Module 4

MODULE 4
DOPING – THE PLAGUE OF SPORTS

INTRODUCTION
Doping is now a global problem that follows international sporting events worldwide.
International sports federations, led by the International Olympic Committee, have for the
past half century attempted to stop the spread of this problem, with little effect. It was
expected that, with educational programs, testing, and supportive medical treatment, this
substance-abusing behavior would decrease. Unfortunately, this has not been the case. In fact,
new, more powerful and undetectable doping techniques and substances are now abused by
professional athletes, while sophisticated networks of distribution have developed.
Professional athletes are often the role models of adolescent and young adult populations,
who often mimic their behaviors, including the abuse of drugs. This review of doping within
international sports is to inform the international psychiatric community and addiction
treatment professionals of the historical basis of doping in sport and its spread to vulnerable
athletic and non-athletic populations.
The creed of the Olympics states: "The important thing in the games is not winning but
taking part. The essential thing is not conquering, but fighting well". As noble a goal as this
is, it has little to do with the reality of the modern sports world.
There are several hundred forms of known and potentially more unknown doping substances
and techniques abused by professional athletes worldwide. This review will provide a
summary of the history of doping in sport, and focus on the most commonly abused
substances: anabolic androgenic steroids, human growth hormone (hGH) and erythropoietin
(EPO).
HISTORICAL OVERVIEW OF DOPING
Performance-enhancing drugs are not unique to modern athletic competition. Mushrooms,
plants and mixtures of wine and herbs were used by ancient Greek olympic athletes and
Roman gladiators competing in Circus Maximus dating back to 776 BC. Various plants were

used for their stimulant effects in speed and endurance events as well as to mask pain,
allowing injured athletes to continue competing.1

In the 1904 Olympics, marathon runner Thomas Hicks used a mixture of brandy and
strychnine and nearly died. Mixtures of strychnine, heroin, cocaine, and caffeine were used
widely by athletes, and each coach or team developed its own unique secret formulae. This
was common practice until heroin and cocaine became available only by prescription in the
1920s. During the 1930s, it was amphetamines that replaced strychnine as the stimulant of
choice for athletes. In the 1950s, the Soviet Olympic team first used male hormones to
increase strength and power. When the Berlin Wall fell, the East German government's
program of performance enhancement by meticulous administration of steroids and other
drugs to young athletes was exposed. These well-documented and controlled hormonal
doping experiments on adolescent athletes by the East German Sports Medical Service
yielded a crop of gold medalists (mostly young females as they responded more dramatically
to male hormones). These athletes suffered severe medical abnormalities, including
premature death.

The world became acutely aware of the extent and benefits of doping in sport when Ben
Johnson's gold medal was stripped in the 1988 Seoul Olympics for using the steroid
stanazalol. The International Olympic Committee (IOC) medical commission had established
a list of prohibited substances in 1967 and introduced anti-doping testing of athletes in the
1972 Munich Games. It was clear at this point that doping did work and, if gone undetected,
would win gold medals.

East German scientists from the state-run doping programs at Kreischa and Leipzig, who
were disgraced in their own country, where now in demand in Asia, former Soviet Block
nations and sports organizations worldwide that wanted to promote their status. Doping
became so prevalent in Olympic sport that some argued that all records should be discarded
or put on hold until all forms of doping could be detected and stopped. Through the 1980s
and 1990s, clandestine doping programs spread from sport to sport guided by modern, albeit
unethical, pharmacists and sports medicine professionals.

In 1999, the IOC organized a World Conference on Doping in Sport in response to a
shocking discovery of massive amounts of performance enhancing drugs and paraphernalia
by French police at the 1998 Tour de France. It was at this meeting that an independent


1 Wadler GI. Hainline B. Philadelphia: David; 1989. Drugs and the athlete.

global agency was founded, the World Anti-Doping Agency (WADA). Its mission was to
work independently of the IOC, sports organizations and governments to lead the fight
against doping in sport.2

Despite years of aggressive anti-doping testing by international sports federations such as
those for cycling, athletics and soccer, steroid abuse scandals involving high profile athletes
continue to be front page news across the globe. Professional sports in the United States are
not subject to extensive anti-doping programs, as players' unions and collective bargaining
agreements prevented such extensive testing to be put into place. However, they did establish
limited anti-doping programs, as the professional sports organizations recognized the
potential of doping to harm athletes and their sport.

In 1998, when Mark McGuire, an American baseball player, broke Roger Marris' home run
record, it was revealed that he had been taking a supplement containing a precursor to
nandrolone, a steroid. At that time Major League Baseball did not ban steroids and did not
believe that steroids were a problem within the league. However, subsequent government
investigations and former players revealed that steroid abuse was a problem in the League,
which resulted in a limited steroid testing program.

In 2003, another significant event in the understanding of the institutional nature of doping
occurred. A syringe was anonymously sent to a WADA-accredited laboratory in Los Angeles
that contained tetrahydrogestrinone (THG), a "designer" steroid that was not known and not
on the current WADA prohibited list, made specifically to avoid detection by modern anti-
doping technologies. This led to a series of investigations resulting in the indictment of
individuals running a performance-enhancing program for professional athletes at the
BALCO pharmacy3 in San Francisco4.

In May 2006, Spanish police arrested five people and seized a variety of banned
performance-enhancing drugs and blood-doping supplies at a Madrid doping clinic.5 Here,
professional athletes would receive medically-supervised injections of hormones and other
performance-enhancing drug regimes. The 40-page police report included a clear paper trail
of doping procedures on at least 50 professional cyclists. The report was given to the


2 World Anti-Doping Agency. 2006 prohibited substances list.www.wada-ama.org.
3 Fainaru-Wada, Mark, and Lance Williams. Game Of Shadows. 2006.
4 United States v. Thomas, No. 08-10450.
5 David A Baron, David M Martin & Samir Abol Magd, ‘Doping in Sports and its spread to at-risk populations:
an International review’ (June 2007) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2219897/ accessed on 20th
May 2019.

International Cycling Union, which led to the disqualification of 23 professional cyclists,
virtually all the top contenders from the 2006 Tour de France. The final of the 2006 Tour was
also tarnished, as the champion, Floyd Landis, was found to have a positive anti-doping test
for steroids. Landis was stripped of the championship and discharged from his team. At this
writing the result is being challenged by Landis and his legal and medical experts, claiming
that the test was invalid since several errors were made in the collection, analysis and
reporting of the results.

In a separate investigation in Paris in 20066, 23 individuals were sentenced to 4 years in jail
for trafficking a cocktail of amphetamines and other performance-enhancing drugs known as
"Belgium Pot" to professional cyclists. Making this problem even more complex, in the June
2006 issue of the Journal of Applied Physiology, an article from Stanford University reported
that Viagra can be used to increase by approximately 45% the performance of cyclists in high
altitudes, suggesting a whole new class of performance-enhancing drugs not restricted to
cycling. In October of that same year, the cricket world was shocked to learn that two
Pakistani fast bowlers, Shoaib Akhtar and Mohammad Asif, tested positive for the steroid
nandrolone.

This brief overview suggests not only the historical and institutional nature of doping by
athletes, but also the international development of a clandestine and sophisticated distribution
network of black market doping programs that follows the modern sports industry. Today
perform- ance-enhancing programs and drugs are not the exclusive province of elite athletes,
but have spread to health clubs, high schools and other at-risk populations, creating an over
$1.4 billion US dollar industry that is growing daily as new compounds are synthesized and
marketed7.

