At the sub-elite level, doping to win to reach the next level of competition occurs. Athletes give tremendous time, effort, and dedication to their chosen sport. The pressure and desire to reach the elite level among their peers can sometimes be overwhelming, which can lead to occasional or consistent doping. Inadvertent doping through the use of supplements and sports nutrition may also be an issue. The impact of doping or doping charges can be detrimental to the athlete but also impact your organisation as a whole.
It is not uncommon for some athletes to try to work around the risk of doping charges by doping outside of competition time. A typical scenario is that an athlete might travel to other countries for a ‘doping holiday’ and a belief that, whether abroad or at home, if it is done outside of competition time, the risk of getting caught out is minimal. The usual motive is to see if doping can push them to the next level of competition. It could also be used to enhance and speed-up injury recovery. A ‘just this one time’ mindset. However, often the things we promise ourselves and reality, diverge. Regardless, even if it is just one time, this does not eliminate the risks, or absolve the crime.
Sub-elite athletes would usually not expect to be caught out. They are unlikely to be part of any kind of formal testing pool, and therefore would not usually be tested outside-of-competition, and probably will not be tested in competition either.
This mindset coupled with evidence of being able to overcome any possible consequences is particularly problematic if you are a coach, support staff or on the board of a sub-elite sporting organisation. Why? Because the consequences of a doping charge are not limited only to the athlete themselves. Doping activities can generate consequences for your club more broadly, as we will explore.
With athletes acutely alert to issues like age and time against them, and with consequences of doping potentially seen by some as a temporary issue in the quest to reach elite competition, clubs and organisations like yours face a real challenge.
This article has been written to help you, in whatever role you hold in your club, league or organisation, to get up to speed with the new ways in which doping can be discovered and what to do to avoid the consequences that only one doping charge can bring.
The Unassumed Risk
Many sub-elite athletes may believe they only run the risk of being discovered if they are doping around competition time, or that because they are only at the sub-elite level and unlikely to be tested, they may believe there is no risk of being caught. This is probably because they have not heard about this landmark case from New Zealand.
The case, referred to as the ‘Athlete XYZ’ case, relates to a volunteer and participant in social inter-club golf and masters competitions in lifesaving. Athlete XYZ, whose name was suppressed by the tribunal given his recreational status, ordered and paid online for clenbuterol and Dianabol (anabolic agents) in 2014. XYZ said he purchased the products for weight loss rather than for performance benefits.
But it wasn’t through testing that his activities were revealed. Before anything came to light about Athlete XYZ, it was the seller of these products that was first of interest. He was one of many operators under investigation that led to New Zealand’s largest black market steroids bust.
By 2015 they had managed to halt the operation of a number of operators. Medsafe, the national regulator of therapeutic goods, along with other government agencies including Customs, NZ Police and the national anti-doping agency, have an information-sharing agreement. It was part of this inter-agency sharing that emails and customer databases were reviewed and subsequently led to a number of investigations into sportsmen and women at all levels of sport, through reviewing the names against athletes registered with different sporting organisations.
While there is quite a lot of complexity to the Athlete XYZ case and others connected to these busts, there was much criticism about why the agency followed through with their investigations to the lower levels of sport. However, the fact remains that the discovery of this activity, by way of an electronic database is of international significance for athletes and sporting organisations. The digital trail is yet another means to the discovery of prohibited behaviours in sport. If a recreational athlete with no aspirations to compete at the elite level can be caught out in this way, then there is no reason why a sub-elite athlete aspiring to reach the elite level could not also be discovered cheating in a similar manner.
Additionally, this case took some five years to conclude after appeals. No athlete can lose this amount of time and no sporting organisation wants to see their name associated with these issues for years in the media. We have had similar cases where a medical practitioner prescribing banned substances has sparked a broad multi-sport investigation, and other cases where ordering products from overseas that are detected through customs bring about an investigation and led to prosecutions.
Doping refers to the use of any drug that can improve the athlete’s performance.
Doping includes Performance and Image Enhancing Drugs (PEIDs), which are commonly used to enhance muscle growth or reduce body fat. PEIDs include anabolic steroids, androstenedione, human growth hormone (HGH), diuretics, anti-estrogens, and even something as familiar as creatine or stimulants used in cold medicines. Even some contaminated meats contain clenbuterol (steroid), and certain sports drinks and gels can also be problematic. In some cases, the use of a drug classified as performance enhancing might not be known and becomes introduced to the body through something eaten or via medical treatment.
Doping Offences and Defences
As you may well know, the World Anti-Doping Agency (WADA) code applies to athletes at the sub-elite and community levels when an anti-doping organisation (e.g. Sport Integrity Australia – SIA) elects to apply the code to athletes. For the majority of sports in Australia, this is the case.
In applying the WADA code, under the Australian National Anti-Doping Policy, the penalties for sub-elite and community athletes may be the same as for elite athletes competing at the national or international level. In order to understand the WADA Code and its application to Australian sport, it is important to understand a number of definitions, because they can determine how an athlete who commits an anti-doping violation may be treated.
An ‘Athlete’ for the purposes of the WADA Code is any person competing at sport at an international level or the national level, but depending upon the approach of the National Anti-Doping Association (SIA in Australia), it may also include other individuals (as is the case in Australia). In Australia, athletes who are not a National-Level Athlete, or part of a SIA Registered Testing Pool or Domestic Testing Pool, but are also not a ‘Recreational Athlete’ will be classed as a ‘Lower-Level Athlete’, pursuant to the Australian National Anti-Doping Policy.
