Is it time to create a fund to help athletes who have suffered an economic loss due to doping in sport?

Sport is unpredictable, but one thing history has taught us is that not all participants in sport will play by the rules; there will always be opportunists looking to gain an unfair advantage. Therefore, I have been somewhat surprised that, given all the hysteria, scandal, discussion and debate on doping in sport, this reality is not genuinely acknowledged nor sufficiently addressed in the current anti-doping regulatory framework, with specific reference to the system underpinned by the World Anti-Doping Code (the Code).

Few would argue, in a criminal context, that even with the most robust rules in place, thorough investigatory teams and technologies, and the harshest deterrents, crime could be completely eradicated. In a similar vein, it seems naive to expect that we will ever reach a point in global sport where all participants abide by the same rules, and where no athletes, coaches or support teams use or administer (intentionally or otherwise) substances and methods on the World Anti-Doping Agency’s Prohibited List1 (the Prohibited List - the merits of which are for discussion in another article) or commit any offences under The Code.

So, if we know for certain that some people will find a way to manipulate or cheat the system, then it would seem logical to anticipate this and provide redress for the individuals (more often than not an athlete) who will inevitably be impacted negatively in an economic and sporting context as a result of deficiencies in the current anti-doping framework. To some extent, these deficiencies are simply a by-product of the complex reality of how the World Anti-Doping Agency was created – the geo-political nature of sports and international regulation requires global co-operation and financial contributions in order to continue to exist.

When considering those who suffer from these deficiencies, it is worth highlighting that it is not only those affected by the doping of their competitors that lose out – many athletes are falsely accused of doping or are affected by the poor administration of the anti-doping regime – causing missed competitions and commercial opportunities. The current system does not provide any form of financial redress to the following categories of “victims” of the system:

1. Athletes and coaches who have lost medals, prize money, future funding and/or sponsorship opportunities because one or more of their competitors committed a doping violation. While often in these cases the medals are reallocated many years after the event, no provision is made to compensate for the lost moment on the podium and the loss of the sponsorship and funding opportunities that inevitably follow a podium finish in a major competition. Examples include:

   1. Kelly Sotherton – heptathlete2, who received a bronze medal in September 2018 from the Beijing Games in 2008 after two competitors received retrospective bans.

   2. Andrew Steele, Robert Tobin, Michael Bingham and Martyn Rooney – Team GB 4x400m relay3. The team finished fourth in the 4x400m final in the 2008 Beijing Games and were awarded a bronze medal after the third place team received retrospective bans.

2. Athletes who lost medals, prize money, future funding and/or sponsorship as a result of being charged (and sometimes sanctioned) with an anti-doping rule violation but later vindicated on appeal. Examples include:

   1. Diane Modahl – 800m runner4. Ms Modahl’s was falsely accused of doping in 1994 at the height of her career. A catastrophic error by a testing laboratory in Portugal meant that Ms Modahl’s urine sample was stored inside the stadium for 72 hours where outside temperatures had reached 35°C, causing serious bacterial degradation which meant the sample no longer was safe to test. Despite this error, the laboratory tested the sample which was found to contain higher levels of testosterone than normal – and the British Athletics Federation panel which heard her case rejected evidence that the Portugeuse laboratory mishandled the sample, and imposed a 4 year ban on Ms Modahl. A year later, in 1995, Ms Modahl was cleared by an independent appeals tribunal who accepted that the storage of the sample could have meant the increased bacterial activity caused the levels of testosterone to rise. In 1996, the IAAF accepted the verdict of the appeal panel, and allowed Ms Modahl to compete again. Ms Modahl later tried to recoup her losses by bringing a £1m compensation claim against the British Athletic Federation in the High Court of England and Wales – since there was (and still is) no cause of action under the relevant anti-doping rules. Although the Court of Appeal ruled that comments made by the chairman of the 5 member disciplinary panel hearing her 1996 anti-doping case amounted to actual bias, it dismissed Ms Modahl’s claim for compensation on the grounds that she had no prospect of showing that a disciplinary committee acting without actual bias would have reached a different decision on the evidence available at the time5.

   2. Josh Barnett – UFC fighter6. Mr Barnett failed an anti-doping test on the 9 December 2016, due to the presence of Ostarine, an anabolic agent on the UFC Prohibited List. The prohibited substance was proved to originate from a contaminated supplement which the US Anti-Doping Agency (USADA) was able to trace as a result of Mr Barnett’s habit of diligently retaining samples of all his supplements (a habit formed from his inability to prove that a failed test in 2009 was due to a containment supplement). There was a disagreement between USADA and Mr Barnett as to whether his previous anti-doping violation in 2009 was a first offence for the purposes of determining sanction: Mr Barnett had a California State Athletic Commission (CSAC) sample test in 2009 which, if treated as a first offence would have made the 2016 violation a second offence under the UFC Anti-Doping Policy. In early 2018, the case went to Arbitration under the UFC Arbitration Rules, and the sole arbitrator found that the process the CSAC used to sanction Mr Barnett for the 2009 violation (which, among other thing, did not include any B sample testing) would not meet the requirements for a violation under the UFC Anti-Doping Rules. Therefore, the 2016 violation was treated as a first offence, and Mr Barnett was deemed to have minimal fault. The arbitrator commented that Mr Barnett had “missed opportunities as a professional fighter and coach” and therefore issued a sanction of a reprimand and no period of ineligibility7.

