Has the anti-doping movement reached a point where rules trump commonsense?


Everyone has got a story. Some have four or five stories – each one of them a mind-boggling tale that challenges the narrative of sport’s anti-doping movement.

Speak with anyone working in the sports integrity space about the way doping is policed, and they’ll soon rattle off a case study that, to them, highlights fundamental flaws in the system.

There’s plenty of hard luck tales to pick from in New Zealand. A Stuff analysis of all published anti-doping decisions over the past 10 years found 91.5 percent of athletes that faced a judicial body over positive drug tests had not intended to cheat.

For Rob Nichol, head of NZ Rugby Players Association and all-round athlete crusader, the story that perfectly encapsulates the rampant absurdity of sport’s strict anti-doping rules is that of the 16-year-old schoolboy who was suspended for four months in May this year after testing positive for the banned stimulant dimethylpentylamine.

As the athlete in question is a minor, many of the details in this case including his name, sport and team he represents are suppressed, which is about the only small mercy afforded the talented young sportsman as far as Nichol is concerned.

The broader facts are this: the teen was representing his region at a national tournament. In between matches he asked one of his senior teammates for a drink, thinking he was swigging on yellow Powerade. It turned out it was a pre-workout supplement marketed for its (highly dubious) weight loss and muscle-building properties and contains, you guessed it, the old dimethyl-whatsit.

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Even if he did know what he was drinking at the time, dimethylpentylamine is not among the ingredients listed on the supplement’s packaging, so unless the teen is a molecular scientist able to conduct complex tests to ascertain the chemical structure of the substance, he had little chance of realising his error.

Nichol remains in disbelief that the case ever got to the Sports Tribunal.

“It is such a crock of s… what they have done to that kid,” he seethes.

“It was just a bloody mistake – you can see how easily it would have happened, and he got four months. It’s just bulls…. It has consumed so much energy, resource and effort from a lot of people on all sides, and it never should have got past go.”

Intriguingly, the story of the schoolboy in want of electrolytes is one Drug Free Sport NZ chief executive Nick Paterson also cites in philosophical discussions about his agency’s work.

He points to the case as evidence that the scourge of performance enhancing drugs is taking hold in the lower levels of sport. It is all the more reason, he says, to double down on efforts to educate school-age athletes of their responsibilities under the code and the dangers of supplement use.

“He did not mean to cheat. No intention at all, I’m very comfortable saying that,” says Paterson.

And therein lies the great curiosities about the anti-doping sanctioning process: Even when all parties can agree that there was no intention to cheat, that it is all an innocent mistake, the athlete is still punished – often with devastating consequences.

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It is little wonder critics argue the modern day anti-doping system has drifted to a point where the code trumps commonsense.

A quick swig from a bottle he believed to be Powerade landed a 16-year-old boy with a four-month ban from competitive sport.

TOM YOUNG/STUFF

A quick swig from a bottle he believed to be Powerade landed a 16-year-old boy with a four-month ban from competitive sport.

The world anti-doping code is 156 pages of headache-inducing legalese and scientific jargon. There’s 25 articles, each with lengthy clauses and sub-clauses – the definitions in appendix one alone runs to 12 pages.

But the important part is right at the start, where the key principle underpinning the entire document is outlined: “to protect the athletes’ fundamental right to participate in doping-free sport and thus promote health, equality and fairness for all athletes worldwide”.

Over the next 150 pages or so this document designed to safeguard the interests of clean athletes goes on to remove from them a whole lot of protections afforded people in other parts of society.

Within the highly prescriptive code lurk many regulatory traps to ensnare athletes. There’s the rules and procedures around how drug-testing is carried out; the process in which athletes must advise testing agencies of their whereabouts at a nominated hour every single day; and an inflexible sanctioning system for any athlete found to have any one of the 300-odd prohibited substances in their system.

Dr Paul Dimeo, an associate professor at Scotland’s Stirling University and expert in anti-doping policy, says the biggest fish hook is the premise of strict liability. If any of the harsh set of conditions are breached, then the responsibility rests squarely with the athlete.

“Strict liability means they are guilty regardless of context or motive or if it was accidental, and again you wouldn’t see that happen in other areas. It is hard to appeal against the strict liability rule, because the burden of proof is with the athlete, and even then they’re only likely to get a reduction rather than a full exoneration,” says Dimeo.

This month has thrown up yet another example of the harshness of strict liability. US swimmer Madisyn Cox, who was banned two years after testing positive for trimetazidine, had her suspension reduced to six months after independent tests revealed the multivitamin she was taking had been contaminated. She had been taking the supplement, produced by a reputable company and formulated especially for elite athletes, for seven years without incident.

American swimmer Madisyn Cox was banned after taking a contaminated multivitamin.