KNOWN DOPING SUBSTANCES AND TECHNIQUES

There are literally hundreds of known doping substances and an equal number of designer,
veterinary, and yet to be identified drugs and techniques abused in sports today. The 2019
WADA list of prohibited substances includes the following major categories: anabolic agents
(i.e., exogenous anabolic androgenic steroids such as androstendiol, boldenose, closterbol and
danazol; endogenous anabolic androgenic steroids such as dihydroxytestosterone and
testosterone, and other anabolic agents such as clenbuterol and tibolone); hormones and


6 Ibid.
7 Healthy NJ. Performance enhancing drugs. www.healthynj.org.

related substances (i.e., EPO, hGH, insulin-like growth factors, mechno growth factors,
gonadotropins, insulin and corticotrophins); beta-2 agonists (i.e., terbutaline, salbutamol,
etc.); agents with anti-estrogenic activity (i.e., anastrozole, letrozole, clomiphene, etc.);
diuretics (furosemide, hydrochlorothiazide, etc.) and other masking agents (such as
epitestosterone, probenecid, plasma expanders, etc.); stimulants (amphetamines, ephedrine,
cocaine, etc.); narcotics (morphine, oxycodone, etc.); cannabinoids (marijuana, hashish), and
glucocorticosteroids (allowed externally but not internally). WADA also lists prohibited
methods, including enhancement of oxygen transfer (blood doping, efaproxial, etc.), chemical
and physical manipulation (tampering or substitution of sample) and gene doping. In
addition, WADA prohibits alcohol and beta- blockers (in specific sports: archery, billiard,
etc.)

Following methods are also prohibited by the WADA list of prohibited substances and
prohibited methods 2019:8

MANIPULATION OF BLOOD AND BLOOD COMPONENTS

The following are prohibited:

1. The Administration or reintroduction of any quantity of autologous, allogenic
(homologous) or heterologous blood, or red blood cell products of any origin into the
circulatory system.

2. Artificially enhancing the uptake, transport or delivery of oxygen. Including, but not
limited to: Perfluorochemicals; efaproxiral (RSR13) and modified haemoglobin products, e.g.
haemoglobin-based blood substitutes and microencapsulated haemoglobin products,
excluding supplemental oxygen by inhalation.

3. Any form of intravascular manipulation of the blood or blood components by physical or
chemical means.

CHEMICAL AND PHYSICAL MANIPULATION

The following are prohibited:

1. Tampering, or Attempting to Tamper, to alter the integrity and validity of Samples
collected during Doping Control. Including, but not limited to: Urine substitution and/or
adulteration, e.g. proteases.


8 https://www.wada-ama.org/sites/default/files/wada_2019_english_prohibited_list.pdf

2. Intravenous infusions and/or injections of more than a total of 100 mL per 12 hour period
except for those legitimately received in the course of hospital treatments, surgical
procedures or clinical diagnostic investigations.
GENE AND CELL DOPING
The following, with the potential to enhance sport performance, are prohibited:
The use of polymers of nucleic acids or nucleic acid analogues, the use of gene editing agents
designed to alter genome sequences and/or the transcriptional, post-transcriptional or
epigenetic regulation of gene expression and the use of normal or genetically modified cells.
Testing for the above list of compounds is technically challenging, expensive and only
performed by about 35 WADA-accredited laboratories worldwide. Steroids are still the most
detected performance-enhancing drugs by WADA laboratories. However, because of the
limitations of laboratory technology and sophistication of doping athletes to avoid detection,
the system is not fully capable yet.

Anabolic androgenic steroids
Anabolic androgenic steroids are naturally occurring male hormones involved in a wide range
of physiological functions. Simply referred to as "steroids", they fall into two categories:

1. endogenous or naturally occurring, like testosterone, and
2. exogenous or synthetic, like danazol.
In 1923 Bob Hoffman formed the famous York Barbell Company in the United States. A
dominant figure in US weightlifting, he published the Strength and Health magazine and sold
health and food supplements in his gym. As a weightlifting coach, his success led to him
being named the head coach of the US Olympic weightlifting team. At the 1954 World
Championships in Vienna, he met with a Soviet colleague who told him of a synthetic form
of testosterone developed by the Nazis which produced dramatic improvements in strength
and power. He and his colleagues contacted Ciba Pharmaceuticals in pursuit of synthetic
testosterone. Ciba had conducted a number of studies on the use of synthetic testosterone in

pain patients and the physically disabled. This resulted in the development of danazol, which
rapidly became a doping substance abused by weightlifters.9

Although steroids were first reported to be abused in Olympic sports in the 1950s, the abuse
of steroids in young male non-Olympic athletes was not reported until the 1980s. As demand
increased, trafficking steroids at schools and gyms became common and the use of steroids
was seen in younger and younger populations.10 Steroid sources included doctors, trainers,
friends, the black market and foreign suppliers. In the United States, the Anabolic Steroid
Enforcement Act of 1990 brought anabolic steroids under the record-keeping, reporting,
security, prescribing, import and controls of the Controlled Substances Act. All
manufacturers and distributors of steroids were required to register with the Drug
Enforcement Agency. Other countries have similar laws on the manufacture and dispensing
of steroids. However, the amount of illegal steroids entering the United States and distributed
to athletic and at-risk populations has increased dramatically. It is now estimated to be an
over 100 million US dollar black market for steroids in the US alone, with more than 80%
manufactured in Mexico. Projecting these figures internationally suggests that the illegal
steroid market alone approaches a billion US dollars annually, clearly making it a public
health concern, especially for at-risk groups.11

The serious side effects of steroids described in the medical literature include liver function
abnormalities, liver and kidney tumors, endocrine and reproductive dysfunctions, testicular
atrophy, lipid and cardiac effects and psychiatric symptoms. These consequences are
exaggerated with the common doping practices using ten times or more the recommended
medical dose, and multiple drugs or "stacking", e.g., steroids and EPO or hGH. Added to this,
a new problem has emerged with the manufacture of "counterfeit" drugs by unregulated
pharmacies, which are tainted with impurities, contain no medication, or are potentially
harmful. Now, more so than in the past, when an athlete buys performance-enhancing drugs
from a friend or at the gym, he will never know exactly what is being bought or taken.
Steroids are sold on the internet ranging in price from $50 to $200 per regime, depending
upon the type of steroid and doping program selected. These black market steroids may or
may not contain any medication at all or may contain harmful material. Testing for steroids in
urine is available at a few commercial clinical laboratories in the United States and can be


9 Haupt HA, Rovere GD Am J Sports Med. 1984 Nov-Dec; 12(6):469-84.
10 Irving LM, Wall M, Neumark-Sztainer D, Story M J Adolesc Health. 2002 Apr; 30(4):243-52.
11 ibid

obtained in the price range of $100-$200/test, depending upon the number of steroids
screened12

Human growth hormone (hGH and rhGH)

hGH is a naturally occurring hormone produced by the anterior pituitary gland and is one of
the major hormones influencing growth and development. Harvey Cushing discovered the
hormone in 1912 and isolated it from human and monkey cadaver brains in 1956. Two years
later it was used to treat dwarfism in children by injection. The unfortunate development of
Creutzfeldt-Jakob disease, a degenerative brain disorder, in boys who were treated with
cadaver growth hormone led to the discontinuation of all products derived from the human
pituitary gland. Because of this ban, the abuse of hGH was rare in sport until the middle to
the end of the 1980s. In 1985 Genentech received approval from the US Food and Drug
Administration (FDA) to market Protropin for children with growth hormone deficiency. This
was the first recombinant DNA form of growth hormone (rhGH) that was safer than cadaver
extracts used in the past. Recombinant DNA technology made the production of
pharmaceutical grade growth hormone easier and cheaper. Genetically engineered rhGH is
now marketed as Nutropin, Humatrope, Genotropin, Norditropin, Saizen, and Tev-Tropoin.
Most human growth hormone used in medicine and diverted to sports doping is now obtained
by recombinant technology, and is simply referred to as hGH (but it may also appear as rhGH
or HGH). Unfortunately, cadaver extracts of pituitary hGH may still be in circulation. The
normal route of administration of hGH is injection, posing an additional health risk of
infection from non-sterile counterfeit drugs and the risk of HIV and hepatitis transmission
caused by shared needles.

