was given a 10‐month suspended sentence and a 30,000
francs fine. The court imposed a one‐year suspended sentence with a fine of 50,000 francs on Roussel. In 2001
an investigation into doping in cycling in Italy, after some 200 police raided teamhotels in San Remo during the
Giro d’Italia race where;
“Human growth hormones, insulin,cortisone‐based products and drug paraphernalia were seized in the search.
34 cyclists, team doctors and trainers were charged with sporting fraud under Italian law.”25
Several received suspended sentences, actual custodial imprisonment, and fines upon conviction after court trial
in 2004 and 2005.
With the exception of the Italian judicial processes against cheating cyclists ‐a number of cyclists given prison
sentences underItalian law‐ many governmental authorities refrain from vilifying cyclists and sports managers
individually, yet the aspect of criminality is still prevalent and is therefore still a visible deterrent, one which
seems to have had a positive impact.
Deterrent is the buzzword which is a major factor in cleaning up sport. The creation of criminality in terms of
doping would advance this, in terms of literal application. Many factors would need to be broken down. In the
current climate, the United Kingdom seems to be languishing somewhat in its application to applying criminal
law. In its simplicity, creating specific legislation and offences applicable to the aforesaid scenario would be a
very strong deterrent and therefore aid the Anti-Doping authorities in their campaign to clean up sport. With
reference to other EU Legislative states;
“…some countries apparently little concerned with doping in sport and others such as Greece and Belgium,
creating specific criminal offences capable of being imposed on the competitors themselves…”26
On the contrary, simplicity in its form is not necessarily simplicity in its context. Issues such as wording, the
classification of drugs and the relevant sanctions applied to these issues would all need to be considered. Other
variables such as timeframe in order to pass the legislation would need to be outlined. Would the legislation
allow for previous violations or would everyone start with a clean slate, therefore disregarding previous
25
McKenzie, C. “The use of criminal justice mechanisms to combat dopingin sport” BondUniversitySports Lawe-Journal (2007)Para.7
26
O’Leary,J (2000). “Drugs andDoping in Sport: Socio-Legal Perspectives”, Cavendish Publishing (2000)at pg7

pg15
Graham Sprason
offences? Likewise, just how much power would be taken from authoritative bodies such as the International
Olympic Council (I.O.C) and W.A.D.A so in turn would countries who apply legislation be compliant with the
codes that countries adhere to in order to compete? This could explain why the United Kingdom has
traditionally distanced itself from the idea which has been proclaimed previously whereby;
“…certain states impose criminal penalties; including imprisonment…the UK Government has traditionally
taken a relatively hands-off approach to the regulation...”27
The downturn of this is clear. The root of the problem is always maintained. Sporting sanctions are imposed
upon the athlete under Strict Liability, as is the trafficking element, but the source of the problem cannot be
sanctioned by bodies such as the I.O.C and W.A.D.A. This is where criminal bodies are needed to cut the supply
to the athletes who are the ones who are most at risk when it comes to being caught in the act. Sporting
investigations do not go deep enough to eradicate the supplier, only the client who is commonly the guilty
athlete. In comparison to the United States where this has been applied it just goes to show that;
“…as the criminal law regime in the UK is less rigorous in its application than that in the US…criminalisation
undoubtedly increases the criminality involved…”28
Undoubtedly, stopping the problem at its source will in turn slow down the supply to the athletes who wish, or
in some cases, are forced to violate laws contrary to the spirit of the sport. Without supply, demand would
diminish, problem solved. If only it was that simple.
Clearly it is not that simple, it never will be. The interpretation of criminal codes in correlation to sporting codes
does not intertwine and this causes immediate problems. Crime relies upon two factors being proven; the Actus
Reus and Mens Rea, whereas in sport under Strict Liability, the athlete is culpable regardless of knowledge
and/or pre-meditation. Sport in its approach is much more unforgiving. Criminality allows for some form of
leniency where, if one cannot be proven, the punishment cannot be specified against the maximum allowed. To
validate this point, there are mentions as to why;
“…there has been little use of criminal discourse, for example, to limit the harsh interpretation of doping rules
by relying on the maxim that criminal codes should be restrictively interpreted…”29
27
Lewis, A and Taylor, J “Sport Law and Practice”, Butterworths Lexis Nexis (2003) at pg914
28
O’Leary,J (2000). “Drugs andDoping in Sport: Socio-Legal Perspectives”, Cavendish Publishing (2000) at pg241

pg16
Graham Sprason
Unless criminal law adopts a Strict Liability approach or sport adopts an approach which is interpretive from a
case to case scenario then the worlds, in respect to punishment, will never cross. This is a problem that will
always restrict the idea becoming a reality.
The most high-profile breakthroughs in the fight against the use of drugs in sport have involved the use of
domestic prosecution. Added investigatory powers have led to sporting events and sportsmen to be more
scrutinised, not only by sport but by society, as well as if inducing a trial by peers system showing that over-
stepping the sporting jurisprudence will mean breaching societal regulations too, which is why it is proclaimed
that;
“…all of the biggest breakthroughs against doping in sport in recent years have been made by public
authorities…under force of national law.”30
This is due to the fact that the stigma of both a sporting and an external sanction act as a stronger deterrent.
Sporting governing bodies only have the authority to sanction in sport; even then their investigative powers are
seen to be somewhat limited. Looking at all eight of the anti-doping rule violations, just one depends on
detection via collecting and testing procedures, the other seven which include possession, trafficking and other
methods depend on “non-analytical evidence” which are external to the jurisdiction of the sporting bodies. This
is where the national prosecution plays an important role, henceforth the amalgamation, often classified as a
public-private paradigm which has become an important presence in maintaining the W.A.D.C’s obligations to
clean up sport.
Domestic national laws, which do have the ability to exercise their states’ powers, under the guidance of
national law, have helped bring about the successful investigations into transgressors. This notion is not just a
hypothetical one; there have been many examples which validate and verify this point.
For example, the Spanish police investigation titled “Operación Puerto”, the Belgian police investigation of the
Quick Step professional cycling team in June 2007, the “Bocciolini Investigation” of cyclists and teams
competing in the 2001 Giro d’Italia, the investigation by French police into the Festina cycling team in July
1998 and the prosecution of Chinese swimmer Yuan Yuan and her coach for trafficking and intent to use illicit
drugs, are examples of the use of formal police investigations, formal police interviews, formal charges, court
29
O’Leary,J (2000). “Drugs andDoping in Sport: Socio-Legal Perspectives”, Cavendish Publishing (2000)at pg202
30
Lewis, A. & Taylor,J. (2010).“Sport: Law andPractice Second Edition”, Tottel Publishing, at pg901

