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Strict Liability in Doping: A Step Too Far?

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About The Author

Callum Reid-Hutchings (Guest Contributor)

Callum is a BPTC student from City University of London and a student member and scholar at Gray's Inn. Callum recently graduated from Swansea University with First Class Honours and is due to commence his LLM at Wolfson College, Cambridge. He has interests in commercial, sport, public and medical law. Outside of law, Callum has a keen interest in football, boxing and MMA.

Anti-doping programs seek to preserve what is intrinsically valuable about sport. This intrinsic value is often referred to as “the spirit of sport.” It is the essence of Olympism, the pursuit of human excellence through the dedicated perfection of each person’s natural talents. It is how we play true.

World Anti-Doping Code

In 1999, the World Anti-Doping Agency (WADA) was founded following the World Conference on Doping in Sport, held in Lausanne by the International Olympic Committee (IOC). The goal for the construction of WADA was ‘to promote, coordinate and monitor the fight against doping in sports in all its forms.’ Its introduction was welcomed amongst the sporting world, which had been plagued for decades by doping, the Festina scandal and Olympic 100m champion Ben Johnson being two of the most recent embarrassments. Ultimately WADA’s creation was an attempt at bringing sport back to ‘what it was.’ There was genuine concern for not only cheating, but also the health of the athletes and the repercussions doping could have for the next generation of athletes.

For any authority to take back control of sport, harsh procedures had to be brought in and be visible to the public. WADA sought two such provisions: a ‘strict liability rule on prohibited substances and a ‘whereabouts’ rule requiring athletes to be readily available to drug testers. Both have proved to be incredibly contentious in terms of their legality and whether they go too far in the war against doping and instead punish those who are innocent. There is a general acceptance that in order for sport to keep its integrity it needed a body like WADA. However, sport needs a WADA that, to quote the chief executive of the Professional Players Federation, ‘polices by consensus, not by diktat.’

This piece will focus on the strict liability rule and whether it is actually needed within sport, or whether WADA is acting beyond its jurisdiction and potentially infringing on Article 6 ECHR. In order to justify any measure which hinders a person’s rights, the measure must be proportionate and have a legitimate aim. The piece will work through the strict liability rule, examining whether the justifications given for strict liability are proportional to the war on doping, or whether the rules in fact need modification to ensure that athletes’ rights aren’t unfairly infringed. For a broader view of the doping issue, also see Amy Ling’s piece for Keep Calm Talk Law from 2015.

What is the strict liability rule?

Perhaps the most important aspect of worldwide anti-doping policy is its use of the strict liability rule, described by some as the ‘cornerstone’ of anti-doping procedure. This rule means that an athlete is solely responsible for any substance which is found in their body. Per WADA's World Anti-Doping Code, whenever a prohibited substance is found, an anti-doping violation will occur. The rule does not necessarily require any intention to cheat, or even knowledge of the prohibited substance's presence.

The harsh implications of the rule have played out in the media in high profile cases like that of 16-year-old Andreea Răducan. Răducan competed for Romania at the Sydney Olympics in 2000 and helped the woman’s team win their first Olympic team gold since 1984. A few days after the conclusion of the Olympics, Răducan tested positive for pseudoephedrine, which is a prohibited substance under doping rules. The controversy stems from the fact that the substance was given to her by a team physician to treat a fever and cold she was suffering from prior to the competition. Pseudoephedrine is a common form of treatment for the general public in brands such as Sudafed, Nurofen, and Benadryl, and can be obtained without a prescription.  Her gold medals from the other events were clean, suggesting that this was not an abuse on the part of Răducan, but a genuine mistake in using a common over-the-counter medicine to fight the symptoms of a cold.

Răducan later brought her case before the Court of Arbitration for Sport. The decision can be viewed as a sympathetic one by the panel. They noted that by taking this prescription, she did not receive any advantage. Notably, the acting secretary general stated that the panel was aware of the impact that this would have on a ‘fine, young, elite athlete.’ But the commitment to a drug-free sport had to come first. Furthermore, the 2000 Olympics were held just a year after the inception of WADA. For the courts and WADA to give a lenient approach at its first Olympics would clearly undermine the strict approach they would be taking from there on out.

Examples like this are an emotive argument for eliminating the strict liability principle, but this issue should be viewed on a broader scale than individual athletes. Raducan was an unfortunate victim of the shift to a system which was needed in sport. The intent element – or rather the lack of an intent element - is what makes the rule so contentious, however there are good reasons for it. If intent was needed for liability to be attached, then the war on doping would never commence. This element of proof would be too burdensome for governing bodies with ‘modest budgets’ to maintain a proper testing regime.

