Scandals and drugs but no rock and roll – pro sport in Australia under the anti doping microscope
Published 04 October 2013 By: Paul Horvath
The doping investigation into Essendon Football Club, the Australian Football League (AFL) team, by the Australian Sports Anti-Doping Authority (ASADA) has brought into sharpe focus some of the difficulties in constructing effective and fair anti-doping policy. In this article Paul Horvath, an Australian sports lawyer, discusses the penalities under the World Anti-Doping Code, reductions for substantial assistance and the ASADA bill with reference to the Essendon investigation.
Let's start with what we know and what we don't know in the drugs in sport debate that has raged since early February 2013 (and even earlier if you follow cycling):
Lance Armstrong chose not to fight doping charges laid by the US Anti-Doping Authority, and in so doing, conceded being stripped of seven Tour de France titles;
The Armstrong revelations, which also exposed a range of Lance Armstrong's team-mates as having used performance enhancing drugs over a long period of time, led to an Australian investigation into cycling. This in turn led to the vice president of Cycling Australia standing down, Orica Green-Edge (Australia's professional cycling team) team manager Matthew White standing down, and the federal government announcing the Wood enquiry into elite cycling in Australia;
On 5 February Essendon Football Club announced that it had called in the Australian Football League (AFL) and the Australian Sports Anti-Doping Authority (ASADA) to investigate its use of injections of substances under the guidance and direction of a sports scientist during the 2012 football season;
The so-called "blackest day in Australian sport" was on 7 February when Sports Minister Kate Lundy, Justice Minister Jason Clare and the CEOs of all major professional sports held a press conference to reveal major doping and integrity issues in Australian sport;
Six National Rugby League (NRL) clubs are said to be under enquiry or investigation for the use of performance enhancing drugs. Cronulla is later identified as having the strongest connection with a sports scientist known to have administered substances to players;
During February and March there is significant debate both in public and the federal parliament as to the proposed ASADA bill which significantly enhances the investigative powers of ASADA, and in particular its CEO. A senate hearing occurs on 1 March 2013;
ASADA in conjunction with the AFL and the NRL are investigating two specific professional clubs and many players on suspicion of using substances banned by each sports anti-doping code. As these codes must, by demand of the federal government, comply with the World Anti-Doping Code, we can refer to each sport's anti-doping code or the WADA code interchangeably;
Initially it was thought peptides were used by players, then calf's blood, and then AOD-9604, an anti-obesity drug said to aid recovery from injury, however, this is where we start to get into speculation;
No current club or player has to date admitted to or been found to have taken either banned or performance enhancing drugs in the current investigations;
At least one key witness in the current investigation has refused to participate in the ASADA investigation. This witness has intimate knowledge of what was taken by players in both the NRL and the AFL, and perhaps equally if not more importantly, asserts to have documentation that clears many athletes of wrongdoing;
It is expected that in June 2013, the new ASADA Bill may be passed in parliament, paving the way for any relevant witness to be required to appear before ASADA. This would mean that witnesses could no longer avoid appearing before ASADA as they would face fines and penalties, in some cases continuing penalties until they appear or provide information;
However, even if key witnesses do in fact give key information to ASADA, it will be done on a confidential basis. The public will not know the nature of what is said or produced to ASADA until its investigation concludes and athletes are cleared or charged, and even then the information released to the public may be limited;
The AFL's Illicit Drugs Policy (IDP), also known as the three strikes policy, has no application in any of the above cases. The IDP applies only to illicit, or recreational drugs, and does not apply to testing that might occur on match day.
With this outline in mind, the remainder of this article explores a few issues in the drugs in sport debate outlining the relevant provisions of the anti-doping codes; penalties that could potentially apply to athletes, coaches and other support personnel, and clubs and teams; and the circumstances that may lead to a reduction of penalty.