pg17
Graham Sprason
processes, trials, acquittals, findings of culpability, sentences, fines, and custodial imprisonment. Further afield
in Australia, the government established the Australian Sports Anti‐Doping Authority (A.S.A.D.A) pursuant to
the Australian Sports Anti‐Doping Authority Act 2006. A.S.A.D.A has been created so that a government
authority is now responsible for conducting investigations into doping allegations in sport, rather than leaving it
to each sports federation to investigate allegations. The authority provides national doping control (testing) and
education programmes; has power to establish anti‐doping rules; investigates breaches of the anti‐doping rules,
and presents the findings of analyses at administrative hearings against athletes subject to doping allegations.
Likewise over in America, “The Mitchell Report” into steroid abuse in Baseball was published and World
Wrestling Entertainment owner Vincent McMahon was prosecuted for openly allowing his wrestlers to take
P.I.E.Ds, merging criminality with sporting illegality. Such breakthroughs have hardly proven to be
insignificant; in fact they have broken down the barriers and dismissed the seemingly apparent stigma of
applying criminal law to appropriate scenarios.
“Drug taking is viewed by many as contrary to the very essence of sport…doping indiscretions, it is said,
undermine not only their sport but also the very values on which our society is based.”31
Consequently, it is of upmost importance to maintain the integrity of sport by adopting regulations that impose
sufficiently resilient restrictions to eliminate doping. Also, our society is based on values that are punishable
through criminal penal codes so an amalgamation of the two is not an illogical request, especially when the two
facets merge.
“…the incarceration of convicted criminals (and the resultant loss of income) is acceptable to society as a
reasonable way to protect the public...the same assumption could be made when dealing with athletes.”32
They will undoubtedly form a strong deterrent for an athlete who thinks twice about cheating himself, the sport
and more importantly societal morals.
The last word on the matter, though, should come down to the legislation makers; in the UK this would be our
Government who aid in the development in sport via funding and programmes in education. They, in the literal
sense, should also play a part in eradicating problemareas for sport of which doping violations are probably top
of the list – morally anyway. After all;
31
Gardiner et al; “Sports Law ThirdEdition”, Cavendish Publishing, (2006) at pg269
32
Greenhow, A. “Drugs in Sport: A Studyof the origins, rights and outcomes”(2009)

pg18
Graham Sprason
“Illegal drug use is a threat to public health,which traditionally it is the governments’ responsibility to protect.
The governments of some states have used this as justification for adopting legislation regarding drug use in
sport that often includesprovisions for state sponsored doping controls and for criminal investigation, liability
and sanction”33
For a Government to apply this and put it into practice would go a long way of stopping the problemat source.
The effect will spiral down the chain because the demand would diminish because the deterrent would be
stronger and the risk of being caught would greatly increase because it would not just be the sporting authorities
who are investigative, domestic legislation would allow Government departmental bodies to investigate Anti-
Doping matters, and as such, incarceration would be a permissible punishment.
Illegal drugs are forbidden in both sport and society, something already established. However, there is the niche
where certain drugs are perfectly legal in the real world but when placed in the realms of the sporting arena they
become unlawful because of the necessary performance-enhancing features which they provide. In the normal
world in which we live, many of the drugs are used for common medical ailments.
For example the drug Amphetamine is a perfectly legal and frequently-prescribed form of medication for
illnesses such as Attention-Deficit Hyperactivity Disorder (ADHD) and Parkinson’s disease. However, this
medicine is banned in the world of sport because the characteristics of the pills build muscle mass and help
muscles recover quickly from erosion. This is beneficial for sportsmen universally but mainly those in
endurance events such as cycling where many athletes have fallen foul of the drug when tested. Jan Ullrich, the
1997 Tour de France winner, is a prime example of this. Likewise, Modafinil is a prescribed stimulant tablet
that helps those who suffer from Narcolepsy (Oversleeping problems). However, the agent within the tablet
helps a person’s reactions and alertness so any sportsperson using the drug will have increased awareness which
is beneficial to those who compete in sports where strong reactions are required. US sprinters Kelli White and
Chryste Gaines have both tested positive for this banned substance. Other more common forms of illegal
substances available and readily prescribed within the jurisdictions of medicine include Nandrolone which treats
muscle-wasting disorders by increasing muscle mass. Both Linford Christie and Greg Rusedski have fallen foul
of the regulations and were banned because this substance appeared in their systems when tested. Similarly
Ephedrine, which is a common ingredient in cold medicines, allows an athlete to have a faster heartbeat
33
Lewis, A and Taylor, J “Sport Law and Practice”, Butterworths Lexis Nexis (2003)at pg913

pg19
Graham Sprason
controlling fatigue and increasing the potential for unnatural bursts of power and energy, which is why
W.A.D.A have banned the substance. Footballer Diego Maradona and Sprinter Ato Boldon have been bann ed
because a trace of this substance has been found in their systems.
There does seem to be a direct contradiction in the socio-legal link here. Many people feel that, just because
sports stars seem to be held in higher esteem, somewhat in the echelons of celebrity, we should make an
example of them. Yet during a recent Governmental poll on drugs in society focusing on the viable punishments
that should be administered to those guilty, this approach differs considerably. 62% of the respondents to the
“YouGov” poll said that drug users should not be criminalised but treated as people who are in need of specific
medical help. One of the Members of Parliament behind the poll commented that;
“The reasons I hear again and again are that it is politically difficult to do so [imprisoning persistent drug
users] and that's why most senior politicians are not willing to engage with it. But how earth can that be true
when the majority of people actually think drug users should not be being criminalised?”34
If more than 6 in 10 people think that we should rehabilitate drug users rather than give them custodial
sentences, should we do the same for sports men and women who violate doping laws? This is where the idea of
maintaining self-regulation holds firm and that using external influences in sporting regulation becomes murky
and will only cloud the plethora of complications further.
Yet exemptions are legally permitted in sport. High profile sportspersons Paula Radcliffe and Paul Scholes both
suffer from asthma whilst Sir Steve Redgrave suffers from diabetes. However all have been allowed to take their
respective medicines before races/games/regattas because the drug controls and aids in the prevention against
any further ailments relevant to their condition. These are what are classified as Therapeutic Use Exemptions
(TUE’s). This list is published annually even if there are no amendments made to it. In layman’s terms this
permits an athlete to take a drug that would otherwise be seen as prohibited because it as a beneficiary to the
said athlete’s health, but this must be proven with the relevant criteria. The outlining standards are clearly
demarcated where the term T.U.E is classed as;
“…a documented medical file... obtained before use or possession of, a substance or method that would
otherwise be prohibited by the Code.”35
34
Thompson, M. Liberal Democrat Politician (2009) Cited http://markreckons.blogspot.co.uk/2011/06/almost-two-thirds-of-people-think-
drug.html

