Criminalisation of doping in sport

Criminalisation of doping in sport is not a new concept: it comes as a result of the realisation that self-regulation cannot adequately and effectively deal with this issue. However, the invocation of such powerful machinery as the criminal law needs to be made with reference to sufficient reasons that can justify its application in this area.

The main justifications for the prohibition of performance-enhancing substances and methods are well documented elsewhere and I do not intend on exploring such justifications here. The present work aims to explain and develop further the 'public interest' theory as a main justification for the application of criminal law on anti-doping violations.

Regulatory mechanisms

Much of the objection to the use of performance-enhancing substances and other doping methods in sport is founded on issues of unfair competition and health, as well as the protection of the image of sport and other Corinthian values. These justifications are found in several documents of regulatory mechanisms and form the basis upon which all such mechanisms are founded and executed. But such reasons are not enough to justify the application of criminal law. This is because opponents of criminalisation of doping argue convincingly as to the limitations of the rigid and often dogmatic nature of criminal law, with reference primarily to the rights of the individual.

Another argument is that the nature of the current anti-doping framework of sports governing bodies is of a disciplinary character. When an athlete wishes to participate in competitions, they have to accept, unilaterally, the regulatory framework of their governing body. This, in essence, creates a contractual relationship between the athlete and the governing body, which means that both parties are bound by its terms. The terms, however, are drafted by the governing body and are imposed on the athlete. The athlete, therefore, submits to these terms and agrees to follow them, irrespective of whether this agreement is supported by a valid consent, based on an informed decision. The athlete, consequently, agrees to submit to referential authority. If such authority is bypassed by the athlete, in the case of an anti-doping infraction, the athlete becomes the subject of disciplinary sanctions. Consequently, the application of disciplinary law on this contractual relationship between athletes and governing bodies usually relates to the sphere of private law. But does this argument incorporate a valid justification for the exclusion of criminal law?

Private law or public law?

Unlike criminal law, the private nature of anti-doping disciplinary proceedings fails to take into account the required elements of certainty and transparency towards a reliable disciplinary procedure, which would respect the rights of the accused athlete. For example, in Squizzatto v FINA CAS 2005/A/830, the panel noted that 'regulations of sport federations, especially their doping rules, were often too strict and did not leave enough room to weigh the interests of the federation against those of the athletes concerned'. Although the proceedings are of a disciplinary nature, the actual prosecution of the anti-doping offence, and its subsequent punishment, resemble that of the criminal law. Kabaeva v FIG CAS 2002/A/386 considers the application of a higher standard of proof than is generally required in civil procedures 'because of the drastic consequences of a doping suspension on a professional athlete's exercise of his/her trade'.

The disciplinary proceedings of sports governing bodies more often than not fail to address the aims of their penalties, or, at least, evaluate the main penological principles. An athlete who is disobedient to their federation could be disciplined, but an athlete who breaches the anti-doping framework would be excluded. A two-year period of ineligibility from all competitions (which may increase to four years if the prosecuting authorities are able to establish mens rea) is hardly a soft disciplinary process, given that such exclusion has the aim of 'exhausting' the athlete financially. Notwithstanding the failure of the disciplinary process to establish a coherent and effective deterrent, the harshness of the rules in relation to the application of the penalties is not only disproportionate to the offence committed within the regulatory framework, but also creates an anathema of a kind that usually the criminal law regulates.

It follows that the nature of the disciplinary proceedings and the subsequent penalties imposed on the offender meet the criteria established in many criminal codes, whether in common or civil law jurisdictions. Some areas of self-regulation, such as sport, have immense significance to the public at large and, consequently, their activities and decisions may affect rights that would otherwise be considered public.

Public interest theory

There is little doubt that sport is embedded into society and assists with the creation of important values that relate to health, honesty, fairness, and equality. Doping destroys such values, and it is in society's best interests to identify ways whereby doping could be eliminated.

Opponents of criminalisation of doping may argue that paternalism is not the appropriate response to this problem. One would, however, be hard pressed to accept that all other forms of self-regulation have been effective to date. The paternalistic nature of criminal law and the invocation of morality are not elements that may exclude the application of criminal law on anti-doping violations. Even self-regulation resorts to the invocation of a paternalistic approach, with the World Anti-Doping Agency's (WADA) regulatory framework producing explicit references to the health risks posed by doping and the protection of the spirit of sport as a whole. Ethics in sport remain at the forefront of the public discussion and lay the groundwork for the invocation of the public interest theory.

The public interest theory suggests that doping is special and different as it threatens to destroy sport as a whole and tends to damage the development of community in financial and social terms. In the decision-making processes that incorporate large segments of society, a unified public interest has to be established before the invocation of powerful machinery, such as the criminal law, can be assumed. Doping in sport creates a situation where the public interest ought to outweigh the rights of individuals. Such justification has been illustrated in a number of sporting and non-sporting cases and forms the basis for the creation of an external regulation framework for combating doping in sport (see, for example, R v Brown [1993] 2 All ER 75).

The 'individual liberty' argument fails to take into account the coercive nature of doping, which, sometimes, is at its most insidious at the professional level. Doping has as an ultimate aim: the achievement of financial and social rewards. Notwithstanding the argument that the use of doping by elite athletes sets a destructive example for young athletes, sometimes doping is the result of coercion and hence is a non-consensual and harmful action. Such coercion can be both literal and non-literal, particularly in a situation where doctors or coaches provide athletes with prohibited and, sometimes, harmful substances. Equally, in this, the focus of the law is the criminal act of the supplier rather than the self-harming act of the athlete. Even if the focus was the harm to the athlete, we would be able to classify this as permissible soft paternalism.

It follows that both soft and hard paternalism justify the doctrine of the public interest and, consequently, allow for the creation of external regulation in the form of the criminal law. Such paternalism is inherent in the several documents of self-regulation and, given the importance of sport for society, doping in sport raises issues that are truly public and, therefore, deserve constitutional protection.

Criminalisation of doping is a positive step towards the elimination of the doping problem. It will ensure that public confidence and respect are restored, as it adheres to specific benchmarks such as transparency, certainty, accountability, and efficiency. Doping is a special issue which affects large segments of society and the application of paternalism justifies the criminalisation of harm and risk despite the individual's consent (see the decision of the European Court of Human Rights in Laskey v UK (1997) 24 EHRR 39, on the appeal from Brown). Consequently, it is submitted that state coercion is reserved for activities that pose a serious threat to society's welfare, integrity, and existence, such that it demands a public rather than private response. It follows that the public interest theory confirms that criminalisation of doping will not discriminate against individuals, but it will safeguard and protect the general good, the healthy development of society, and the protection of innocent individuals who choose to compete without resort to performance-enhancing substances and methods. Criminalisation of doping in sport, therefore,
will act in the public interest.

Dr Gregory Ioannidis is a senior lecturer in law at Sheffield Hallam University and an academic associate at Kings Chambers, with experience in high-profile anti-doping litigation. The present article is based on his PhD thesis on the criminalisation of doping in sport @LawTop20 www.shu.ac.uk