Lie detectors and sports arbitration - an uncertain futureIan Lynam, Hannah Haynes
First published in the Guardian 18th December 2012
"A lie detector test properly administered, I'm a proponent of that frankly, just personally. I wouldn't challenge a lie detector test, with good equipment, properly administered" Tim Herman, lawyer for Lance Armstrong, 14 October 2012.
Given this widely-reported statement of Lance Armstrong's lawyer, and the acceptance of polygraph evidence by CAS for the first time in the recent Contador1 case, the use of lie detectors in sport has come under increased scrutiny. Could polygraph testing offer a solution for sport's doping and integrity issues?
Reliability of polygraphs
A polygraph measures and records a stress response automatically generated by a person when questioned. Following an analysis of results, an expert delivers an opinion on whether an individual is telling thea truth.
A comprehensive and independent report into the issue was published by the American National Academy of Sciences in 20032. It presents a number of conclusions to support the theory that polygraph results are inaccurate and unreliable. The report found that the accuracy of properly carried out polygraph testing stands between 81 and 91 per cent and concluded:
"We have reviewed the scientific evidence on the polygraph with the goal of assessing its validity for security uses, especially those involving the screening of substantial numbers of government employees. Overall, the evidence is scanty and scientifically weak...Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy."
Even polygraph experts limit their claims of accuracy to at best 90%3 or 95%4.
The admissibility of polygraph evidence
Polygraph evidence has been ruled inadmissible in a number of common law jurisdictions including Canada5, New Zealand6 and Jamaica7. As yet, there is no English authority on the subject8. The use of polygraph testing is likely to become more common in criminal proceedings in this country following the introduction of the Offender Management Act 2007 relating to registered sex offenders9. The legislation will give the probation service in England and Wales new powers to polygraph test convicted, high-risk sex offenders on a mandatory basis. It is important to note, however, that polygraph evidence obtained from such tests will not admissible in court.10
Use of polygraph evidence in sport
The only sports in which polygraph testing currently appears to be widely used are deep-sea angling11 and natural bodybuilding12.
There have been a number of calls to introduce polygraph testing into cricket. In 2000 the King Commission, a body set up to investigate match fixing in South African cricket, suggested that lie-detectors be used to investigate allegations of corruption in the sport following Hansie Cronje's confession of match-fixing. Although Lord MacLaurin, then Chairman of the ECB, came out very much against this proposal13, the idea was not without its supporters. In 2001, Malcolm Speed, then CEO of the ICC suggested that lie detector tests should be conducted every six months for leading players, administrators and officials14. Following more recent allegations of spot-fixing made against three Pakistani cricketers in December 2010, the MCC Cricket Committee put forward a proposal regarding the introduction of polygraph tests for players who are suspected of being involved in match fixing15. This proposal was supported by former India captain Rahul Dravid who stated:
"Even if it means giving up a little bit of freedom of movement and privacy, if it means undergoing dope tests, let us never say no...If it means undergoing lie-detector tests, let us understand the technology, what purpose it serves and accept it"16.
Polygraph testing has appeared in football. It was introduced by the Singapore FA in 2001 on a random spot-testing basis. Winston Lee, General Secretary of the Singapore FA, is of the view that lie detector tests are a key deterrent in match fixing and corruption. He recently stated:
"All players are tested for fitness, and so on, and now they have to have a random polygraph test as well... We have taken a very strong stand against match-fixing and we are quite happy that it is working. You can never totally eradicate the problem but it is realistic to try and reduce it and this is one way we have done this"17
The actions of the Singapore FA were supported by Asia's FIFA vice-president Prince Ali Bin Al-Hussein of Jordan who recently commented: "it is one method and it is working, so we welcome it...We can all learn from each other and I think in time it may become more widespread, we shall see"18.
In September this year, the Bulgarian club Lokomotiv Plovdiv ordered its players and coaches to take polygraph tests following allegations of match–fixing. This decision was heavily criticised by Wil van Megen, a FIFPro lawyer, who noted that "many scientists have criticised the use of the lie detector. They are not convinced that this tool is the most accurate to determine whether someone is telling the truth or lying"19.
"A lie detector test presents a margin of error, however small, and this impairs its reliability as a "detector of lies"20 CAS Panel in 2000
The CAS Code is silent as to the admissibility of polygraph evidence although such evidence is inadmissible on a constitutional basis under Swiss law21. Before Contador, the admissibility of polygraph evidence has been considered in at least three CAS cases22. In each, the polygraph results were rejected as evidence per se.