In order for WADA to operate at the level which its wishes to, it must set a sufficiently strict legal standard. A negligence standard (judged on the balance of probabilities) would undoubtedly be impractical in the world of doping, especially when substances are not always typical injected steroids, often coming in the form of contaminated products. Both routine injections and contaminated products, usually provided by coaches and trainers, would also provide a level of plausible deniability for genuine cheats if the burden were switched. It would be an uphill battle for authorities to prove an athlete was negligent in allowing the substance within the body, and to gain such evidence they would have to infiltrate athletes’ lives and track their every movement. Not only is this financially impractical, but it would certainly breach the right to a private life given by Article 8 of the ECHR much more than even the current doping rules do.

In any pragmatic approach to doping, a positive sample must therefore be the pivotal element in displaying guilt. This unforgiving approach has found favour in the High Court, where such a rule’s legality was acknowledged in the Canadian case of Gasser v Stinson. The athlete (Sandra Gasser) challenged the IAAF anti-doping rules (the case predated WADA’s creation) as a restraint of trade, but the court judged that it was right and in the public interest to apply strict liability in doping cases. The Court of Arbitration for Sport has also consistently upheld strict liability in subsequent rulings.

Ultimately, the morally innocent may suffer so the guilty do not escape. This is a harsh concept, but not a new one. Similar provisions exist in criminal law (including s5 Road Traffic Act 1998 on drunk driving), and for businesses and employers (see the Health and Safety at Work Act 1974 and the Consumer Protection Act 1987Does strict liability breach Article 6(2) ECHR?

The European Court of Human Rights has consistently held (as in Salabiaku v France) that offences involving strict liability in criminal law are compatible with Article 6(2) ECHR (the presumption of innocence), in that they can penalize a person despite them not displaying criminal intent or negligence.

Strict liability was also considered at length in the Court of Appeal case of R v G [2008]. The defendant was aged 15 and had sex with a girl under the age of 13, and was thus convicted under s5 Sexual Offences Act 2003 for having sex with a person under the age of 13. However, the victim had told the defendant that she was aged 15. The House of Lords assessed whether the strict liability element of s5 infringed Article 6(2) and the presumption of innocence, as the offence did not take into account whether the defendant believed the victim was over the age of 13. Lord Hoffman noted that Article 6(2) requires the defendant to be ‘presumed innocent….but does not say anything about what the mental or other elements of the offence should be’. The presumption of innocence meant G was presumed not to have committed the offence unless the prosecution proved their case – it did not mean a certain mens rea was required for the offence itself.

This case related to strict liability involving criminal cases, but is important in understanding why strict liability is an acceptable tool, provided it is for a proper purpose. It is also persuasive that if the highest courts have found strict liability compatible with Article 6(2) within criminal law, then it can certainly enter the realm of doping procedures where the stakes are much lower (not involving a person's liberty). The aim of WADA’s incorporation was to tackle the growing threat of steroid abuse in international competitions. The only way to completely and effectively eradicate this abuse is remove the evidential burden of proving intent.

Of course, the intentional cheats need to be punished more severely than those who are merely negligent or indeed completely unaware. WADA’s approach to proportionality here is reflected in Article 10.5 of the Code. The 2015 amendments to the Code aimed to bring in a degree of proportionality and recognise some the harsher implications of the strict liability rule. Under Article 10.5, an athlete may reduce the length of their sanction for a positive test if it can be shown there was ‘no fault’ or ‘no significant fault’. The threshold is high to prove here, but WADA have shown that, if you have completed your duty as an athlete, your sanction will be reduced, as was seen in UKAD v Warburton & Williams. WADA are taking a more lenient approach to ensure those who inadvertently take prohibited substances are not viewed (or punished) in the same manner as intentional cheats. This a welcome development by WADA and must be appreciated.

Is the strict liability rule appropriate?

With the legality and proportionality of the strict liability rule established, there is a more pragmatic question to ask: what is the threat strict liability is supposed to counteract, and is strict liability the best means of counteracting it? The two main threats perceived by the WADA are to the integrity of sport and to the health of athletes. Both dangers will be looked at in turn.

The Integrity of Sport

The primary concern on the part of WADA is that the ‘spirit of sport’ will be diminished. Sport plays a fundamental part in many people’s lives, from childhood values to national identities. It is also, for many people, the source of their livelihoods – not only for athletes but for thousands of trainers, coaches, and support staff around them.

