Rope-a-dope: the continued fight against doping in sport

Published 23 May 2013 By: Hannah Haynes, Jon Walters

Rope a dope

While the Armstrong scandal, the suspension of cyclist, Frank Schleck, and the recent slew of Russian athletes receiving doping bans1 demonstrates that the familiar culprits (cyclists, track and field athletes, swimmers, former Eastern bloc athletes) continue to engage in foul practices, recent developments in the doping world indicate that less familiar suspects are increasingly in the frame.

The fallout from the Australian Crime Commission report into organised crime and drugs in Australian sport has, for example, highlighted endemic issues in team sports. The NFL faces concerted pressure to implement an effective anti-doping programme. And tennis has been subject to close media scrutiny and criticism from top players for the inefficacy of its anti-drugs efforts.

No longer confined simply to the sports pages, these “scandals” are considered to be worthy of coverage reserved for matters of mainstream national news. The result: a growing perception of sport in general as having an unlevel playing field, causing a greater feeling of unrest amongst both participants and punters – both of whom want sporting competition founded on ability and hard work. In this article, we look at the ways in which sport can seek to prevent instances of doping through (i) understanding and addressing the complexities of the relationship between the World Anti-Doping Agency (“WADA”) and international sporting federations; (ii) the adoption of education initiatives; and (iii) commercial partners hitting athletes in the pocket where it hurts when scandal strikes.

 

WADA and international sporting federations

For a number of years, the WADA Code, together with International Standards and Models of Best Practice established by WADA, has set the international precedent for anti-doping testing.2 The introduction of a universal international anti-doping programme has undeniably had a beneficial effect on the policing of drugs taking in sport, forming as it does the backbone of the vast majority of sports governing bodies’ doping policies. Whereas before, the geography or chosen sport of an athlete had a profound effect on the rules he or she faced, there is a uniformity of rules, if not approach, across most sports and countries thanks to the widespread adoption of the WADA programme.

However, there remain two key areas of weakness which undermine the positive impact of the WADA regulatory regime. First, procedures for testing remain in the hands of sports governing bodies and national anti-doping agencies3 meaning that while we may have uniformity of rules and standards4, we still see a wide divergence in the financing of, and approach to, policing drugs abuse. Secondly, there remain some sports, notably the NFL and certain boxing federations, which fail to adhere to the models of best practice and standards promoted by WADA.

Tennis is a core example of the former problem. The International Tennis Federation is a signatory to the WADA Code and follows WADA guidelines in its own anti-doping policy. Superficially, at least, it is therefore no different to track and field or cycling in this respect. Yet the most high-profile drugs bust in tennis in recent years was Richard Gasquet’s positive test for cocaine after kissing a girl called Pamela in a Miami nightclub,5 while cycling has tackled and caught (albeit with some reluctance from its governing body, many would argue) its very biggest names for genuinely performance enhancing substances. One answer might be that tennis is fundamentally a game of hand-eye coordination and skill, whereas cycling rewards only lung-busting endurance, but this ignores both the heightened physical demands of modern tennis and the concern expressed by those within the game.

Innuendo about drugs taking is a looming cloud hanging over tennis, with James Blake voicing concerns at the 2012 US Open that doping is widespread.6 When someone of the status of Roger Federer lends his weight to the argument – “a blood passport will be necessary as some substances can’t be discovered right now but might in the future…there should also be more blood tests out-of-competition controls in tennis”7 – the media listen and tennis has been under close scrutiny in recent times.

The point being made is not to castigate the ITF for its efforts in tennis, but to emphasise that the WADA Code is only as good as its enforcement, and that remains variable. (Tennis spends only $1.3 million a year on testing, which is about one third that of cycling.) Football has not been immune from criticism, with Arsene Wenger foremost among critics and John Fahey, WADA president commenting: “I simply say this about football: they are not testing enough for EPO. They can do more and we encourage them to do more.”8 For this reason, calls have grown for government backed intervention or greater centralisation of testing with WADA, but this remains for the future.

The second issue identified – that of a failure to adhere to International Standards and Models of Best Practice established by WADA – is (openly at least) less widespread. Yet, the world’s most lucrative annual sporting event9 is part of a sport that is frequently criticised for its lax drugs testing procedures for certain performance enhancing drugs: that being, of course, American Football. At professional level in the USA, the NFL Players Association (NFPLA) has a negotiated agreement with the NFL regarding anti-doping which determines the standards of testing applied. This originates from the collective bargaining process in American sport which, as well as determining the well-publicised question of salary caps, also determines doping policy. Accordingly, the NFPLA has to agree and helps to shape drugs policy in the sport.

