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Magdalinski, Tala; Warren, Ian --- "Sport: civil liberties and athletes" [2004] AltLawJl 22; (2004) 29(2) Alternative Law Journal 95

SPORT
Civil liberties and athletes

TARA MAGDALINSKI[*] and IAN WARREN[#] discuss notions of 'fair' play in the realm of drugs and sport.

In 1999 the World Anti-Doping Agency (WADA) was founded under the auspices of the International Olympic Committee with the intention of regulating and synchronising testing and appeal procedures relating to performance enhancing drugs in sport. Sporting federations and public sports agencies at all competitive levels throughout the world are also heavily influenced by WADA's policies and penalties for detected breaches. The foundation of a supra-national organisation that can dictate national and organisational doping policy is problematic, particularly as WADA has wide-reaching powers to coerce both Olympic and non-Olympic competitors and sports organisations to conform to its vision of the athletic world. For individuals, anti-doping codes seem to infringe basic civil rights and mirror several mainstream cases where rights of privacy are discarded in favour of ensuring clean athletes. just like civilians, who may be kept without charge pending trial under new 'security' legislation, an athlete suspected of breaking the laws of sport is essentially regarded as guilty until proven innocent. This reversal of the onus of proof within and beyond the realm of drugs in sport reveals numerous regulatory contradictions associated with vague and problematic notions of 'fair' play.

The zeal with which contemporary sports administrators, and the Olympic movement in particular, work to ensure drug-free sport is predicated on the assumption that doping is antithetical to the 'spirit' and ethos of sport. Efforts to prevent doping are seen to protect some essential or intrinsic value of fairness in sport. Protecting athletes and their health is often cited to justify stemming the flow of performance enhancers. All recognised policies involve random testing and mandatory penalties. Each prohibitionist framework targets an extensive list of banned substances, including a range of prescription, non-prescription and recreational drugs deemed to influence athlete physiology and performance. Seemingly innocuous substances such as caffeine, as well as sophisticated anabolic steroids and blocking agents, are included in most extensive lists of banned substances in contemporary sport. In addition, 'blood doping' is regarded as performance enhancing and is also banned. Significantly, to encapsulate a wide variety of banned methods of performance enhancement, definitions of prohibited substances are so broad as to render all manner of training as 'performance enhancement'. Further; a doping offence is said to have occurred if a banned substance is present in the athlete's body, if an athlete refuses or avoids a test or neglects to provide details of their whereabouts for out-of-competition testing, or is merely in possession of banned substances. Intention, motive or the 'mental element', a common prerequisite for a criminal conviction, has no bearing on these strict liability doping policies.

Athletes found to have violated anti-doping policies in competition automatically have their results invalidated. The onus is then placed on the athlete to either prove their innocence or the presence of any mitigating factors that may have lead to the breach. If the administration of sporting rules is considered a benchmark for rule­ making and enforcement in other social spheres, such mandatory and random testing policies are fraught with unfairness. The complex of strict liability, mandatory penalties, and minimal rights of internal or external judicial appeal highlight how compulsory administrative requirements undermine notions of justice, rights to a fair trial, and the individual's power to challenge scientific, bureaucratic, and highly discretionary decision­ making policies.

The WADA Code and most similar codes based on this model fail to mention the protection of athletes' rights. Public and private domestic sports agencies adopting similar anti-doping codes operate under principles of administrative law. Under such policies, athletes are deemed totally responsible for any banned substance in their body regardless of how it was ingested or the existence of any legitimate non-cheating motives. Indeed, the full onus is on the athlete to maintain a drug free body, seemingly as a privilege for the right to participate. Due to the influence of WADA's policies on domestic sports organisations throughout the world, a growing range of non-elite team and individual athletes seem vulnerable to embracing these codes largely at the expense of athletes' rights at all sporting levels.

There are some disturbing parallels between recent legislative changes both in Australia and internationally that allow for the detention of civilians without charge and concomitant assumptions of guilt. Moreover, greater scientific reliance on DNA technology in criminal trials indicates how protections for the accused, such as the right to silence, shift their meaning in controversial cases where enforcement agencies demand intimate body samples to exonerate suspects from further pre­ arrest and pre-trial investigations. just as guilty athletes are automatically assumed to have breached the rules through a positive test and are stripped of medals on the basis of a single piece of evidence, today's criminal suspect is far more likely to be detected through a process of scientific elimination. In other words, the scientific credibility of testing methods ensures guilt is presumed where a positive sample is detected unless very compelling evidence to the contrary is available.

The Australian Sports Commission's anti-doping policy indicates that the 'onus of proof is on the athlete. This provides some prospect for legitimate therapeutic drug usage and can be extended to situations where exceptional circumstances are evident Few clues help to clarify the limits of these exemptions. In most publicised cases, the mere existence of a positive test ensures sufficient public notoriety to label the suspect guilty without the protections of an adversarial trial where the presumption of innocence holds. Interestingly, the Commission recognises 'legitimate use of drugs in sport is under the supervision of a physician for a clinically justified purpose', thereby expressly rendering the notion of 'drug-free sport' redundant.[1]

Two major concerns involve whether individuals should be compelled to provide bio-medical samples at any level of sport, and the ethics of storing, maintaining and re-testing samples once they have been taken. Australian sports lawyer Hayden Opie suggests tempered policies are needed to ensure mandatory testing procedures and penalties consider the merits of individual cases and any pertinent justifications for a positive doping test.[2] The combination of mandatory testing and punishment aims to ensure an appropriate 'dry-out' period for the affected athlete, under the guise of maintaining a level playing field. Uniform global policies are unlikely to be the best means to forge this and related sporting ideals given the intrusive, personal and highly debatable character of most prominent or high profile cases reported in Australia and elsewhere in recent decades.

REFERENCES


[*] TARA MAGDALINSKI teaches in the School of Australian and Cultural Studies at the University of the Sunshine Coast.

© 2004 Tara Magdalinski

[#] IAN WARREN teaches in the School of Law and Legal Studies at La Trobe University.

© 2004 Ian Warren

[1] Australian Sports Commission Anti­ Doping Policy, (2003) <http://www.ausport gov.au/asdcorpdocs/drugpol.htm> at 19 January 2004.

[2] Hayden Opie, 'The Lessons of Warne' (2003) 38 Australian Society for Sports History Bulletin 5-8.


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