pg20
Graham Sprason
The relevant criterion aforementioned is threefold, of which two must be satisfied by the Therapeutic Use
Exemption Committee (T.U.E.C) who “…are the panel established by the relevant Anti-Doping
Organisation…”36 who review the application for use which has been made by the athlete. These requirements
are;
That the athlete would experience serious health problems without using the prohibited substance or
method;
The therapeutic use of the substance would not produce significant enhancement of performance; and
There is no reasonable therapeutic alternative to the use of the substance or method.37
T.U.Es can of course be accepted as well as rejected under the guidance of Code Article 4.438 which provides
that (W.A.D.A) can disclose this authority, an act which ensures that W.A.D.A can ensure that the same
standards are universally applied or, in their own words, “…International Federations and anti-doping
organisations apply the same standards when they grant or deny TUE’s”39 For T.U.Es to be considered illegal
they must of course be classified as illicit by Anti-Doping organisations. This is where the Prohibited List,
produced annually by W.A.D.A, comes into consideration, even if there have been no modifications or
alterations made. Officially titled “The World Anti-Doping Code - The 2012 Prohibited List; International
Standard” this divulges to all athletes under the umbrella of all sports what drugs are banned both “in
competition” and “out of competition” whether administered exogenously (a substance which the body cannot
naturally produce) or endogenously (a substance which the body can naturally produce). Likewise the methods
of ingestion banned by the authorities are also proclaimed40. Also there are some sports which have certain
drugs banned when used in competition which are also announced upon the List. The WADA Prohibited List is
published annually and specifies drugs that are banned for both in and out of competition testing regulations as
well as other drugs, such as alcohol, which are banned for specific sports such as archery and motor racing , and
Beta Blockers which are forbidden in certain other sports. The List is segregated into 9 different categories and
thereby into 2 groups. Category Stimulants 1 – 5 banned both in competition and out of competition because of
their long-term effects on health and performance, whilst Category Stimulants 6-9 are banned in competition
35
The WorldAnti-DopingCode: “International Standardfor TherapeuticUse Exemptions” (January 2010)at pg11
36
The WorldAnti-DopingCode: “International Standardfor TherapeuticUse Exemptions” (January 2010) at pg11
37
Lewis, A and Taylor, J “Sport:Law andPractice SecondEdition”, Tottel Publishing(2010) pg866
38
WorldAnti-DopingCode 2009
39
CAS Advisory opinion, FIFA & WADA, CAS2005/C/976 and986 (2006)para46.
40
Titled“ProhibitedMethods”, these include Enhancement of OxygenTransfer (BloodDoping); Chemical andPhysical Manipulationand
Gene Doping

pg21
Graham Sprason
because of the short-term performance-enhancing effects. In Competition Testing is done during the event
where the athletes are tested by pre-defined criteria (quarter final participants, top 3 in an event or a record-
breaking achievement) or randomly, although Anti-Doping Organisations reserve discretion to target particular
players in circumstances. Out of Competition Testing can happen at anytime and anywhere where there are no
provisions specifically for testing programmes to have an efficient Anti-Doping programme. The main
difference between the two is how the athlete is selected. The International Standard for Testing (I.S.T) requires
the International Federation (I.F) to develop a “Registered Testing Pool” on whomout-of-competition testing is
required so they can be tested at any time. In Competition Testing also has different drugs tested in comparison
to that of out-of competition; this means procedures are done differently on short-term and long-term effects
rendering the drug use ineffective by an athlete in recognition of an Anti-Doping Organisation. The lists are not
always exhaustive but they do give specific examples of drugs which are banned by W .A.D.A, but drugs can be
added to the lists if they have the similar chemical/biological effects upon the athlete, which the Code prohibits
because of the effects not only on performance but also on health. The Prohibited List is constantly updated with
drugs that can enhance an athlete’s ability but the list is reactive and not proactive in the fact that only once a
drug has been shown to be illegal and contravening to the Code will it be rendered illegal. Therefore an athlete
can use the drug prior to its prohibition.
W.A.D.A Testing policy has changed over the years to be as re-active and as pro-active as an authority can be to
combat drugs overriding the principle of sport. Sports authorities can investigate facts about a mixed test in the
same way they can investigate a misconduct charge. This is critical for the authorities as they have more
jurisdictions to make sure that National Anti-Doping Organisations (N.A.D.Os) and other authorities comply
with the W.A.D.C, but how much power do they really have? Any national legislature that is broken is dealt
with by the national legal authority who deals with the criminality. In effect, has their jurisdiction actually
changed and how enforceable is it outside sport? In effect of this , Article 10.5.3 of the 2009 Code has given the
Anti-Doping Organisations the power to suspend part of the period of ineligibility where the athlete has
provided assistance to an Anti-Doping Organisation or the criminal body which deals with any Anti-Doping
violations41. However, under the testing policy the Anti-Doping rule violations are limited as they do not have
the authority to search or confiscate evidence or give any testimony, so therefore W.A.D.A acknowledged that a
partnership must be developed with a public authority where they can share information with the police to help
41 Kelli White andBALCO scenario whereshe receiveda 2 yearban but she couldhave got more hadshe not compliedwith the regulations
of the Code

pg22
Graham Sprason
convict any violators. This shows again that, although on paper the testing policy is effective, W.A.D.A needs
outside help to make this a reality because their power is limited outside the domains of sport and overall very
limited to any criminal authority, which is what they render any anti-doping violations. This was outlined and
made effective in “ASADO v Marinov”42
where a violation was successfully upheld. Finally, W.A.D.A. has
approved the use of modernisation and doctrine of technological advances in the changing testing policies over
time as Article 6.2 of the 2009 Code has embraced the use of profiling such as genetic and DNA profiling which
are the newly advanced ways of performance enhancements.
Organisational independence is the key benefit from the individual to the socio-political and socio-legal
perspective on doping control. In this respect, independence has only advantages. In addition to possible
problems with the practicalities of prevention measures, the main cost is of a financial character. A.D.Os cannot
be expected to be financially self-supportive and there is a need for sport and state financial support. Here, then,
independence ought to be clearly operationalized by the W.A.D.A as full public transparency when it comes to
funding with no direct influence from funding parties on the anti-doping work. If so, costs are more than
compensated. Goals of detection and deterrence are the minimum requirements for individuals and societies to
recognise efficient doping control. Although there are financial costs, there are no doubts that up to a certain
point, detection and deterrence are efficient in a cost-benefit scheme. Prevention requires greater well-planned
programmes with more competent personnel and financial resources. The efficiency of prevention programmes
is not easily measured and requires a long-term perspective. However, if good programmes are made accessible
to the anti-doping world, financial and personnel costs will be reduced. Moreover, demonstration of a clear will
to constructive prevention efforts may have significant socio-political benefits in terms of social and political
respect. Yet it is hard to see anything but benefits when it comes to increased cooperation between N.A.D.Os
and I.Fs. Individual athletes would avoid double testing but still see serious anti-doping work. Improved
coordination requires no significant financial costs. On the contrary, financial efficiency can be improved.
Socio-politically, the reputation of anti-doping work will only be strengthened. Increased cooperation of
detecting, deterring and preventing the use of doping in sport would be in everyone’s interest.
One of the disadvantages of doping control is the fact that many new drugs are being brought into the sports
market for athletes to use. Such “new” methods of doping include blood-doping and erythropoietin, showing
42
CAS 2007/A/1 where a Police investigation leadtosteroids beingfoundin a coaches roomwhich is an Anti-DopingRule Violation