AL BELLO/GETTY

American swimmer Madisyn Cox was banned after taking a contaminated multivitamin.

Even with scientific evidence that showed she had taken a contaminated substance, Cox is still banned from competing for six months and has an anti-doping rule violation to her name.

Yet despite the tough, no-compromises approach, evidence shows WADA has been ineffective in stamping out systemic cheating. Doping scandals remain just as prevalent as they ever were.

In fact, in a warped way, anti-doping authorities have unwittingly given credibility to some of the most appalling drug cheats in modern history. For many years, Lance Armstrong’s strongest defence against allegations he was taking performance enhancing drugs was that he had never failed a drugs test.

Dimeo says rather than pulling the curtain back on the real drug cheats, WADA’s well-intentioned policing has created more confusion, unnecessary levels of prohibition and dubious convictions.

“Most people on the outside think WADA are good and they are doing a good job and protecting the integrity of sport and health of athletes, it’s only when you lift the lid on it that you realise that hang on, actually the war on drugs approach has not been effective and has a huge amount of damaging unintended consequences.”

Medication to fix a ruined hand landed Dane Boswell in more trouble than he could have imagined.

TOM YOUNG/STUFF

Medication to fix a ruined hand landed Dane Boswell in more trouble than he could have imagined.

There’s a whole lot of cultural baggage that comes with a doping sanction. Just ask Dane Boswell.

The former elite rower, who was banned for two months in 2009 after the medication he took to treat a badly infected hand resulted in a positive test, says the incident not only had a damaging effect on his international career, but also professional opportunities.

“Even now when you google Dane Boswell, the first thing that comes up is banned for an anti-doping violation. In your professional career it doesn’t paint a very good picture, and it has definitely had an impact on roles that I have applied for in the past. That’s one of the first questions I’ve been asked in job interviews,” says Boswell, a Nelson-based financial planner.

“If I wanted to be involved in the sports administration side of things now or coaching or what not, I don’t think I’d have a leg to stand on. I feel like I would probably be excluded based on that, or at least have a lot of questions thrown at me. So it has closed that chapter basically.”

His wrongdoing essentially amounted to a procedural failure. He was not aware the medication he was taking was on WADA’s banned list. Had he been made aware or done his own checks, he would have been able to apply for, and almost certainly granted, a retroactive therapeutic use exemption (TUE) due to the urgent nature of the medical treatment.

But sport’s anti-doping rules are so complex that the particulars of cases like Boswell’s are often lost on the public.

Nichol says years of drug scandals have conditioned us to adopt a cynical view.

“The natural assumption is when an athlete is found to have committed an anti-doping rule violation that they are ‘dodgy’ regardless of the factors behind it,” he says.

“To make an inadvertent mistake and then to be labelled a drug cheat, has a profound effect on that person.

“Obviously with their mental health, but also all the onus is on them to prove their innocence. So very often they are spending significant sums of money just to get a fair hearing and to ensure that they can try and get some mitigation, if it’s at all possible to their situation.”

Vince Whare is serving a 10-year ban from the sport he loves because he smokes cannabis.

TOM YOUNG/STUFF

Vince Whare is serving a 10-year ban from the sport he loves because he smokes cannabis.

Vince Whare worries his infractions will have an impact on his kids’ sporting careers. The former Canterbury Bulls prop, who is serving out one of the longest bans handed down to a New Zealand athlete under sports anti-doping rules, accepts he messed up. He was stung three times for cannabis use, the third resulting in a 10-year suspension.

What he doesn’t accept is that such a breach warranted the far-reaching implications on his life that it has.

“It’s had a huge impact. Not being able to play is one thing, but it’s all the other stuff where it really hits home for me. I’ve got so much to give back you know, I took all the coaching courses and training courses and strapping courses and that. I actually used to go into schools and coach young players,” says Whare.

“My kids are getting older now, and my older boy he’s starting to be selected for rep teams in rugby and league – I just hope what I’ve done doesn’t affect him.”

Nichol says Whare’s punishment at the hands of the Sports Tribunal was far greater than any court would have handed down.

“I can tell you, we’ve had a couple of players go through the criminal proceedings in New Zealand, it is so much more empathetic and constructive than the anti-doping system,” he says.

“The whole judicial process is built on ‘we’re going to show some empathy and judge each case on its merits’. When things are at a low-level, they have mechanisms like discharge without conviction, diversion, restorative justice – all those kind of things. The courts will support an outcome that doesn’t punish you for life.”

Rob Nichol says the public has become conditioned to assume an anti-doping rule violation means an athlete is a drugs cheat, regardless of the circumstances.

