You are an up and coming athlete. You have finally qualified for a competition you’ve always dreamed of. You monitor everything you consume because you know you need to be meticulous about what goes into your body. Then, six weeks out, you test positive for a banned substance. Suddenly, your whole world is turned upside down and you’re told that you cannot compete and train for four years. How has this happened and what can be done?
I am writing this article because I believe there is more to be done to protect athletes wrongly accused of doping. We will unpack:
- What the current anti-doping program testing for athletes involves
- Why the process is lacking; and
- The approach sporting authorities should take to ensure that sport is kept clean without compromising athletes’ rights.
Sporting organisations and peak bodies wanting positively invested athletes need to ensure they are bringing the athletes along the journey with fair and transparent processes. This article recommends ways organisations can ensure fair anti-doping testing and procedures, with athletes accepting the need to aspire to and achieve a level playing field by way of clean sport, but importantly not at the expense of athlete rights. It is not an “us and them” approach, but rather a “together and united” approach.
The Current Anti Doping Testing Process in Australia
As part of the doping control process, here is what the current testing process for athletes looks like in Australia.
Step 1 – Sport Integrity Australia selects an athlete for testing. This could happen at any time or place as an athlete can be tested in-competition or out-of-competition.
Step 2 – An official from Sport Integrity Australia notifies the athlete.
Step 3 – The athlete reports for testing, and a collection vessel is selected (this could be urine, blood or both).
Step 4 – The athlete provides a sample. In the event that the athlete needs to draw blood, an official will draw two vials of blood. This allows the athlete to have a second analysis if one sample comes back positive.
Step 5 – You can seal the sample and your official measures the sample.
Step 6 – The athlete completes a Doping Control Form. They set out their personal information and a list of medications or substances that they use.
Step 7 – The sample is sent to a World Anti-Doping Authority accredited laboratory.
Step 8 – The athlete receives the test result.
The current process mandated by WADA (World Anti-Doping Agency), says nothing about what happens if an athlete tests positive accidentally or inadvertently.
Why Is the Current Approach to Anti-doping Testing for Athletes Problematic?
When Marion Jones won multiple gold medals on steroids at the Sydney 2000 Olympics, cheating athletes had much more advanced science at their disposal than those testing them.
That has since significantly changed.
The World Anti-Doping Authority reports that anti-doping testing for athletes has become 100 to 1,000 times more effective in the past five to ten years. For example, the amount of drugs detected in athletes is measured in picograms, which is a measure to 13 decimal places, or trillionths of a gram detected.
While this is good for punishing athletes who have done the wrong thing, it is a gross injustice for innocent athletes who accidentally or inadvertently:
- Take supplements that contain banned substances, not identified on their labels.
- Take supplements that have been cross contaminated in the manufacturing and distribution process.
- Consume contaminated food. For instance, by eating hormone-treated chicken or beef.
- Engage in sexual intercourse with, or kiss a person who has consumed drugs.
- Have physical – even accidental – contact with a person who has taken a banned substance, causing them to test positive to that substance.
Recent Doping Cases of Note
Below we explore some more recent doping cases in sports where athletes have found themselves in hot water due to accidental or inadvertent doping.
In 2009, Richard Gasquet, a world ranked French tennis player, tested positive for cocaine at the Sony Ericsson Open. Gasquet alleged that the drug was in his system due to him kissing a woman who had taken cocaine at a nightclub. Ultimately, Gasquet was cleared of all charges. The tribunal accepted that the very small traces of cocaine in his sample were consistent with him picking up small traces from kissing the lips of a woman and near her nose when kissing.
In 2016, Shawnacy Barber, a Canadian pole vaulter, tested positive for cocaine. Barber stated that he inadvertently ingested cocaine during a casual sexual encounter. Barber did not receive any suspension, but he was stripped of the Canadian pole vault title he received in 2016.
In 2019, Laurence Vincent Lapointe, a Canadian canoe sprint athlete, tested positive for Ligandrol (a modern form of steroid taken orally as a powder or liquid). She alleged that her positive test was as a result of intimacy with her partner. The International Canoe Federation determined that Ms Lapointe was the victim of a third-party contamination, and cleared her of wrongdoing altogether.
In 2019, Shayna Jack, an Australian swimmer, tested positive for banned substance, Ligandrol. She stated that she had not intentionally or knowingly taken the drug. She received a two year ban despite the Court of Arbitration for Sport confirming that she had ingested the drug accidentally.
From these examples, it is clear to see that there are some inconsistencies in how the discovery of banned substances is treated. When one person is cleared and another is not, and they are truly not guilty, how does this impact an athlete now and into the future?
In Australia, the anti doping testing program is a work in progress. For those who have inadvertently ingested prohibited substances despite great care and consideration are found guilty of doping, their lives are forever affected by something that was out of their control.
The Impact of an Innocent Athlete Found Guilty of Doping
If an athlete who has genuinely not used prohibited substances is found guilty of doping, they face a number of issues.
- Being stripped of the titles and/or medals that they received throughout their career.
- Disqualification from all facets of the sport they love for an extended period of time.
- Financial stress. If the athlete receives a ban, their income, prize money, sponsorship or government funding is likely to be cut off. This means that they will have to pay for any legal proceedings related to doping allegations out of their own pocket, meaning that some athletes will not be able to afford to run their defence case, and be forced to plead guilty.
- Additionally if they are banned from participating in their sport, this could mean that they are unable to train, or coach in this field for a number of years.
- A loss of identity. Many athletes train to compete in a particular sport for their whole lives and having to start a new career can prove overwhelming and significantly life-affecting.
- Mental health consequences. Being known as a ‘cheater’ and on the receiving end of contempt from the general public that is unwarranted.
Further, the impact on their team when they lose a member, can affect the team’s cohesiveness and unnecessarily create issues for the overall team performance.
For people who dedicate their life to sport, now and those who are coming up the ranks, more needs to be done.
What Approach Should Be Taken?
It is important that sporting authorities ensure that fair anti-doping testing occurs with athletes so that we can achieve a level playing field by way of clean sport that does not compromise athlete rights. We are talking only about specific substances such as Ligandrol, likely to be detected in athletes in small concentrations.
In our view, the best way to do this is to:
Firstly, implement a preliminary investigation system into the anti-doping testing process if an athlete renders a positive test result. At this point, sporting authorities should ask themselves whether there is an innocent explanation for the athlete having banned drugs in their system before they charge them. This could involve testing the athlete’s supplements. Doing so will eliminate unintentional or innocent contamination cases, and remove the financial burden that many athletes can’t afford in testing supplements and engaging in other scientific research that establish innocence.
Secondly, interview athletes to establish whether they actually intended to take drugs. There is German research that indicates that if an athlete were to brush past someone else who had consumed ligandrol, they could test positive within hours. The infected athlete then continues to test positive for up to two weeks after.
Thirdly, advocate that every product and supplement that an individual has access to in Australia must include all ingredients on their labels.
Finally, introduce minimum threshold levels for particular prohibited substances before it is alleged that an athlete has cheated or breached the rules. As in Shayna Jack’s case, the amount detected in the athlete’s sample is often pharmacologically irrelevant and cannot enhance performance.
It is imperative that the current anti-doping testing process is updated to be fairer to athletes and sporting organisations. If it is not, we are going to see many more athletes whose reputations and careers are forced to end early for no good reason, to the detriment of the sport, the athlete, and the nation.
Article by Paul Horvath
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Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
