If no one is above the law, then why do doping athletes get off so lightly?

Lawlessness in sport and its threat to the Olympic Games

The 2016 Rio Olympics is just weeks away, yet the integrity of the Olympic Games continues to be marred by damning allegations of doping.

Russia has been accused of operating an extensive programme of state sponsored doping, and of the systematic concealment of positive drugs tests.

According to a ground-breaking report by the World Anti-Doping Agency (WADA) — which is partially funded by the United States — there was a “deeply rooted culture of cheating” in Russian athletics that ultimately sabotaged the London 2012 Olympic Games.

Former WADA president Dick Pound alleged that these disconcerting findings, reminiscent of practices during the Cold War, are probably just the “tip of the iceberg”, and likely extended to a multitude of countries of and variety of sports.

The report detailed evidence of continuing corruption, as recent as 2015, when the report was published. The sheer scale of corruption and doping uncovered led the International Association of Athletics Federations to ban the Russian Athletics Federation from international competition, including the 2016 Rio summer Olympic Games.

Though the decision was welcomed throughout the sporting world, many are disappointed with the lack of legal action against individuals, public bodies and possible governments that were implicit in what could be construed as fraudulent, deceptive, wholly immoral and illegal activity.

This begs an important question: is illegality in the confines of the sporting world exempt from the law?

The role of The Court of Arbitration for Sport

The Court of Arbitration for Sport (CAS) is an independent, international court that facilitates the resolution of sports-related disputes between a wide range of individuals or legal entities, athletes, clubs, sports federations, organisers of sports events, sponsors and television companies.

CAS is often understood as the Supreme Court in the world of sport. Its decisions are final and binding, but nevertheless the court’s authority does not allow it to legitimise or regulate independent, international governing bodies.

CAS’s primary failure is that it is a court of dispute: a dispute may only be submitted to the court if both parties mutually agree — in writing or contract — on recourse to CAS. Thus, despite having the jurisdiction to adjudicate doping disputes, allegations of systematic doping are outside CAS’s jurisdiction. This narrow scope of jurisdiction effectively overlooks all undisputed, unconstitutional activity.

What about European law?

Sport is generally regarded as an exceptional jurisdiction where the law and the English legal system largely cannot intervene.

International governing bodies such as the Federation International Football Association (FIFA) independently regulate the legal aspects of their respective disciplines through the use of continental and regional sub associations. International governing bodies are ultimately responsible for the imposition of sanctions upon any bodies or persons who violate — or are implicit in the violation of — its constitution.

Despite the business-like operations of international bodies and the undoubted possibility of corruption, this questionable policy of self-regulation is not challenged. It could be argued that sport must come under the jurisdiction of the law and, by extension, competition laws.

Inter-association agreements between continental governing bodies such as The Union of European Football Associations (UEFA) and similar national bodies may arguably reduce sporting competition in European football. This could be construed as a violation of articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) 2007, which it prohibits as “incompatible with the common market”:

All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.

Furthermore, article 102 prohibits:

Abusive business conduct by an undertaking where that undertaking has a dominant position in a given market within the EU.

So if sport governing bodies were treated as businesses, it would be theoretically possible for football transfers of an anti-competitive nature to violate article 101. In addition, hypothetically, clubs that exploit their dominance by purchasing and subsequently loaning players out of the EU in an attempt to starve competitors of quality players could be in violation of article 102.

Despite how ridiculous it may seem, there is precedent to take action. In the case of Walrave v Union Cycliste Internationale, the Court of Justice held that professional sport is undoubtedly a form of economic activity, thus EU competition laws apply.

Apparently aware of the possibility of EU intervention, in 2015 UEFA introduced Financial Fair Play Regulations, in an attempt to reduce monopolistic like behaviour as a means to control competition in European football. Astonishingly, the very regulations introduced to combat anti-competitive behaviour have been widely criticised as anti-competitive under article 101 and 102 of TFEU — potentially indicating European law is not suited to a regulatory role in European sport.

Can athletic doping be made a criminal offence in the UK?

The use of banned performance enhancing drugs in the UK is not currently under the jurisdiction of criminal legislation that prohibits the use of conventional illegal drugs. Their illegality in the sporting sense does not extend to criminal illegality under the Misuse of Drugs Act 1971.

However, earlier this year it was reported that David Cameron had plans to make doping a criminal offence in the UK. Similar legislation has been adopted by Austria, France, Spain and New Zealand, and could see athletes and those implicitly involved in doping prosecuted and imprisoned.

Taking Austria as an example, since 2010, doping has been categorised as serious fraud. Athletes caught doping are liable to a three year prison sentence. If the cost of the fraud exceeds €50,000, they will be liable for up to ten years imprisonment.

Whether or not this could be integrated into the English legal system is highly contentious.

Doping is a strict liability wrong; if an athlete is found with a banned substance in their system, they are automatically subject to a ban regardless of the intentional or unintentional nature of the positive test. In contrast to strict liability, criminal offences in the English legal system require a degree of intentional or negligent action. Any merger of the differing standards would heavily complicate the system of fault and may erode the independence of international associations, which is required to prevent conflicts of interests on the part of governments who may discourage the prosecution of their athletes.

Ultimately, the lack of an independent specific regulatory authority allows quasi-governmental associations — who have tremendous economic power — to create and perpetuate a culture of subterfuge in international sport, undermining the integrity of the Olympics and arguably professional sport.

Joel Padi is a first year law student at Keele University.