Penalties under Anti-Doping Codes
In the recent and current cases involving Essendon FC (AFL) and Cronulla FC (NRL) relating to professional sport, a number of players are believed to have taken performance enhancing substances prohibited under the various sports' anti-doping codes and the WADA prohibited list.1 It is alleged they have taken "prohibited" substances as opposed to "specified" substances that generally attract a more lenient range of penalties. If players are charged with using "prohibited" substances, the automatic penalty is a two year suspension. 2
It is worth noting that the AFL's Anti-Doping Code applies on a strict liability basis:
"It is each Player's personal duty to ensure that no Prohibited Substance enters his body. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Player's part be demonstrated in order to establish an Anti-Doping Rule Violation for Use of a Prohibited Substance or Prohibited Method".3
When athletes are charged with using a prohibited substance, they can raise a two tiered defence if they can put forward exceptional circumstances. The first tier is where the athletes argue that there was "no significant fault or negligence" in the commission of the offence. In this case, the penalty can be reduced by up to one half, that is down to 12 months.
The second tier is where the athletes can show there was "no fault or negligence" in the commission of the offence. If this can be established, the applicable suspension may be avoided altogether. "No fault or negligence" is further defined:
"the Player [must] establish that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of the utmost caution, that he or she had used or been administered the Prohibited Substance or Prohibited Method".4
However, these tests are generally difficult to satisfy, as the following cases from the Court of Arbitration for Sport (CAS) show:
- Medicinal cream obtained by a 17 year old international swimmer's mother from a chemist in a foreign country for a foot condition unknowingly contained a steroid. It was accepted that the cream did not enhance the athlete's performance. CAS found that athlete failed to consult with her doctor or coach or to check the composition of the product before use. Twelve month suspension imposed;5
- Downhill Olympic skier given an assurance by a supplement manufacturer that the supplement did not contain any banned substance. Positive test. Banned 18 months;6
- A VFL footballer who ordered but never received what he believed was a fat burning supplement using the internet, that contained clenbuterol, received an 18 month reduced penalty based on various factors including the inadequate anti-doping education provided;7
- Two Australian weightlifters aged 17 and 18, who tested positive for a stimulant not on the Prohibited list but with similar effects to amphetamines. CAS found they had failed to properly enquire (though had not failed to enquire altogether) as to the integrity of the supplement drink with the ASADA hotline or to make any other proper inquiry. Two year bans not reduced;8
- In contrast to the above examples, an international ice hockey player was administered a steroid Nandrolone by a doctor at hospital following a heavy "body check" in a Ukranian championship game; CAS accepted there was no fault or negligence as his very bad physical and mental condition when he arrived at hospital without his team doctor made it impossible for him to monitor or ask questions about medications – he wanted to save his life, no suspension imposed;9
- An international tennis player succeeded in establishing no fault or negligence by proving that minute traces of cocaine in his sample were caused by him kissing a stranger in a nightclub – penalty of 2 ½ months suspension.10
As shown above,the circumstances are extremely rare where a significant reduction eliminating any suspension altogether has been warranted or successful. It may be that in some of the AFL and NRL cases at present, this could be justified. The current CEO of ASADA has been quoted as saying that where an athlete has taken a prohibited substance, the only circumstance she is aware of where suspension has been avoided altogether is where a patient is unconscious on the operating table and is unknowingly injected with a substance.
In my opinion, athletes in a professional sporting environment are entitled to accept advice from the experts within those clubs. Football departments house the best experts in the country in areas of medicine, sports science, nutrition and conditioning – one might think the athletes are entitled to and indeed required to accept the advice and direction of these highly credentialed and highly paid experts.
A tribunal is entitled to take into account the age of each player in considering whether it was reasonable for them to accept the advice to take a substance with little or no questioning.
In addition, under employment law, as employees of their clubs, athletes are obliged to obey all lawful and reasonable directives of their superiors, from the senior coach and director of football down. One may argue that certain directives should be questioned or that a directive to inject a substance may not be reasonable.
