Technological advances in sports equipment: Cheating or evolution? Part 2 - Establishing a regulatory framework

Published 02 June 2016 By: Louis Weston

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This two-part article looks at the relationship between sport and technological advances in equipment, asking: is it cheating, or acceptable evolution? And where does the line lie?

Part 1 (available here) looked at the UCI’s regulations in the context of a clear-cut case of cheating (Ms Van Den Driessche1), before considering more general examples of the use and adoption of new technologies in sport that improve performance but are not considered to do so improperly.

Part 2 below reflects on how sports governing bodies may best seek to regulate and govern technological advances in equipment to set the line between permitted technological improvements and cheating. What underlying principles should they abide by? How should they draft their regulations? Who should they hold responsible for breaches? How should they be sanctioned, and how should the detection process work?

 

What to prohibit and why?

In 2012, former British Cycling coach, Sir David Brailsford’s, policy of incremental gains2 leading to success for the British Cycling team did not, contrary to his anglo-franco tickle, depend upon a rounder wheel.3 There is much to learn from that approach not least that in addressing prohibition there is no need to reinvent the wheel but rather look to what can be learnt from those who have direct and practical experience of the issues to confront.

As the examples Part 1 illustrate, the use of technological innovations in sports equipment can at the same time be a benefit, a risk and a necessity. The broader question it raises is how should sports seek to regulate such advances? Which should it permit and which should it disallow, and why?

From the author’s perspective, the fundamental concern is addressing the risk that the integrity of the sporting contest is not lost. But how can sports achieve this while simultaneously permitting advances that could bring legitimate improvements to the contest? To analyse this point, we can return to how the issue manifests itself in para sports.

In a range of para sports the athletes depend upon the use of equipment to assist their competition. The regulations of para sports must therefore confront the issue of the balance between assistance and unfair/improper advantage and offer a considered framework for studying the regulation of developing technology and how to regulate its use.

The International Paralympic Committee (IPC) has four fundamental principles set out in their Rules and Regulations against which the evolution of equipment in its competitions are judged:4

  • Safety – the equipment must be safe for competitors, officials, spectators and the environment.
  • Fairness – the athlete must not receive an unfair advantage against the spirit of the event they are contesting.
  • Universality – the equipment must be reasonably commercially available to all.
  • Physical prowess – human performance is the critical endeavour not the impact of technology and equipment.

Those four principles have application in all sport where technology assists the competitor. Albeit there will be the need for some variety in the weight each factor is given dependent on the sport concerned.

The key process in relation to the IPC’s four principles is as follows:

  1. define the prohibition against an assessment of what the skill or prowess of the particular sport is; and
  2. then address the limit on the equipment in that context.

Doing so allows necessary equipment and useful safety equipment whilst preventing cheating. Each sport must identify the factors or elements essential to the contest it regulates and frame its prohibitions to protect that contest. The Marylebone Cricket Club’s Law 6 (The Bat) demands that a cricket bat be made of wood, deemed essential to the sport of cricket and thus preventing the use of carbon fibre or glass fibre bats.5

Of the four, the principle of Universality in the commercial context of sport is controversial. The company that makes the lightest golf club or the fastest clutch may not wish to share, or agree to share, its technology with all other competitors linked as they may be to competitors or teams.

 

Drafting language

One point of distinction should be made here. The IPC regulations – and indeed the context of his article - relate principally to the use of technology as it relates to sports equipment. However, when drafting regulations pertaining to technological advances, sports governing bodies may wish to include language and form to reflect the application of technology to all areas in which it may be used to cheat, not just equipment.

Use of language and breadth of regulation matters for at least two reasons.

First, the widespread adoption of the Word Anti-Doping Agency (WADA) Code has made ‘doping’ a clear and plain concept. Some commentators have suggested that using technology to enhance performance can be seen as form of doping and used ‘Tech Doping’ or ‘Technology Doping’ to describe it.6 It is suggested that such a parasitic description is not useful, using technology in breach of the rules of a sport should be seen for what it is – cheating. Boris Onishchenko was not enhancing his performance – he was creating points he did not win.

Second, the language defines the topic and scope of regulation. The language used should realise the breadth of the possibilities and concepts in the use of technology to gain an unfair advantage. This can be illustrated with two examples. If a nanotechnology is developed that allows a tendon to contract with the muscle that pulls it and it is used as a surgical replacement for a tendon, is that equipment or technology? If epigenetics allows a mature adult or child to undergo therapy or treatment that causes speed to improve or endurance to develop is that not also to be considered as cheating, and is it technology or equipment or therapy?

The breadth of possibility in using invention to be turned to cheating in sport is far wider than an electric motor concealed in a bicycle frame and the language of the debate and its prohibition must reflect that.

Prohibited technology, equipment, treatment and/or therapies all fall into that which should be of regulatory concern, but what that concern is, is that identified by the IPC as taking away the essence of the prowess in the sport that is being demonstrated. The UCI plainly has it right that the particular essence of cycling is the powering of a bicycle by the legs only in a circular motion.

 

Who should be held responsible?