In its present agreement, the NFPLA has not permitted testing for human growth hormone. Had it adopted WADA standards, this would be a prohibited substance subject to testing.10 This, coupled with steadfast refusal to conduct a comprehensive in-season testing programme highlights the inadequacies of the NFL regime. Despite much conjecture, we do not know that performance enhancing drugs use is rife in the NFL, but we do know that there is a greater chance than in other sports that any cheats out there will be getting away with it.

Much the same applies to boxing (at a professional level that is, not as administered by the AIBA which follows the WADA programme closely). Boxing is blighted by the fragmentation of its governing bodies, each of whom are responsible for anti-doping whenever they sanction a fight. As rivals, there is little coordination of policy and little transparency or certainty as to what standards are applied.  The farcical situation caused by a disparate number of governing and sanctioning bodies was highlighted recently by the Haye v Chisora fight being sanctioned by the Luxembourg Boxing Federation due to neither boxer then holding a British boxing licence from the British Boxing Board of Control. Where fighters can pick and choose so easily under whose auspices they will fight, it is obvious that divergent standards of drugs testing will apply and can be selected by fighters. Such disunity leads to an un-harmonised doping regime, causing confusion as to the anti-doping message and allows for possible avenues of exploitation by dopers.

 

Education

Addressing the problems highlighted above is only one part of the war against doping. Certainly, it is reasonable to hope that tough anti-doping rules and successful enforcement of increased testing will ensure a cleaner sport: players will face disciplinary action and a possible ban, learning the old fashioned way that it is wrong to dope.

However, discipline and testing will by no means stamp out the problem completely; this needs support from education across all levels of sport, with a focus on grass roots.

The recent comments by American Heavyweight Tony Thompson, who sought to advocate the use of drugs in sport as “only the good guys are following the rules”11, is indicative of a need to implement such strategies. His comments sparked controversy as he stated “A lot of the time you've got to leave it up to athletes. It's a person's choice, such as abortion and other things we don't agree with."12 Education is the key to forming the basis of such choices.

At the other end of the spectrum is the recent ban of British heavyweight Dillian Whyte from the sport.13 Banned for testing positive for traces of methylhexaneamine as a result of ingesting a nutritional supplement, such disciplinary action might have been avoided if this athlete was properly educated as to the prohibited substances, the consequences of taking them and the rigorous checks athletes are required to take before consuming any supplements. The fight for rival organisations within a sport such as boxing is to recognise the damage drugs scandals can cause (not just to the athlete concerned, but to the sport as a whole) and to seek to implement a clear and uniformed anti-doping policy with an effective testing and education programme.

A good example of this are the efforts made by the RFU who seek to ensure that players at all levels are aware of the anti-doping regulations and their responsibilities in respect of them. The RFU’s education and enforcement initiatives are aided by the fact that it is the unified governing body of Rugby Union in England.  It can send out a clear, unequivocal anti-doping message supported by education and awareness programmes. Whilst a number of other governing bodies share this strong starting point, not all do.

 

Commercial protections against anti-doping

If a comprehensive education programme and the threat of bans from sport is not enough of a deterrent, an added incentive may be the financial ramifications of the actions of an athlete. Loss of endorsement and sponsorship deals is a costly prospect for top sports stars and commercial backers have increasingly sought focussed legal advice when negotiating and drafting agreements with athletes and sports clubs to ensure that they have the right protection against scandal.

Companies are hesitant to enter into long term and highly lucrative deals where there is a risk of athletes or clubs tarnishing their reputation. With sports merchandising alone worth over $150 billion in global sales, and participants forming the public face of many companies, an unsavoury association with an athlete or a sport accused of doping can be severely damaging for the company; a get out clause is a necessity.

Here lies the role for comprehensive  protective clauses addressing the rights available to sponsors in the event of a “doping scandal” affected athlete or sport. Doping, when expressly stated to be a matter which would place the participant in breach of contract, provides a means to protect investment, deter bad behaviour, punish the athlete and provide an escape route for the company involved. Whether the clause adopts the principle of strict liability following the example set by the WADA Code, or distinguishes between those who get caught accidently and inadvertently doping, is at the discretion of the drafters and will undoubtedly be the subject of much negotiation.  

