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Should doping be criminalised?

Peter Stuart
14 Jun 2018

The United States took steps on Tuesday to criminalise doping in international sports – should doping be a crime?

Doping is wrong. We're all agreed on that, and in cycling it has probably created more issues than in any other sport. Historically, doping has been a breach of competition rules and a sporting offence, but has never strayed into the territory of being a criminal offence which would bring about criminal penalties.

However, on Tuesday United States lawmakers took steps to introduce prison time for those involved in the use, manufacturing or distribution of performance-enhancing drugs in global competitions, according to a report by the New York Times. It would be a significant step to creating a divide between countries that criminalise doping and those that don't.

Doping is already a criminal offence in Australia, France and Italy, but is purely an infringement of sporting rules in the UK and the rest of the world – resulting in a competition ban but no criminal fines or risks of prison time.

In the UK, what is illegal is the sourcing, moving and possession of controlled prescription-only substances, so many dopers may unknowingly tread into the world of illegality and could face heavy potential penalties.

This is an area that UKAD would like to see further criminalised, which we'll return to later. For now, though, the US's moves to criminalise doping could have far-reaching effects on sport.

The Icarus effect

The bill which has been brought into the House of legislature in the USA has been named the Rodchenkov Anti-Doping Act, named after the Russian doping whistleblower Grigory Rodchenkov, made famous by the Netflix documentary Icarus

The proposed law has been brought into the house by the same lawmakers who created the 2012 Magnitsky Act to freeze assets of Russian nationals accused of human rights violations and corruption. Those same lawmakers believe that doping in sport can be linked to broader fraud relating to international relations.

The law would be distinct in that it would enable juristiction outside of the United States, where there are more than three competing nations at an event, and it would enable those who have competed against doping athletes to seek vast damages through civil lawsuits.

The US has argued that this juristiction would be justified as the US makes the largest contribution to the World Anti-Doping Agency.

Strangely, the proposed legislation would not affect domestic US competition, as it does not involve competition amongst countries. Major League Baseball, for instance, would not be affected.

The penalties for doping, as proposed by the new law, would be up to $250,000 for individual and $1million for organisations, as well as up to five years in prison for the offending athlete. Considering the standard WADA ban of four years, this could mean that an athlete could still be serving time in prison despite their sporting ban having expired.

The issue begs the question of whether sport be fairer and better if there were steps unilaterally to make doping a crime? Should the world follow suit?

Let's start by what laws are currently broken by dopers, how this US law could change the prosecution of doping athletes, and what the specific situation is in the UK.

Demand and supply

Last year, UKAD (UK Anti-doping Agency) suggested that it would like to see the importation of performance enhancing drugs made illegal. It is worth noting that for many substances that is already the case.

Most anabolic steroids, for instance, are classed as Class C drugs under the Misuse of Drugs Act 1971. That means that supplying the drug, or possessing it with the intent to supply, carries a maximum sentence of 14 years in prison, the same as importing as powerful painkillers or tranquilisers. 

There is an important difference between anabolic steroids and other Class C drugs, though. There is no penalty for the possession of steroids, while the possession of normal Class C drugs can carry a two-year sentence.

‘Anabolic steroids are Class C drugs to be sold only by pharmacists with a doctor's prescription. It is legal to possess or import steroids as long as they're for personal use,’ says UKAD director Pat Myhill.

‘Importation or exportation of steroids for personal use can only be carried out in person. Importation or exportation of steroids for personal use using postal, courier or freight services is already illegal.’

So if one orders steroids over the internet, that would constitute trafficking drugs and receiving them by post could mean a 14-year prison term.

But heading over the border in person to a country where it can be sold without prescription and purchasing some for personal use is legal.

In other words, the distinction between illegal drug trafficking and perfectly legal drug consumption is surprisingly slim.

Importantly, though, even sharing steroids with close friends in private and without payment, can constitute supply.

Class distinction

The same applies to Human Growth Hormone (HGH), and painkiller Tramadol, both of which are Class C drugs. Testosterone, too, as a naturally occuring steroid, falls into Class C.

As for the likes of EPO (Erythropoietin) and corticosteroids such as Triamcinolone, these are not classed as Class C drugs, despite efforts in 2008 to have them included in the same framework.

So importing these from a country where their sale is legal without prescription for personal use would not be a violation of the law. 

UKAD’s head of science and medicine, Nick Wojek, explains, ‘You would be breaking the law importing human growth hormone and testosterone by post, even for self-administration. You would not be breaking any laws importing EPO by post.'

