This article is written by Darshit Vora of SVKM Narsee Monjee Institute of Management Studies. The article covers important laws to restrict doping and substances that are banned from consumption. Further, the articles cover the aspects of legalization of doping in Cricket and the principle of strict liability in connection with doping.
Table of Contents
Introduction
In the world of sports doping is one of the serious issues. The use of the banned substances is being used to enhance the performance of the players however it negatively impacts the physical or mental health of the player. The use of prohibited substances in sports is always seen as a pest that violates the spirit of fair play. In addition, to maintaining sports a clean game, it gives the innocent participants equal and just opportunities to compete on the basis of their natural abilities. Many famous personalities have been caught and penalized for the consumption of banned substances. Post the death of the cyclist Knud Enemark during the Olympic game in the year 1960 many efforts have been made to restrict and prohibit the use of performance enhancement drugs, however, organized efforts were made in the 20th century.
The sport in which the banned substances are being used the most is cricket. Cannabis and steroids are the substances being most used. Doping tests in cricket started in the year 2002. ICC became a signatory to WADA in the year 2006. ICC introduced its own anti-doping code which came into effect on 1st January 2009. The code was enacted to ensure that cricket plays its part in eliminating the use of drugs in sports. The ICC anti-doping code has proved to be vital (a) Maintain the integrity of the sport of cricket, (b) Protect the health and rights of all participants in the sport of cricket, and (c) Keep the sport of cricket free from doping. To resolve the issue of doping in cricket, the international cricket council has established a separate code to punish all the players playing at an international level to impose strict punishment.
Substances of doping and various laws to restrict the use of doping in cricket
In cricket players used various drugs that are being injected into player’s bodies to enhance their performance some of them are as follows
- Anabolic steroids: These drugs increase the testosterone level of a player and affect muscle growth. Anabolic steroids help the players to reduce fats and recover from an injury in a faster manner. Anabolic steroids negatively impact the body causing high blood pressure, acne, affecting liver function affects the menstrual cycle, etc. Some of the anabolic steroids are testosterone, stanozolol, and boldenone.
- Diuretics: It is a substance that reduces the weight and increases the stamina of the players. Some of Diuretics are furosemide, bendroflumethiazide and metolazone. The drug poses a serious threat to the functioning of the heart, kidney, and liver of the player.
- Cannabis: This drug is being used by players to reduce muscle strain or reduce stress or anxiety. It can cause lung cancer, trouble in brain development, and accelerated heartbeat.
- Stimulants: The drug excites body function it affects the brain and the central nervous system. This drug creates alertness and wakefulness. So of the simulats are addrell, Dexedrine and zenzedi, etc.
Important provisions related to doping in cricket
Presence of prohibited substances:
The provision, lays a duty on the players that if any prohibited substance is present in the body of the player shall be liable and defense of no-fault or negligence is not available.
Use for therapeutic purposes:
The provision, mentions that the drugs are consumed for therapeutic purposes the player shall be punishable it acts as an exception to the original rule.
Tampering with any part of the doping control
The provision states that any player tries to mould the doping process it including bribing and providing fraudulent information.
Possession of prohibited substance
The code not only punishes those who have consumed the prohibited substance but also those who possess those prohibited substances.
Burden of proof
The provision mentions that burden of proof is on the player accused of the offence. The player has to prove his/her case greater than mere possibility and less than beyond a reasonable doubt.
Right to a fair hearing:
The case shall be tried by the Anti-doping tribunal the procedure to be followed shall be at the discretion of the chairman of the Anti-doping tribunal. Both the parties are supposed to provide their evidence and witnesses to prove their case. The tribunal has to provide proper reasons before passing any order.
Appeal
Aggrieved by the order the player or WADA or ICC or National doping agency of country or can appeal to CAS, however, the appeal shall be filed within 21 days post the decision of the Anti-doping tribunal.
Sanction
The following sanction can be imposed on the player if he/she is found consuming a prohibited substance
- Immediate disqualification of an individual if he/she tests positive in the ICC event.
- Imposing a period of ineligibility to compete for use, possession, or attempt to use the prohibited substance.
- Imposition of a period of ineligibility for tampering or attempt to tamper with the doping process.
- If the player has violated the doping rules for the third time then he shall not be able to compete for life.
- However, a player can escape from the liability if she/he shall conclusive proof that he was no fault of the player.
