Chapter 7. The Legal Regulation of Drugs in Sports

• Pages: 236-316

7.1 INTRODUCTION

One of the most contentious issues in the modern dispensation of sport is that of doping,

which is loosely and, perhaps colloquially, defined to include, among other things, the use of

certain prohibited substances and methods that have the eect or potential eect of enhancing

sporting performance. The ongoing controversy that arises in this connection lies in the strict

dichotomy between those who believe that the regulation of doping is indispensable to achiev-

ing equality and fairness in sport, as doping is inherently antithetical to notions of ethics, fair

play, honesty, excellence, good character, fun, teamwork, courage, dedication and commitment,

while others contend that the very idea of curtailing a person’s inherent autonomy to choose

whether he or she dopes by penalizing him or her with lengthy periods of ineligibility that could

adversely aect his or her livelihood is anything but ludicrous.

Despite the blatant and gaping divergence of opinion on the subject of doping regula-

tion, it is clear that doping in sport has become a monumental issue in the twenty-first cen-

tury, warranting the adoption of an increasingly prohibitionist approach, especially in so far as

state-sponsored doping is concerned. This prohibitionist approach, characteristically marked

by a strict liability underpinning, has had immense externalities in practice, ranging from Usain

Bolt losing his 4×100-metre relay gold medal at the 2008 Beijing Olympic Games after his

colleague, Nesta Carter, tested positive for a banned substance after his samples were retested

more than eight years after the Beijing Olympics to, more recently, a member of Jamaica’s

women’s bobsleigh team failing her drug test a month before the Pyeongchang Winter Olympic

Games in 2018;1 and the list goes on.

Against this backdrop, this chapter is of particular significance as it introduces readers

to the incredibly important, but at times complex and controversial, topic of doping in sport,

largely from a Caribbean perspective. The chapter begins by providing a brief historical over-

view of doping in sports in an eort to set the scene for more nuanced discussions about the

origin and nature of the prohibited list, the principle of strict liability and the circumstances

in which anti-doping rule violations may be committed. The chapter also explores the flex-

ible sanctioning regime introduced by the World Anti-Doping Code (WADC), and provides

first-class analyses of the mitigating and aggravating circumstances that may aect sanctions

imposed on athletes and their support persons upon the commission of an anti-doping rule

violation (ADRV).

The importance of this chapter lies in the fact that it provides critical and relevant

insights into not only the myriad, and often complex, provisions of the WADC, but also the

fact that it provides necessary context and clarity in respect of the application of these pro-

visions in practice, by reference to emerging jurisprudence from across the Caribbean and,

indeed, the world.

1 Liam Morgan, ‘Jamaican women’s bobsleigh team member failed drugs test month before Pyeongchang

2018’ (Insidethegames.biz, 3 March 2018) www.insidethegames.biz/articles/1062187/jamaican-womens-

bobsleigh-team-member-failed-drugs-test-month-before-pyeongchang-2018.

CHAPTER 7

THE LEGAL REGULATION OF DRUGS IN SPORTS

The legal regulation of drugs in sports 237

7.2 BRIEF HISTORY OF DOPING IN SPORTS

Doping in sports is not at all a new phenomenon. In fact, historians believe that as early as 776

BC, Greek Olympians used various substances, including dried figs, mushrooms and strychnine

to enhance their sporting performance.2

While it is certainly debatable whether these seemingly innocuous substances did in fact

improve sporting performance, it is clear that, over time, athletes have progressively sought

to exploit any and every avenue to achieve better results in their chosen sport.3 Indeed, with

enhances in pharmacology, beginning in the early twentieth century, a number of athletes

sought to experiment with not only bizarre categories of substances, such as Thomas Hick’s

recipe of raw eggs, injections of strychnine and doses of brandy that apparently caused him to

win the Olympic marathon of 1904 in StLouis, but various categories of potentially dangerous

drugs, including amphetamines and ephedrine, often times resulting in catastrophe.4

With the rapid increase in the number of athletes engaging in the use of performance-

enhancing substances and against the backdrop of various catastrophes that sent shock waves

through sports, such as the death of 23-year-old Danish cyclist, Knud Enemark, who collapsed,

fractured his skull and died as a result of using amphetamine and a blood-vessel dilator, interna-

tional sporting bodies gradually saw the need to regulate the use of certain substances and methods

in sports. This began with the International Amateur Athletics Federation (IAAF) banning cer-

tain stimulants in 1928, followed by the International Cycling Union (UCI) and the International

Olympic Committee (IOC) in 1964. FIFA quickly followed suit, but in quite a revolutionary man-

ner, being the first international sporting body to introduce doping tests at its world championships.