A ‘Recreational Athlete’ is defined under the Australian Doping Policy as a person who engages or participates in sport or fitness activities for recreational purposes (although a range of exceptions applies to this under the Australian National Anti-Doping Policy).
A Protected Person is defined in the WADA Code to include an athlete who is:
- under 16 years of age; or
- under 18 years of age and
- who is not included in a Registered Testing Pool; and
- who has not competed in an International Event in open competition.
A Lower-Level Athlete in Australia who commits a non-presence anti-doping offence such as use, attempted use or possession of a prohibited substance or method may receive a reduced penalty depending on their degree of fault and other circumstances. However, penalties will be applied in the same way to Lower-Level Athletes who:
- are found to have a Prohibited Substance or its Metabolites or Markers in their sample;
- have evaded, refused or failed to submit a sample; or
- have tampered or attempted to tamper with a sample.
In cases where the offence is not a substance of abuse and fault or negligence is insignificant, the sentence may be reduced for someone classified as a ‘Recreational Athlete’ or ‘Protected Person’. Recreational athletes and Protected Persons are not held to the same standard of proving exactly how a substance entered their body if they are arguing no fault or negligence. Additionally, violations of the rules on tampering, evading, refusing, or failing to submit to sample collection have lower sanctions for anyone considered a ‘Recreational Athlete’ (as compared to a Lower-Level Athlete).
However, for most sub-elite athletes competing in sport within Australia, if they are not a minor (and therefore potentially classed as ‘Protected Person’), they would likely fall within the meaning of a Lower-Level Athlete or a National Level Athlete, and therefore would be held to the higher standard of proof. Therefore the consequences of prosecution of a sub-elite athlete can be very serious.
But, just how likely is there a risk of doping charges for your sub-elite athletes?
The majority of sub-elite athletes wouldn’t normally expect testing at their level of play, but testing is now occurring at a greater frequency. As SIA has become aware of a greater prevalence of doping in sub-elite sports, it has upped its vigilance, creating significant risk for your athletes and your club for even inadvertent use.
With the increased scrutiny from SIA, both athletes and clubs need to understand the consequences as defined by WADA and the Australian National Anti-Doping Policy. For example, athletes can be ruled ineligible for four years when a specific substance or a specified method is involved or is present, and it can be established that the violation was intentional.
Each violation type has a specified ineligibility term, with most recommending two or four years. For violations such as administering (or attempting to administer) a prohibited substance to an athlete, or complicity (or attempted complicity), the penalties can extend to lifetime ineligibility. This could affect a coach or sports administrator that assists an athlete to dope.
Cases ruled ‘no fault’ or ‘negligence’ could see the period of ineligibility eliminated. When no significant fault or negligence is ruled, sanctions may be able to be reduced. However, the goal is to avoid these issues to begin with.
Consequences for Feeder Clubs
Doping sanctions never impact just the athlete. Your club can suffer both culturally and financially. The most common issue, particularly in team sports, is the loss of an athlete during their period of ineligibility. The temporary loss of a team member can be impactful on a team, but where there are cheating allegations, there can also be disharmony. The culture of your club or organisation can be significantly impacted in both the short and long term by just one allegation or offence.
Reputational risk is one of the most critical considerations for clubs due to the lasting damage it can cause. The degree of that damage is highly dependent on the amount and severity of violations across a range of areas in a club’s history. We have seen issues like these lead to loss of club or fan support. It is likely to impact upon any sponsorship arrangements, as very few organisations will want to be associated with cheating. Doping suspensions or allegations may also reduce the organisation’s appeal for incoming athletes, impacting your ability to attract your choice of athletes, as can be seen in the case of Gabriela DeBues-Stafford, who left the prestigious Bowerman Track Club due to the doping suspension of an athlete at the club.
And, where the violation involves one of your coaches or support staff, the sanctions can be amplified tremendously, leading to team bans, sanctions on athletes associated with that coach or staff member, and a very considerable reputational impact. One athlete’s doping can be harmful, but an instance of an assumed conspiracy or trafficking within the club can result in heightened media attention that could potentially take years to repair.
The most impactful thing your sporting organisation can do to prevent doping and its detrimental impacts is through the proactive education of coaches, staff, and your athletes about the risks, sanctions, and what constitutes doping. Your athletes should know their rights and their responsibilities, and the risks of intentional and unintentional doping associated with using supplements.
Doping education needs to be regular, scheduled and proactive. It should stem from your anti-doping policy, which should be up to date, comprehensive, easy to read and referenced with appropriate frequency.
Management should be clear that it is their responsibility to investigate even the slightest hint of a concern, including rumours. When individuals in management are clear about their obligations this can go a long way in minimising risk and preserving your organisation’s current good position and reputation.
As you know, doping can happen inadvertently, just through the use of store-bought supplements. Regularly educating athletes about your policy and risks of such supplements and how to/the need to check against the list of banned substances or seek the advice of experts helps mitigate your athletes’ and club’s risk. And, as the Athlete XYZ case highlights, educating athletes that the digital trail, whether it be theirs or someone they know, may lead to prosecution, should be a deterrent.
While knowledge of banned substances is technically the athlete’s responsibility, it is in the best interests of your organisation to take initiative on these fronts, especially at the sub-elite level where athletes may be balancing study or work commitments and may not have the time to educate themselves in the same way that a professional elite athlete might. This includes providing insights into considerations for medications when travelling overseas during holiday periods. It may also involve coaches being aware of potential signs of doping, including unexplained and rapid improvements in performance. A little consistent effort to ensure your policy is up to date and you educate your athletes signals your organisation’s commitment to ensuring doping doesn’t happen can make all the difference.
Article by Alexandria Anthony
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Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on firstname.lastname@example.org or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.