Strict liability with respect to doping laws in cricket
It means that the Cricketer is liable for the substance they consume. It is the responsibility of the athlete to take care of his/her body if any banned substance is found out of the body of the athlete intentionally or unintentionally shall be liable under the law. The principle of strict liability is added in WADC Article 2 the provision clearly states on the ground of strict liability amendment can be made in terms of sanction however the athletes shall be liable for some level of punishment. The main motive behind the implementation of this principle was explained in Quigley vs UIT the court stated that the athlete must have consumed medication due to mislabeling or faulty advice the competition won’t get postponed because it would create unfairness towards other competitors. Further, under section 2.1 of the ICC code, it is clearly stated that it is the personal duty of the athlete to ensure that he/she is not consuming any banned substance and the athlete can’t rely on the defense of negligence. The strict liability test has proved to be a successful tool in the faster disposal of doping cases. It removes the aspect of proving the intent which is difficult to prove in the court. In WADA vs Hardy, it was pointed out by the court that a strict liability rule is added to dispose of cases of doping quickly and players would be more cautious about what they consume.
In compliance with the provisions laid down in ICC and WADC countries India, Australia and England have complied with the strict liability rule in their respective national doping codes. In Alian Bexter vs IOC, the court held that principle doesn’t violate human rights and is consistent. The strict liability principle seems to be a bit harsh doping is a serious issue that requires taking extreme steps to eliminate this issue. Under Article 10 of WADC and clause 10.5 of ICC code if the player is able to prove that no fault of the player the level of punishment shall be reduced and in some cases if it is conclusively able to prove no punishment is imposed. Critics argue that strict liability breaches the principle of natural justice. The policy that was introduced to deter the cricketers from the consumption of banned substances could become a tool to unfairly target the cricketers. A false doping report can negatively impact the career of the cricketer. It is simply impossible to expect that the cricketers should have control over every step of the food and pharmaceutical process chain.
To conclude a positive test of doping negatively affects the career of the cricketer, however, it is essential to consider the main intent behind the induction of strict liability rule in both ICC code and WADC was done to strengthen its fight against doping the rule would act as a deterrent of those who are thinking consuming drugs and also this principle was to introduce to because proving the intent of consumption of the drug is difficult to prove in the court of law which was seen in the WADA vs PCB thus eliminating the issue of proving the intent.
Legalization of doping in Cricket
This opinion of legalizing doping has been doing rounds for quite a while in the sport of cricket. People who are in support of legalizing the use of prohibited substances argue that if access is allowed those who have an unfair genetic advantage can consume drugs to make it a level playing field. The doping test is considered as an action right to privacy and personal freedom of the cricketer. Further, if a cricketer is suspended is causes serious harm to their right to work. Other than enhancing the performance of the player’s drugs also helps the players from recovering from their injuries. Steroids don’t confer the ability of the cricketers a superpower to win they merely confer players to express their genetic potential. On the ground of unfair advantage, it is being argued in some country the medical facility for the cricketer to recover from an injury is better also creates an unfair advantage however no law is made to prohibit such unfair advantage so why is the use of steroids be prohibited.
However people in favor of the current law state that other than creating an unfair level playing field it negatively affects the physical and mental health of the player. An aspect of entertainment in cricket is one thing however having integrity and spirit is the most important thing. If doping is legalized then the country that can afford the best medical team would always win. The audience which is present to witness the competitive game wants the cricketers to perform based on natural abilities and not the one produced due to the performance enhancement drugs. Drugs can’t be injected into players with the sole motive of enhancing the performance of the players in one particular game because it can have a negative impact on the future life of the cricketers. A survey was done by Mr. Lovely Dasgupta to check which players would have a negative impact post-consumption of steroids out of 100 athletes 81 of them had negative health effects may it be skin allergies, stomach disorders, stroke, etc. UNESCO division on anti-doping believes that “doping jeopardizes the moral and ethical basis of sport and the health of those involved in it.”
Thus it can be concluded that people who argue that steroids merely enhance the genetic ability of the cricketer are wrong clear difference in the performance of a player who has consumed steroids and the player who has not consumed steroids. People who favor in legalizing drugs feel that consumption under proper medical vigilance won’t be harmful but in various instances, even under medical assistance the steroids have been proved harmful, it negatively affects the health of the cricketers So steroids can never be made legal and the current law should prevail.
