Use of illegal performance enhancing substances in Sport
The use of illegal performance enhancing substances in sport is a huge issue across a variety of sports. The need to eradicate the use of performance enhancing substances is a key requirement to protect the integrity of sport and to protect the element of fair play needed in order to keep the playing field level – the essence of sporting competition.
Accordingly many sports such as athletics and cycling face a constant battle in order to try and eradicate the use of performance enhancing substances in their sports.
Athlete support personnel
What is meant by athlete support personnel?
Athlete support personnel is a broad term which encompasses all those individuals that provide support to an athlete during their participation in the sport. This could include a coach who deals specifically with an individual athlete or coaches and team staff who deal specifically with an individual sporting team.
The role athlete support personnel may have in doping violations
When considering the use of performance enhancing substances in sport the first image to jump out is that of the athlete administering this to themselves in secret without the knowledge of any other individual. This however, is not always the case. Athlete support personnel may encourage their athletes to use performance enhancers if they believe they can get away with it. There may also be the situation where a member of the athlete support team becomes aware of new techniques unknown to the regulatory bodies which they may encourage their athletes to participate in.
The WADA Code
The World Anti-Doping Code (WADA) Code has been established to provide a basis for World and National Governing Bodies to adopt rules and regulations concerning the use of illegal performance enhancing substances in their sport.
Accordingly there are various offences under the code such as the presence of a prohibited substance in an athlete’s sample or the use of a prohibited substance or method. These offences are however, aimed directly at the athlete as it is that individual who has the competitive advantage over the others in the competition. Under the WADA Code, however, there are situations whereby a member of the athlete support personnel can be liable for certain offences.
Applicable offences to athlete support personnel under the WADA Code
The following offences under the WADA Code are clearly applicable to the athlete support personnel:
Possession of a prohibited substance or method during a competition
Possession of a prohibited substance or method during training athlete training out of competition
Trafficking or attempting trafficking in any prohibited substance or prohibited method
Administration or attempted administration to an athlete of any prohibited substance or method during competition
Administration or attempted to an athlete of any prohibited substance or method out of competition during a training session
Assisting, aiding, abetting, covering up or any other type of complicity involving an anti-doping rule violation or any attempted anti-doping rule violation
The above rules clearly show that the WADA Code has been drafted taking into consideration the role that the athlete support personnel may play in ensuring that an athlete violates the rules in relation to performance enhancing substances.
However, one of the key identifiable problems with the WADA Code is that it does not establish to what degree of fault athlete support personnel must have in order to be charged with one of these offences.
An athlete will be strictly liable if they are caught using or to have used performance enhancing substances. This means they will face an automatic ban. The problem with the above offences is that the Code does not establish whether there had to be knowledge of the substance or whether it is enough to establish that the member of the athlete support personnel had simply been reckless or was negligent.
What is the case if a member of the athlete support personnel cannot be charged under one of the above offences?
If for example an athlete has been found guilty of committing a doping violation they will be liable to a sanction of a two year ban for their first offence and a life ban for their second offence under the WADA Code. Accordingly a member of that athlete’s support personnel can only be charged for one of the above offences if they have been caught breaching one of the above rules. They should not simply be charged also if one of their athlete’s has breached the rules.
Is this position always the case?
This position has not always seen to the be the case, however. The Court of Arbitration for Sport has recently overseen an appeal in relation to a case whereby the Turkish Athletics Federation following the rules of the International Association of Athletics Federations (IAAF) – which are based on the WADA Code – handed a two year ban to a coach of an athlete who had been found guilty of a doping violation.
What was the basis for this ban?
The reasoning and the basis for this ban was that the coach had been negligent in his coaching duties in relation to the doping violation committed by one of his athletes.
What did the Court of Arbitration for Sport decide?
The CAS decided that the ban handed down by the Federation and also held up on appeal by the Turkish courts should not apply to the coach. The reasoning behind the CAS’s decision was that it had not seen any evidence that the coach had violated any anti-doping rule or any disciplinary rule connected with his duties as Athlete Support Personnel under the IAAF rules. Also there had been no basis provided as to the reasoning of this decision.
Does this eliminate the prospect of an athlete support personnel being negligent in his duties?
An athlete support personnel could be regarded as being negligent in his duties if he has committed one of the above offences, for example the administration of a prohibited substance during a competition which has caused his athlete to fail a doping test.
However, following the decision of the CAS it is not lawful to rule that an athlete support personnel has been negligent simply because one of his athletes has failed a doping test.
Can an athlete have a claim against their athlete support personnel?
If an athlete has been found guilty of a doping violation and has been given either a two year or a lifetime ban they may be able to claim against their athlete support personnel. If they know the athlete support personnel to have administered the performance enhancing substance they could argue that this is a breach of the duty of care owed by the support personnel to the individual athlete. It is reasonable to assume that an athlete could claim damages in this scenario although a case such as this has never been heard.