Olympic and professional athletes abuse hGH because of unsubstantiated reports that it is as
effective as anabolic steroids with fewer side effects. They often abuse hGH as a steroid
substitute to prevent loss of muscle after discontinuing the use of steroids. Ben Johnson
admitted to using hGH along with steroids during investigations after his disqualification in
Seoul. According to some controlled scientific studies13 hGH does not increase muscle
strength. Nevertheless, the abuse of hGH in sports is escalating, with large caches of needles
and vials of hGH being confiscated at sporting events worldwide. Six months prior to the
2000 Olympic Games, a pharmacy in Sydney was broken into and 1,575 multiple dose vials


12 Supra 5.
13 ibid

of hGH were taken while nothing else was touched. Also, on their way to Australia, the
Chinese swimming team were detained, as needles, syringes, and vials of hGH were found by
customs officials in their baggage14

Using hGH may lead to life-threatening health conditions, especially since some estimates
report that athletes who use hGH to enhance performance are taking 10 times the therapeutic
dosage. Some reported side effects of hGH are abnormal bone growth, hypertension,
cardiovascular disease, cardiomyopathy, glucose intolerance, colonic polyps, decreased life
span, and cancer.15

Since hGH is a naturally-produced hormone and rhGH is similar in structure, testing for
doping with rhGH has been a technical challenge only recently solved by WADAcertified
laboratories. Routine blood tests for hGH available at clinical laboratories will not
differentiate hGH from rhGH and are of no value in determining if an adolescent athlete is
doping.

Erythropoietin (EPO)

EPO is a naturally occurring hormone produced by the kidney that stimulates red blood cell
production in the bone marrow in response to low circulating oxygen levels. It was not until
1977 that it was identified and extracted from human urine. This was concurrent with the
development of recombinant DNA technology, and in 1989 Epogen was released in the
United States and approved for the treatment of anemia. Procrit was licensed in 1991 for the
treatment of chemotherapy-induced anemia. European formulations include Aranesp, Eprex
and NeoRecorman16

EPO abuse in sport was believed to start as soon as the drug was available as a replacement
for the older, more complex and dangerous doping technique referred to as "blood doping".
In this technique an athlete donates his own blood several months before a competition,
stores it and transfuses it back into himself prior to competing. This technique is fraught with
problems and health risk. EPO accomplishes this same effect by increasing red blood cells,
which results in more oxygen in circulation. It was in 1998 at the Tour de France that French
customs arrested Willy Voet, a physiotherapist of the Festina cycling team, for the illegal


14 ibid
15 Performance-enhancing drugs. Ghaphery NA Orthop Clin North Am. 1995 Jul; 26(3):433-42.
16 Supra 5.

possession of needles, syringes and over 400 bottles containing EPO, hGH, steroids,
amphetamines, narcotics and stimulants.

EPO used for medical treatments can cost thousands of US dollars a month and is
administered by intravenous or subcutaneous injection. As with steroids and hGH, doping
with EPO is often injected in supernormal doses that could cause increased blood viscosity,
deep vein and coronary thromboses, cerebral thromboses, pulmonary embolism, arrhythmias,
stroke and death. It has been estimated that 20 European cyclists have died since 1987 due to
abuse of EPO, making it one of the most deadly doping agents. The genetically engineered
form of EPO is indistinguishable from naturally occurring EPO, making routine blood testing
useless to determine if an athlete is doping. At the 2000 Olympic Games in Sydney, the
Australian WADA-certified laboratory first launched a sophisticated anti-doping test for EPO
that required both urine and a blood sample. Over 300 tests were performed for EPO for the
first time in Olympic history and no positives were reported. This could be due to the fact that
the technology for the test was new and questions still existed about the assay17

RISK POPULATIONS FOR DOPING

Given the above history and current state of knowledge, it is not difficult to understand why
there would be over a million abusers of steroids in the United States youth alone.

Pioneering studies in this area were done by Buckley et al in the early 1980s. Their results
reported in 1988 indicated that 6.6% of respondents had used steroids and more than two-
thirds of the group started using steroids when they were 16 years old or younger. Twenty
percent reported that health professionals were the primary source for obtaining steroids and
38% used injectable steroids.

DuRant et al reported in 1993 that steroid abuse in ninth graders was associated with use of
cocaine, injected drugs, alcohol, marijuana, cigarettes and smokeless tobacco. They
suggested steroid abuse may be part of a much larger syndrome of problem behaviors.

Modern sports and the media's misplaced fixation on fame, fortune and winning at all costs
have unintentionally created a growing market for doping substances. These substances, once
only abused by elite athletes, are clearly spreading into our schools and health clubs
worldwide. They are being accepted by a whole new generation of young customers who see
reports daily in the newspapers of sports icons accused of abusing drugs only to continue


17 Supra 5.

playing, breaking records and claiming fortunes. These same performance-enhancing drugs
are also abused by adolescents and weekend athletes and non-athletes who have wider
behavioral and health risk problems. In addition, these drugs are now being abused by male
and female adolescents for cosmetic purposes in an attempt to achieve the "cut" and sexy
look promoted by the media. Continuing educational programs developed for these at-risk
populations by national olympic organizations and athletic federations are important first
steps to curb these dangerous behaviors.18 Medical professionals, teachers, coaches and sports
organizations must all be made aware of this continuing problem in our adolescent
populations and contribute to its solution by open, honest discussion. Accepting the
magnitude of doping in at-risk populations and developing education, prevention and
treatment programs is the only way we can prevent the continuing spread of the abuse of
doping in sport and its spread into the most fragile groups in our society, our youth and at-
risk populations.

WORLD ANTI DOPING AGENCY (WADA)19

Sport needs WADA but we need a WADA that polices by consensus, not by diktat. WADA is
supposed to act for sport, not against sport. It's made players into the enemy rather than allies.
WADA has picked a fight on something that is both morally and legally very dubious (Simon
Taylor, Head of the Professional Players Federation, cited in Gibson, 2009).

This statement accurately sums up the current resentment among some top athletes towards the
policies and powers that the World Anti-Doping Agency (WADA) imposes upon athletes in their
fight to eradicate doping from sport.

Structure and aims of WADA

WADA was established in February 1999 under the auspices of the International Olympic
Committee (IOC), which recognised the urgent need for action, with the aim of coordinating
the international fight against doping in sport. Despite its IOC origins, WADA operates as an
independent, private law organisation, whose task is to produce an anti-doping code with the
aim of harmonizing anti-doping regulations globally while ensuring that athletes are treated
equally by sports bodies and governments regarding anti-doping issues.


18 . Mayo Clinic On-Line. Teen athletes and performance enhancing substances: what parents can
do. www.mayoclinic.com.
19 https://www.entsportslawjournal.com/articles/10.16997/eslj.45/print/

Main Features of the 2015 WADA Code20
Following on from the first two versions of the World Anti-Doping Code (Code), which were
introduced in 2004 and 2009 respectively, the global anti-doping community agreed that the
latest revision of the Code would take effect on 1 January 2015. At the 2013 World
Conference on Doping in Sport in Johannesburg, South Africa, the WADA Foundation Board
approved a number of changes to anti-doping rules that would be included in the 2015 Code.
The revised Code took effect on 1 January 2015

The Code - the core document that provides the framework for consistent anti-doping
policies, rules, and regulations within sport organizations and among public authorities—has
proven to be a very powerful and effective tool in making anti-doping efforts consistent
across the world since it came into force on 1 January 2004.

This has been demonstrated by the overwhelming support of athletes, governments and sports
in adopting the Code, in addition to the growing body of jurisprudence from CAS supporting
the Code’s tenets.

However, the Code was never meant to be a document that stood still. Just as the 2004 and
2009 Codes addressed the issues of their day, the 2015 Code aims to respond to the dynamic
challenges faced by the anti-doping community today. By continuing to provide strong,
simple and fair solutions that unite all members of the anti-doping community, the Code aims
to protect the rights of the clean athlete.

