Sprinters Tyson Gay and Asafa Powell have failed doping tests. An A sample from the American Mr. Gay tested positive for oxilofrine during an out-of-competition test conducted by the U.S. Anti-Doping Agency (“USADA”). The Jamaican Mr. Powell tested positive for the same stimulant during the Jamaican championships in June.
Reacting to the positive result, Mr. Powell said:
While his statement might provide some succor to his fans, it will not have an impact on the determination of whether there was an anti-doping rule violation. This is because “strict liability” is woven into the definitions of the relevant violation under the World Anti-Doping Code (“Code”), the document that forms the basis for the anti-doping codes of most sporting disciplines and most countries. An anti-doping agency such as the USADA only has to prove the “presence of a prohibited substance or its metabolites or markers in an athlete’s sample”. The comment to Article 2.1.1 of the Code makes it clear that the athlete’s mens rea or guilty intention is irrelevant.
“The violation occurs whether or not the Athlete intentionally or unintentionally Used a Prohibited Substance or was negligent or otherwise at fault.”
Strict liability is an exception to the principle of nulla poena sine culpa — no punishment without guilt — and has always been controversial because it is likely to have unfair consequences in several cases. A prohibited substance may have found its way into an athlete’s body, for instance, as a result of ingesting mislabeled medicines or faulty advice from a physician or a coach.
In criminal law, the principle of strict liability is restricted to some of the most serious offences. Anti-doping however, is not a part of criminal law. The entire anti-doping architecture is a product of private agreements between the governing bodies of sport. Unlike criminal law therefore, the protection of the rights of the accused is not one of the dominant objectives of anti-doping regulation. Instead, it is aimed at ensuring “clean” sport, even at the expense of the rights of accused athletes. Strict liability therefore, something of an exception in criminal law, provides the foundation for much of anti-doping regulation. The responsibility to keep the athlete’s system free from prohibited substances is placed squarely on the athlete itself.
The policy behind strict liability is a sound one, especially when the testing is conducted during a competition. Even if the prohibited performance-enhancing substance found its way into the athlete’s body accidentally, it would be unfair to other athletes in a competition to permit him to compete against them. The athlete in question would potentially have had an unfair competitive advantage over his or her opponents, and a disqualification from competition would be the most just outcome.
Another consequence of an anti-doping rule violation is suspension from future competition. In such circumstances, the WADC softens its stance ever so slightly. Articles 10.5.1 and 10.5.2 of the Code, which come into operation at the at the stage of determining an athlete’s period of ineligibility, provide for exceptional circumstances where a prohibited substance entered an athlete’s system through “No Fault or Negligence” or “No Significant Fault or Negligence” on the athlete’s part. The athlete has to meet a very high standard here. To illustrate the difficulty of meeting this standard, the Code gives the example of a situation where despite all due care, an athlete was sabotaged by a competitor. The Code also states that these provisions cannot be used in situations where the prohibited substances were found in the athlete’s system as a result of mislabeled medication, or its administration to the athlete by a coach without the athlete’s knowledge, or sabotage of the athlete’s food or drink by a spouse.
(Aju John is part of the faculty on myLaw.net.)