pg23
Graham Sprason
that sports authorities continue to confront a variety of perplexing issues as they attempt to address effectively
and efficiently the problems posed by doping.
“Even in the presence of an effective test it is suggested that the decision to implement a specific testing
approach can be reached by considering the wishes of a hypothetical "Fair Competitor" and an analysis of the
costs involved. In this respect the Fair Competitor assumes in the sport community. The likelihood of false
positive and negative results the risk of unwanted consequences of a testing process, and a concern that specific
tests do not accelerate the likelihood of the use of other doping methods”43
.
This approach is applied to a consideration of the appropriateness of blood testing in sport. It is concluded, using
such an analysis, that in their present state of development, blood tests should not be imp lemented. It is
recognized that certain sports authorities currently use blood tests to exclude competitors whose blood values
exceed certain predetermined levels on the grounds of concerns regarding health and safety.
Certain drugs which are classed as performance-enhancing have different variances and as such they can be
used more effectively depending upon the circumstance of the sport. Endurance athletes such as Cyclists and
Marathon runners require drugs that help treat muscle recovery. EPO, HGH (Human Growth Hormones) and
Insulin’s which stimulate the production of red blood corpuscles that transport oxygen to the muscles are on the
Prohibited List. Whereas events which require a constant weight reference such as Boxing and Judo need drugs
that aid weight loss. Diuretics such as Bumetadine and other masking agents like Probecenid and Finasteride aid
weight loss through the excretion of water and sodium which will be beneficial to athletes competing in weight
classes (Boxing and Judo). Diuretics also mask the concentration of any other drug in the flow of urine sample.
Whereas those which require poise guile and sleight of hand, which are associated with sports such as Darts and
Snooker, need drugs that act as stabilisers such as Beta-Blockers which are medicines that affect the body's
response to certain nerve impulses. This, in turn, decreases the force and rate of the heart's contractions, which
lowers blood pressure and reduces the heart's demand for oxygen. All of which are illegal across most sports but
more so especially in their own individual event. Likewise there are some drugs which are banned in specific
sports only, such as Alcohol (Ethanol) which is banned in Archery, Karate and Motorcycling amongst others.
43
Browne, A. Pipe,A & Lachance, V “The ethics of bloodtestingas an element of dopingcontrol in sports” The Medical Scienceof Sport
Exercise (2000) pg297

pg24
Graham Sprason
For instance, the I.O.C disqualified Ghfran Almouhamad, a Syrian athlete who competed in the Hurdle events at
the London 2012 Games after an Anti-Doping Rule violation. His urine sample contained traces of
methylhexaneamine which was duly replicated in the B sample. Either way, when taking a drug such as
Prostanozol, which is contrary to the rules and Anti-Doping regulations, a crime in the sporting sense has been
committed against other athletes under W.A.D.A’s Prohibited List, unless the criteria for the T.U.E is satisfied.

pg25
Graham Sprason
Chapter 3 - The Pitfalls including the idea of Legalising Drugs, Human Rights and Self-Regulation
Of course there is one radical and somewhat unorthodox way of stopping all the problems that doping within
sport faces; why not simply legalise all forms of drugs in sport? As drastic and as simply laughable as it may
seem, it is an idea that has been mooted and given serious consideration by many commentators in the sports
law fraternity. In its simplicity it is not the best idea but it is an impression that is thought-provoking and
engages debates to one and all.
Medicines in sport are most commonly used as Performance and Image Enhancing Drugs (P.I.E.D) which allow
the athlete to reach the physical peaks at an advanced rate and extend them further to facilitate the famous
Olympic motto “Citius, Altius, Fortius”. However, if the said athlete can go faster, higher, stronger via illegal
methods then surely this should be exempt, which is why sportspersons have the W.A.D.C to comply with
where, in the introduction, it is said that quite clearly “Doping is fundamentally contrary to the spirit of
sport”44
. This is a view universally accepted which is why many have expressed their appreciation for the
banning of drugs in sport, especially the performance-enhancing variety, which can do more to the athlete than
is first acknowledged;
"Performance enhancers, like steroids and other forms of doping, have a negative effect on long-term health.
For then users of these enhancersare hurting themselves in the long run without on the average improving their
short-term rewards…thisis the main rationale for trying to ban steroids and other forms of doping from athletic
competitions."45
In stark contrast there are some that are of the attitude that this is an athlete’s choice to use the meth ods, even
though they are vilified and rightly viewed from a gloomy standpoint. If we as human beings accept that
smoking and drinking are detrimental to our personal health in the long term then why should professional
athletes have the right to use drugs that will have similar effects upon their body, even if this means some short-
term goals are readily ascertainable by using the drugs? This view is echoed in context;
"If each of us ought to be free to assume risks that we think are worth taking, shouldn't athletes have the same
freedom…if athletes prefer the gains in performance allegedly provided by the use of steroids, along with the
increased risk of harm to the alternative of less risk and worse performance, what gives anyone the right to
44
WorldAnti-DopingCode (2003)
45
Becker. G, “Dopingin Sport” Becker-Posner Blog, (2006)

