Should doping in sport be a criminal offence?

Cheating in sports has always been a problem, something to which cycling is not immune. From catching trains in early editions of the Tour de France to motors in cyclo-cross bikes, there is always one individual willing to do whatever it takes to gain an advantage to end up on top of the podium. Unfortunately, one of the most common methods of cheating involves the use of performance enhancing drugs.

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photo sourced from https://www.visitcampnou.com/

Cycling in particular has a rather rich history of drug taking; and while this has slowly changed over the years, with seemingly fewer athletes doping, it still continues. Regular anti-doping tests, biological passports, declarations of honesty in rider contracts, groups such as the MPCC and a change in ethics have lessened doping to an extent, but have not eliminated the issue completely. So is there a better answer? Suggestions such as taking away rider’s future earnings (superannuation) have been met with mixed feelings……maybe declaring doping in sport a criminal offence world wide could be the way to go???

WHY DO WE NEED ANTI-DOPING RULES IN THE FIRST PLACE?

While it would be nice to think that everybody involved in sports is honest, that simply is not the case. Competition can bring out the worst in some individuals, who are more than happy to push the rules, or break them entirely, in order to win.

One of the biggest objectives for any sporting body to achieve is fairness. Athletes should compete on a fair and even playing field; where it is about the individual’s natural abilities against their competitors. Winning and being the best requires hard work and dedication….cheating sours everything. It creates a negative image for the sport in question. Role models are no longer an inspiration to be looked up to. Fellow competitors either give up, or decide to follow suit.

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Anti-doping rules exist in order to discourage athletes from doing the wrong thing and gaining an unfair advantage. They are in place to weed out the bad and create an even, fair playing field; and to generate a positive image, hopefully encouraging more people to be engaged in a chosen sport, either as a viewer or an amateur.

WHAT ARE THE CURRENT RULES IN AUSTRALIA?

Here in Australia, each individual sporting body is responsible for implementing its own anti-doping policy. With WADA producing the anti-doping code, it is fairly easy for a sporting body to simply apply this existing code for its athletes. Some sports take it a little bit further, such as the AFL including an additional policy for the use of illicit substances outside of competition; or Cycling Australia, following the direction of the UCI and implementing the ban of tramadol for use in competition, which is currently not reflected in the WADA anti-doping code. Doping violations are then punished according to the guidelines which exist in the code a sporting body decides to implement.

But it’s a little bit more complicated than that. Australia does not have any legislation which directly makes doping in sport a criminal offence. However, criminal laws exist which can potentially be applied to any conduct revolving around items found on the banned list; usually relating to trafficking, possession and importation of these items.

For example, the Therapeutic Good Act 1989 makes the importation of any therapeutic good into Australia, without the appropriate permit, a criminal offence; with up to 4 years imprisonment and a fine of up to $680,000 possible. Many of the items which appear on the WADA banned substance list are classed as therapeutic goods under the Act.

Existing fraud legislation, at both the federal and state levels, can also be applied in cases of the use of performance enhancing drugs. It can quite easily be argued that the use of a PED can be viewed as a dishonest act, in order to create an unfair advantage….this can be interpreted and prosecuted as an act of fraud; which can attract large fines or jail sentences.

Anabolic Drugs Biceps Pills

In addition to relevant Commonwealth criminal laws, state and territory legislation also exists which can be applied in cases of sports doping. The following table is a great example of the penalties for the inappropriate use of steroids in each state:

State  

Relevant Act

 

Notes

 

Penalties

 

ACT

Crimes Act 1900 Criminalises the possession, trafficking, use and administration of steroids. Schedule 1 lists a large number of Anabolic Steroids, most of which appear on the List. Imprisonment for 5 years and/or a fine of up to 500 penalty units ($55,000)
NSW Poisons and Therapeutic Goods Act 1966 Criminalises the possession and trafficking of steroids. Links key definitions to the TG Act. Imprisonment for 2 years and/or a fine of up to 20 penalty units ($2,200)
QLD Drugs Misuse Act 1986 Criminalises the possession and trafficking of steroids. Links key definitions to the Drugs Misuse Regulation 1987which includes “any other anabolic and androgenic steroidal agent”. Imprisonment for 20 years for trafficking and possession.
VIC Drugs, Poisons and Controlled Substances Act 1981 Criminalises the possession and trafficking of steroids. Schedule 11 includes a large number of steroids, many of which are on the List. For trafficking: imprisonment for 15 years.  For possession: 5 years imprisonment and/or a fine of up to 400 penalty units ($56,336)
SA Controlled Substances Act 1984 Criminalises the trafficking, possession and use of steroids.  Links key definitions to the Uniform Poisons Standard which includes steroids, and incorporates an extensive list of substances, many of which are on the List. For trafficking: imprisonment for up to 10 years and/or a fine of $50,000.  For possession, administration or supply: 2 years imprisonment and/or a fine of $2,000.
WA Misuse of Drugs Act 1981 and the Poisons Act 1964 Criminalises the trafficking, possession and use of steroids.  Links key definitions to the Uniform Poisons Standard which includes steroids, and incorporates an extensive list of substances, many of which are on the List. For trafficking: imprisonment for up to 25 years and/or a fine of $100,000.  For possession: 2 years imprisonment and/or a fine of $2,000
NT Poisons and Dangerous Drugs Act Criminalises the trafficking, possession and use of steroids.  Links key definitions to the Uniform Poisons Standard which includes steroids, and incorporates an extensive list of substances, many of which are on the List. For trafficking and possession: imprisonment for 5 years and/or a fine of 500 penalty units ($70,500).

For use: imprisonment for 2 years and/or a fine of 500 penalty units ($70,500).