Most recently, the admissibility of polygraph evidence was considered before CAS during the UCI and WADA cases against Alberto Contador following a positive test for clenbuterol during a rest day on the 2010 Tour de France23. Contador sought to voluntarily admit expert evidence on the results of a polygraph test in an attempt to prove that he had not ingested the substance intentionally.
Contador, of his own accord, underwent a polygraph examination, the results of which were analysed by Dr Louis Rovner, an experienced polygraph examiner who claimed accuracy levels of 95%24. Dr Rovner's analysis concluded that Contador was telling the truth when stating he did not undergo a transfusion in order to benefit from clenbuterol. Importantly, Dr Rovner's conclusion was then verified by Dr Palmatier, an independent polygraph credibility consultant.
Regarding the admissibility of the evidence, Contador drew the Panel's attention to Article 3.2 of the WADA Code: 'facts related to anti-doping rule violations may be established by any reliable means, including admissions'. He further underlined that the admissibility of a polygraph test in arbitration "is far less stringent as in courts". Contador argued the polygraph examination was a reliable method and should therefore be admitted.
Somewhat surprisingly, the admissibility of the polygraph examination as evidence per se was not disputed by the UCI or WADA. The two bodies did, however, refer to the previous CAS rulings on polygraph evidence and argued that that the results should be given no greater evidentiary weight than a personal statement.
Contador is notable as the first CAS decision to accept polygraph results as per se evidence with the Panel finding that the polygraph results "add some force to M Contador's declaration of innocence" albeit then adding that the results "do not, by nature, trump other elements of evidence"25. The Panel weighed the polygraph results in light of the other evidence presented and Contador was ultimately found guilty and stripped of his 2010 Tour de France title.
A future for lie detectors in sport?
The crux of the problem is that polygraph testing, even expertly administered, is unreliable. Lie detectors make mistakes and, rather fundamentally, this "impairs its reliability as a "detector of lies"26. A 95% success rate means 5% false positives, 5% of athletes whose good names would be unfairly tainted and whose careers could be endangered. It is our view, therefore, that polygraph testing has no role to play in prosecuting integrity or doping offences in sport.
The admissibility of polygraph evidence in Contador could be read to indicate a future for polygraphs in defence of integrity and doping charges. There is no certainty, however, that future CAS Panels will follow Contador in accepting polygraph results as per se evidence. Even if they do, the very limited evidentiary weight given to the results in Contador indicates that polygraphs will be of limited value in this regard.
The unfortunate truth for Tim Herman is that even if Lance Armstrong was to take and pass a polygraph test, neither the courts (nor the public) would be likely to pay much attention.
1 CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC, and CAS 2011/A/2386 WADA v. Alberto Contador Velasco & RFEC
2 “The Polygraph and Lie Detection” Committee to Review the Scientific Evidence on the Polygraph Board on Behavioural, Cognitive, and Sensory Sciences and Committee on National Statistics Division of Behavioural and Social Sciences and Education (2003)
4 CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC, and CAS 2011/A/2386 WADA v. Alberto Contador Velasco & RFEC at para 393; the remaining 5% alleged to be false positive results.
5 Phillion v R  1 SCR 18; R v Beland and Phillips (1987) 43 DLR (4th) 641.
6 Blackie v Police  NZLR 910; R v McKay  NZLR 139, NZ CA
7 Bernal v R  2 LRC 534, PC.
8 “H. M. Malek, J. Auburn and R. Bagshaw, Phipson on Evidence, 17th edn (Sweet and Maxwell: London, 2010) para. 33-13
9 s.28 Offender Management Act 2007
17 Polygraph test helping cut corruption say Singapore FA 10 October 2012, Reuters, M Collett
19 Reuters, FIFPro criticises Plovdiv’s use of lie detectors Thursday 27 September 2012, The Guardian
20 CAS 99/A/246 para 5
21 ATF 109 I a, 289
22 TAS 96/156, CAS 99/A/246 and CAS 2008/A/1515
24 n.1 at para 393
25 n. 1 at para 394
26 Supra n.19
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- Tags: Court of Arbitration for Sport (CAS) | ICC | International Cricket Council (ICC) | MCC | Singapore Football Association
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About the Author
Ian has wide expertise across corporate, commercial and regulatory matters. He is recognised by the legal directories as a leading “commercial dealmaker” “who has become a clear leader in the UK” and “an excellent lawyer, whose knowledge of the sports industry is unparalleled”. His expertise includes financial regulation of sport (including salary caps and financial fair play), mergers and acquisitions in sport, financing, governance, integrity, rules and regulations, sponsorship agreements, transfers, player contracts and image rights. He has a particular expertise in the use of data in sport, has spoken widely on the subject and sits on the board of STATSports as a non-executive director.
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.