pg26
Graham Sprason
interfere with their choice? After all, if we should not forbid smokers from risking their health by smoking, why
should we prohibit track stars or weightlifters from taking risks with their health in pursuit of their goals?" 46
Of course it is not just an athlete’s health that is put into danger by using the practice of drugs in order to
improve their physical prowess. The athlete gains an immediate unfair advantage over his/her direct competitors
which is contrary to the spirit of sport which puts all persons from all backgrounds on a level playing field in
order to succeed in the spirit of fairness. Although unfair if an athlete gains an advantage via such methodology
there are some who feel that this is not to be placed in the unethical bracket since;
"There is no coherent argument to support the view that enhancing performance is unfair; if it were, we would
ban coaching and training.Competition can be unfair if there is unequal access to particular enhancements,but
equal access can be achieved more predictably by deregulation than by prohibition."47
Surely though using drugs to gain an advantage just because a person may not be able to have the same
standards of coaching and training facilities is a proposition that has no grounding for effect, let alone form a
balanced argument for legalising the use of drugs within sport. Of course, those with the authority have
dismissed this notion with immediate effect and comparing steroids (and other forms of P.I.E.Ds) to training
standards is both illogical and insurmountable. This scenario was raised at a W.A.D.A Conference and debate
where former W.A.D.A Chairman, Richard Pound, expressed his forthright views on the matter by stating that
using drugs comes from a pre-meditated state of mind;
“The use of performance-enhancing drugsis not accidental;it is planned and deliberate with the sole objective
of getting an unfair advantage."48
Although we can acknowledge this as a fair and valid statement justifying its sole intention of use, there have
been those, including professors and distinguished academics, who have published documentation championing
the cause for legalising drugs. In their learned opinion, this would fill a void in sport where we only have
uncertainty and conflict. For instance, an article published in 2005 tried to compose a feasible argument for this
by citing their reasons as viable upon the facts that;
46
Simon. R, “Fair Play: TheEthics of Sport,” WestviewPress (2003)
47
Fost. N, "Steroid Hysteria: Unpackingthe Claims," American Medical AssociationJournalof Ethics, (Nov 2005)
48
Pound. R, WADA Intelligence Debate "We ShouldAccept Performance-Enhancing Drugs in CompetitiveSports," (Jan 2008)

pg27
Graham Sprason
“The anti-doping rules often lead to complicated and costly administrative and medical follow-up to ascertain
whether drugs taken by athletes are legitimate therapeutic agents or illicit.”49
Similarly other professors with similar expertise in the field of sports and the sciences gave their input by
advocating that;
“…by allowing medically supervised doping, the drugs used could be assessed for a clearer view of what is
dangerous and what is not...”50
“Athletes take unknown substances, procured from unknown sources and with uncertain results. Permitting the
use of doping would rescue sport from this clandestine state, creating an environment that would be not only
safer, but more congruent with the reality of professional sport in the 21st century.”51
However, another academic professor pushed the claims to legalise drugs because this would eradicate many of
the problems that exist for all doping associations and governing bodies. The notion, if upheld, would reduce
expenditure dramatically into researching just how effective the tests actually are, and Professor Miah claimed
that;
“…a problem arises when the application of these rules is beset with diminishing returns: escalating costs and
questionable effectiveness…"52
As is the fact that if drugs were ever to be legalised then the floodgates would be opened to all sportsmen to
simply become the greatest cheat, which would be detrimental to their health, their sport and the integrity of
both parties since;
“…the end game will be an activity that is increasingly violent, extreme, and meaningless, practiced by a class
of chemical and or genetic mutant gladiators…”53
"There are several reasons [to ban performance-enhancing drugs]: respect for the rules of sports, recognition
that natural talents and the prospect of an 'arms race' in athletic performance."54
49
Professor Keyser. B, Professor of Exercise Physiology at the Facultyof Medicine ofthe UniversityofGeneva,The Lancet (2005)
50
Professor Mauron, A. Professorof Bioethics at the Facultyof Medicine ofthe UniversityofGeneva,The Lancet (2005)
51
Professor Cashmore, E.Professorof Culture,Media andSport at Staffordshire University,CNN (October 232012)
52
Professor Miah, A. "Viewpoint: Legalisationof Performance-EnhancingDrugs,"The Lancet (2005)
53
Pound, R. WADA Intelligence Debate "We ShouldAccept Performance-Enhancing Drugs in CompetitiveSports," (Jan 2008)
54
Murray, Thomas. H. "Sports Enhancement"From BirthtoDeathandBenchto Clinic: (2008-2009) Journal

pg28
Graham Sprason
Likewise it is acknowledged that “…people expect sport to be a different kind of test, one in which athletes' own
qualities are the major determinants of success…”55
However how can this be? Concluding, simply legalising
drugs will be contrary to all anti-doping regulations, which in effect would become redundant in their noble
cause where we would simply acknowledge cheating as a necessary part of sport. For the above reasons alone, it
is essential that a stronger, more visibly-harsh punishment would allow for a correlation between the sanction
and the stigma of cheating other people out of what is quintessential to sporting occasions, which is fairness and
equality.
However, are we putting those in the sporting spotlight of being in an unfair position for chastising themfor also
being placed in the realms of celebrity? Punishing a person twice is s urely unfair when they have already been
punished within their own sporting jurisdiction. Certainly Article 6 of the Human Rights Act (HRA) 199856
would purport this statement. This article has imposed more freedom on the part of the athlete where he or she
would have more fundamental rights to uphold the claim they are charged against. The HRA aims to “…bring
rights home…”57 by imposing duties on the Courts. The HRA is used as an instrument of legislation against
“public authorities” which under the act are classified as sporting bodies which means charges can be applied
directly or indirectly against them. The HRA has also expanded the way in which cases can be tried by adopting
that tribunals can be a power of jurisdiction as well as disciplinary tribunals of sporting bodies also falls into this
classification for the purposes of HRA 9858. The Court or Tribunal is wholly liable in respect of all their actions.
s6 (3(a)) extends the duty on the Courts by creating a horizontal effect in that cases between public and private
individuals the Courts must ensure that the law applied does not break the rules of the convention. This has led
to collaboration with Articles 8 & 10, privacy and freedom respectively59.
Article 6 is the right to a fair trial which has caused the most developments for sports and doping case as any
prejudice breaks the rule of the convention and therefore dissolves the case. The Norwegian confederation of
sport acquitted an athlete from criminal charges but they were able to exclude him fromcompetition because he
was found guilty of drug use60. Article 6 also binds upon Article 14 which was shown in “The Belgian
Linguistics Case” where an appeal structure must be provided for one and all and that the state must provide a
55
Dixon, N. "Performance-EnhancingDrugs, Paternalism, Meritocracy, and Harm to Sport," Journal of Social Philosophy (2008)
56
Article 6 – The Right toa Fair Trial
57
Rights brought home; The HumanRights Bill (Cm 3782)
58
HansardHC, Vol. 314, col 414
59
Theakstonv MGN Ltd[2002]EWHC 137(QB),Campbell v MGN [2002]EMLR 30 – although in this case the arguments to Art.8 was
not successful against UK Athletics
60
[2001]2 ISLR N-23