Having considered the framework for deciding which technological advances should be prohibited / permitted, the next question to consider is who hold responsible if prohibited technologies are found in use.

The UCI decision in Van Den Driessche illustrates this question and raises the following worrying question: how does an athlete come to install, fit and operate an electric motor concealed in a bicycle without alerting his or her coach, mechanics and team?

At first glance, the issue leads to the conclusion that the athlete cannot have operated alone. Such an answer may be the right one, but it is not necessarily a conclusion that can be reached, identifying any particular person, using the standard of proof of any particular sporting regulator. It is not known what if any investigation or decision UCI has reached in respect of persons other than Van Den Driessche.

Again however the issues to be confronted are not new. The same eyebrow is raised in WADA cases where the athlete is charged without his coach, country or team being charged as being part of the deception/course of cheating. Yet again, as with WADA regulation the proof of any supporting network behind the athlete in the use of devices is problematic.

Any system of prohibition must and should encourage the revelation of the network of support for the cheating athlete, as WADA does with Article 10.6.1.1 of its Code.7 Sanctions for those involved in permitting or facilitating the participant to cheat should be at least as severe as those for the participant8 and teams should, as with the WADA Art 11, be at risk themselves of disqualification for violation by team members.

Detection

WADA provides a model for drug testing. Motorsport has a process of examination with Fédération Internationale de Motocyclisme (FIM), for example, requiring its participants to deliver speedway bikes for examination at any Speedway World Cup meeting.9

The basic model for the testing of equipment must be that of UCI. The sport should define the equipment that can be used, perhaps on a season by season basis, any departure from that which is approved should require approval before its use and meetings and events should be planned with time for the conformity with those requirements to be tested before competition and where needed after competition.

It is doubtful that any scrutineering will ever form the highlight of a spectator’s or participant’s enjoyment of the sport and the risk of it taking too long or being too invasive to immediacy of the result must be managed.

A concern that falls to be addressed is how the grassroots of a sport should address the issue of this form of cheating. Doping in school sport is a substantial concern.10 Using a prohibited piece of equipment may not have with it the same risk to health as doping and at least that limiting factor would be absent from self-regulation.

Where possible therefore the requirements of equipment and devices used in a particular sport should be capable of assessment with easy and simply operated equipment. The local or regional competition should be, so far as is possible, held on the same basis as the national or international and the design of the regulations should have in mind application from top to bottom of a sport.

Sanction

The UCI decision in Van Den Driessche’s case to suspend her for 6 years does represent a substantial period of suspension.

Many however would think that an athlete who is prepared to risk detection and better his or her competitors by using a concealed electric motor has no place ever again in that sport. It is plainly hard, perhaps level of competition just aside, to think of a more egregious breach of the rules of the sport than Van Den Driessche’s. Whether there was mitigation was not revealed in the UCI Press Release to explain the length of sanction, and yet in the author’s opinion it is not clear nor yet is its rationale.

Where WADA and using technology to cheat should sit side by side is in consistency of sanction. The 2015 WADA Code guidelines do provide a solid starting point for the parameters of any sanction for “technological fraud”. It is difficult in that context to judge as a reasonable starting point the minimum of a 6-month suspension, which is the current UCI position.

 

Conclusion

Gaining an unfair advantage in a sporting competition by using equipment has the hallmarks of doping in that it is a form of winning without the contest the sport demands. The rules of each sport must set the limit it will allow on the use of technology and equipment and enforce those rules.

If equipment or technology is used in breach of the rules and with a view to gaining a competitive advantage those who obey the rules do not have it devalues competition and confidence in the sporting contest, it demands premeditation and it shows a distinct lack of respect for the sport and fellow contestants.

The decision in Van Den Driessche’s case demonstrates the surprising levels to which a contestant will go to cheat. It should not be seen as a novelty however, as such cheating has gone on before and will no doubt go on again.

What it should serve to do is to highlight the breadth of possibility that new technologies, equipment and therapies can bring to sport and to encourage the regulators of sport to be proactive in considering ahead of time the regulations required to prevent that means of cheating and to sanction its occurrence appropriately.

 

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Author

Louis Weston

Louis Weston

Barrister, Outer Temple Chambers

Louis is a Barrister practising from chambers at Outer Temple. He is expert in corruption and misfeasance in sport.

He has been a leading junior in sports law for over 10 years and has acted in many of the leading corruption and disciplinary cases before tribunals and the Courts. He is ranked for sport in the Legal 500, Chambers and Partners and has been awarded the Sports Law Lawyer of the Year in 2017, 2018 and 2019.

He regularly acts for and advises the British Horseracing Authority, the World Professional Billiards and Snooker Association, the Turf Club, the Greyhound Board of Great Britain, the Rugby Football Union, and the Badminton World Federation and for athletes and players in disciplinary cases and litigation arising therefrom.

He is a arbitrator and mediation and sits on the Judicial Panel of the Football Association and a member of the International Cricket Council’s anti-corruption unit oversight Group.

He can be contacted at louis.weston@outertemple.com and www.outertemple.com