The misuse of performance enhancing substances (doping) in sport is a big issue, with serious implications for individual sportsmen and women who fail drugs tests. There are also wider implications. In 2017, for instance, following the high profile disqualification of many Russian athletes from the 2016 Olympics following the revelation of state sponsored doping, it was announced that Russia is also disqualified from the 2018 Winter Olympics.
Doping continues to be a prevalent problem, with UK Anti-Doping calling drug use in sport as “fast becoming a crisis”.
The prohibition of the use of performance enhancing substances is a matter currently dealt with through self-regulation of individual sports. For example, if a badminton player was found to have failed a drugs test, they would be dealt with appropriately by the governing body in charge of badminton (Badminton England).
That said, with the creation of the World Anti-Doping Agency (WADA) and the WADA Code there is a level of harmonisation of penalties and the banned substances across some (but not all) sports. The WADA Code has been adopted by than 600 sports organisations internationally.
It is important to know that there is ‘strict liability’ on the part of the athlete where a blood or urine sample has produced a result showing the use of performance enhancing drugs. This means that the athlete will be held responsible and must bear the sanctions imposed on them – whether or not they intended to use or overuse a particular substance. However, if the athlete can show they unintentionally or unknowingly took a prohibited substance (or exceeded the limit allowed), there is flexibility in what sanctions may be imposed.
Not in the UK: the use of performance enhancing substances by UK athletes and sporting individuals has not been criminalised. However, there are calls for it to be made a criminal offence. Whilst the use of various substances in sport are banned due to their performance enhancing effects, they are not controlled substances for the purposes of criminal offences under the Misuse of Drugs Act 1971.
Doping is, however, a criminal offence in Italy, France and Australia.
Whilst there are calls for doping in sport to be criminalised, there is no sign of the Government taking any steps to introduce legislation to that effect – even though there has been a recent review of the anti-doping rules in the UK. Opponents do not believe making doping a crime would be effective, and say sanctions by the sporting bodies are more effective.
If doping in sport was liable to public prosecution in the criminal courts, more resources across the police and criminal justice system would be needed for the purposes of investigating claims of doping – further stretching an already overstretched criminal justice system.
There may also be the issue of the burden and standard of proof required by the criminal law in order to secure a conviction. The prosecution, for instance, may need to satisfy the court that the athlete on trial took performance enhancing drugs in breach of the law beyond reasonable doubt. Alternatively, (though perhaps less likely) it could be made a strict liability offence.
Given the prevailing inconsistencies in anti-doping measures, introducing criminal laws could reduce the competitiveness of certain competitions because participants could be fearful of inadvertently committing an offence.
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Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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