Select Committee on Science and Technology Second Report

5  Investigation and prosecution of doping

Conflicts of interest

83. UK Sport not only runs the UK anti-doping programme but is the government agency responsible for maximising British success, for example, in the Olympic Games. This is not the case in all other countries. The Australian Government, for example, has developed a distinct body, the Australian Anti-Doping Authority (ASADA), to take samples for testing against use of illegal HETs and to investigate and prosecute in cases of doping. On our visit to Australia, we found ASADA an impressive organisation in which there was a clear dedication to the fight against doping. It was also clear to us that ASADA has gained much support from stakeholders in Australian sport, for example the Australian Institute of Sport, the New South Wales Institute of Sport and the Australian section of the Court of Arbitration for Sport, who felt that establishment of ASADA had removed a previous conflict of interest faced by sporting bodies in Australia regarding the prosecution of doping cases. The USA has taken a similar approach in the creation of the U.S. Anti-Doping Agency (USADA).

84. Whether UK Sport is the appropriate body to support the dual roles of running the anti-doping programme and promoting UK athletic success has been considered previously. In March 2003 consultants PMP undertook a review of the role of UK Sport's Drug Free Sport Directorate on behalf of UK Sport and DCMS in March 2003. The review concluded that there was no tangible evidence of unethical behaviour at UK Sport and its report recommended that Drug-Free Sport should remain one of the key functions of UK Sport.[137] The Culture, Media and Sport Committee also considered this issue within its 2004 inquiry into drugs and role models in sport and concluded that they were not convinced that conflicts of interest between the dual roles of UK Sport were anything other than perceptions. However, the CMS report did recommend that UK Sport "take whatever steps deemed necessary to separate and clarify the twin chains of command within the agency to ensure that any such perceptions are laid to rest once and for all".[138]

85. Despite the outcome of these previous reviews, the fact that UK Sport operates through this dual role remains of concern to sport stakeholders. For example, the BOA told us that co-location of the UK's anti-doping programme within the same organisation which has the responsibility for the elite sport funding programme continues to be a "contentious issue".[139] The BOA argued that "the anti-doping programme should be independent; independent from individual sports, the sports funding agency and political influence" and that "neither the testing, disciplinary and eligibility aspects of the anti-doping programme should be associated with the agency which funds the elite sport system".[140] From another perspective, we also heard support from Professor Ljungqvist of the IOC and WADA for separating out investigation and prosecution of doping in sport from sporting bodies.[141]

86. When asked about potential conflict of interest between the two roles of UK Sport, the Minister for Sport, Mr Caborn, was dismissive, telling us that "we do not believe there are any conflicts there" and that "we have a very robust system in place".[142] However, in written evidence submitted after his session with the Committee, Mr Caborn referred to an independent scrutiny panel (established in September 2005), whose remit will include taking account of the perception of conflict of interest when making recommendations on UK Sport and which will report annually.[143]

87. The issue of dual functionality is further complicated when consideration of the sanction process for doping offences is taken into account. Whilst UK Sport is responsible for testing athletes, it is the responsibility of the governing body for the individual sport to decide whether a doping offence has been committed and what, if any, sanctions are to be imposed. Dr Bruce Hamilton of UK Athletics, one such governing body, told us that it "is difficult to have your educational supporting body being your prosecuting body"[144] and that he would support separating the two functions.[145] Using the example of his own organisation, he said that "our anti-doping department will one day be the person who is ringing you up to make sure everything is okay and that you have filled out all the paper work and everything is good; the next day they will be shutting all the doors up and letting you know that you are under a sanction".[146] Professor Ljungqvist supported this view, commenting that he could "see the conflict of interest" in the role of sporting bodies in the prosecution of doping offences.[147]

88. There is no substantial evidence to support allegations of contamination or unethical behaviour either from UK Sport or sporting bodies in relation to the overlapping functions they perform. However, we are concerned at the continuation of strong perceptions within the sporting community that such conflicts of interest exist. In this context, we were impressed with the success of ASADA and find it unacceptable that suggestions for a UK equivalent should be automatically dismissed without detailed review of the benefits such an organisation could offer. Whilst there may not be a problem with current management of anti-doping in the UK, this does not mean that best practice has been achieved. We urge UK Sport and DCMS to liaise formally with ASADA and USADA in order to determine best practice in testing, investigation and prosecution of doping offences. We recommend that a separate body be established to undertake these roles in the UK, independent of UK Sport and the national governing bodies of individual sports.