pg29
Graham Sprason
right to challenge a decision before a body of full jurisdiction61 (The Courts) as well as a fair hearing so all
considerations are considered including individual deficiencies62, or at least an oral hearing which involves an
athlete’s personal conduct63 but this right can be waived by the party. Article 6 also states that both parties must
have “equality of arms” so no one party is sufficiently disadvantaged as the article determines that the hearing
must be applied within reasonable time64. Examples of violations include “Gautrin v France” where a doctor on
a tribunal hearing was not impartial because of a “worrying connection” with the competitor or the applicants’
organisation. Also in “Van Kuck v Germany”, the German Court failed to show the ECHR approach to a
medical necessity on HRT which was an expansion on “Camilleri v Malta” where the decision made had been
“manifestly unreasonable” because fairness had been compromised.
The HRA 1998 has become a powerful tool for defence in doping cases because of the nature of the Act and
how it operates. For instance in “Canas v ATP”65
out of competition testing breached EC rules on the basis that
they infringed on the constitutional right to privacy. In “Korda v ITF” the timeframe became an issue because
“…any sustained period of uncertainty or to the outcome of proceedings whilst they take their course is likely to
be highly damaging to all concerned…” Many other implications of the Act show that this can be used
somewhat effectively as a defence mechanism for doping cases. Such instances include;
Article 6(3) rights have relevance to doping cases because if the proceedings for disciplinary are so serious to
render them akin to criminal then the accused must still get a right to a fair trial. The Human Rights aspect with
relation to doping is a diverse issue because W.A.D.A performs a public duty and is a public authority in terms
of the context of the Act66. Therefore W.A.D.A must comply with the conventions and protocols of the Act as
long as they take into account the principles of human rights. Article 6 would give the athlete more weight in
regards to doping regulations because of the broad variety of the article. Many previous cases that have been
tried and recent cases have adopted to use this angle on the case by saying that the athlete has not had a fair trial
because of the conventions of the Article which can lead to a breach. The current form of doping is a fair price
to pay to stamp out cheating because the principle of doping is the actual taking of the banned substance that
contravenes the prohibited list supplied by W.A.D.A. The current format applies the fact that the taking of the
drug is illegal against two tests (A & B Samples) not the fact that they are compliant with regulations of human
61
Albert & le Compte v Belgium (1982)5 EHRR 533para.29
62
Barbera, Messeque & Jabardo v Spain (1988)11 EHRR 360 pgs. 68-69
63
Muyldermans v Belgium (1991)15 EHRR 204
64
de Haes & Gisels v Belgium (1997) 25EHRR 1 para. 53
65
CAS 2005/A/951
66
Section 6(3(b)) Human Rights Act 1998

pg30
Graham Sprason
rights. The actual element that will ban the athlete is the cheating itself, but the notion that the athlete can be
abstained or at least have his punishment minimised does not fall in line with the drugs but with the regulations
that W.A.D.A as a public authority will have to take to prove the man’s/woman’s guilt. The athlete does not
have to fall in line with these sanctions either, making W.A.D.A and other public bodies harder to show guilt in
terms of accountability.
Article 8 is also applicable and therefore would act as a hurdle in this indication. In any sporting context this
includes keeping any information confidential which will include the withdrawal of intervention for facets
including the prevention of crime. The obvious counterbalance would be to say that although we use this
method for alcohol testing for road traffic incidents, this is justified. This was also the claim when identifying a
paternity suit in Holland67. Trying to justify “breaching” this article in reference to this may be tougher to
substantiate. The justification under this Article comes with the notion that this is done “in accordance with the
law”68, moreover the domestic law which must also be precise and accessible.69 This is determinable against the
claim of public interest, the context and the nature of the claim.70 Upon this, we go full circle back to the idea of
chastising against the celebrity of the athlete. Hypothetically Sir Chris Hoy fails a drug test then the nature and
the context as well as the public interest in the claim will be in accordance to this, whereas if Valent Hristov71
failed a drugs test on the same rationale would this be classed in the same ilk? Hardly. So again, if we go by this
notion then we are highlighting the celebrity aspect, whereas sport and self-regulation would ignore this and
suitably punish the athlete for their wrongdoing. With many complications already in place to uphold the
accountability that W.A.D.A is trying to enforce, would placing a criminal recognition on the doping systembe
detrimental to the regulatory bodies? It is felt that;
“Putting doping into the criminal law would, therefore, complicate the current system of fault.”72
This would only add to the timeframe of cases and add to the lack of clarity that burdens the lex sportiva on
doping, even though the assumption that all people found guilty of doping offences should in principle be
67
“X v Netherlands” 16DR 184,189(1979), EuropeanCommission
68
Article 8(2)
69
“Sunday Times v UnitedKingdom” (1979)2 EHRR 245, para 49
70
“Handyside v UnitedKingdom”(1976) 1 EHRR 737at 753to754; CitedLewis, A andTaylor, J “Sport: Law and Practice Second
Edition”, Tottel Publishing(2010) at pg530
71
Bronze Medallist for Azerbaijanin the 56kgWeightliftingCategory
72
www.inbrief.co.uk/sports-law/athletes-doping-and-criminal-law.html (2011) Para.16

pg31
Graham Sprason
banned through the mantra of strict liability. Would therefore criminalising doping only make the murky waters
darker and deeper?
If the idea of sporting self-regulation should be maintained, which on the grounds of common sense is one that
should not be imposed, then having the burden of criminality which would fall in line with anti-doping breaches
must be a wholly justifiable one where;
"…the invocation of such powerful machinery, such as the criminal law, needs to be made with reference to
sufficient reasons that can justify its application in the area of doping in sport…"73
Yet if the sanctions that the respective sporting jurisdictions have imposed upon the guilty athlete are parallel to
those which would have been upheld in a criminal basis that “…the court will treat the proceedings as
analogousto criminal proceedings,such that guarantees similar to those under Art.6 (2) and 6 (3) (the criminal
protections) will be held to apply…”74
especially if, as is the case in sport, where proceedings can mean fines
and suspension fromdoping irregularities which would be mirrored in a criminal court.
The International Sports Law Review published a journal entitled “Doping and Fundamental Rights of athletes:
Comments in the wake of the adoption of the World Anti-Doping Code”75
which outlined many of the
restrictions that will directly affect any criminality which may occur from Anti-Doping violations especially
Articles 676, 777 and 878. The UN Covenant on Civil Rights; especially Article 14 sub section 6 which states
specifically that;
“When a person has by a final decision been convicted of a criminal offence and when subsequently his
conviction hasbeen reversed or he has been pardoned on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of
such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the
unknown fact in time is wholly or partly attributable to him.”
73
Ioannidis, GInternational Sports LawReview(I.S.L.R) (May2006),pg29
74
Lewis, A and Taylor, J “Sport:Law andPractice SecondEdition”, Tottel Publishing(2010), at pg524fromSimor & Emmerson
“HumanRights and Practice”, Sweet andMaxwell para6.020
75
Rigozzi et al “DopingandFundamental Rights of athletes: Comments in the wake of theadoptionof the World Anti-DopingCode”
I.S.L.R 39 (2003)
76
The Right to a Fair Trial
77
No punishment without Law
78
Right to respect forprivate andfamilylife

