When people hear the word ‘doping’ they automatically think of an athlete who was using prohibited substances to enhance his performance in a competition and therefore is a culprit worth banning from competing ever again. But what about the bigger picture?
Under the previous World Anti-Doping Code (2009 Code) the test of strict liability was applied which did not allow for flexibility at all. Once a prohibited substance was found to have entered the athlete’s body that was it.
The athlete was provisionally suspended and banned from competing shortly afterwards. The length of ban depended on the ‘degree of fault’.
Under the current World Anti-Doping Code (2015 Code) the test of strict liability still applies however the Code allows anti-doping panels to be more flexible in respect of sanctions, again depending on the ‘degree of fault’.
Contaminated supplements- what’s the risk?
It may seem unfair when an athlete receives a ban for taking contaminated nutritional supplements including high energy drinks to support his body and immune system without the intention of enhancing his performance in a competition.
But what is a contaminated supplement? The World Anti-Doping Code 2015 defines ‘contaminated products’ as prohibited substances that are not disclosed on the product labels or in information readily available on the Internet.
Unfortunately there have been many cases where athletes unknowingly took supplements that were contaminated with prohibited substances and those athletes were subsequently banned from competing.
Prescribed medication – is your doctor to blame?
Most athletes need to consult a health care professional at some point during their sporting career. Of course these professionals are there to help and support the athlete.
But beware! Having consulted a doctor does not automatically mean that you are off the hook if the medication you are taking is found to contain a prohibited substance.
Read on and you will find out why!
What does the law say?
Athletes are under an obligation to ensure that what they take is not prohibited. They may delegate their responsibility to other professionals who work closely with them however delegating would not free them from liability unless they properly followed through and exercised supervision and control over such person.
It is crucial for athletes to understand the dangers of the use of supplements and the due diligence they have to do to stay safe. If found ‘guilty’ they would not only lose their ability to compete and earn but of course their reputation could be damaged for good.
The good news is that under the new 2015 Code anti-doping panels are now free to reduce the sanction to below one year in cases involving contaminated supplements providing there was no significant fault or negligence on the part of the athlete.
A classic example of where such sanctions were imposed was the case of UK Anti-Doping v Warburton and Williams. In this case two very successful and internationally recognised track and field athletes unknowingly consumed contaminated supplements but were able to prove that the product itself became contaminated during the blending, manufacturing or packaging process. Hence their period of ineligibility to compete was six and four months respectively.
In FINA v Cielo Filho CAS 2011/A/2495 four Brazilian swimmers were accused of taking a prohibited substance which did not necessarily enhance their swimming performance but had the ability to mask other medication including prohibited substances that could enhance their performance.
In this case the athletes were keen to replace their intake of high energy drinks which contained too much sugar with a product that would work in a similar way but would contain little or no sugar at all.
Their doctor investigated different options and advised them to take caffeine tablets in a pure form which he prescribed himself. The tablets were made by a pharmacist based on the doctor’s prescription. The athletes were reassured that the tablets were safe to take. They took them regularly and had no adverse analytical findings.
Unfortunately due to a human error the caffeine tablets became contaminated during the manufacturing process at the pharmacy and the athletes subsequently tested positive. All four of them were suspended but were able to show that they relied on the medical advice to use the supplement and did their due diligence before taking it. Three of those swimmers ended up with a warning only and were able to continue competing.
Due to the fact that one of the swimmers had a previous anti-doping violation, a different set of rules applied and a one year ban was imposed for his second violation.
The new Code also allows an athlete to return to training before the end of his sanction which was not the case previously. This was highlighted in UK Anti-doping v Bilton where a Welsh Rugby player was allowed to restart his training with the team two months before his ban came to an end.
What can you do to protect your health and sporting career?
- Educate yourself and always check the labels and any other available information before taking a supplement you are not sure about.
- Always declare the product you are taking on your Doping Control Form. This may not prevent you from being suspended if the product turns out to contain prohibited substances. However, declaring the supplement would help you to show your willingness to disclose and cooperate and therefore a lesser period of ineligibility may be imposed upon you. In some cases you may end up with a warning only.
- Do not just rely on the advice from others even if you trust their judgement. You should always do your own due diligence.
- If you delegate your anti-doping responsibilities to others you need to ensure that your chosen delegates are qualified to carry out those duties. They need to be instructed properly by setting out clear procedures they must follow in carrying out their tasks. It does not end here. They must be supervised and controlled by you to ensure they carry out their tasks appropriately.
- If you decide not to follow my advice and do get into trouble, hire a competent lawyer! Hiring the right person could assist you in receiving a lesser sanction and get you back competing sooner.
Petra Ratajova in Hughes Paddison's Litigation Team was ranked 21 in the national junior tennis rankings and is a qualified international tennis coach.