KEY CHANGES IN 2015 CODE

1. Firmness & Fairness

Two general themes emerged—firmness and fairness—both targeted at strengthening the
fight against doping in sport.

2. Longer Sanctions

As called for by stakeholders and, in particular, the athlete community, the 2015 Code
provides an increase to four-year sanctions for intentional cheats.


20 https://www.wada-ama.org/en/questions-answers/2015-world-anti-doping-code

Under the 2009 Code, there was the opportunity for a four-year period of Ineligibility for an
Anti-Doping Rule Violation (ADRV) if the Anti-Doping Organization could show
“Aggravating Circumstances” (such as being part of a large doping scheme; the athlete
having used multiple prohibited substances or a prohibited substance on multiple occasions;
or the athlete engaging in deceptive or obstructing conduct to avoid the detection or
adjudication of an Anti-Doping Rule Violation.) However, that provision was rarely used.

The 2015 Code contains examples where the period of ineligibility for intentional dopers is
lengthened to four years (these are set out in Appendix 2 to the Code).

3. Greater Flexibility

At the same time, the revised Code states that more flexibility with regards to sanctioning
should be permitted in certain circumstances where the athlete can demonstrate that he or she
was not cheating. This could include, for example: a case where an athlete can establish No
Significant Fault for an Adverse Analytical Finding involving a specified substance or a
Contaminated Product. In a case such as this, the athlete’s period of ineligibility may range
from a reprimand to a two-year sanction.

Furthermore, the window in which an athlete may accumulate three whereabouts failures
which trigger a violation has been reduced from 18 months to 12 months.

4. Proportionality and Human Rights

Following the receipt of a detailed opinion from the former President of the European Court
of Human Rights Judge Jean-Paul Costa, the applicability of the principles of proportionality
and human rights are now expressly in the purpose, scope and organization of the Code.

Furthermore, the revised Code offers greater protection relating to public disclosure for
minors or athletes who are not of International or National level.

5. Investigations and Intelligence

As the Code makes clear, Anti-Doping Rule Violations (ADRVs) can be proved by any
reliable means, including both analytical and non-analytical evidence.

The role of investigations in the fight against doping is highlighted in the revised Code, as is
the need for governments and stakeholders to cooperate in relation to all ADRV
investigations.

Article 5, now titled ‘Testing and Investigations’, describes each Anti-Doping Organization’s
(ADO) investigations and intelligence-gathering responsibilities. There are also
responsibilities for athletes and athlete support personnel, as well as expectations on
governments to put in place legislation, regulation or policies to cooperate in information
sharing with ADOs.

The Code now also allows a reduction of sanctions which will give assurance to an Athlete or
other Person willing to provide Substantial Assistance that the agreed-upon reduction in the
period of Ineligibility cannot be challenged on appeal; that in appropriate circumstances, the
disclosure of the Substantial Assistance may be limited or delayed; and that in exceptional
circumstances, WADA may approve a Substantial Assistance agreement that provides for no
period of Ineligibility.

6. Statute of Limitations

The statute of limitations has been extended to ten years from the eight-year statute found in
the 2009 Code. A number of events in the past have demonstrated that it can sometimes take
a long time before sophisticated doping schemes are uncovered.

7. Athlete Support Personnel

Doping frequently involves coaches, trainers, or other Athlete Support Personnel.

Additionally, in many cases, those Athlete Support Personnel have been outside the
jurisdiction of anti-doping authorities. There was widespread support among stakeholders to
revise the Code to better address the problem of the role of Athlete Support Personnel in
doping.

Of particular note is a new ADRV titled “Prohibited Association”. Thus, an athlete or any
other person cannot be associated with Athlete Support Personnel who is ineligible or has
been convicted by a criminal or professional disciplinary body of an infraction that would
have amounted to doping within the previous six years, in professional or sport-related

capacity. Before an athlete can be found to have violated this article, he or she must have
received notice of the Athlete Support Personnel’s disqualified status and have been given the
opportunity to explain the situation. “Prohibited Association” does not apply in unavoidable
circumstances, such as a child/parent or wife/husband relationship.

8. Smarter Testing

As has been evident from recent Anti-Doping Testing Figures Reports published by WADA,
not all Anti-Doping Organizations collect both blood and urine, nor do they direct the
laboratories to conduct full menu analysis on all samples collected. Indeed, some Anti-
Doping Organizations do minimal or no Testing for Prohibited Substances or Prohibited
Methods which are likely to be among the most beneficial in particular sports. The 2015
Code has addressed this situation by ensuring that International Federations and other Anti-
Doping Organizations implement the new Technical Document for Sport Specific Analysis
(TDSSA). The TDSSA replaces a “one size fits all” approach to testing with a more
intelligent approach which identifies those Prohibited Substances and Methods that are most
likely to be abused in particular sports and sport disciplines.

The document, which will be used by Anti-Doping Organizations (ADOs) for test
distribution planning and by laboratories for the analyses of samples starting on 1 January
2015, is part of a wider effort to encourage ADOs to adopt more effective testing programs
that use the appropriate testing tools (Athlete Biological Passport, Investigations etc.) that
best address their particular doping risks.

9. Athlete Reference Guide to the Code

WADA has published an Athlete Reference Guide to the World Anti-Doping Code, which
highlights, more concisely, the areas of the Code deemed most important to athletes.

The Reference Guide does not replace the Code – nor does it have any legal standing – but
through its user-friendly language it aims to foster a greater understanding among athletes of
the main aspects of the Code.

10. Education

The revised Code obliges ADOs to provide anti-doping education as well as information in
order to prevent the use of doping. Article 18 details what should be provided and who
should be the recipient of education/information programs. It also insists on the importance of
including values in education programs which are intended to focus on the ethical reasons not
to dope as well as protective factors to help athletes compete clean. The revision of this
article is based on the most recent findings of anti-doping social science research.

Burden of Proof

Historically, under the anti-doping rules of most organizations (including the World Anti-
Doping Code), the concept of “strict liability” has meant that the proof of intent (or lack
thereof) was irrelevant to the issue of whether or not the athlete has violated the anti-doping
rules. However, so long as the rules provide for sanction ranges instead of a set sanction for
all offenses, the issue of intent to dope has always been somewhat relevant to the issue of
sanction length. The 2015 World Anti-Doping Code, with its potential four-year sanctions for
a first violation based on whether or not the anti-doping rule violation was intentional, will
make the question of intent an important issue in virtually every anti-doping case.

It should be remembered that under the 2015 World Anti-Doping Code (“WADC”). intent is
still irrelevant to the issue of whether or not an athlete has committed an anti-doping rule
violation. This is clear from the Comment to Article 2.1.1: “An anti-doping rule violation is
committed under this Article without regard to an Athlete’s Fault. This rule has been referred
to in various CAS decisions as “Strict Liability”. An Athlete’s Fault is taken into
consideration in determining the Consequences of this anti-doping rule violation under
Article 10. This principle has consistently been upheld by CAS.”

Article 10 of the 2015 WADA code – dealing with length of sanction, has always taken
“intent” into account in determining whether or not a sanction should be reduced21. In other
words, a sanction that would ordinarily be 2 years could be reduced to no sanction where the
athlete had no fault or negligence whatsoever, or could be reduced to some degree if the
athlete was not significantly at fault or negligent. In this way, intent is indirectly relevant to
the issue of how much, if at all, an otherwise applicable sanction (sometimes referred to as
the “default sanction”) could be eliminated or reduced. This is because an athlete who can


21 2015 WADC Art. 10.4

prove that he or she did not intend to violate the anti-doping rules would be much more likely
to establish a lack of significant fault or negligence in committing the violation in the first
place.

Now, however, the 2015 WADC makes the issue of intent directly relevant to the first issue
of the length of the default sanction itself. Therefore, intent is now not only relevant to the
issue of reducing the default sanction, but is also relevant to the threshold issue of what the
default sanction is in the first place.