pg32
Graham Sprason
This guides us to the fact that what if his/her “A” sample finds an athlete guilty of an offence but the “B” sample
is contradictory. A miscarriage of justice. If the Courts side with the “A” sample even though a secondary
sample, which the athletes can be entitled to give, secures a different outcome, then all parties concerned are
opening themselves up to a more costly procedure which will be detrimental to the images of all parties
concerned.
Finally Article 1 of the European Social Charter which proclaims that each person has a “Right to Work” which
can be breached if the parties take a provisional suspension on the premise that a drugs test has been failed and
that he or she cannot compete in events because the person is excluded whilst they are trying to protest their
innocence. Using a parallel and conjoined approach with Article 6 – there is a precedent that allows for a player
or an athlete to continue to play his sport whilst his appeal is pending79, and with many criminal cases, this
period of time can be lengthy and therefore may be seen ineffective use of time and finances within the Courts.
Surely a classification of self-regulation would diminish all restrictions whilst punishing the guilty in the way in
which the regulatory bodies already can? The over-riding problem though is the stigma of punishment this may
carry, the message of sanctioning outside of sport, i.e. Prison carries a far greater stigma than a possible 2 year
ban from sport.
With all this in mind combined with a sense of realism where self-regulation is the most plausible and the
current ethos applied to policing within the sporting parameters, should self-regulation within respective sports
is just that; wholly self-regulating. This would eradicate any extensive timeframes and costs on a comparative
basis. The current format which may not be broken but certainly tarnished would be allowed to function without
external influences even if many modern-day breakthroughs have used the intervention of formal policing
guidelines and investigations. After all W.A.D.A and the W.A.D.C have tried to strike a balance between the
protection of the athlete and the protection of the sport and in the grand scheme of things, this balance has, on
the whole, been somewhat successful. This application is perhaps more “safety-first” where the implications do
not depend upon the name of the athlete but on his/her misdemeanours. The punishment will be the same for the
said person, regardless of their marketing ability or sporting prowess. Irrespective of this, there are of course
many obstacles that would stand in the way of criminalisation of offences which have been previously discussed
by academics and critiques alike. One obvious and certainly plausible obstacle is that which would vary from
jurisdiction to jurisdiction. Not all countries punish in the same way for offences, i.e. UK Legislation may offer
79
Jones v WRU (1998)CA

pg33
Graham Sprason
a more detrimental sanction than that of an African country, so depending upon where the offence took place the
athlete may receive a lighter or harsher penalty and this would only cause unilateral problems. W.A.D.A has in
place these sanctions which C.A.S advocate that are universal in application, a view adapted and upheld where;
“The role of national law should, in the doping context, be limited. This is especially so given that, in the event
of an appeal to the CAS; those same rules will be interpreted not by reference to national law, but by reference
to general principles of law.”80
“It would therefore be wrong in principle to approach questions relating to construction of the rules in anti -
doping cases from the insularviewpoint of English common law. Instead the provisions of international doping
regimes fall to be assessed by reference to the general principles of sports law.”81
However, progress is transition and, to keep abreast and ahead, scientific technology through modernisation is
needed.This is why many countries, including our own, are creating ties and bonds with domestic policing and
integrating their influential implements which can detect any anti-doping breaches.
“…In December 2007, UK Sport established a working group with representatives of the Home Office, the
Association of the Chief of Police Officers, HMRC and the Serious Organised Crime agency to consider how
law enforcement agencies can work with UK Sport to investigate such “non-analytical” offences.”82
Obviously, this is progress. Only time will tell just how influential this progress is and in turn just how much
more is needed externally to aid those internally in the fight against doping.
80
Lewis, A and Taylor, J “Sport Law and Practice”, Butterworths Lexis Nexis (2003)at pg935
81
Lewis, A andTaylor,J “Sport Law andPractice”, Butterworths Lexis Nexis (2003)at pg939
82
Lewis, A and Taylor, J “Sport:Law andPractice SecondEdition”, Tottel Publishing(2010) at pg902

pg34
Graham Sprason
Chapter 4 –Hypothetical Adrian Mutu Case Scenario
The highest profile case in recent history involves Adrian Mutu and Chelsea Football Club. The background
facts are as follows; Adrian Mutu was a professional footballer from Romania who was employed by Chelsea
Football Club following a £15.8 million transfer from Italian Club Parma in the summer of 2003. However,
upon rumours that he was using recreational drugs in his free time, Chelsea, upon their club doctor’s wishes,
imposed a drugs test upon him to confront these rumours. As a result, on the 11th October 2003, Mr Mutu
returned a positive test with a Class A substance (Cocaine) found in his system. He said this was a sexually-
enhancing drug and not Cocaine. A written statement from the club said that;
“…Chelsea has a zero tolerance policy towards drugs…this applies to both performance-enhancing drugs and
so-called 'recreational' drugs.They have no place at our club or in sport…Any player who takes drugs breaches
his contract with the club as well as Football Association rules. The club totally supports the FA in strong
action on all drugs cases…”83
As within the rules made by the Footballing regulatory body (F.I.F.A) and imposed by the National Governing
Body (the F.A), Mr Mutu was banned from playing football for seven months as of 25th October 2004 and the
worldwide ban imposed by F.I.F.A began on the 12th November, for this first doping offence which breached
their anti-doping regulations. This decision was supplemented by the sacking of Mr Mutu from his playing
contract on the 28th October 2004, a decision which won Chelsea universal praise;
“It was a very difficult decision for them [Chelsea] and an expensive decision for them but the terms of his
contract were breached and it was the only decision they could make.”84
Mr Mutu challenged this decision and took his grievance to the Court of Arbitration for Sport (CAS)85 but
ultimately lost his appeal against his sacking.
Mr Mutu lost his employment due to failing a drugs test which is not only sanctionable in the sporting
jurisdiction but also sanctioned from a societal perspective, so why was there no involvement from the Crown
Prosecution Service (CPS), the English national law enforcement agency? After all, is this not a prime example
83
Chelsea Football ClubStatement
84
Michelle Verroken,DrugTesterandformer drug tester forUK Sport, (Oct 2004)
85
Adrian Mutuv FAPLAC (Football Association Premier League Appeals Committee), (2005)CAS/A/786

