A Controversy Over The Strict Liability Rule Regarding Doping In Sport

In 1999, the WADA was founded following the world conference on Doping in sport. 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 Ben Johnson being critical factors which ultimately led to WADA being the main core in bringing sport back to ‘what it was’. There was a genuine concern for not only the cheating in sport, but the health on the athletes and the repercussions it could have on the youth of the next generation of athletes.

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For any area of disciplinary law, which needed severe regulation, the imposition of strict measures was not only wanted but required. Undoubtedly, for any authority to take back control of sport, perceivably harsh procedures had to be brought in. WADA sought a ‘strict liability’ and ‘whereabouts rule’. Both proving to be incredibly contentious areas in their legality and as to whether they go too far in the war against doping and instead punish those who are innocent. Of course, there is a general acceptance that in order for sport to keep its integrity it needed WADA. However, sport needs a WADA that polices by consensus not diktat.

This essay will focus on the strict liability rule and whether it is actually needed within sport, or whether WADA are dictating beyond its jurisdiction encroaching in an unethical manner, which actually is incompatible with article 6 of the ECHR. In order to justify any measure which hinders a person’s rights, the measure must be proportionate and have a legitimate aim. One will work through the strict liability rule as to whether the justifications are proportional to the war on drugs as it is, or in fact drastic modifications need to materialize in order to ensure that athletes aren’t being subject to an environment where their rights are clearly infringed.

The Strict Liability Rule

The rule is that an athlete is solely responsible for any substance which is ingested into their body. Whenever a Prohibited substance is found, an anti-doping violation will occur. Perhaps the most important aspects of worldwide anti-doping policy are its ‘predication on strict liability’. Often described as ‘cornerstone’ of the Code, it simply stands for liability without fault. The harsh implications of the rule have played out in the media in high profile cases, which have led to such outrage among athletes that the rule exists. Arguably the most extreme example, is with 16-year-old Raducan, who at the time was prescribed a cold remedy, which contained a prohibitive substance, despite the clear evidence she didn’t intentionally take the substance, the rule stood firm and her gold medal was stripped. This example has been a very emotive argument for eliminating the strict liability principle, but this example should not have been viewed in light of this exclusive example. It is merely an unfortunate victim which has had to pay the price for a system which was needed in sport. This rule has led to athletes having to be constantly vigilant, and admittedly shifting their focus to performance on the sport at hand, but to take an equally important approach to ensuring their supplements are not ‘prohibited’. Of course, it is conceded that this is a difficult task.

The intent element is what makes the rule so contentious, however there are good reasons for this. If intent was needed in order 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. Ultimately, crippling smaller federations, leaving governing bodies no option but to not test athletes. In order for WADA to operate to the level which its wishes to adhere to, it must set a legal principle. A negligence principle on the balance of probabilities would undoubtedly be impractical in the world of doping, especially when substances are not always typical injectable anabolic steroids, some coming in the form of contaminated products. With the burden being for the authorities to prove an athlete was negligent in allowing the substance within the body, it would be an uphill battle. This evidence would not be available in doping cases, nor do the authorities have requisite time to prove this.

In a pragmatic approach to commencing the war on doping, a positive sample, prima facie, must be the pivotal element in displaying guilt. This ‘unforgiving’ approach has found favour in the High Court, where the rule had its legality acknowledged. The court stated that sport must be drug free and the objective is laudable. Despite, the athlete drawing the argument upon restraint of trade, it didn’t prevent the court reaching its judgement that SL was right to apply in doping cases. CAS noted that it’s unreasonable and contrary to natural justice, however, innocence, is not seen to be an adequate counter argument. Ultimately, the morally innocent may suffer so that the guilty don’t escape. Furthermore, Sport is not an anomaly which strict liability applies to. Indeed, this leads to two important questions which essentially is the threat and whether the rule imposed can extinguish the threat or it can be done by other means. One must dissect this dichotomy.

The two main threats perceived by the WADA is the integrity of sport being diminished and the health of the athletes. Both dangers will be looked at in turn. The primary concern on the part of WADA is that is the spirit of the sport will be diminished. With sport playing such a fundamental part in many peoples lives and future lives to come, a ban for all athletes, no matter the excuse seems a completely justifiable approach. Nonetheless, its leads to the question of what is ‘enhancement’. Many could put forward the argument that different equipment’s matched with training regimes and diet could be ‘enhancing’. With the use of doping, it is clear it is seen as an unacceptable way of enhancement. Despite diet and different training regimes, it’s still the athlete performing with options which are available to them within what is acceptable in modern society. An analogy could be with Formula One. All drivers are world level, yet whoever wins the championship is often down to who has the best car. This could translate to who has the best drug. This is not how sport wants to be viewed, at the moment.