Substantial Assistance clause
Where the athlete "has provided substantial assistance to the AFL, ASADA, or another anti-doping organisation which results in that organisation discovering or establishing an Anti-Doping Rule Violation by another Person which results in a criminal or disciplinary body discovering or establishing a criminal offence or the breach of professional rules by another Person", the otherwise applicable penalty may be reduced by up to three quarters, or down to a minimum of six months.11 This type of penalty reduction requires the approval of WADA.12
It should be noted that this clause is directed to information that is provided that leads to the prosecution of another person, as opposed to providing assistance or information in the athlete's own case. There seems to be a requirement that the information results in a successful prosecution of another, though that is unclear.
One issue that may arise at some point – as reported in relation to Cronulla Sharks NRL players – is that at some juncture, players may have to choose whether they wish to provide assistance and hope to obtain a six month ban, or fight the case and risk more than six months, possibly 12 months or more, and give themselves a chance of proving there was no fault or negligence, and hence avoiding suspension altogether.
In the Lance Armstrong investigation, up to nine professional cyclists gave statements and assistance to USADA and agreed to give evidence against Armstrong. Some of these cyclists had been extremely well paid athletes who had received millions of dollars in payments to be professional cyclists, engaging in sophisticated doping programs over many years. Most, such as Tyler Hamilton, a former US Postal team-mate of Armstrong, received a 6 month suspension based on the assistance provided in securing the conviction of Armstrong.
This penalty of six months for the Armstrong witnesses seems disproportionate in comparison to others who receive longer bans under the WADA code, such as in some of the examples referred to above. There needs to be more flexibility in the penalty options, rather than the "one size fits all" nature of the WADA Code.
Team penalty clause
The AFL anti-doping Code provides for club penalties of a fine and exclusion(s) from a draft in a draft selection meeting.13 Further, "if more than one player in a club is found to have committed an Anti-doping Rule Violation during a season, the club may be subject to sanctions to be determined, in their absolute discretion (my emphasis), by the Commission".14
Athlete support personnel are dealt with for offences of trafficking, or attempted trafficking of any prohibited substance or prohibited method,15 administration or attempted administration of any prohibited substance or method to a player and related offences.16 These athlete support personnel offences carry minimum four (4) year suspensions.17
Further, we have seen that the participants in the investigation – players, coaches, support personnel - are unable to comment in the media due to the confidential nature of the investigation, and so as not to prejudice the investigation within the sport, whether it be AFL or NRL. This arguably creates an unfair public perception of the facts surrounding the alleged offences as we do not hear a balanced set of views, and there may be a perception by some that saying nothing can imply guilt. The truth of the matters will not be known for some months to come.
The ASADA Amendment Bill
However, we know that the ASADA Bill put before federal parliament in February 2013 was expected to pass through the upper and lower houses in mid 2013. The Bill contains significant extensions of powers to ASADA and its investigators. Once passed, the Act will mean key witnesses in the AFL/NRL investigation, such as Stephen Dank, will be compelled to attend and give evidence to ASADA investigators, and be required to produce documents or face penalties. Mr Dank is said to have been at the centre of the allegations and can give crucial evidence in determining outcomes of the investigation.
The Law Institute of Victoria's Sports Law Committee made written submissions to the Senate Committee reviewing this Bill, and appeared before the Senate Committee on 1 March 2013. It argued that basic human rights were being abrogated, including the privilege against self-incrimination, and significant increases to the powers of the CEO were proposed without appropriate checks and balances. The major issues with the Bill have been amended, yet at the time of writing, the Bill has yet to be passed by parliament.
Further, it is noteworthy that contracts in professional sports (and some non-professional sports contracts such as those of Olympians) already require the athletes to cooperate with investigations.
The ASADA, Australian Crime Commission and other investigations into elite sport in Australia are ongoing. At present there is no concrete evidence of what drugs were taken by AFL or NRL players (or others), and indeed whether those drugs fell into a banned category under the WADA Prohibited List. We will need to await the investigation outcomes.