pg35
Graham Sprason
of a public interest case? This could have set a strict and forthright precedent to show that illegality on the pitch
does cross the boundaries into society.
Hypothetically, let’s put this case into a scenario and that the CPS did prosecute Mr Mutu. For a successful
criminal conviction, both the Actus Reus (the actual element of the crime) and the Mens Rea (the mental
element of the crime) need to be established along with the contravening of an Act of Parliament. In this setting
the Act would be The Misuse of Drugs Act 1971.Cocaine is classified as a “controlled drug” under Schedule 2
Part 1 with the offender likely to be charged under the notion of possession of the drug under s5 (1). This is a
triable either way offence where he would have been tried under jurisdiction of the Magistrate or Crown Court,
given the stature of the person and the vast probability of public interest in the case (hypothetically) he would
have been tried in the latter;
“A prosecution is usual when a case involves the possession of a Class A drug…The supply of Class A drugs,
their possession with intent to supply or their importation will almost always justify a prosecution.These are the
most serious offences in the Act and will often attract substantial custodial sentences...”86
This would have invoked a maximum punishment of an unlimited fine with a maximum of a 7-year
incarceration period.
In a comparative sense, the case of “R v Roberts (Theo Archebold)”87
is one of noteworthy compatibility. The
Court of Appeal upheld the sentence handed down by Snaresbrook Crown Court for possession of the Class A
drug, Cocaine. The defendant was given two-and-a-half years for the crime on the basis that he satisfied the
Actus Reus of possessing and the Mens Rea of intent to use/supply which Mr Mutu would be tried against had
his case made the Courts of Law. However, two and a half years after his ban, Mr Mutu was playing top flight
Italian and European football for Juventus. Compare the cases of Mr Mutu (hypothetically) and Mr Roberts;
which sets the better deterrent because remember, Mr Mutu re-offended within 7 years of his first offence yet is
still playing professional football today?
86
http://www.cps.gov.uk/legal/d_to_g/drug_offences/
87
[2005]EWCA Crim 3281

pg36
Graham Sprason
Admittedly, Cocaine has no direct sports-enhancing features to the user; it is still classified as a recreational
drug and therefore outlawed. However, the Rt. Hon Richard Caborn would like to see recreational drugs
expelled from the Prohibited list published by W.A.D.A because;
“…WADA's role was to root out cheats in sport and to stop athletes using drugs which enhance performance,
rather than to be in the "business of policing society”…”88
If this were ever to bear fruit then the socio-legal link between sport and the law would become tarnished greatly
because taking socially-illegal drugs could, indeed, would be seen as physically, if not morally, acceptable in
sport, therefore diluting Grayson’s quote and opening up a dangerous niche for which the floodgates may well
open for sportsmen and women universally.
This “case” did not only cause some discomfort for those pushing the values that criminality should have ensued
but also those within the sporting legality sphere. In contrast to someone who failed a drugs test due to a Class A
substance serving a 7-month ban, Rio Ferdinand of Manchester United missed a drugs test and received an 8-
month suspension on the basis that under strict liability philosophies as illustrated under the guidance of Article
2.389 of the W.A.D.C.2009 where the offence can be intentional or negligent but it is treated very seriously,
hiding from a Doping Control Officer is said to require proof and intent90. So, applying the above principles to
matters of fact then taking Class A substances will only result in a lesser, more tranquil prohibition which under
domestic law could have meant a 7-year prison sentence, but merely missing a test will result in a stronger and
seemingly imbalanced punishment which in normal legal circumstance would amount to no punishment at all.
It is of noteworthy evaluation that Adrian Mutu on January 10th 2010 whilst playing for Italian side Fiorentina,
failed another drugs test for the banned substance Sibutramine which is a common medicine for weight loss but
is banned for its properties that can advance human performance levels. He was subsequently banned by CONI
(Italian Olympic Committee) for the use of a banned substance for nine months. Fiorentina later went on to sell
the player after his ban expired as his playing value depreciated greatly. Does this show that the sporting
sanctions when linked with a sociological punishment do not act as a strong enough deterrent to abstain the
88
House of Commons Select Committee onScience andTechnology “The Prevention andDetection ofDoping” (Feb2007),para. 100
89
“Refusing or failingwithout compellingjustificationto submit to sample collection after notificationas authorised by the applicable Anti-
Doping Rules, or otherwise evading sample collection.”
90
“NZRL v Tawera” (2004)N.Z.S.D.T 12/04He was given a 1 year ban for missinga test with the lengthof ban appliedbecause of the
“seriousness of the breachof whichhe is guilty”

pg37
Graham Sprason
cheaters from re-applying their inherent ways? Again this, in the opinion of the writer, acts as an enhancement
to opening the sanctions into the public domain instead of the sanctity of the sporting sphere.

pg38
Graham Sprason
Chapter 5 - The Athlete’s Mentality
The pressure on the regulatory bodies is so intense in the fact that half of all recently surveyed Olympic athletes
admitted that they would be willing to take a drug, even if it would kill them eventually, as long as it would let
them win every event they entered five years in a row. This demonstrates just how unhealthy the demand for
success will become if an acceptable deterrent is not forthcoming, whereby possibly the market could become
flooded to make athletes focus solely on tangible prizes and adulation rather that a healthy approach to winning.
“This type of 'win at any cost' mentality is pervading sports at all levels of competition and results in athletes
feeling coerced to use substances just to remain on par with other athletes."91
This has not been a recent adopted problem; this has been mooted for many years where previous publications
have sounded strong warnings that if an anti-doping structure is not strong enough then cheating will only allow
the generic sporting competition to become false where
“…international sport will be a competition between circus freaks manipulated by international chemists…”92
However and under the doctrine of Strict Liability the athlete is deemed to be at fault for what is found in his or
her system. Many persons have fallen foul of this because of external errors which have meant “illegal”
substances are in the body which are seen as performance-enhancing even though the primary use of the drug –
which commonly has many beneficial and/or medicinal uses – was not to make the person better in the realms of
their sporting prowess. For example, when Diego Maradona failed a drugs test at the 1994 Football World Cup
in America it was because;
“…it had been an innocent mistake by Cerrini (The Argentinian Football Association Director)…we had run
out of the supplements I was taking in Argentina and they bought the same stuff right there, in the US….but the
US one contained a small percentage of Ephedrine…”93
By the same token, when a person becomes so successfulat his sport that a chasmof scepticism is aimed upon
him so much that his skill and determination are perceived to be aided by drugs,then passing a drugs test is not
only seen as necessary to the governing bodies but when a clean test is administered but is still not believed then
many sportsmen fail to see the point of a drugs test when the results are still not believed.
91
"Winningat AnyCost: Dopingin Olympic Sports,", National CommissiononSports andSubstance Abuse, (2000)
92
Todd, T. “Anabolic Steroids ; The Gremlins of Sport” (1987)
93
Maradona, D. “El Diego; The Autobiography of theWorld’s Greatest Footballer”,YellowJersey Press Publishing (2004)

1st Draft

Recommended

Recommended

More Related Content

Similar to 1st Draft

Similar to 1st Draft (17)

1st Draft