Specifically, Art. 10.2.1 of the 2015 WADA provides:22

“The period of Ineligibility shall be four years where:

10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the
athlete or other Person can establish that the anti-doping rule violation was not intentional.

10.2.1.2 The anti-doping rule violation involves a Specified Substance and the anti-doping
organization can establish that the anti- doping rule violation was intentional.”

Art. 10.2.2 of the 2015 WADC goes on to state that “if Article 10.2.1 does not apply, the
period of Ineligibility shall be two years.” Therefore, under the 2015 WADC, the default
sanction is determined as follows:

1. where the violation does not involve a “Specified Substance,” the default sanction is
four years unless the athlete can prove that the violation was “not intentional;” if the athlete
meets this burden of proving “lack of intent,” then the default sanction is two years.

2. where the violation involves a “Specified Substance,” the default sanction is two years
unless the National Anti-Doping Organization (“NADO”) or the International Federation
(“IF”) can prove that the violation was “intentional;” if the NADO or IF meets this burden of
proving “intent,” then the default sanction is four years.

In either case, “intent” is now directly relevant to the length of the default sanction; the only
difference is who bears the burden of proving “intent” or “lack of intent,” depending on
whether or not the substance involved is a Specified Substance.

The 2015 Code is more flexible: it is harsher on the intentional cheat; and gives greater scope
for leniency to those who have inadvertently ingested contaminated products, having taken
considerable steps to check the product.


22 Art. 10.2.1 of the 2015 WADA

Substantive amendments made to the sanctioning regime

As a general notion, the main change made to the sanctioning regime is the increase in the
length of the initial period of ineligibility from two years to four years for all so-called
“intentional” anti-doping rule violations. This amendment was made in line with the first
prong of WADA’s stated policy objective of providing harsher penalties for the “real cheats.”
Thus, the efficacy of this approach hinges on setting forth a universal and harmonized
understanding of the term “intentional” that transcends the myriad nuanced definitions of this
term across the world’s many systems of law.

On December 11, 2013, as part of its continuing series of lunchtime presentations focusing on
current issues in sports law, the Asser Institute hosted a talk that stepped through the key
changes reflected in the recent revision of the World Anti-Doping Code (the “Code” or the
“WADC”), due to come into force on January 1, 2015. Ms. Marjolaine Viret and Ms. Emily
Wisnosky, are part of a research team focused on developing the first comprehensive
commentary to the 2015 WADC. An overview of the key changes reflected in the 2015
WADC that were the result of an extensive revision process of the 2009 WADC led by the
World Anti-Doping Agency (“WADA”) to enhance and bolster the Code’s effectiveness was
provided23

The definition of “intentional” provided in Article 10.2.3 can be broken down into three
component parts, or “branches.” The first branch, which comprises the reference to
“cheating” in the first sentence of Article 10.2.324 was referred to as the “contextual” branch
and was described as playing the role of setting the tone of the definition. The second branch
comprises the “Legal Core” identified as comprising the technical elements necessary to
determine that a violation was committed intentionally. This Legal Corecan be interpreted to
provide in substance that the violation needs to be committed either with knowledge, or
reckless (dolus eventualis). The third and final branch was presented as the “Exceptions” to
the general definition that provides a special assessment of “intentional” where the violation
involves substances prohibited only In-Competition.25


23 Antonio Rigozzi, Marjolaine Viret, and Emily Wisnosky, ‘Does the World Anti-Doping Code Revision
Live up to its Promises?’, Jusletter 11 November 2013
24 As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those Athleteswho cheat”
25 Article 10.2.3, third and fourth sentences

The second prong of WADA’s stated policy objective was to provide more flexibility in cases
of inadvertent doping. Several amendments were made under this heading, the most
significant of which are as follows: the addition of a new provision to deal with
Contaminated Products, a reworking of the approach to deal with Specified Substances, and a
slight modification of the definition of “No Significant Fault or Negligence.”

The treatment of Contaminated Products under the 2015 can be compared with the 2009
versions of the WADC, noting in particular that the new provision provides a broader
window of available sanction lengths than the 2009 version. In the new provision, if an
Athlete can establish No Significant Fault or Negligence, then violations involving non-
Specified Substances have an available sanction length of zero-to-two years, depending on
the Athlete’s degree of fault. Under the 2009 WADC, the shortest length of the violation that
an Athlete could hope for is 1 year.

There also exist a comparison between the treatment of Specified Substances under the 2009
and 2015 versions of the Code, as the approach changed quite significantly in the 2015
version. Previously, if Athletes could establish a lack of performance-enhancing intent, and
the origin of substance, then the associated length of their initial period of Ineligibility would
be from zero-to-two years, depending on the Athlete’s degree of Fault. In other words, the
Athlete could have a significant degree of Fault, but so long as they were able to establish a
lack of performance-enhancing intent, then they could still hope to receive some reduction.
However, under the 2015 WADC sanctioning regime, the speakers highlighted the fact that
Athletes may seemingly only receive a reduction down from a 2-year sanction if they are able
to establish what has traditionally been a rather exacting standard of No Significant Fault or
Negligence.

The compatibility of the 2015 WADC with international concepts of human rights and
proportionality is a vital aspect. As for prior versions of the WADC, WADA sought a legal
opinion to ensure that the key changes are aligned with well-accepted principles of human
rights and proportionality.

Increased scope of authority vis-à-vis an athlete’s entourage

The last group of amendments with respect to substantive issues the speakers touched upon
includes those amendments designed to broaden the reach of the Code in targeting the

athlete’s entourage. The speakers divided these amendments into two distinct categories:
those designed to reach the entourage through direct means, and those that rely upon more
indirect means. The direct means are focused on expanding the jurisdiction of ADOs over
Athlete Support Personnel, as well as a potentially rather intrusive newly formed requirement
for disciplinary rules that would ban the “unjustified” use of prohibited substances among
these support personnel. The indirect means focus on the Athlete and consist of the
introduction of a new violation that prohibits Athletes from associating with Athlete Support
Personnel who have a history of doping-related activities, under certain specific
circumstances (Article 2.10).

Procedural enhancements

The category of “procedural enhancements” discussed includes a range of new amendments
geared mainly towards protecting the due process rights of Athletes in anti-doping
proceedings, while also encouraging greater efficiency and efficacy in pursuing anti-doping
violations among ADOs.

Improved collaboration among ADOs

The speakers touched upon a group of amendments geared towards strengthening the powers
of ADOs, especially by encouraging an increased level of collaboration among NADOs and
IFs.26 The speakers noted that the emphasis appeared to be on reducing the imbalance
between the value attributed to the NADOs and the superior value recognized to IFs in
different domains. The two main areas where the improvements related to collaboration
among ADOs are in event testing and the process of issuing and recognizing TUEs.

Fair hearings in the disciplinary proceedings

The speakers also addressed the amendments aimed at strengthening the hearing process in
anti-doping procedures (Article 8.1). Instead of defining the elements of a fair hearing in a
list format, which was the approach taken in the 2009 WADC, the 2015 WADC contains a
broader statement, setting forth that ADOs are required to offer those accused of committing
an anti-doping rule violation, a fair hearing at some point in the results management process.
The speakers suggested that while the new formulation has the advantage of conciseness, it is


26 These amendments include those made to the definition of “Athlete” in Appendix 1 of the Code, and
Articles 5.2.6, 5.3, and 7.1

not clear that the world’s ADOs will hold a shared understanding of what is exactly
encapsulated in the notion of a “fair hearing.” This concern is heightened by the fact that the
only reference for understanding the concept of a fair hearing is an allusion to the European
Convention on Human Rights and accepted principles of international law made in the
comment to Article 8.1, which does not provide a clear guidance as to what level of authority
these mentioned sources of law should hold. Accordingly, the speakers wondered if the new
formulation might lead to less legal certainty, less concreteness, and less worldwide
harmonization in this important area.