TAS Misuse of Drugs Act 2001 Criminalises the trafficking, possession, use and administration of steroids. For trafficking: imprisonment for 21 years.  For possession, use or administration: 2 years imprisonment and/or a fine of 50 penalty units ($6,500).

**Table sourced from http://www.legislation.gov.au
Further to this, there are also ethical and legal issues for medical practitioners revolving around the use and administration of PEDs. Medications in Australia are typically approved for a specific use, but doctors are able to prescribe “off label”, as long as there is a genuine clinical need. Many doctors have gotten into trouble, being banned from prescribing certain medications or being banned from prescribing outright, for giving medications to patients where the “clinical need” is questionable or unethical. Thyroid medications for weight loss, human growth hormones and hormone regulators for body builders….it happens. Eventually, the medical boards catch up with these doctors, and the laws come into play.

So while Australia doesn’t currently have any specific laws relating to sports doping being a criminal offence, there are existing criminal laws in place which can be applied; essentially making the need for specific anti-doping laws irrelevant.

In addition to existing criminal laws, Australia does have the “Australian Sports Anti-Doping Authority Act 2006”, which was responsible for the establishment the National Anti-Doping Scheme, as well as the Australian Sports Anti-Doping Authority. The main purpose of this Act is to ensure sporting bodies are actually complying with any anti-doping rules they set out. However, this Act does not state that doping violations in sport are a criminal offence. Instead, it references civil penalties, with imposed fines being paid to the Commonwealth.

But, it must also be considered that the existing laws can really only be applied to unlawful possession and distribution of banned substances. Possession of a substance is not and indicator, nor does it provide any evidence, of the substance actually being consumed by an athlete.

WHERE IS DOPING IN SPORT ALREADY A CRIMINAL OFFENCE?

Many European countries have implemented specific laws relating to doping in sports, effectively making the use of a product found in the WADA anti-doping code a criminal offence.

Countries such as Austria, France, Spain and Italy all have specific criminal laws in place regarding doping in sports. Anybody who has been paying attention over the past few weeks will be fully aware of what has been happening in Austria; with 5 international skiers and a sports doctor being arrested in police raids, as part of an investigation into a German “criminal operation” suspected of carrying out blood doping.

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Austrian law states that anybody who commits fraud by using a banned substance or method faces up to 3 years imprisonment, with even larger penalties applicable in some instances. These laws have been applied in the past, with Stefan Matschiner and Mikhail Botvinov both receiving prison sentences in recent years.

Italy has three specific types of criminal doping offences recognised under specific legislation. These laws target athletes and support personnel who procure, administer, consume or encourage the use of prohibited substances or methods, for the purpose of improving an athletes performance or modifying an anti-doping test. The laws also target those who trade in prohibited substances outside of official distribution channels. Imprisonment and large fines are in place for sanctions of these offences.

Spain has made it a criminal offence to prescribe, provide, dispense, supply, administer, offer or make available banned substances or pharmacological groups, as well as non-authorised methods aimed at increasing athletes physical capacity or modifying the results of competitions; while France has made the use of Prohibited Substances or Methods a criminal offence.

Many other countries across Europe (including Denmark, Greece, Hungary, Norway Portugal and Sweden to name a few) have implemented specific legislation which criminalises the trafficking of Prohibited Substances and Methods.

Recently, the United States of America have taken steps towards criminalising doping in international sports. While this would not apply to their internal competitions, it would mean prison time for those who use, manufacture or distribute banned substances in international competitions.

China is also in the process of implementing new criminal legislation, which would see athletes who use performance enhancing drugs receiving criminal prosecution and possible jail terms. Reports have proposed that this draft legislation will be implemented in “early 2019”.

In order to combat sports doping on a global scale, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) introduced the “International Convention against Sports Doping”. This was developed to try and provide a global framework which governments can implement to combat sports doping. Although the Convention does not state that governments need to implement criminal legislation against doping in sport, it is a big step forward in formalising world wide anti-doping rules.

SO SHOULD DOPING IN SPORT BE A CRIMINAL OFFENCE?

It is hard to say whether introducing specific legislation which makes doping in sports a criminal offence would make a difference. Data is obviously available to see when an athlete has been banned or sanctioned for using a prohibited substance; but actually knowing if changing the legislation will make a huge difference is not easy to establish.

There will always be athletes willing to push the boundaries or completely ignore the rules for personal gains; there will also be individuals, such as doctors and coaches, happy to assist with this form of cheating.

Doping-image

While current legislation in Australia would theoretically allow athletes to be prosecuted under criminal law, I cannot personally find any evidence of this ever actually happening (please feel free to correct me on this!!!!). Introducing a specific legislation which directly refers to doping in sport being a criminal offence would obviously change this…..athletes caught doping would immediately face criminal prosecution. And this is where the difference lays.

When comparing Australia to some other countries, the punishment for sports doping does not seem overly severe. A fine and a ban from competing for a small period of time will deter some athletes who may be considering cheating; but if you add the words “jail sentence” to that, things would change. If everybody involved in sports doping were to face full criminal prosecution, it may restrict a few more people from being involved. Not just athletes, but support staff as well.

Obviously, even in countries where sports doping is a criminal offence, there are still people breaking the rules. This is the case with any laws though……stealing is a criminal offence and it still happens. The idea of spending time in jail may just stop some people being involved.

In addition, making sports doping a criminal offence brings the authorities into play. Not only would standard tests such as urine, hair and blood samples be examined; but full police investigations could be mounted to investigate suspicious activity. This could mean the supply of prohibited substances from “unusual” sources may gradually reduce as offenders are caught; and the very act of obtaining substances in order to cheat could be more difficult for athletes.

Maybe, one day, we will be able to say that sport is clean and free from doping. But until that day comes, we need to deter as many people from the practice of sports doping as possible. If making it a criminal offence will help, then it just might be worth considering.

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