Legal Issues Involved in Testing for Recreational Drugs in Sport - Coursework Example

Name: Course: Institution: Tutor: Legal Issues Involved in Testing for Recreational Drugs in Sport Introduction Today’s sports landscape involves organizations that have been established with the sole purpose of monitoring and preventing the use of performance enhancing drugs. In the last two decades (since 1990) political pressures have been placed on anti-doping agencies and sports federations to extend drugs testing for recreational drugs on match days and out-of-competition games1. In 2006, Australia’s sports governing bodies, the National Australian Rugby Union; the National Rugby Football League and the Australian Football League found themselves under difficult situations when their players tested positive for recreational drugs. This raised a number of issues, political and legal, about whether players should be tested for recreational drugs2. This paper seeks to examine the issues involved in testing for recreational drugs in sport. In particular, the paper seeks to address the controversial question of whether clubs should subject their players for testing for recreational drugs and the legal implications of such tests. Historical Overview of the Anti-Doping Policies and Their Position on Recreational Drugs All over the world, issues have been raised about whether anti-doping policies should be extended to include recreational drugs. However, a historical view of anti-doping efforts reveals that these drugs have all along been included in anti-doping policies3. It can be recalled that the first anti-doping rules were adopted by the IAAF in 1928. The rules targeted certain substances which players were using at the time, including morphine, heroine, cocaine and alcohol. Although these substances were used by the sports people for their purported ergogenic effects, they also had other non-sports related effects such as non-medical and recreational uses. Moreover, some of these substances such as cocaine had already been legally prohibited for non-medical use out of sports4. The first list of prohibited substances was produced by the International Olympics Committee in 1967 and included various drugs which were hitherto used for recreational purposes out of field competition. Some of these substances included cannabis, opiates, pethidine, cocaine, vasodilators, ephedrine, amphetamines and alcohol5. Again, these substances were not only used by sports people to improve performance. Some of them had applications beyond performance enhancement in sports and others were targets of criminal prosecution for non-medical use. Since then, the issue of whether recreational drugs should be included in anti-doping policies has been an important consideration for national and international sports federations. Essentially recreational (non-performance enhancement) drugs have for a long time been included in the anti-doping policies because many of the drugs targeted by these policies are also used in non-sports contexts (recreational settings)6. Non-Performance Enhancing Drugs and the WADA The (WADA) Code has concerns that there are theoretical distinctions between performance enhancing and non-performance enhancing drugs. Essentially, non-performance enhancing drugs have been treated in the WADA code just like the performance enhancing drugs because there are no separate policies devoted to recreational drugs. In the WADA code, both recreational and non-recreational drugs have been included in the list of prohibited drugs and are subject to testing and similar penalties. The fact that the WADA code does not deal with recreational drugs separately implies that no meaningful attention has been focused on various policy issues presented by sportspeople regarding the use of these drugs. It can, therefore, be deduced that anti-doping policy makers do not distinguish between drugs regardless of the purpose for which they are used so long as those drugs are prohibited7. It is, however, important to note that there are some differences in the manner in which recreational drugs are treated depending on where they are placed in the Prohibited List. For instance, the WADA Code’s Prohibited List of 2007 classifies substances into different categories. Some substances have been prohibited at any time (that is in and out of sports) while others have been prohibited in sports only. This list also has a separate list of substances for which there are high chances of unintentional doping. Positive testing of these drugs in sports attracts mild sanctions if the user can prove that they were not intended to influence performance. The main objective of categorizing substances is that recreational drugs are only prohibited in an actual competition8. However, some anti-doping rules do not always treat drugs in this simple manner. The original Prohibited List by WADA contained some substances which were used as recreational drugs and as performance enhancers. With time, it became necessary to distinguish between performance enhancing drugs and recreational drugs. The WADA rules provide that its anti-doping policies are meant to preserve the spirit of sporting events. Presumably, the WADA code is of the view that the use of non-performance enhancing drugs in sporting is detrimental to the spirit of sports and a major risk to the health of sportspeople9. The Australian Football League and Rugby League Policies on Illicit Drugs The Australian Football League (AFL) Anti-Doping Code was adopted in early 1990 and has been made compliant with the WADA code, more particularly with WADA’s contents of outlawed substances. Currently, the AFL’s anti-doping rule involves in-competition testing and extends to illicit, recreational and performance-enhancing drugs. In 2005, the AFL Illicit Drugs code was introduced and is compliant with the WADA code about testing on match days. The Illicit Drugs Policy considers positive tests of narcotics, stimulants and cannabinoids during sports day to be a serious breach of Anti-Doping Code and is subject to penalties. Further, the AFL Illicit Drugs Policy requires that out-of-competition tests be done although WADA’s penalty regime is not applied. It is important to note that the WADA Code has not