The court of arbitration for sport and the WADC

The speakers mentioned four amendments that have a direct impact on anti-doping
proceedings at the Court of Arbitration for Sport (the “CAS”).

The first of these amendments is found in Article 3.2.1 and concerns the new presumption
that “analytical methods or decision limits approved by WADA after consultation within the
relevant scientific community and which have been the subject of peer review” are
scientifically valid. Any challenge directed at rebutting this presumption must be
communicated to WADA, which has the discretion to intervene in the CAS proceedings and
request that the CAS panel appoint an “appropriate” scientific expert. According to the
speakers, this amendment raises numerous questions, for example in terms of which
party/institution will cover the cost of such an expert, and what qualifications would be
necessary to qualify as an “appropriate” expert.

The second is an amendment that gives the parties the option, upon unanimous agreement, to
skip an initial hearing process in favor of bringing a hearing involving an anti-doping rule
violation directly before the CAS. The underlying reasoning, which is set forth in the
Comment to Article 8.5, was explained as avoiding the unnecessary cost of an initial hearing
when the parties are satisfied that their needs are met by bringing the case directly to the
CAS. The speakers raised questions about the cost of this “initial” hearing: as Article R65.2
of the Statutes of the Bodies Working for the Settlement of Sports-Related Disputes (the
“CAS Code”) defines only international disciplinary decisions as free of charge, these initial
hearings would be subject to the rather steep costs of a so-called “ordinary” arbitration
procedure, unless a special mechanism was defined to place them under the auspices of the
free-of-charge rule.

The third amendment mentioned under this heading allows parties to bring “cross appeals or
other subsequent appeals” (Article 13.2.4 of the WADC), in contradiction to the CAS Code,
which no longer provides for this possibility in appeal arbitration proceedings.

Article 25.2 and the “lex mitior” principle27

The panel in Warburton and Williams were able to award these sanctions, notwithstanding
that the anti-doping violations occurred before the 2015 Code came into force, by applying
the principle of lex mitior. Article 25.2 provides that:

“the case shall be governed by the substantive anti-doping rules in effect at the time the
alleged anti-doping rule violation occurred, unless the panel hearing the case
determines the principle of “lex mitior” appropriately applies under the circumstances
of the case.”

The lex mitior principle, where a person benefits from a lighter penalty where there has been
a change in the law, effectively requires a panel deciding a case after 1 January 2015 (when
the 2015 Code came into force) to apply the sanctions available under the 2015 Code, if to do
so would produce a more lenient result. This is starkly illustrated by Warburton and
Williams in which the hearing itself took place on 15 December 2014, before the 2015 Code
came into force, but the decision was handed down on 12 January 2015. The weeks of
deliberation made a significant difference to the athletes in that case.

Article 10.12.2: return to training

Another sign of more flexibility in the 2015 Code relates to the ability to return to training
before the end of period of Ineligibility. Article 10.12.2 provides that:

"an Athlete may return to train with a team or to use the facilities of a club or other
member organization of a Signatory’s member organization during the shorter of: (1)
the last two months of the Athlete’s period of Ineligibility, or (2) the last one-quarter of
the period of Ineligibility imposed…"8

The commentary to the Code notes that in many team sports and some individual sports an
Athlete cannot effectively train on his or her own so as to be ready to compete at the end of


27 ibid

the period of Ineligibility. Again, there is early evidence of this provision being applied to the
benefit of a respondent in a team sport context: see the case UKAD v Evans9 in which a
Welsh Rugby player received a sanction of 2 years, with permission to return to training 2
months before the end of that period. This is another case in which the principle of lex
mitior has been applied by the NADP since the 2015 Code came into force; whilst the
violation occurred on 28 July 2014, the hearing and decision in the case did not take place
until January 2015.
INDIAN SCENARIO- NATIONAL ANTI DOPING AGENCY (NADA)28

India is a signatory to the Copenhagen Declaration on Anti-Doping and the UNESCO
International Convention against Doping.

The Government of India set up the National Anti-Doping Agency of India (the "NADA") as
a registered society on 24th November, 2005.

NADA accepted a revised version of the WADC on 7th March, 2008 and framed the Anti-
Doping Rules of NADA in conformity with the WADC.

Case study - International Association of Athletics Federations (IAAF) v. Athletics
Federation of India (AFI) & ors.29

In a recent case, six Indian athletes who were gold medallists in the Commonwealth Games
were tested positive for the presence of anabolic steroids in their urine samples taken both in
and out of competition30

The case became a battle between the athletes and the NADA and the National Dope Testing
Laboratory in New Delhi ("NDTL") was given a special sanction to test all the supplements
consumed by the athletes. The NDTL confirmed that Ginseng pills consumed by the athletes
contained prohibited substances. It was not disputed that their coach provided these pills to
them. It was the responsibility of the Sports India to provide for all supplements but since this
was not done in spite of repeated requests, the coach purchased bottles of these supplements.


28 http://www.mondaq.com/india/x/623940/Sport/AntiDoping+regulations+in+India
29 CAS 2012/A/2763.
30 Arbitration CAS 2012/A/2763 International Association of Athletics Federations (IAAF) v. Athletics
Federation of India (AFI) & Akkunji Ashwini, Priyanka Panwar, Tiana Mary Thomas & Sini Jose, award of 30
November 2012 (operative part of 17 July 2012)

The Anti-Doping Disciplinary Panel ("ADDP") held that the athletes bore "no significant
fault or negligence" and issued a reprimand and suspension for a period of one year from the
date of the positive test.

The NADA and the WADA filed an appeal against the first instance decision of the ADDP
and the athletes also filed cross-appeals against the first instance decision of the ADDP
praying for a complete reprieve. In appeal, the ADDP upheld its first instance decision.

Thereafter, the International Athletes Federation (the "IAF"), the WADA and the NADA
filed a second appeal against the decision of the ADAP before the Court of Arbitration for
Sports, Lausanne (the "CAS"). The CAS, under the Anti-Doping Rules of the IAF and the
WADC read with the NADA Anti-Doping Rules, held that the athletes were at fault and
issued the full sanction of two years' ineligibility for four of the athletes.

At the end of the proceedings, it is the athletes who ended up losing out the most. A two-year
ban for an athlete takes away a huge chunk of their career.

Analysis of the case study

An athlete is often not alone in taking the decision to consume illegal substances. There is
pressure on coaches to achieve good results and such illegal activities are very prevalent in
some sports, leading to a culture which is difficult to resist for junior athletes.

One of the most common pleas taken by the athletes before the Anti-Doping disciplinary
panels are that they are unaware of the rules and the substances prohibited under the rules.31
Most ordinary medicines for curing illnesses or common pains contain banned substances.

Even the daily use products contain banned substances. In National Anti-Doping Agency v.
Jyotsna Pansare32, a banned substance entered into the body of the athlete due to the use of a
beauty product that contained geranium oil, hence, being an adverse analytical finding. While
the sentence in the case was reduced, it was evident that an athlete getting the best of training
does not have knowledge of the list of banned substances.


31 National Anti-Doping Agency v Jaskaran Singh 14.ADDP.05.2014
32 Appeal No. 13.ADAP.2012

Also, in the case of Manjeet Singh v. NADA33, the athlete was referred by Sports Authority of
India to the doctors specializing in sports medicine. However, the doctors prescribed him the
medicine containing the prohibited substance. Therefore, assurance that prohibited substances
do not enter into the body of an athlete at every instance, cannot be expected.

It is also to be noted that many players are not well-versed in English. Indeed, there have
been many cases in which athletes have raised pleas saying that they unknowingly committed
the violation due to the lack of knowledge which led to the violation.34 What happens next is
that players do not know the procedures and the rights to contest cases before the disciplinary
panels. Due to the fear of stringent punishment, they are compelled to forfeit their right of fair
hearing.