Criminalisation of doping

89. Under IOC rules, whilst athletes may face disqualification for doping offences, they are not subject to legal penalties and within the UK, although some of the drugs taken to enhance human performance are controlled and fall under the Misuse of Drugs Act 1971, many do not. Whilst we understand, as explained by John Scott from UK Sport, that the Government has taken the position that doping "is an issue that should be owned by sport",[148] we heard from Michele Verroken of the sports business consultancy 'Sporting Integrity' that "no mechanism presently exists to follow up findings in the sports drug testing programme with investigations that may lead to prosecutions" under the Misuse of Drugs Act.[149] Going further still, some other countries criminalise the use of performance-enhancing drugs by sportsmen and sportswomen, for example France and Italy where athletes can face criminal sanctions for doping violations.[150] Ms Verroken suggested that "strengthening legislation to allow seizures of steroids and other performance enhancing drugs to be made, as undertaken by the French police around the Tour de France, would also demonstrate the UK's commitment to control these substances".[151]

90. We received a strong recommendation from Professor Arne Ljungqvist, representing WADA and the IOC, that the UK should look at its laws in this area. He explained that in his own country, Sweden, there is a law "specifically directed to the possession, distribution and even use/consumption of doping substances"[152] and that it had been "very helpful" to Swedish sports organisations to have this law in place because it makes it possible for the police authorities to make searches on suspicion. He believed that having this law in place acted as a "very efficient" deterrent of doping,[153] and that it could be good for the image of sport, citing an instance where suspicions of doping had been raised but had been satisfactorily dispelled by police investigation.[154] Appearing at the same evidence session, Dr Richard Budgett of the BOA offered full support for a similar law in the UK. He felt that this would "send a very strong message".[155]

91. When asked whether the Government is considering criminalising doping in sport prior to the 2012 Olympics, the Minister for Sport was very clear that "we are not and we will not go down that route".[156] The Minister pointed out that "WADA is there to root out cheats in sport" and it is the Government's aim to keep "the policing and the development of WADA very much within sport".[157] Mr Caborn also told us that he felt it important that sport should "deal with its own misdemeanours" and that to criminalise doping in sport would be "disproportionate" to what the Government is trying to achieve.[158] We note the Minister's immediate dismissal of the suggestion that doping in sport should be criminalised, since we heard opinions that legislation in this area could help in the fight against doping. We urge the Government to initiate a review of the experience of countries which have put in place laws criminalising doping in sport.

Sanctions for doping offences

92. Sanctions for doping offences must be in line with the WADA code and may depend on several factors such as the sport's governing body's regulations; the class of substance or method found to be used; the number of times the competitor has had a positive test result; and the explanation given by a competitor for the presence of a prohibited substance in their test sample. Depending on the nature of the offence, the governing body may then impose sanctions ranging from a warning to a ban of three months, two years (the standard ban), four years, or even life. The length of ban given is currently being looked at under the review of the WADA Code with the suggestion that the ban for first-time doping offences should be increased to 4 years.[159] Dr Budgett supported an increase in the ban, particularly for Olympic sports. He told us that that "many of us in sport feel it should be four years" as it is "ridiculous if someone can come back and compete in the very next games having been caught the first time".[160] We urge UK Sport to recommend to WADA that a minimum four year ban is applied in all incidences of proven doping.