Despite these developments, however, the use of banned substances and consequential

deaths and injuries remained a common feature of sport.5 Sadly, it was only when doped cyclist

Tom Simpson tragically died during the 1967 Tour de France that international sporting bod-

ies were once again reminded that their eorts to combat doping in sports were only produc-

ing pyrrhic victories. Against this backdrop, the International Olympic Committee, in 1967,

established a medical commission with the aim of developing a list of prohibited substances

and methods, leading to athletes being subject to routine blood tests to ascertain whether they

used any prohibited substance or method from 1968 onwards.6 Challenges remained, however,

as the drug tests were often counterbalanced by poor methods of analysis, so that only a few

stimulants and narcotics were ever detected.7

Sadly, poor methods of analysis proved to be only part of the problem. Indeed, it has been

reported that in the 1970s and 1980s, eorts toward eectively combating the use of prohibited

substances and methods in sport were stymied by state-sponsored doping that was practised in some

countries,8 including the German Democratic Republic (GDR). In this connection, it was reported

that the GDR government at the time administered various banned substances, especially to female

2 Åke Andrén-Sandberg, The History of Doping and Anti-doping (Karolinska Institutet, Sweden, 2016).

3 Ryszard Grucza, History of Doping (Institute of Sport, Poland, 2006).

4 Richard Holt, Ioulietta Erotokritou-Mulligan and Peter Sönksen, ‘The history of doping and growth hor-

mone abuse in sport’ (2009) 19(4) Growth Hormone& IGF Research 320.

5 Gunnar Breivik, ‘The doping dilemma. Some g ame theoretical and philosophical considerations’ (1987)

17(1) Sportwissenschaft 83.

6 Charles Yesalis and Michael Bahrke, History of Doping in Sport (Pennsylvania State University and Human

Kinetics Champaign, USA).

7 Gunnar Breivik (n 5).

8 John Gleaves, ‘A Global History of Doping in Sport: Drugs, Nationalism and Politics’ (2004) 31 The Inter-

national Journal of the History of Sport 815.

238 The legal regulation of drugs in sports

athletes, thereby resulting in their domination in several sporting disciplines for over a decade. This

unfortunate development was complicated by the fact that the GDR used various methods to avoid

detection of prohibited substances, while, in other countries, athletes resorted to naturally occurring

hormones, namely testosterone, to improve their sporting performance.

The unprecedented use of banned substances in sports once again gained international

attention when Ben Johnson, the 100-metre runner, tested positive for an anabolic steroid at

the 1988 Olympic Games in Seoul, South Korea, and, again, when police conducted numer-

ous raids at the 1998 Tour de France, in the process recovering a large number of prohibited

medical substances.

Against the backdrop of increasing tensions among athletes and governments and suspicions

by various media houses of systemic doping in sports, the International Olympic Committee

convened the World Conference on Doping in Sport in Lausanne, Switzerland, in 1999.9 At

this Conference, The Lausanne Declaration on Doping in Sport was adopted. It recommended the

creation of an Inter national Anti-Doping Agency, to be called the World Anti-Doping Agency

(WADA). WADA was formed in 1999 on the basis of equal representation from the Olympic

movement and public authorities, namely international sport federations and most of the gov-

ernments across the world, in an eort to develop a single code applicable and acceptable for all

stakeholders. This accounts for the drafting of the World Anti-Doping Code, which exists today.10

To ensure the eective implementation of the code, some 1,200 delegates representing

various stakeholders met at the second World Conference on Doping in Sport in 2003. Against

the backdrop of almost universal consensus, the code entered into force on 1 January2004,

and was adopted in late 2005, after some 184 countries signed the Copenhagen Declaration on

Anti-Doping in Sport. In a distinct show of these governments’ intention to implement the World

Anti-Doping Code, UNESCO’s International Convention Against Doping in Sports was ratified.11

The convention represents the first time that governments around the world have agreed to

apply the force of inter national law to the regulation of doping. This is important because there

are specific areas where only governments possess the means to take the fight against doping

forward. The convention also helps to ensure the eectiveness of the World Anti-Doping Code.

As the code is a non-governmental document that applies only to members of sports organiza-

tions, the convention provides the legal framework under which governments can address spe-

cific areas of the doping problem that are outside the domain of the sports movement. As such,

the convention helps to formalize global anti-doping rules, policies and guidelines in order to

provide an honest and equitable playing environment for all athletes. In this context, signatory

governments (States Parties) are required to take specific action to restrict the availability of

prohibited substances or methods to athletes (except for legitimate medical purposes), including

measures against tracking; facilitating doping controls and supporting national testing pro-

grammes; withholding financial support from athletes and athlete support personnel who com-

mit anti-doping rule violations, or from sporting organizations that are not in compliance with

the code; encouraging producers and distributors of nutritional supplements to establish ‘best

practice’ in the labelling, marketing and distribution of products that might contain prohibited

9 Rudhard Klaus Müller, ‘History of Doping and Doping Control’ (2009) 19 Handbook of Experimental

Pharmacology 1.

10 Giuseppe Lippi, Massimo Franchini and Gian Cesare Guidi, ‘Doping in competition or doping in sport?’

(2008) 86 British Medical Bulletin 95.

11 The following Caribbean Community (CARICOM) countries have ratified or acceded to the Anti-Doping

Convention: Jamaica (2 August2006); The Bahamas (12 October2006); Barbados (21 December2006);

Trinidad and Tobago (3 September 2007); Saint Lucia (7 December2007); Saint Kitts and Nevis (14

April2008); Grenada (12 January2009); Saint Vincent and the Grenadines (25 August 2009); Haiti (17

September2009); Guyana (6 May2010); Dominica (28 November2011); and Belize (16 December2011).