MAARTEN HOLL/STUFF

Rob Nichol says the public has become conditioned to assume an anti-doping rule violation means an athlete is a drugs cheat, regardless of the circumstances.

It’s because of these questionable convictions and heavy-handed sanctions that Dimeo senses a rising tide of antipathy towards the anti-doping system.

He warns that without a total rethink of the issue, sport could be facing the collapse of anti-doping, both as a policy and an ideology.

“The idea that it might implode is real because at the moment WADA are not listening to their critics, they are not sympathetic to any miscarriage of justice or disproportionate decision and they don’t offer any rehabilitation or support for athletes coming back after a ban,” says Dimeo, who with Danish professor Verner Moller examine these issues thoroughly in the book The Anti-Doping Crisis in Sport.

“Eventually over time something has to give way, something has to happen now that crack has opened and what we see is a view of problems that have been happening for nearly 20 years now.”

Nick Paterson, who heads Drug Free Sport NZ, has made a career of policy enforcement.

JOHN SELKIRK

Nick Paterson, who heads Drug Free Sport NZ, has made a career of policy enforcement.

Nick Paterson doesn’t enjoy throwing the rulebook at our sportspeople.

The boss of Drug Free Sport NZ does take pride, however, in New Zealand’s record of compliance with the WADA code and the strong international reputation it has garnered as a result.

Along with protecting the interests of clean athletes, the other key objective of the code was to bring about a more unified approach to anti-doping efforts worldwide. One of the unfortunate side effects of that standardisation is that when people unintentionally fall foul of the rules, there’s no wriggle room for them.

Paterson says those cases are always frustrating, but to bring consistency to a previously disjointed system there needs to be robust rules in place.

“Do we have sympathy for the athletes that we bring to the Tribunal? Goodness me, absolutely,” says Paterson.

“I feel a huge amount of sympathy for these people, but we know why we’re in this game, we know why we need to have these rules and it’s to get consistency across the world. When our athletes go overseas to compete at the top level, I want to be able to tell them ‘I’m doing my best to ensure your sport at an international level is clean’.

“To do that, I test New Zealand athletes to prove to the world they are clean, and that gives me the moral basis for lecturing the world to say to other anti-doping agencies ‘you must do better’.”

Paterson took to his lectern as recently as last week adding his voice to the calls for WADA to postpone a vote on the reinstatement of the Russian Anti-Doping Agency (RUSADA) as a code-compliant agency. Despite the vocal international opposition, and RUSADA failing to meet two of the key conditions outlined in the ‘roadmap to compliance’, the WADA executive committee voted to reinstate Russia, ending a three-year suspension after a major investigation found overwhelming evidence of a state sponsored doping programme. 

“Kiwi athletes deserve to know that the rules are applied to everyone equally, no matter who you are, and that the system is robust,” Paterson said in his missive to WADA.

“My aim is to get international competitors tested and held to the same standards as often and with as much rigour as our Kiwi athletes. We’re fighting as hard as we can to give Kiwi athletes and sports fans confidence in the world anti-doping system.”

Paterson, who took over from Graeme Steel in the top job at DFSNZ in July last year, has made a career of enforcing policy. He came to the role with a long track record working in regulatory environments having previously served as the head of investigations for the Serious Fraud Office, and executive director of the Gambling Commission.

Where Nichol sees stubborn opacity from WADA, Paterson sees a piece of legislature that must be upheld.

It’s a line Paterson firmly holds even as his counterpart across the Tasman prepares to take a philosophical shift in the way the Australian Sports Anti-Doping Agency (ASADA) polices drugs in sport.

Drug Free Sport NZ's Nick Paterson may not agree with all of the rules he has to enforce but he says the agency is bound by the WADA code.

JOHN SELKIRK/STUFF

Drug Free Sport NZ’s Nick Paterson may not agree with all of the rules he has to enforce but he says the agency is bound by the WADA code.

The Australian newspaper last month reported ASADA chief executive David Sharpe had signalled a softening of the agency’s previous hardline attitude towards athletes who took banned substances without intending to cheat, particularly those competing at a lower level.

“We are not going to take you out of sport for two years if you test positive inadvertently or have made an error of judgement or didn’t have someone to ask,” Sharpe told The Australian.

There’s a key difference between the set-up in the two national doping agencies – ASADA are both the regulatory and sanctioning body, while in New Zealand, any potential anti-doping rule violations are referred to the Sports Tribunal or NZ Rugby Judiciary to rule on.

Regardless, Paterson says he doesn’t have the mandate to adopt a more lenient approach to inadvertent dopers or recreational athletes that don’t have access to regular anti-doping education and training.

“We are bound by the WADA code, and that was established so that all countries and athletes are held to the same standard,” he says.

