Anti-Doping: Strict Personal Liability Standard
By Farhan Aziz
Irvine, CA

In the aftermath of arguably Pakistan’s most depressing sporting scandal to date, Pakistani fans are understandably stunned, embittered, and perplexed by the news that two of its favorite heroes have been charged, convicted and sentenced, outside a court of law, for testing positive for Nandrolone.
Some realists predicted this outcome but were unsure about the exact punishment, while the vast majority were confident that the Pakistan Cricket Board’s (PCB) independent drug tribunal would accept ‘ignorance’ as a valid defense for both players.
In its current form, the World Anti Doping Agency’s (WADA) code, which is accepted by virtually all major sports organizations around the world (including the PCB), attaches a strict personal liability on the athlete - there is no presumption of innocence if an athlete tests positive for a banned substance. WADA’s code is designed to protect the “athlete's fundamental right to participate in doping-free sport and thus promote health, fairness, and equality for athletes worldwide." In this regard, once an athlete tests positive for a banned substance, he/she is guilty and as explicitly stated in Article 2, “fault, negligence, or knowing use” need not be demonstrated in establishing a doping violation.
There is growing debate in sporting circles as to the fairness of the strict liability standard applied by WADA. WADA argues that it is a “laudable policy objective not to repair an accidental unfairness to an individual by creating an intentional unfairness to whole body of other competitors. This is what would happen if banned performance-enhancing substances were tolerated when absorbed inadvertently. Moreover, it is likely that even intentional abuse would in many cases escape sanction for lack of proof of guilty intent. And it is certain that a requirement of intent would invite costly litigation that may well cripple federations.”
Under pressure from human rights observers and opponents of the strict liability standard, WADA introduced in 2003 two provisions; 10.5.1 and 10.5.2 in an attempt to balance out the strict liability standard, by providing the athletes an opportunity to have their sanction reduced or eliminated based on “exceptional circumstances.” Under these two provisions, the only avenue for an athlete to establish “no fault or negligence” is to prove that “sabotage by a competitor, despite all due care” resulted in a positive test. “No fault or negligence” is not offered to the athletes who provide evidence that they were ingesting contaminated or mislabeled vitamins/supplements, or that the administration of a prohibited substance by a personal physician or trainer was without their knowledge/consent or that their food/drink was sabotaged by a spouse, coach, or other closely related individual. Instead, such situations may establish “no significant fault or negligence” which could mean a reduced sanction for the athlete.
By the time you read this, the PCB’s appeals committee may have reviewed and passed judgment on the appeals filed by Asif and Shoaib. Based on recent statements (early November) made by the current chairman of the PCB, it appears that the PCB is looking to the International Cricket Council (ICC) for guidance on the appeals process. If this is reality, then WADA guidelines should apply, and unless both athletes can prove that the test was wrong or it was not their urine that was tested, they are both still guilty of testing positive for Nandrolone and the original sanction of two years for Shoaib and one year for Asif will stand. However, if the PCB succumbs to public pressure, and more interestingly recognizes the weaknesses of WADA’s strict personal liability system of justice, we may well have a new set of standards created to determine an appropriate level of punishment, if any, that is proportionate to the athlete’s degree of fault - this certainly would not be well received by WADA since it would be considered a departure from its code.
It is interesting to note that most American professional sports organizations, including the National Football League (NFL), Major League Baseball (MLB), and the National Basketball Association (NBA) follow their own punishment standards which have been blessed by the professional players association for each league through their respective collective bargaining agreements. Recently, a San Diego charger tested positive for Nadrolone, and was subsequently suspended for four games (that’s 25% of the season). A major league pitcher tested positive for Nandrolone last year and was suspended for 50 games (that’s 30% of the season). Consequently, American professional sports organizations have been labeled “lenient” by WADA, since under WADA punishment guidelines, the minimum sentence for a positive Nandrolone test is a two-year suspension.
I am not sure if the PCB will be as audacious as the American professional sports organizations, but they should note that the main goal of an anti-doping program is to catch cheaters - those intending to disrespect their sport by enhancing their performance. The concept of a 'cheater' involves intent on the part of the individual involved. A system to catch cheaters, which disregards intent, is destined to sweep up many innocent individuals in its path, including the occasional “village idiot.” While I agree in principle with strict personal liability (you are responsible for what you ingest) I sincerely believe that punishments should be based on the degree of fault.


Editor: Akhtar M. Faruqui
2004 . All Rights Reserved.