International case analysis in cricket in regard to doping
WADA vs Pakistan Cricket Board & Shoaib Akhtar & Mohammed Asif
Facts: In this case, doping charges were pressed against two Pakistani fast bowlers named Shoaib Akhtar and Mohammed Asif they were being accused of consuming an anabolic drug named Norandrosterone to enhance their performance. They both were preparing for an ICC event. There was an immediate suspension of both the players. Soon as the proceeding began the burden of proof was on the cricketers to show that they weren’t having knowledge about their consumption of prohibited substances. In the Shoaib Akhtar case, the court stated that the petitioner could not prove his case under exceptional circumstances and received a two-year ban. The commission has a more sympathetic attitude towards Mohammed Asif and they decided to reduce the punishment to one year the commission exercised its power under clause 9.5.2 of the ICC Anti-Doping Code.
However, both the player aggrieved by the decision of the commission clause 11 of the PCB anti-doping code applied to separate committees. The committee was of the view that the test was administered in Pakistan thus PCB anti-doping code would be applicable and not the ICC Anti-doping code. The codes of ICC and PCB were quite divergent. Under the ICC the principle of strict liability however under clause 4.5 of the Anti-doping code mentioned an exceptional circumstance if the player is able to prove if the player is honest and has no knowledge then charges of doping can’t be imposed. After presenting all the arguments and the evidence the appeals committee with a 2:1 verdict which was in favor of the players exonerated them against all their charges the committee stated that both the cricketers were able to establish, the act was not done intentionally and the ban and punishment against the cricketers by the ADC is set aside.
Aggrieved by the decision passed by the committee WADA appealed to the Court for arbitration for sports. The major issues that revolved were whether Court for arbitration for sports has jurisdiction over the case or not and does WADA has the power to file an appeal. WADA stated that they have the power to file the case under Articles 13.1 and 13.2 of the WADC. WADA contended CAS has the jurisdiction to try the case according to Rule 47 of the CAS Code. The argument from the other side was WADA doesn’t have the power to file an appeal in the CAS and rule 47 of the CAS code doesn’t apply to this case. It stated that CAS doesn’t have jurisdiction in this matter under the PCB regulation there is no provision that expressly provides the ability of the party to appeal to CAS. They further that the ICC code extends if the cricketer is participating in an ICC event and doesn’t apply to domestic events. The decision of CAS was in favor of PCB, Mohammed Asif, and Akhtar reason being rule 47 of the CAS code can’t be applied if a direct inference about the appeal is mentioned. In PCB regulation it didn’t mention appeal to CAS. The CAS pronounced the judgment with considerable regret where ICC failed to consider whether the national federation was in proportion with WADC.
The decision pronounced by CAS clearly showed the world the lack of power that persists with ICC to enforce or check national codes and to ensure that all the national codes are in compliance with WADC. The result was both the Pakistan bowlers were released from all kinds of charges and were allowed to play for Pakistan. The judgment did set up a bad precedent.
Suggestions
Through various methods, the issue of doping can be resolved or mitigated some of them are as follows
- Educating cricketers about the ill-effect of the consumption of drugs.
- The whistleblowing mechanism should be strengthened to detect the doping practices in cricket.
- Quick and vigilant action should be taken by national and international bodies post the detection of doping.
- Strict penalties should be imposed against those who consume drugs intentionally it would act as a deterrent for the other cricketers.
- A biological passport for crickets would be an effective mechanism to detect any doping issues.
Conclusion
Doping is a serious offense in sports various efforts have been taken to eliminate this issue. It is essential along with the collaboration of WADA and ICC all the national federations should come together and take stringent measures to eliminate this issue. It is also equally important that cricketers should be educated about the ill effects of doping generally education among the cricketers in regard to doping is less in developing and under-developing countries. Further ICC takes quick measures in cases of doping and should ensure that the spirit of the sport is alive.
References
[1]http://docs.manupatra.in/newsline/articles/Upload/1AE2DCAF-EAAD-4028-BDB8-5A26CF3CDDF1.pdf. [2] https://www.jpmer.com/doi/JPMER/pdf/10.5005/jp-journals-10028-1175. [3]https://lexforti.com/legal-news/wp-content/uploads/2020/11/Analysis-of-Application-of-Strict-Liability.pdf. [4]https://www.researchgate.net/publication/49764159_Should_Performance-Enhancing_Drugs_in_Sport_be_Legalized_under_Medical_Supervision. [5]https://www.tandfonline.com/doi/abs/10.1080/17430430802673700?journalCode=fcss20. [6] https://www.jssm.org/volume04/iss3/cap/jssm-04-248.pdf.LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
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