NADA- A Critique

NADA has always been acting like a prosecuting agency rather than being the agency
spreading awareness about doping norms, rights and obligations of athletes and also the
procedures to be followed by them. Presently, Sports India is educating the sportspersons in
the national camps about doping norms; however, such information is only available to the
players attending the national camps. These workshops contain lenient attendance
compulsions and for state and district levels and so on, no information is provided to athletes
at all.

In the case of Anandu S.S. v. NADA35, due to the delays, the athlete was forced to file a writ
petition to ensure early hearing of the case. The enhancement of the punishment of doping by
WADA36 i.e. the four-year ban and lack of education among Indian athletes would be a
disaster in Indian sport that has been accepted by the NADA with closed eyes. The NADA,
due to the total adoption of WADA Code37 and without any proper implementation structure,
is leaving itself open to legal challenges and civil liabilities. A plethora of cases serve as
pieces of evidence, exclaiming that NADA makes no efforts to spread awareness about the
banned substances to the athletes absolutely.

Criminalizing Doping In India


33 ADAP.12.2012
34 NADA v Reena Bittan Appeal No. ADAP/01/2012.
35 Appeal No. 06.ADAP.2014
36 Article 10.2 2015 WADA Code
37 2015 World Anti- Doping Code

Acting in compliace with the Anti-Doping Convention, Germany enacted its Anti-Doping
Law in 2016 which seeks to penalize German athletes who are tested positive for
performance-enhancing substances. The Act differentiates between illegal handling of
doping substances /administration of doping methods38 and “self-doping” by athletes39.

With respect to India, the question which remains to be seen is whether dopers in India
will be jailed in the coming months or years? The Indian Express report has said that a
draft legislation is being framed to criminalise the anti-doping rule violation and it would
be forwarded to the sports ministry before being vetted by the law ministry.

The report quoted the director general of the National Anti-Doping Agency
(NADA), Naveen Agarwal, saying that the entire process including the passage of the Bill
in the parliament could take at least six months.

However, it is extremely unlikely that an athlete could be jailed in India for testing
positive for a prohibited substance in the foreseeable future. Yet, it is a welcome step that
the government looks to be contemplating.

It has been more than 11 years since the UNESCO brought forward the International
Convention against Doping in Sport. It has been nine-and-a-half years since India ratified
that convention and it has been four years since a draft National Sports Development
Bill mentioned the convention and the elimination of doping practices right at the
beginning of that document.

That draft has not been heard much since 2013. But the government is not without an
instrument to support the UNESCO convention. It has the National Sports Development
Code 2011, which was re-drafted recently but is yet to be published because of a stay order
by the Delhi high court. The anti-doping rules are part of the sports code. That has been
sufficient so far to meet the requirements of the convention and will continue to serve that
purpose till a Bill is passed by the parliament. The NADA anti-doping rules were
published in 2008.

It may be recalled that prior to the Rio Olympics, Kenya was under pressure from
the World Anti-Doping Agency (WADA) to enact a legislation on anti-dopingsince it did


38 Section 2, Act against Doping in Sports, 2016.
39 Section 3, Ibid.

not have a structure to tackle the menace in the country, and contrary to a long-held belief,
many of its athletes were caught doping. Kenya made it just in time to beat a WADA
recommendation that could have led to its ban by the International Olympic Committee on
its participation in Rio.

India is positioned joint 6th in the dubious list of countries with anti-doping rule violations
(ADRVs) record for 2018,40 and that the government is mulling over bringing a law to
criminalise doping, have directed the focus on the efficiency of the country’s anti-doping
system.

Like many other countries, the government is trying to fulfill an obligation to fall in line with
the International Convention against Doping in Sports passed by UNESCO in October, 2005.
But the point to ponder is whether our country, where athletes primarily come from humble
backgrounds and awareness about anti-doping issues is far from being satisfactory, is ready
for such a law.

The other important question is whether our anti-doping mechanism matches best standards
being practised around the world.

Some sports administrators, who are fed up of the embarrassing number of dope positive
results, may favour sending the guilty to jail but without adequate expertise to handle such
issues it may turn out to be a premature and harsh step.

The loopholes in the domestis system are innumerable. National Anti-Doping Agency
(NADA) consist of six people. They have failed to educate the athletes properly. They have
failed to take any action against any coach or federation for spreading doping.41

Even though the National Anti-Doping Agency (NADA), which functions under the direct
supervision of the Union Sports Ministry despite being an autonomous body, has achieved
decent success by testing a large number of athletes and penalising a good chunk of them, the
six-man organisation catering to several thousand athletes across the country has not been
able to function in a dynamic manner.

Following the implementation of the 2015 World Anti-Doping Agency (WADA) Code, the
National Anti-Doping Organisations (NADOs) were expected to take up the task of


40 https://timesofindia.indiatimes.com/sports/more-sports/others/india-joint-6th-in-list-of-doping-violations-in-
wada-report
41 https://sportstar.thehindu.com/other-sports/criminalising-doping-could-paper-over-deeper-problems-for-
india/article17850563.ece

investigation and intelligence gathering. NADA had been toying with the idea of roping in
investigators and collecting information on drug supply chains for the last two years but is yet
to achieve any significant result.
Possible chaos
In such a scenario, if the law to criminalise doping offences is implemented in the near future,
then there may be a chaotic situation over who will handle such cases. On the other hand, the
selection of NADA disciplinary panel members has been an issue. The fact that there have
been instances of panels reaching bizarre interpretations of the code and its provisions should
serve as good indicators of the state of affairs.
Even though the WADA Code empowers disciplinary panels to sanction coaches and support
staff, no support personnel has been sanctioned in our country so far by the disciplinary panel
though they may have been punished by the federations or the ministry in the past.
The lack of enough awareness about drugs and supplements is another area of concern.
“There is no system of supplement testing, No system to label drugs or supplements. We
have a system of ayurveda and other medicines where we don’t know what is happening. You
have a proper system in place and then you prosecute an athlete for a crime. Just to borrowing
(an idea) and punishing an athlete will finish sports in the country. It is a good initiative if
everything else is put in place,” said Singhania.42

GLOBAL ANTI-DOPING LAWS

Though there are several countries that have enacted laws dealing with some aspects of
anti-doping rule violations, only a handful have a provision to send an athlete to jail for
a doping offence.

KEY POINTS FROM THE NEW GERMAN ANTI-DOPING ACT43

The new Act is a rather complex piece of legislation. Its most important aspects can be
summarized as follows:


42 ibid
43 https://www.lawinsport.com/topics/sports/item/should-sports-be-criminalising-doping-a-review-of-germany-
s-new-anti-doping-

The Act44 differentiates between illegal handling of doping substances /administration of
doping methods (Section 2) and “self-doping” by athletes (Section 3).
The Act qualifies a number of actions related to doping (e.g. production, trade,
administration, possession of more than a minor quantity of doping substances) as punishable
with prison sentences up to three years (Section 4 para. 1). Those who provide the substances
can face sentences of up to 10 years when specific enumerated qualifications are present,
which include, among others, causing the danger of bodily harm to a significant number of
people, causing the threat of death or serious bodily harm to another person or acting out of
crude self-interest for substantial monetary gain of oneself or another person (Section 4 para.
4).45
Athletes using or trying to use doping substances or methods with the aim to obtain an undue
advantage in a competition (“self-doping”) are only punishable if they are “elite athletes of
organized sport” (Section 4 para. 7 (1.) 1st Sentence) or if they generate directly or indirectly
substantial income out of sporting events (Section 4 para 7 (2.)). “Elite athletes of organized
sport” are defined as athletes that are members of an anti-doping testing pool, which provides
mandatory tests also during training (Section 4 para. 7 (1.) 2.). In these cases the use of
doping substances or methods with the aim to obtain an undue advantage in a competition is
punishable with prison terms of up to three years (Section 4 para. 1). An athlete’s mere
possession or purchase of performance-enhancing drugs with the aim to gain illicit
advantages in a sporting competition can be punishable with a prison sentence of up to two
years (Section 4 para. 4).
Attempting any of the actions described above is also punishable under Section 4 para. 3,
except for cases of athletes merely attempting to purchase doping substances.