The pain for the doper has been laid bare by a number of examples. On a team level, the Australian Rugby League team Cronulla Sharks lost out on a potential stadium naming rights deal with Toyota as a result of the Australian Crime Commission investigation.14  Floyd Landis, winner of the 2006 Tour de France was stripped of this title, his $3 million sponsorship agreement with Phonak was terminated and he felt the hit of loosing some $6 million in endorsements after testing positive for a performance enhancing drug.15 Jason Giambi after publicly admitting to steroid use reportedly lost out on an annual $3 million as sponsorship agreements with big names such as Pepsi were prematurely brought to an end.16

Such scandal has led to a widespread acceptance of anti-doping clauses in sports endorsement deals. Michele Verroken, the former Director of Ethics and Anti-Doping at UK Sport, recently cited the example of the World Federation of Sports Goods Industries stating, “its members put clauses into their contracts with athletes and teams saying that doping would be in breach of contract”17. In a climate where the media is putting players under increased scrutiny, there is argument for such clauses to form part of the standard “boilerplate” in any endorsement agreement. When breached, not only can a contract be terminated on the grounds of moral violation, but a claw-back of bonuses paid, recoupment of payments or levy fines to cover the costs of recalling products from shelves and removing adverts that demonstrate an association with the athlete in question could be ordered.

It is clear that the carrot for athletes is now bigger than ever before. Success equals greater glory, fame and riches. When combined, are these motivations enough to sway an athlete into seeking to gain an advantage by doping? With more matches and races won, come more sponsorship deals - if the education programmes do not work, and if the anti-doping rules are not providing the means to effectively catch dopers, anti-doping clauses will never be breached.  However, a participant must weigh up whether it is really worth the risk. Just as the carrot is getting bigger so is the stick, as recent examples demonstrate, once an athlete or sport becomes ‘toxic’ they can be stripped of everything: titles, sponsorship deals and the ability to participate in their sport.  Draft version 2.0 of the WADA Code 2015, to be voted on at the World Doping Conference later this year18 proposes increasing the standard ban from two to four years – with the WADA Executive Committee having confirmed its support for the increased ban19, this constitutes a significant stick for anyone in an industry where careers often have a short shelf life. 


 

1 At the time of writing, the Russian Anti-doping Agency lists 16 bans issued in 2013 alone.  https://www.rusada.ru/en/press/news

2 The World Anti-Doping Code 2009

3 Article 5.1 Wada Code 2009

4 International Standard for Testing 2012

5 CAS 2009/A/1930 WADA v. ITF & Gasquet; CAS 2009/A/192

6 ITF v. Gasquet6 Kevin Mitchell, The Guardian, “Roger Federer leads calls for biological passports to catch drugs cheats”, 15 February 2013.

7 Ibid

8 Simon Hart, The Telegraph, “World Anti-Doping Agency calls on the football authorities to do more to combat doping”, 12 February 2013.

9 The Superbowl

10 The WADA Code, The 2013 Prohibited List International Standard, s2

11 Gareth Davies, The Telegraph, “British Boxing condemns Tony Thompson’s view of allowing drugs in sport as ‘irresponsible’”, 21 February 2013.

12 Ibid

13 Matt Slater, BBC, “Dillian Whyte: Heavyweight boxer’s drugs ban upheld”,  28 March 2013

14 https://www.dailytelegraph.com.au/sport/nrl/cronulla-sharks-lose-stadium-naming-rights-sponsor-following-crime-commission-revelations-on-drugs-in-sport/story-e6frexnr-1226580663433

15 The Good Drugs Guide https://www.thegooddrugsguide.com/blog/2323/million-dollar-celebrity-endorsements-lost-to-drug-use/  

16 Ibid17 Bill Wilson, BBC, “Doping in Sport: Counting the cost”,  17 March 2013

18 WADA, https://playtrue.wada-ama.org/news/code-review-process-launched-by-wada/  , 29 November 2011

19 Cycling News, https://www.cyclingnews.com/news/wada-moving-towards-four-year-bans-for-doping-offenders ,14 May 2013

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Author

Hannah Haynes

Hannah Haynes

Hannah is an associate in the litigation team at Charles Russell and works on all aspects of Commercial Dispute Resolution with a particular focus on clients in the sports and media sectors. She is a member of the firm's Sports and Media Group.

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Jon Walters

Jon Walters

Partner, Northridge

Jon provides commercial and corporate advice to clients. He is recognised by the directories as a “real go-to adviser” and a “commercial and regulatory expert”, with particular expertise on governance, corporate advice and commercial rights.

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