93. Some governing bodies may also impose financial penalties upon athletes found guilty of doping. In addition, UK Sport told us that the UK is the only country internationally that will not allow continuation of funding for an athlete caught with a serious doping offence and that UK Sport does not "believe it is acceptable at all for anyone who has chosen to take drugs to receive public funding".[161] Another approach is taken in Australia where, under Australian regulation, athletes there are prevented from competing whilst under investigation for doping offences, an action which further prevents any financial or career gain from cheating. Whilst we welcome moves to prevent athletes from benefiting from future financial gains whilst under sanction for doping offences, we do not believe that this goes far enough. We were therefore interested to hear suggestions from Michele Verroken that financial rewards already received should be repaid when a doping offence occurs.[162] Bruce Hamilton agreed with this view, telling us that he thought it would be "more than reasonable" for an athlete to pay such money back.[163] We urge UK Sport to consider a mechanism by which athletes would be liable for repayment of all financial gains, perhaps from the point of the last 'clean' test they had given.

94. We are also keen that athletes should be encouraged to disclose sources of doping material and not be allowed back on the competitive circuit until they have done so. We recognise that there are difficulties in this. Professor Ljungqvist pointed out that "The problem we face over and again with athletes is that they simply refuse to disclose".[164] Dr Budgett of the BOA added that there "may be the odd athlete who actually is innocent but has the substance in his urine" and in such circumstances, disclosure would be impossible.[165] However, he concluded that "on balance, it would be a sensible proposal that, before they are allowed back in the sport, [athletes] must tell the doping authorities where they obtained the substances."[166] We recommend that UK Sport and sporting bodies consider making it a requirement that athletes should disclose sources of doping before they are allowed to return to competitive sport.

Resolving disagreement

95. In the UK investigation and prosecution of doping is undertaken by the governing body for a particular sport. However, sometimes disputes may occur between the prosecuting body and an athlete claiming innocence, and in these cases there may be an appeal to the Court of Arbitration for Sport (CAS). Last year, for example, Rugby Union player Wendell Sailor appealed to the CAS following a two year ban for taking cocaine.[167] During our visit to Australia, we met representatives from CAS who told us that athletes, clubs, sports federations, organisers of sports events or even sponsors may refer a case to CAS if they believe a decision, perhaps to ban an athlete, has been made inappropriately.

96. CAS has interlocking agreements with sporting bodies which detail its jurisdiction in disagreements relating to doping and the CAS representatives were keen to impress upon us the importance of ensuring that CAS has appropriate jurisdiction within the UK and EU prior to the London 2012 Olympic Games. We are perturbed that CAS should perceive this to be a potential problem. We urge the Government to clarify the position regarding the jurisdiction of the Court of Arbitration for Sport for arbitration and mediation of disputes in doping cases which may occur prior to and during the London 2012 Olympics and to take any steps necessary to ensure that appropriate jurisdiction is established.

137   PMP Review of Anti-Doping, Back

138   HC [2003-04] 499-I, para 79 Back

139   Ev 95 Back

140   Ev 95 Back

141   Q 273-282 Back

142   Q 316 Back

143   Ev 105 Back

144   Q 191 Back

145   Q 192 Back

146   Q 191 Back

147   Q 273 Back

148   Q 89 Back

149   Ev 86 Back

150   Legal Regulation Of Doping In Sport: The Case For The Prosecution, Gregory Ioannidis, LLB, LLM, Barrister, Lecturer in Law & Research Associate in Sport Law University of Buckingham (UK), page 5, Back

151   Ev 86 Back

152   Q 258 Back

153   As above Back

154   Q 259 Back

155   Q 260 Back

156   Q 323 Back

157   Q 322 Back

158   Q 322 Back

159   Notes from WADA Executive Committee meeting, September 2006. Available from the WADA website at: Back

160   Q 217 Back

161   Q 12 Back

162   Ev 87 Back

163   Q 196 Back

164   Q 223 Back

165   Q 224 Back

166   As above Back

167   "Sailor appeals against drugs ban", 25 August 2006, BBS Sport News, Back

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Prepared 22 February 2007