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.
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