When the German Parliament passed the legislation, Justice Minister Heiko Maas promised
that it would make German sports “cleaner, safer and more honest.” “In view of the current
situation in Russia, the problem doesn't seem to be getting smaller, but seems to be growing,”
he said, referring to the outcome of the independent commission appointed by the World
Anti-Doping Agency to investigate Russia, which was released the same week.46

From a dogmatic constitutional and criminal law perspective, the fundamental innovation of
the new law is that it aims at both:


44 Anti-Doping Act of 10 December 2015 (BGBl. I p. 2210)
45 http://www.gesetze-im-internet.de/englisch_antidopg/
46 https://www.iol.co.za/sport/athletics/jail-terms-for-doping-athletes-1966424

i. protecting athletes from bodily harm; and
ii. protecting the integrity of organized sport, which, in the opinion of the official

parliamentary justification of the law includes, but is not limited to, the financial aspects of
sporting competitions.

The need of criminal laws punishing doping has, however, been called into question. Critics
have called the law unconstitutional because it fails to identify a legitimate governmental
interest for criminal sanctions and its regulations violate the principle of proportionality. It,
thus, remains to be seen whether the new law will survive its first challenge before the
German Constitutional Court which is very likely to occur as soon as the first person is
punished on the basis of the Act.

Apart from its regulations directly connected to doping, the Act is interesting for a number of
its other provision that are not directly connected to acts of doping. It also includes in Section
8 a provision for the transfer of information between public prosecutors, courts and the
National Anti-Doping Agency (NADA), which has prompted criticism that the new law may
violate existing regulations on data protection. Moreover, Section 11 includes a seemingly
declaratory provision that stipulates that athletes and sporting federations can agree, as a
requirement for participation in organized sporting events, to subject participation in the
event to the signing of an arbitration agreement.

Normally a provision such as Section 11 of the Act would hardly raise an eyebrow. However,
in the context of the recent judgment of the Munich Higher Regional Court in the Pechstein
case,47 which challenged the validity of arbitration agreements of athletes as requirement for
the participation in sporting events on competition law grounds, one could argue that this
provision - at least - is evidence of a clear parliamentary will to accept the current system of
sports arbitration in anti-doping proceedings as lawful and thereby indirectly undermining the
arguments raised by the Munich Higher Regional Court against the validity of mandatory
sports arbitration agreements in its judgment of 15 January 2015.48

Ethiopia, which had neglected anti-doping measures for decades has, however, a brand
new anti-doping Act and is poised to send Girmay Birahun, a marathoner, to jail for testing
positive for meldonium, the drug Maria Sharapova tested positive for which then resulted
in her 15-month suspension. Long-distance runner Haile Gebrselassie, who is a two-time


47 Bundesgerichtshof, Az. KZR 6/15, Pechstein v. International Skating Union (ISU), 7 June 2016
48 ibid

Olympic champion, four-time world champion and multiple world record holder, and now
the president of that country’s athletics federation, has endorsed the jail term for dope
offenders.

Several European countries including Austria, Cyprus, Denmark, France, Greece,
Hungary, Iceland, Luxembourg, Norway, Portugal, Romania, Serbia, Spain and Sweden
have sports-specific legislation that criminalises trafficking in the WADA Code’s banned
substances.

China, Congo, Mexico, New Zealand, Nicaragua and Tunisia also have laws prohibiting
trafficking in WADA banned drugs.

Australia has provisions to provide a jail term for drug offenders, but it has mainly
concentrated on stringent punishment for trafficking in steroids. It also has laws that make
it illegal to import drugs that may require a ‘therapeutic use’ exemption for an athlete to
use.

WADA’s stand on jail term

Though the WADA has in recent time49 encouraged stakeholders to bring in legislation to
punish coaches, medical staff, athlete support personnel, agents, suppliers and others
engaged in possession and trafficking of banned substances, it is against sending athletes
to jail for routine anti-doping rule violations.

The WADA has repeatedly pointed out that though it was up to sovereign nations to enact
laws as they deemed necessary, the stakeholders at large had agreed to the revised World
Anti-Doping Code 2015 as the basis for handing out sanctions against athletes. In short,
the WADA’s message was “follow the Code while punishing athletes; have laws to send
banned drug-traffickers to jail”.

Any suggestion that the WADA was prompting governments to introduce stringent laws to
send athletes to jail would thus be completely misleading.

It has been found throughout the world that proving a trafficking charge in the normal
anti-doping rule violation cases is very difficult. This does not mean there hasn’t been



49

suspensions, even life bans, on this count. But in India, there has been none since the
inception of NADA in 2009.

Cases against coaches involved in doping practices

It is a different matter that in India, NADA has found it almost impossible to pursue cases
against coaches even when athletes have accused them of supplying drugs and
supplements that eventually might have led to the positive tests for which the former could
have been penalised.

Ukrainian athletics coach Yuri Ogorodnik was held responsible for supplying Chinese
ginseng which turned out to be contaminated and apparently resulted in the positive dope
tests of six national-level women 400-metre runners in 2011. All the athletes were
suspended for one year and later the sanction was extended to two years by the Court of
Arbitration for Sport, Lausanne.50

Ogorodnik was packed off to his country even as an enquiry into the doping episode was
on under the now retired Justice Mukul Mudgal. Shockingly, the coach was brought
back to train the Indian 4×400-metre relay teams for the Rio Olympics. Post-Rio, the
coach has been ruled out for re-employment by the sports ministry. He wrote in his report
about documents recovered from the coach’s room at the NIS, Patiala that mentioned
‘testosterone’ and a mysterious ‘white tablet’. Testosterone is a banned substance. In fact,
it is the basis for all steroids that are the most-abused substances in the world of sport.

Then there have been instances of athletes being deposed before hearing panels and
naming their coaches as the culprits. But no one has been charged; no case has been
pursued by NADA.

POSSIBLE SOLUTIONS

The expertise required in developing and executing an effective anti-doping policy in
India may take a while to come into existence. Nonetheless things cannot be left untouched
on the grounds of inexperience. It is therefore suggested that the coach/officials nexus in


50 Arbitration CAS 2012/A/2763 International Association of Athletics Federations (IAAF) v. Athletics
Federation of India (AFI) & Akkunji Ashwini, Priyanka Panwar, Tiana Mary Thomas & Sini Jose, award of 30
November 2012 (operative part of 17 July 2012)

aiding and abetting doping within sports in India be strongly dealt with by conducting an
independent inquiry. Secondly mandatory testing at all levels of sport should be introduced.
While understandably resource crunch may be an issue for NADA. Hence the testing should
be introduced in all professional sports, at all levels. The expertise developed in testing within
the professional sports can later be transplanted to amateur sports. Thirdly aggressive
educational programme on performance enhancing drugs needs to be introduced at all levels.
Fourthly the NADA should be made a complete non-governmental body to ensure impartial
detection and sanctioning of all involved. Finally the sports persons need to be trained in a
manner that they are confident of performing at the highest level without the use of any
banned substance. This would essentially mean investing in better training methods and
techniques. Appointing proficient coaches, who can guide the athletes and not dupe them into
taking banned substance.51
In the Indian context, the first and foremost step against the plague of doping is to create
awareness among the athletes. A list of prohibited or banned substances given by WADA
must be provided by NADA to the athletes in regional languages at all the levels. Each
seminar of NADA for coaches, support personnel and players must include a practical,
simple and effective demonstration of how Anti-Doping Administration and Management
System work. Effective use of media platforms should also be made to disseminate anti-
doping education.


51 https://www.lawinsport.com/topics/features/item/catch-me-if-you-can-anti-doping-policy-in-india