prohibited the use of non-performance enhancing drugs outside sports. As such, the AFL policy is stricter than the WADA code. The implication is that if a player tests positive to certain drugs such as methamphetamines and cocaine on sports days, he will be subject to a two-year ban. This policy was introduced jointly by the Australian Football League and the Australian Football League Players’ Association (AFLPA) with the aim of educating and rehabilitating players. The AFLPA argued that the first two positive tests should be kept confidential but the culprits educated, counseled and treated. However, the results of the third positive test should be made public. At this point, the matter is referred to a special disciplinary tribunal to conduct a hearing and determine what penalty should be imposed10. Just like the AFL, the Australian National Rugby League Anti-Doping Policies are WADA code compliant. However, recent developments in sports have brought the issue of out-of-competition drug use by players into focus. In particular, the RL has witnessed some of its players test positive for recreational drug use. This forced the league to consider enacting rules for appropriate punishments for players who test positive in out-of-competition tests for recreational drugs. There were, however, problems in enacting such rules for the simple reason that the consequences are subject to club discretion11. A uniform policy was, however, accepted which provides that players receive formal warnings and a fine for first offense. A first positive test can be kept confidential but the player should receive rehabilitation. A second positive testing will receive automatic suspension from 12 matches and the club will have the discretion to terminate the contract of the player. Issues in Testing for Recreational Drugs In the world of sports, drug tests can be classified into four distinct categories; performance-enhancing drugs in sports; non-performance enhancing drugs in sports; performance-enhancing drugs out-of-competition and non-performance enhancing drugs out-of-sports12. There is general agreement that testing of performance-enhancing drugs should be carried out both during and out of competition. It is the testing on recreational drugs that is of major problems. Essentially, certain recreational drugs may or may not enhance sports performance although they are tested on match days. For a long time, it has been debated whether recreational drugs have any positive effect on the on-field performance of sportspeople. For instance, cocaine is classified in the WADA code’s Prohibited List as a stimulant and hence, a positive test of this substance on the competition day attracts a 2 year ban. Wells13 has, however, noted that although cocaine strongly stimulates the central nervous system, it does not stimulate performance. Terry14 is also of the opinion that use of cocaine in sports can hinder and not enhance performance if taken a few hours before a game. In the contrary, a research by Benny and Thomas15 suggested that cocaine has the potential to enhance mental awareness, increased oxygen supply and feelings of invincibility. Ice has been shown to be capable of improving anaerobic performance. In Wells’16, such drugs can help tired players remain focused and keep playing. Yesalis17 has concluded from his research that the use of certain recreational drugs such as amphetamines can have performance enhancing effects such as increasing physical energy, feelings of confidence and mental aptitude. Their use can, however, have negative effects such as anxiety. Bahrke18 has for instance noted that use of amphetamines to promote lower fatigue and more aggression can lead to misjudgments and petty fouls. From his study of drug doping in Australian football, Charles and Rob19 pointed out that successful sporting requires physical skills, speed, stamina, keen judgment and courage and that some of the substances which enhance some of these characteristics can impede others. As such, there are mixed opinions regarding the perceived effects of some drugs such as stimulants when taken shortly before a game. From the legal perspective, the scientific evidence of these drugs can at best be described as circumstantial evidence20. This is because of the fact that while there can be clear psychological changes occurring as a result of using these drugs, inference is required to conclude that the usage leads to enhancement of performance. In many legal settings and in many countries, the use of recreational drugs is often dealt with through the employment contracts of the players. For this reason, different employment contracts have enacted various provisions regarding the use of illicit drugs21. Yesalis22 has noted that although recreational drugs may not necessarily enhance sports performance, their use during competition is perceived as being against the spirit of sport. Bahrke23 has raised concerns that there are elements of occupational health and safety involved when players who have used recreational drugs come in contact with other players. Arguing from a legal perspective Zili and Bukoski24 have noted that players give implied consent as to the maximum level of contact allowed by respective rules of the game, questions can arise as to whether the players consent to physical contact from players whose ability to make rational decisions are affected by drugs. As such, there can be valid legal reasons apart from alleged performance enhancement to support the banning of recreational drug use in sports. But these justifications cannot justify out-of-sports testing as is currently required by AFL25. Rehabilitation, education and the health of players have been cited as the main reasons for AFL’s three-strike policy. Certainly, there are arguments in and out of the legal continuum that sports bodies should look after the well being of their players. This is particularly important for the simple reason that players are at times required to move away from their homes. Moreover, keeping the first two positive tests confidential has always been of paramount importance with court injunctions being sought to maintain it. Because of the invasive nature of out-of-sports testing and the vilification that accompanies