“Certainly for Drug Free Sport, we want to know that we are doing it absolutely correctly and absolutely properly. We’re not going to change our approach.”

That’s not to say Paterson agrees with every rule he is charged with upholding.

DFSNZ has long pushed for cannabis to be removed from WADA’s prohibited list. This position is included in their submissions to WADA every year. Every year it is ignored.

“We submitted as recently as a month ago to WADA as part of a global discussion looking at potential changes the prohibited list for 2019 that cannabis should not be on the list. We don’t think the code is the best tool for dealing with cannabis use amongst athletes.”

This position did not stop DFSNZ pursuing the maximum lifetime ban against Vince Whare when he tested positive for cannabis for a third time. The minimum sanction for a third violation is eight years.

But the fear for many national anti-doping agencies is that if they do not apply the full force of the code, they will be taken to task by WADA and have their decision challenged in the Court of Arbitration for Sport.

Paterson says he would also like to see a different set of mechanisms put in place to deal with recreational sportsmen and women. While most amateur athletes are not subject to drug testing, there’s been cases of club level players being sanctioned under the anti-doping code after being identified in external investigations.

There could be movement on this front in the coming years.

A team of six lawyers, including New Zealand’s Ben Sandford – a three-time Winter Olympian and member of the WADA athlete commission, is currently undertaking a revision of the code.

The new code, which will be finalised in November next year but won’t come into force until 2021, will likely for the first time define a category of recreational sportspeople.

“At the moment the drafting that has been put forward, from Drug Free Sport’s point of view and the NSO’s point of view, we all think the concept is a really good idea but the drafting could be improved – but that is the purpose of the consultation period,” says Paterson.

“We’re not just drafting this by committee, we’re drafting this around the world. So to get some consensus on the wording of things is massively complex.”

World Players Association executive director Brendan Schwab suggests athletes could boycott the WADA code and instead develop a set of rules for each sport.

MARK METCALFE/GETTY

World Players Association executive director Brendan Schwab suggests athletes could boycott the WADA code and instead develop a set of rules for each sport.

Ask World Players Association boss Brendan Schwab if he thinks the current revision of the code will bring about meaningful change, and there’s a long pause.

The Australian lawyer and experienced sports administrator, who heads a global union of 85,000 professional athletes, gives long, almost sermon-like responses to questions over his organisation’s concerns about the effectiveness of the anti-doping system.

On this point however, he has a succinct answer.

“No.”

Schwab fears rather than using this as an opportunity to address the glaring problems in the code and the way it is enforced, WADA will just double down on its current strategy.

“The anti-doping movement is at a stage where it has difficulty confronting the question of fundamental change. So there is a tendency to reinforce and toughen existing mechanisms and existing governance structures, even though there’s blatant evidence available as to the ineffectiveness of the anti-doping system in addressing systemic cheating.”

There’s a pretty simple answer too, Schwab believes, to solving the problem with WADA – just ignore them.

He is advocating for professional sports to reject the WADA code and with its players develop a tailor-made anti-doping policy that makes sense for that particular sport. It’s a model that has been used to good effect among major sports leagues in the US, and Schwab expects more and more leagues around the world will soon follow suit.

“Our unions that have been able to collectively bargain anti-doping, particularly in the United States, feel we’ve been able to achieve a much more proportionate and health-based approach to anti-doping and that flexibility should exist more widely in the world of sport,” says Schwab.

“I think baseball is a great example. Baseball had a steroids scandal in the 1990s and the players and the owners bargained what even WADA would acknowledge to be one of the more effective anti-doping regimes, and one which has actually helped restore that trust and confidence because the players are at the forefront to prevent doping, which is something we all want.”

This may be a solution for professional sporting leagues that are independently governed corporations, but it is a much trickier proposition for national sporting organisations.

WADA is backed by the might of the International Olympic Committee, and in turn, political leaders. National governments and sporting organisations adopt the WADA code on the threat of being excluded from the Olympics.

There’s no sporting organisations in New Zealand with the political clout to take on WADA, but if there’s to be any change, it too will likely be driven by pressure from organised player unions.

Nichol says WADA’s obsession with a one-size-fits-all approach should not prevent New Zealand from making a few nips and tucks to create a garment more suited to our sporting landscape here.

“We’ve got a history of being reasonably innovative in New Zealand, there’s nothing to stop us, no matter what they draft in the code, of actually being able to create a culture where athlete’s voice is recognised and implementing the code in a way that is incredibly effective, and potentially, that could be a model others could follow,” he says.

“But to do that, we need the government, Drug Free Sport NZ, the NSOs and the athletes to really want to buy into it and give it a good go, and that’s what we’re going to push.”

* Read more from ‘Who are you calling a cheat’, a series by Stuff National Correspondent Dana Johannsen

 



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