Undoubtedly, drugs would transform the nature of competition. The legal enhancers merely help with minor defects and cannot be said to make a substantial difference in who wins a competition, otherwise they would be prohibited. Drugs should be viewed as more than a performance enhancer, instead that their use transforms the competition to something which is not envisaged within sport. This is a robust argument which can withstand many criticisms whilst defending the strict liability rule. Despite whether it was inadvertent or not, its altered the contest, it’s not seen within sport, one is almost no longer an ‘athlete’ in the nomenclature of sport. Therefore, the strict liability rule must be applied.

Further, Rouiller elucidates that the rule is unquestionably proportional. A measure which hinders on the human rights of a person is only permissible if is apposite to the public interest. There is no less intrusive measure which can achieve this, or there hasn’t been one suggested within WADA or elsewhere which would have the same effect and lastly the measure does not go beyond what is required. This last point needs elaborating. One of the justifications by WADA is protection of health for athletes. One can assert that the strict liability rule is disproportionate when it comes within the health realm.

The argument of health within strict liability is an unconvincing argument, and can certainly be seen as WADA policing areas outside of its legal remit. To ban athletes for use of recreational drugs is an over paternalistic measure, considering these recreational drugs are often not ‘performance enhancing’. This should not be an area for WADA to dictate. Instead this the perfect platform for governing bodies to provide the adequate rehabilitation for these athletes instead of simply grouping them with ‘drug cheats’. O’Leary points out that this is clearly unethical. WADA has no right to ‘try and protect the health of the athletes’. As people, we are free to take these substances if we wish, why does this change for athletes. It’s hard to justify cocaine or cannabis being the same level of anabolic steroids, meaning they both deserve the same ban. For example, one athlete’s use of ‘cocaine does not encourage other athletes to use it in the same way EPO or steroids might’. Health should not be an aim by WADA, instead just an upshot profit to the target of preventing the spirit of sport being thwarted.

Finally, many academics and advocates for the strict liability approach suggests its simply confirmed under the law of contract. It stems from the fact that under 2.1 and 2.2 of the code, that is it’s the athlete’s personal duty to ensure that no prohibited substance enters his or her body. Furthermore, the court confirmed that such a contract can be inferred. The contractual argument has been likened to that of a debtor which does not perform properly their contract, it will lead to a breach. It is touched on that the fault of a debtor only matters when determining extent of liability. Again, this is similar with an athlete as to how long the sanction will be. This is a simplistic argument but it deserves merit, taking the emotional stance out of the input of athletes. This contractual argument is perhaps the best way to view the rule for athletes and despite whether it’s ethical, athletes have a duty and must not breach it.

Despite that, the ethical prevalence of the area has led to the strict liability rule being a futile area, leaving many athletes ‘unjustly’ banned. It’s important to note, the 2015 amendments of the Code certainty dilute the severity of the Code. Under Article 10.5 of the Code, 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. WADA are taking a more lenient approach to ensure those who inadvertently take prohibited substances aren’t viewed in the same manners as intentional cheats.

Conclusion

It is clear that even though the presumption of innocence is an inherent human right, it’s not absolute within the context of sport. The issue which has been debated is whether the strict liability rule is underpinned by an important rationale. It is the opinion of the author that WADA’s purpose of eradicating doping in sport, bearing in mind keeping the competitive nature and spirit of sport intact and the costly litigation which would incur if proof of guilt were necessary, the strict liability is a necessary rule. In short, regardless of intent, the substance is within the body therefore their performance is enhanced illegitimately. However, it is must be emphasised that WADA should stick to their scope, and although the health of an athlete is a goodwill gesture from WADA, they may wish to reconsider whether their approach from this viewpoint is actually their business. Further merit must be awarded to WADA having reduced the sternness of their code with the inclusion of Article 10 WADC, creating more proportionality. To suggest that the rule is not compatible with art 6(2) ECHR is false and fails to consider the true reasoning by WADA’s implication.

14 May 2021

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