The unreliable self-regulation of sport

On the morning of Sunday 2 August 2015, it was revealed by the Sunday Times ?and German broadcaster Westdeutscher Rundfunk that leaked documents from the International Association of Athletic Federations (IAAF) showed sportspersons’ blood tests were recorded with ‘abnormal values.’ I was not surprised, at all. 

According to reports, the data examined in ?the leaked documents contained the following:

Anti-doping tests conducted from 2001 to 2012, during the Olympics and World Championships;

• Some 12,000 blood tests from 5,000 track and field athletes;

• The stat that one in seven athletes had results which were ‘highly suggestive of doping or at the very least abnormal,’ according to the two scientists responsible for the data analysis, Robin Parisotto and Michael Ashenden; 

• Some 146 medals (55 gold) were won by athletes in endurance events who recorded suspicious results in the aforementioned ?tests; and

• Some ten medals in the London Olympics ?were won by athletes who recorded such abnormal tests.

Before discussing the consequences of ?these revelations, it is necessary to explain the significance of the allegations and their specific elements, with particular emphasis on the issue ?of blood doping. This will establish whether any disciplinary offences have been committed, and whether any possible sanctions could be justified and be proportionate.

Increasing performance

According to the World Anti-Doping Agency (WADA), blood doping is the misuse of certain techniques and/or substances to increase one’s red blood cell mass, which allows the body to transport more oxygen to muscles and therefore increase stamina and performance. There are three known substances and methods used for blood doping: 

• Erythropoietin (EPO); 

• Synthetic oxygen carriers; and 

• Blood transfusion. 

Although such techniques cannot increase ?the maximum force the muscle can generate, nevertheless they will allow the muscle to do more work for longer periods of time. This, in essence, may be enough to give a competitive edge to a winner, or, to put it more simply, this could be ?the difference between first and second place ?on the podium. 

Alleged offences

One may suggest that if the values in athletes’ ?tests are abnormal, then some sort of malpractice is taking place. If that is the case, then any allegations of malpractice need to be established with corroborated evidence, which would not allow ?any doubt as to the offence allegedly committed. ?More importantly, any such examination must take place in private and not in public. Media trials only serve to destroy individuals’ reputations. 

The information, with reference to blood ?test data, would have to be analysed, evaluated, and examined by expert witnesses. From my experience in similar cases the analysis of such data usually tends to be subjective. In the premises, one would need to accept the submission that such information does not constitute proof of doping, and those prosecuting may find themselves labouring under great difficulty in establishing, with certainty, the ingredients of the offence. 

Admissibility issues aside, the legality of the evidence and its subsequent probity may determine the future of any disciplinary process, ?as well as the procedural economy of the relevant adjudicating panels. Any such panel of judges would have to be entertained with submissions as to the rights of the individuals affected, including, but not limited to, submissions on human rights, proportionality, and the balance of interests between the parties and those of the sport.

One important argument, however, relates to the inevitable analysis of self-regulation. As things stand, the relevant sporting governing bodies have a legal and moral duty to ensure the application of transparency, fairness, and equality. Above all, they must observe confidentiality, particularly during the sensitive stages of investigation. Given the seriousness of the allegations and the rights of ?the individuals who could be affected, questions could be raised as to the competence, ability, ?and willingness of the relevant sporting bodies ?to become the investigators, prosecutors, judges, ?and executioners of a matter which very much impacts the future of their own existence. 

Continuity and consistency

It is submitted that although the seriousness ?of the allegations cannot be underestimated ?and dismissed at face value, in all fairness, reference must also be made to the consideration that just because some of the tests show abnormal values does not predicate that the athletes in question were cheating. The analysis of such ?data is complicated, subjective, and it has to be ?analysed in the light of particular circumstances characterising each individual athlete. Above all, such data has to be analysed with reference to continuity and consistency. 

I recall back in 2004–2006, when I acted as counsel for the Greek sprinters Konstantinos Kenteris and Ekatereni Thanou before the Court of Arbitration for Sport (CAS). The IAAF, acting as the prosecuting body with the assistance of WADA, had attempted to introduce evidence of abnormal values in the sprinters’ previous anti-doping tests, specifically their red blood ?cells, in an attempt to justify the charges against the athletes. The IAAF went even further and attempted to introduce an expert witness ?to give emphasis to the data of these tests. ?The expert witness failed under cross-examination to establish with certainty the consistency and reliability required for corroboration of such evidence. Our expert witness dismissed, one by one, the insinuations produced by such evidence, and was able to show that such abnormal values were not the result of systematic doping. Subsequently, CAS had to dismiss and reject such evidence as inconclusive. 

It follows, therefore, that any investigation into the allegations of suspected doping involving IAAF athletes and subsequent evaluation and analysis must be done with emphasis on certainty, clarity, and consistency. Those prosecuting must ensure that the probity of the evidence is such that it ?does not allow for any doubts as to its force and reliability. Any panel of judges would need to be persuaded to the ‘comfortable satisfaction of the tribunal’, which is the accepted standard of proof in the disciplinary law applied by CAS. The handling of this matter requires appropriate methods and strong evidence.

Given the enormous publicity this matter has generated, it is submitted that the relevant bodies must now work swiftly to ensure that fairness and transparency are present and applied and that confidentiality is observed at all times.

The IAAF, primarily, and the International Olympic Committee, secondarily, have a moral ?and legal duty to ensure that no questions remain unanswered. I am aware of the meticulous zeal applied by the IAAF when it comes down to suspicion of anti-doping violations. In the last ?12 years, I have acted continuously for athletes facing charges of anti-doping violations. ?The IAAF in such cases left no stone unturned in an attempt to ensure suspicions were confirmed and allegations were proven. It is time, therefore, that the IAAF ensures the same zeal and thoroughness is applied to the present allegations against it.

The newly-elected president of the IAAF, in particular, has a unique opportunity to restore ?the lost faith in the world’s governing body for athletics, without the need for reference to polemic approaches. Education is paramount and, where this fails, the rules need to be applied equally, fairly, purposively, and not pedantically.

This is a big moment for international athletics and a crucial time for the unreliable self-regulation of sport. This is the time where the rulers need to rule upon themselves. 

Modern sport

Finally, one important consideration works in tandem with the current trends of the increased commercialisation and profit maximisation principles of modern sport. Any subsequent investigation into the matter will probably inflate further issues, such as the involvement of sponsors, the re-distribution of medals and prize money ?(if this can be recovered in civil actions), as well as the recognised statute of limitations, which currently stands at ten years (this in the regulatory framework of the relevant sporting bodies). ?Such actions are lengthy, time-consuming, and extremely uncertain. One thing is certain, however, and that is the present situation constitutes a huge blow to international athletics.

Dr Gregory Ioannidis is a sports lawyer with experience in high-profile anti-doping litigation. He is a senior lecturer in law at Sheffield Hallam University and an academic associate at Kings Chambers in Manchester. He is a regular speaker on sports law for Sky News @LawTop20 www.shu.ac.uk