Will an athlete who is caught using performance enhancing substances be guilty of a criminal offence?

Doping in sport

The use of performance enhancing substances in sport is currently a huge issue as there seems to be no potential of it decreasing. Currently athletes and individuals involved with athletes are continually developing new techniques and substances which make it extremely difficult for them to be detected when athletes are the subject of a drugs test.

It currently seems that the authorities are one step behind the drugs cheats as when a potential method of increasing performance through the use of certain substances has been found invariably the drugs cheats have already moved on to another method.

The prohibition of the use of performance enhancing substances

The prohibition of the use of performance enhancing substances is a matter which is dealt with directly by the individual sports following a system of self regulation. For example if a badminton player was found to be guilty of a doping offence they would be sanctioned by the governing bodies in charge of that particular sport.

With the creation of the World Anti-Doping Agency (WADA) and the WADA Code there is some harmonisation with the penalties and the banned substances but this is not complete across all sports.

Is doping a criminal offence in the UK?

The use of performance enhancing substances in UK Sport is not covered by the criminal legislation concerned with the use of illegal drugs. The substances used in sport are banned due to their performance enhancing effects which have the effect of reducing the competitiveness of that sport; however, they are not viewed as controlled substances under the Misuse of Drugs Act 1971. It essence they may have an effect on the sporting competition but they are not illegal.

Would there be any possibility of making the use of them illegal under the criminal law?

In Austria since 1 January 2010 doping in sport is not considered to be serious fraud under Section 147 of the Austrian Strafgesetzbuch (StGB).

What does this clause state?

This clause states that any individual who has cheated by using or facilitating the use of a prohibited substance or forbidden method under the Anti-Doping Convention will be guilty of fraud.

Will the individual caught doping then be liable to a prison sentence?

The individual caught doping will be liable to a standard prison sentence of three years. However, if the damage which has been caused as a result of the doping exceeds EUR 50,000 they will be liable to a sentence of up to 10 years imprisonment.

Would this be a possibility for the UK?

Clearly it would be extremely difficult to frame doping offences in sport under the Misuse of Drugs Act as that would criminalise the general use of many products which when used by the general public have no criminal element at all.

This means that framing cheating in sport under the rules of serious fraud could be a potential way to go, however, whether it will be regarded as fair to provide athletes found guilty of doping with a potential 10 year jail sentence may be viewed as taking it a little too far.

What would be the advantages of criminalising doping in sport?

The following may be seen as advantages of criminalising doping in sport:

  • The legal framework of the criminal law

  • The deterrent factor

  • The fact it will be done by a public prosecution

Unlock this article now!

 

For more information on:

  • The legal framework of the criminal law
  • The deterrent factor
  • Public Prosecution
  • What would be seen as the disadvantages of criminalising doping in sport?
  • Burden of proof required by the criminal law
  • Reducing the competitiveness of certain competitions