What the above analysis shows is that the WADA compliant Anti-doping Codes in elite and professional sport in Australia impose severe penalties, and often the application of those penalties in practice is severe and unfair on those being punished, often the athletes. This author hopes that the confidence that appears to be espoused by Mr Dank in the Essendon FC case that no prohibited substance has been taken by any player "under his watch" will manifest itself, and render the above considerations irrelevant.
It seems possible that players took substances that were banned under the WADA Code. If sufficient evidence could be found to support the admissions - including public admissions – made by some players, of taking allegedly banned substances, prosecutions may be possible. As has been seen to date, proving exactly what was taken and by whom, in the absence of a clear chain of custody of the substances from the point of manufacture, distribution or purchase, makes the establishment of offences very difficult. Key witnesses (including so-called sports scientist Stephen Dank and his compounding chemist) for a variety of reasons have not been forthcoming with information. There was also conflicting scientific evidence as to the status of certain substances allegedly injected.
If players and coaches (and other athlete support personnel) avoid suspensions, they will be very lucky, and not necessarily by design. For those innocent and perhaps naïve parties, such as the players, this would be a fair outcome. For professional sport, especially in a country like Australia which prides itself on its sporting success, and its 'clean' drugs-in-sport image, it is a massive wake up call to be more vigilant. Pushing the envelope is one thing, but allowing unregulated scientific experiments to occur is simply unacceptable in an elite and professional sporting environment.
Paul Horvath represented an assistant coach, one of 4 individuals charged, in the Essendon matter. The views expressed in this article are his own.
- The Prohibited list contains a detailed list of substances that it is prohibited for an athlete to take or use. There are also substances banned on the basis that their chemical composition is the same or similar to a banned category. Some substances move in and out of this prohibited list, such as caffeine and Sudafed.
- Cl 14.1, AFL Anti-Doping Code.
- Cl 11.2(a) of the AFL Anti-Doping Code. In the footnote to sub-cl 11.2, the note states that "Use or Attempted Use of a Prohibited Substance or Prohibited Method may be established by any reliable means...such as admissions by the Player, witness statements, documentary evidence...".
- Cl 2.1 definitions section of the AFL Anti-Doping Code.
- Georgia Squizzato v FINA, CAS 2005/A/830.
- Hans Knauss v International Ski Federation, CAS 2005/A/847. The State prosecutor in Austria commenced criminal proceedings against the manufacturer, and it is understood the skier later successfully sued the product manufacturer for US$500,000.
- AFL Victoria v Wade Lees, AFL Victoria Anti-Doping Tribunal decision dated 19 December 2012.
- Australian Weightlifting Federation v Camilla Fogagnolo & Genna Myers, CAS A4/2006. Other two year penalties imposed in tainted supplement cases of Rebekah Keat v Triathlon Australia and ASDA, CAS 2005/A/879; UCI & WADA v Alberto Contador Velasco & Spanish Cycling Federation CAS 2011/A/2384 & 2386.
- P v International Ice Hockey Federation, CAS 2005/A/990.
- International Tennis Federation (ITF) and World Anti Doping Authority v Richard Gasquet, CAS 2009A/1926 &1930; see also Puerta v ITF, CAS 2006/A/1025 and Canas v ITF, CAS 2005/A/951 where no significant fault or negligence arguments succeeded by tennis players.
- AFL Anti-Doping Code, cl 14.4(c).
- Note 11 above, cl 14.4(c).
- Note 11 above, Sub-cls 14.9 and 14.10.
- Note 11 above, cl 22.
- Note 11 above, cl 11.7.
- "Assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an Anti-Doping Rule Violation (ADRV) or any attempted ADRV": Note 11 above, cl 11.8.
- Note 11 above, cl 14.2(b).
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- Tags: AFL | Anti-Doping | Australia | Australian Ant-Doping Agency (ASADA) | Australian Football League (AFL)
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Paul is the Principal of SportsLawyer, Melbourne. He has practised law for over 18 years, in criminal law, commercial law and sports law. In 2008, Paul completed his Masters of Laws degree (LLM), with an emphasis on sports law.