With this in mind a ban for those who cheat, no matter the excuse, may seem a completely justifiable approach. Nonetheless, it leads to the question of where the line between cheating and ‘enhancement’ is. Many would put forward the argument that ‘enhancement’ is part and parcel of sport through equipment, training regimes, and diet. Doping, however, is clearly seen as an unacceptable form of enhancement.

Drugs should be viewed as more than just a performance enhancer - their use transforms the competition itself. Spectators are drawn to watch sport in part due to the ability of incredible athletes on the world stage. The idea that athletes are only so good because of the drugs they take tarnishes the image of the contest itself. The aftermath of the Lance Armstrong scandal shows the effect doping has on spectators’ enjoyment of the sport - any successful cyclist now seems to attract doubts that they too could be doping.

The public interest element for sport is key. Spectators want to see that those who are competing are doing so through natural means. Fellow athletes want to compete against other clean athletes. Many athletes are also role models for young people. The overall point here is that an athlete's intent does not matter to the public interest. WADA has compiled a list of prohibited substances which can improve performance. If that substance is in an athletes’ body, the competition has been altered. In addition, if the drug is in the athlete’s body, they will perform better, and this unfair advantage must still be curtailed. Therefore, it is not in the interests of the sport for them to compete, regardless of their intent. 

Does Strict Liability Protect Athletes’ Health?

Another justification given by WADA is protection of the health of athletes. This argument is less convincing, and can certainly be seen as WADA policing areas outside of its legal remit. To ban athletes for use of recreational drugs, for instance, is an overly paternalistic measure, considering these recreational drugs are often not performance enhancing. This should not be an area for WADA to dictate. Instead this is the perfect platform for governing bodies to provide for the adequate rehabilitation for these athletes, rather than grouping them together with dopers whose offence was inherently different.

WADA has no right to try and protect the health of the athletes. As people, they are free to take these substances, subject to local laws. It is hard to justify cocaine or cannabis being considered (within the doping scheme) at the same level as anabolic steroids, with the same level of ban. At the very least, one athlete's use of recreational drugs does not push other athletes to compete by taking them as well, as is the case with steroids and other performance enhancers. Given that these drugs do not confer an advantage or change the nature of the competition, deciding whether athletes should be taking them is a matter for national lawmakers, not WA

Do Athletes Have a Contract With WADA?

Annelize du Pisani argues that the law of contract provides ‘meaningful insight' into the strict liability principle. This is based on the ‘widely accepted’ principle that athletes and governing bodies have a contractual relationship – this is in fact set out in the introduction the anti-doping code itself. Under Article 2.1 and 2.2 of the Code, it is the athlete’s personal duty to ensure that no prohibited substance enters his or her body, and this is a contractual obligation. The Court of Appeal confirmed that such a contract could be inferred in Korda v ITF Ltd (t/a the International Tennis Federation).

The contractual argument has been likened to that of a debtor by Pisani - if the parties do not properly perform their contractual promises, it will lead to a breach. The intent and guilt of a debtor only matters when determining the extent of liability. This is similar with an athlete, whose intent and guilt will affect the severity of the sanction, but not the existence of a breach. This contractual argument is perhaps the best way to view the rule for athletes, dealing with the ethical element by effectively removing it - athletes have a duty and must not breach it, regardless of the ethics of the rule.

Conclusion

It is clear that even though the presumption of innocence is an inherent human right, it does not follow that strict liability is unreasonable in criminal or civil law, nor in the context of sport. For WADA’s purpose of eradicating doping in sport, bearing in mind the spectators’ interest in sporting integrity and the spiralling litigation costs and real privacy violations which would occur if proof of guilt were necessary, the strict liability rule is a necessary one.

However, it must be emphasised that WADA should stick to their scope, and although protecting the health of athletes is a goodwill gesture, they may wish to reconsider whether this is actually their business, particularly with regards to recreational, non-performance enhancing drugs. At the same time, WADA must also be credited for reducing the sternness of their code with the inclusion of Article 10, which does at least consider the intentions of athletes.

To suggest that strict liability is not compatible with Art 6(2) ECHR ignores consistent case law and fails to consider WADA’s legitimate reasons for adopting such a rule. The strict liability rule is harsh, and to many controversial, but it is not unreasonable in the fight against doping.

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Tagged: Contract Law, Regulators, Sport Law

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