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

The legal framework of the criminal law

If the use of performance enhancing substances in sport was a criminal offence under the laws of England and Wales then the legal framework of the offence would be set by statute meaning that the same conditions would apply across all sports in the UK. This would remove the differences between the self regulation of different sports and would increase harmonisation across sports in the UK. However, there would be differences between the criminal laws of different countries.

The deterrent factor

Many would argue that if an athlete was liable to be imprisoned for the use of a performance enhancing substance this would act as more of a deterrent than simply being handed a two year ban for a first offence and a lifetime ban for a subsequent offence. Whether this is the case is up for debate as many may feel that the techniques are so superior that they are unlikely to be caught or may see it as a necessary risk.

Public Prosecution

If doping in sport is the subject of a public prosecution by the criminal law more resources such as the police and criminal justice service will be able to investigate claims of doping rather than just the individual sport. This is much more likely to ensure that the investigation of drug cheats is to be much more thorough than it is at present.

What would be seen as the disadvantages of criminalising doping in sport?

The following would be seen as the disadvantages of criminalising doping in sport:

  • The burden of proof required by the criminal law

  • Reducing the competitiveness of certain competitions

Burden of proof required by the criminal law

For criminal offences under the laws of England and Wales there is a requirement for some kind of intentional or negligent behaviour on the part of the defendant. However, under the current doping rules there exists a notion of strict liability – if an individual is caught with the substance in their system they will automatically be liable to a ban regardless of any intention or knowledge on their part.  Putting doping into the criminal law would, therefore, complicate the current system of fault.

Reducing the competitiveness of certain competitions

If certain countries have criminalised doping in sports then it may discourage athletes in wishing to participate in an event or tournament held in that country as they may feel the risk of being caught with a banned substance in their body is too great. If some of the top competitors in the world decide not to compete in certain events it will decrease the potential competitiveness of those events and harm the sporting competition as a whole.

For more information on criminal offences in a sporting context please refer to the relevant article.