3. Athlete and coaches who lost medals, prize money, future funding and/or sponsorship after being found to have committed an anti-doping rule violation for a substance which was subsequently removed from the Prohibited List. Examples include:

   1. Zach Lund – USA skeleton slider. Mr Lund’s case was widely reported and struck many as particularly unfair. Lund was handed a one-year suspension after his doping control test on 10 November 2005 revealed the presence of finasteride, meaning he missed the XX Winter Olympic Games in Turin8. Mr Lund had taken the substance since 1999 to treat male pattern baldness and always disclosed his medication containing finasteride on his doping control form. Given that finasteride was only added to the Prohibited List in 2005, Mr Lund was not aware of its prohibited status. A few years after Mr Lund’s case and suspension, finasteride was removed from the 2009 Prohibited List. Mr Lund later requested that his record be cleared, but this request was refused.

   2. Rodriguez Martinez– ATP tennis player9. On 24 October 2002, Mr Rodriguez tested positive for caffeine over the 12µg/ml Threshold, after drinking coffee provided to him by the Basel tour organisers. The ITF panel refused to apply the principle of estoppel despite issues with measurement uncertainty of the A Sample, and found him guilty of committing an anti-doping rule violation. He was ordered to pay the prize money obtained at the ATP 2002 Davidoff Swiss Tournament, and the ranking points he obtained were struck out. Caffeine was later removed from the Prohibited List in 2004.

   3. Vijay Singh – professional golfer. Mr Singh and the PGA Tour reached a settlement deal on the 20th November 2018 following a 2013 doping dispute over deer-antler spray. According to Sport 24’s press report:

“Singh…made comments five years ago to Sports Illustrated for a story about steroid alternatives, the Fijian saying he had used deer antler spray. The PGA Tour suspended Mr Singh after finding the spray contained IGF-1, a banned substance under the tour's anti-doping rules. Singh appealed the 90-day suspension and while the case was considered, the World Anti-Doping Agency (WADA) ruled it no longer considered using the spray a doping violation unless there was a failed drug test involved. That was not the case in Singh's situation so the ban was revoked. Mr Singh, however, sued the tour later in 2013, saying he was treated unfairly in how the doping violation was handled, causing unfair harm to his reputation.”10

4. Athletes and coaches who have missed competitions and lost out on funding and sponsorship opportunities due to delays and/or errors in the administration of the anti-doping results management process, and last-minute retests before a major competition which do not allow enough time for the results management process to conclude before the team selection deadline. Examples include:

   1. Kusal Perera11 - international cricketer. In Mr Perera’s case, the cricketer was charged by the International Cricket Council (“ICC”) in December 2016 with an anti-doping rule violation, after the WADA-accredited laboratory in Qatar reported the presence of 19-Norandrostenedione in Mr Perera’s sample. Mr Perera was provisionally suspended from competition with immediate effect. Mr Perera’s lawyers conducted investigations into potential sources of the 19-Norandrostenedione, and concluded that the Qatar laboratory might have misidentified impurities in the samples as 19-Norandrostenedione, given the very low concentrations of that substance found in the samples. In response, the ICC commissioned an independent expert to review all of the Qatar laboratory’s findings, who found that whilst the Qatar laboratory had correctly identified 19-Norandrostenedione in the samples, an adverse analytical finding was not sustainable, because, for various scientific and technical reasons, it could not be ruled out that the 19-Norandrostenedione was produced naturally in the player's body and/or formed in the samples after the player provided them. As a result of the findings, the Qatar laboratory withdrew the Adverse Analytical Finding and the ICC withdrew its disciplinary charges against Mr Perera and lifted the provisional suspension (for which he had already served a 5 month suspension period).

   2. Jonathan Caruana12 - international footballer. Mr Caruana failed a test, which later proved to be due to a contaminated supplement. The proceedings, which took 17 months to conclude (including the CAS appeal), resulted in the CAS Panel reducing Mr Caruana’s 4-year ban to 6 months. The time it took to handle the case resulted in the Mr Caruana being out of the sport for 11 months longer than the sanction he eventually received.

What can be done?

In the above scenarios, the impact on individuals is a loss of earnings, legal costs, expert costs, loss of opportunity and more (I have focused on the economic impact stemming from doping, but I recognise mental distress can also be severe). Given that it is wholly foreseeable that these situations will occur, it is surely time to introduce a compensation scheme or legal cause of action within the anti-doping rules that can, at the very least, provide opportunity for those innocents negatively affected by the anti-doping regime to obtain commercial as well as moral redress.

I do not profess to have all the answers, but I believe it would be healthy to start a discussion about the possibility of the establishing a fund or insurance plan, paid for by sports’ stakeholders, that provides compensation after the period of the statute of limitations expires (10 years under the current Code13). Alternatively, like many team sports (football, rugby, NFL, NBA) in which a player development fund is ring fenced to be used to help player development (in these cases it is negotiated as part of collective bargaining process and agreement between the leagues/teams and the players), perhaps a proportion of sponsorship, media rights and other commercial deal revenues and government funding should be reserved for the purposes of protecting the welfare of athletes and their coaches, and if necessary, compensating their financial losses in the scenarios set out above.

Perhaps, such an initiative would give athletes and other sports stakeholders more confidence in the current regulatory framework as those subject to it would know there is some form economic protection for deficiencies in the system. It may be that these suggestions are unworkable and idealistic, but having seen so much collateral damage from the fight against doping, now the “Clean Sport” movement, it can surely do no harm to explore these options.

Of course, it would be better if these situations were to never happen, and whilst the legal and scientific anti-doping framework, processes, and education of athletes and their support teams can and should be developed and improved, the commercial impact of the current regime on innocent athletes should be addressed for everyone’s benefit.

• Anti-Doping Athlete Welfare Insurance