What does horse sport, tennis, ice skating and cycling have in common?

A strange definition of ‘cheating’ you might say. I do understand that the world of sport has a fair number of competitors at the elite level that have little or no regard for the ‘Corinthian Ideals’ and are desperate enough to win to take banned substances in an organised fashion. It does the fight against this attitude no good however to ‘throw the book’ at the unwary and the naive.

This week Maria Sharapova revealed she failed a drug test with Meldonium in her system but this news follows hard on the indexheels of revelations that figure skater, Ekaterina Bobrova, and cyclist Eduard Vorganov also tested positive for the same drug.  Most of the reporting on this latest disclosure rather misses the point though.  The drug is on the World Anti Doping Agency (WADA) banned list but only since the 1st January 2016.  Prior to this it was being monitored but allowed as it was also taken for therapeutic benefits and this was the reason Sharapova had been taking the drug since 2006.  It may be that athletes have been taking Meldonium for its performance enhancing benefits all along but this isn’t the central issue, whilst the drug is ‘legal’ this is not cheating.  Once it became a banned substance there is of course a potential problem.  ‘Strict liability’ means that once the ban is in place there is really no way under the regulations as currently drafted that Sharapova, or any athlete, can escape a ban.  Sponsors have been quick to distance themselves from the athlete as if she is morally at fault and they do lynchnot want their products to be tainted, they will have provided for this with a ‘morality clause’ in her sponsorship contract.  But what did she do wrong?  She didn’t read an email attachment with the new list of banned substances on it.  Does this make a a cheat and morally suspect?  I don’t personally think so and I didn’t think so when I read in my PhD research about the equestrians, such as Ireland’s Dennis Lynch, who faced sanctions after the 2008 Olympics because their horses tested positive for Capsaicin, a substance derived from chilli peppers.  This substance was in a horse liniment called Equiblock designed to ease muscle fatigue.  It had been but recently banned by the FEI but Lynch hadn’t checked carefully enough.  He had opprobrium heaped on his head by Horse Sport Ireland as if he had set out to cheat which seems to me highly unlikely given the likelihood of testing and the inescapable prospect of a consequent punishment.

The problem I have with the regulations for both human and non-human athletes is that the question which ought to be central – ‘was the action a deliberate attempt to cheat’ is all but absent from the discussion in ‘court’.  The substance is there so there will be a guilty verdict no matter what.  There is then some debate about the ‘sentence’ based on whether the accused was acting deliberately or negligently.  To me this refusal to consider moral fault before establishing a verdict is just for the convenience of the ‘prosecutors’.  It is considered too difficult to prove doping infractions if deliberate moral fault must be proved, ‘we cannot, without blinding reason and cause, move one millimetre from strict liability – if Tiger woodswe do, the battle to save sport is lost’ says Lord Coe, virtually no one disagrees and careless athletes become ‘collateral damage’ in the war on dopers.  Coe’s assertion does not apply to all sport anyway.  USGA Golf has a ‘discretion rule’ which allows the USGA to waive a strict liability offence which would otherwise mean disqualification.  Tiger Woods benefited from such in the Masters Tournament in Georgia in 2013 when he inadvertently signed for an incorrect score.  Furthermore in criminal law many strict liability offences have a defence built into them which means that if the accused did everything reasonably necessary to avoid the commission of the offence they escape liability.  Not so in doping and no proposals to bring one in either.  The offensive thing is that whilst such as Sharapova and Lynch have their reputations tarnished for being unwary the real cheats are getting away with it by being more technologically sophisticated than WADA are.  Even the former DG of WADA , David Howman admitted to the Sydney Morning Herald in 2011 that only ‘dopey dopers’ were being caught under the current procedures.

Ironically it is horse sport that potentially has the game changer here, although it has barely been noticed.  It was hrace horsesorse racing that was the first sport to have any form of doping control.  This was at the turn of the 20th Century in response to American trainers using cocaine to jazz up the performance of their horses in British races.  Now, tucked away in a paragraph of a report by Dame Elizabeth Neville into integrity issues in horse racing there is the suggestion that rules, such as those regulating doping, should be written around a series of principles rather than in detailed and rigid paragraphs which must be read literally.  One would hope the principles would be written around the concept of cheating and not penalise the lack of currency of an athletes pharmacological knowledge.

One thing is sure, what we have now, in relation to anti-doping for human and non-human athletes isn’t working, we need a change of tack.  After all as has been attributed to Albert Einstein, Mark Twain and Ben Franklin at one time or another ‘the definition of insanity is doing something over and over again and expecting a different result’.

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About Jonathan Glen Merritt

Senior Lecturer in Law and Criminology, Deputy Head of Research and a member of the Sports Law Unit at Leicester De Montfort University School of Law, UK. PhD due for completion 2016 with a thesis concentrating on the field of governance and disciplinary structures in equine sports. Also competing as an owner and rider with British Dressage. Obviously all views expressed are author's alone except where a guest author has contributed.
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2 Responses to What does horse sport, tennis, ice skating and cycling have in common?

  1. Great article with plenty of ‘food for thought’ for my essay – however, what alternative is there to strict liability when drugs are involved in sport? Do the prohibited lists need rationalized/updated?

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    • Good to hear, there are actually a number of alternatives although none currently ‘in favour’. For instance Professor Jack Anderson, a CAS arbitrator amongst other things, has written about a ‘public health’ approach similar to that applied to street drugs in some jurisdictions. That is to say allow PEDs but with appropriate health warnings, education and monitoring. In horse racing itself the Neville Review 2008 recommends a complete redrafting of the RoR with principles being at the forefront rather than specific detailed ‘legislation’ -this would mean the central question to be addressed is ‘did the accused seek to cheat/harm or ignore harm to the horse’ so often lost in overly technical hearings based on strict liability.

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