If UKAD succeeds in extending bans on importing drugs, the ability to source these drugs will change from a doping violation to an infringement of the law. 

Criminalising the supply of performance enhancing drugs would likely have an impact on the vast scale of doping amongst amateurs and enthusiasts of all sports.

Use and abuse

Considering the media attention that high-profile doping attracts, it's no wonder that the question of whether doping should be illegal is such a hotly debated one.

Doping in sport is, of course, cheating. But UKAD’s position has remained for some time that it does not believe that it should be criminalised.

WADA (World Anti-Doping Agency) also takes the view that ‘the Agency does not believe that doping should be made a criminal offence for athletes’.

While it would be tempting to interpret this as a reluctance to tackle the issue of doping head on, in reality it's not as simple as that.

For example, while an anti-doping violation may lead to an athlete being banned, a positive test alone isn’t conclusive proof of intentional doping.

To avoid the burden of providing conclusive proof that an athlete has intentionally doped, WADA enforces a policy of strict liability when it comes to a positive test.

‘It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body,’ states the WADA code. ‘Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples.

'Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation.’

However, actually criminalising a failed test is tricky. As anyone who’s watched Making a Murderer on Netflix will know, forensic lab evidence is known to become contaminated, and indeed WADA suffered contamination at one of its main labs last year. 

And in a court of law, the burden of proof is the prosecution's to bear, since requiring a defendant to prove their innocence in a criminal court could be seen as a violation of human rights.

Ex-Team Sky rider Jon Tiernan-Locke claimed in an interview with the Weston Morning News, ‘I’m confident the ‘passport’ would not stand up to the same scrutiny applied to forensics [in court].’

Interestingly, in Germany and Austria, where doping is criminalised, the model of prosecution is one of fraud, punishing an athlete who benefits financially from doping.

Claire Summer, a Law Lecturer with the Open University, suggests in a paper that the laws already exist in the UK to punish this form of sporting fraud. ‘The existing crime of fraud by false representation, s.2 Fraud Act 2006 could be used in its’ current format to allow fraud charges to be brought where an athlete dopes and by competing dishonestly makes the false representation that they are doing so clean.’

Doping is also illegal in France and Italy. In France it carries up to a €3,750 penalty and a year in prison, but relies on possession or movement of drugs rather than a positive test.

To traffick performance enhancing drugs in Italy or France carries with it substantial penalties, and in past years that’s seen numerous team support staff prosecuted for involvement in doping.

The question remains, though, should doping be a criminal offence for an athlete?

The criminal question  

Joe Papp is a former US national team member who was suspended in 2006 for positive doping test. In 2010 he pleaded guilty to being part of a conspiracy to distribute performance enhancing drugs.

Now a vocal anti-doping advocate, he spoke to Cyclist about the hazards of criminalising doping.

Joe Papp in his racing years posing with doping products outside a pharmacy

‘I strongly oppose the criminalisation of doping by athletes,’ says Papp. ‘However, I support the criminalisation and prosecution of those trafficking in doping products.’ 

Importantly that would include his own latter misdemeanours, much as his own conviction created huge problems for his career and personal life.

‘The threat of criminal prosecution isn't an effective deterrent to doping when the financial and material rewards, especially at elite level, remain so pronounced,’ Papp says.

Indeed, many commentators have highlighted that with pressures of money in sport, athletes will likely risk severe punishments to secure their career on the assumption they won’t be caught. 

‘The real deterrent is not the severity of the sanction if caught doping, but rather, increased probability of being caught in the first place.’

Papp also highlights that if doping were to become illegal, the penalties for those at an elite level who are regularly tested and those at amateur level would become increasingly disparate. Especially if the law was one based on fraud over one's earnings from the sport, as suggested by Sumner. 

‘It potentially undermines the global anti-doping regime in place through WADA, by creating artificial differences in the criminal justice treatment of doping violations by elite and non elite athletes,’ says Papp.

‘Under the WADA Code, all athletes face uniform anti-doping rules and possible sanctions.’

For now, a four-year ban from all sporting competition is the uniform sanction for all violations – be it a positive test or possession of a performance-enhancing drug.

The consensus seems to be that this is the most effective and workable solution for the time being.

However, involvement in the wider supply and transport of some illicit substances may well land an athlete with criminal charges going forward.

If UKAD is successful in pushing through new laws, the movement of all performance enhancing drugs will become significantly harder, and significantly more punishable.

If the US succeeds in pushing through laws that fully criminalise doping, we could be entering a troubled period for sport and for athletes the world over that may not fully address the problems at the heart of doping.

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