players who test positive, the requirement for confidentiality is justified26. Wayne27 has argued that AFL’s three-strike policy is an appropriate consideration because it is based on educational and rehabilitation, particularly because addictive substances are involved. This, however, should not be seen as a criticism for the policies as being too strict on the players. Consequently, it is up to the individual sports and clubs to decide what best suits them and their players as regards use of recreational drugs. While the Australian Football League’s three-strike policy has been criticized severally as being too lenient for drugs, it is fairly compliant with the WADA code and has to a certain extent contributed to efforts to combat drug trafficking. Although there have not been any calls for more testing, the actual AFL anti-dumping policy has been very much effective in stamping out illicit drugs on sports. An important area of law that will for a long time be appropriate for suspension of players or termination of their contracts due to illicit drug use is restraint of trade. Although legal basis for drug-testing out of competition and the penalties that follow are largely contractual, the law requires that any provisions restraining players’ ability to conduct their trade be made reasonable. For instance, certain suspension cases may be seen by courts to be unreasonable. This is one of the reasons why lightening of sentences under the WADA rules will be in the best interests of the sports and individual clubs as this will make it easy to show that any restraint impose is reasonable. Past cases such as that of Cousins may provider a stronger basis for the restraint of trade argument. Although the player did not test positive to illicit drugs, his contact was terminated on grounds charge that would later be withdrawn by the police28. It has been argued that in sports bodies such as AFL which implement draft systems, certain happenings such as the recent one about West Coach Eagles can create restraints of trade. AFL’s draft code can compel eighteen years old players to move within the states to carry out their trade as AFL players. However, owing to numerous drug issues that have rocked the West Coast Eagles, it is possible that parents of east based players may not want their children be enlisted by West Coast Eagles29. There is thus the possibility that if the players have no alternative but to join West Coast Eagles in order to participate in AFL matches, the player can take a legal action on grounds that the rules are an unreasonable restraint of trade, which should not apply to them. While the AFLPA accepts AFL’s draft system and there are currently no threats to the collective action which led to the demise of the Rugby Leagues draft, it does not necessarily mean that players cannot compete successfully. It has to be noted that while there were no collective actions against the Victorian Football League’s transfer system, some players were successful in having the rules declared as being unreasonable restraint of trade and hence could not be applied to the players. Conclusion While the issue of drug testing in sports is a complex one, efforts have been made to shed some light on the question of whether it is justified to test for recreational drugs on match days and out of competition games. Special emphasis has been given to the case where the use of drugs in sports is unrelated to any effect on performance enhancement that the drugs may have. The extension of anti-doping policies to cover recreational drugs has involved a lot of political motivations, although it is primarily market focus that has had an impact. This is because sports bodies have had to be aware of the fact that certain incidents and situations involving illicit drug use can affect the 30corporate images of clubs and hence the revenue that they can be able to attract through sponsorships. Given the potential for recreational drugs to be used for performance enhancement, it is necessary that rules be enhanced about the use of these drugs in sports and whether clubs should subject their players to testing. Bibliography ANNE AMOS, Anti-Doping Policy: Rationale or Rationalisation?. (Thesis submitted to the Faculty of Law, University of Sydney, 2008). BAHRKE, MICHAEL, Performance-Enhancing Substances in Sport and Exercise. (London: Human Kinetics, 2002). BENNY PEISER AND REILLY, THOMAS, ‘Environmental Factors in the Summer Olympics in Historical Perspective’, Journal of Sports Sciences, 22 (2004), 981, 983. DAVID, MAcRDLE , ‘Elite Athletes’ Perceptions of the use and regulation of performance- enhancing drugs’, Sport Law & Management, 9/1(1999), 43-51. EOIN, CAROLAN, ‘The new WADA code and the search for a policy justification for anti- doping rules’, Seton Hall Journal of Sports and Entertainment Law, 16/1 (2006), 2-44. PAUL, HORVATH, Anti-doping and human rights in sport: The case of the AFL and the WADA Code, Monash University Law Review, 32/2 (2006), 357-387. PETER, CHARLISH AND ROB, HEYWOOD, ‘Anti-Doping Inconsistencies Snare American Star’, Texas Review of Entertainment & Sports Law, 8/79, (2007), 80-113. SAUL, F., CHRIS, DAVIES AND ANNE, AMOS, ‘Should Athletes be tested for recreational Drugs? Three sporting federations kick around the proverbial football’, Australian and New Zealand Sports Law Journal, 2/1 (2007), 59-79. SAVULESCU, J., FODDY, B. AND M CLAYTON, “Why we should allow performance enhancing drugs in sport”, British Journal of Sports Medicine, 38 (2004), 666-681. TERRY TODD, ‘Anabolic Steroids: The Gremlins of Sport’ (2006) 14 Journal of Sport History citing Peter Lawson, Manchester Guardian, 17 September 2006, 86-91. TONY, BUTI and SAUL, FRIDMAN, ‘Drug Testing in Sport: Legal Challenge & Issues’, 20, U. Queensland L. J. (1998-1999), 151-180. WAYNE, WILSON, Doping in élite Sport: The Politics of Drugs in the Olympic Movement. (Sydney: Human Kinetics, 2001). WELLS, D, ‘Gene Doping: The Hype and the Reality’, British Journal of harmacology, 154 (2008), 623-656. YESALIS, CHARLES, Anabolic Steroids in Sport and Exercise. (London: Human Kinetics, 2000). ZILI, SLOBODA AND BUKOSKI, WILLIAM., Handbook of Drug Abuse Prevention: Theory, Science, and Practice. (New York: Springer, 2003). Read More