So as expected, CAS today overturned the BOA policy of issuing a lifetime ban for any athlete who has served a doping ban longer than six months. This is hardly unexpected, and is a decision that probably owes much to the legal backdrop of the World Anti-Doping Agency (WADA’s) policy which issues a two-year ban for a first time offence. That the BOA policy then issues an additional sanction was the root of the case heard at CAS, who ruled against the BOA.
I wrote most of what I feel is relevant to this case in my previous post, where I tried to explain that a life-time ban cannot be supported by the current science of anti-doping, because the science simply cannot guarantee with 100% certainty that an athlete who fails a doping test is actually doping. That is, it’s not enough to fall back on the simple position that “a positive test means you cheated, so off with your head” (which is basically what many people seem to believe). The corollary is that a negative doping test also does not mean you’re not doping, but this is a mindset that I think many have yet to recognize!
In any event, with the news of the CAS decision emerging, I asked earlier for some thoughts and opinions on our Twitter feed and Facebook pages (follow if you haven’t – they are often an outlet for passing thoughts and opinion). The response was interesting. Very emotive, that’s for sure, and predominantly, it seems from those within the UK.
Among the common responses is that this decision to overturn a life-time ban policy is a “massive step backwards in the war against drug cheats“, that it “has validated the efforts of the cheats” and that it “takes away the deterrent of a drugs ban and opens the doors for drug enhanced training“.
I think much of this is emotive, which is fine, and I completely understand the paradigm and the logic that says that to clamp down on doping, you must increase the punishment. This is basic economics – disincentivize doping through increased probability of being caught and harsher punishment when caught.
However, a few thoughts, many of which are repeated or reworded from yesterday’s post, because I have a feeling the key messages I tried to put across haven’t reached their targets!
1. Lifetime bans could produce fewer convictions, because harsher punishment means greater “burden of proof”
First, the reality is that a life-time ban represents the harshest possible punishment for an athlete, for it takes away their livelihood, often without a fall-back plan (ask a 26-year old cyclist what their second career option is, for example). It is, metaphorically, a case of “off with their heads”, because you may as well do this. Now, in order to do this fairly, you have to be absolutely, 100% certain that you are punishing a person who deserves it. And sadly, the science is, as of this moment, not able to prthose guarantees, and there is always some doubt if an athlete wants to contest the origin of a doping positive.
(Just an aside here – the lifetime ban applied by the BOA presently applies to Olympic participation, and so there’s a distinction to be made between this and a ban from all sports, which is obviously more severe. I’d argue, however, that the principles and concepts below are valid regardless of where or when the ban applies, and to take the Olympic Games away from an athlete, particularly in some sports like track and field, is unfairly harsh given the uncertainty and legal burden, as I explain below).
So ask the following: “If there is a 2% chance of a false positive test, then how comfortable are we issuing life-time bans?” Then ask “If there is a 10% chance of the positive dope test being the result of contamination of supplements, then are we comfortable with a lifetime ban?”
Now, imagine being the decision maker who has to evaluate a legal case where the athlete says “I do not contest the positive dope test, but my defense is that it came from a supplement (or meat). I was therefore NOT cheating”. Can you confidently judge AND condemn this person as a cheat?
Given the science of anti-doping today, and the complexity of these cases, I’d argue that you simply cannot make this decision, and if your punishment option is to hand out a life-time ban, I’d argue that you’re far LESS likely to find dopers guilty when presented with this defense!
Therefore, the first prediction is that if life-time bans were given to doping athletes, far few “convictions” would be the result!
2. Positive dope tests are not always the result of cheating, even if they’re true
Second, one has to consider these possible defense strategies, and how realistic/valid they are. I’d argue that contamination and inadvertent doping happens a great deal. 10%? 20%? It’s happened four times in two years in SA Rugby alone (I’m not sure of how many “genuine” cheating doping cases there’ve been, however). And there were dozens of cases in 2010 for just one stimulant, methylhexanamine. I don’t have this statistic, but just from my reading of the coverage of cycling and athletics, it seems to me that at least half the doping cases that are disputed boil down to the issue of “inadvertent doping”, either because of contamination of supplements or some other source of the same doping product. The other half, in cycling anyway, boil down to a dispute over the biological passport, and that would intensify if a life-time ban were on the table.
Now, under the current system, a person who is inadvertently doping is banned, and rightly so, because the athlete is fully responsible for anything in their system (the so-called strict liability rule). But this is a two-year ban, sometimes reduced because of extenuating circumstances. However, if we created a system where the punishment for failing a drugs test was a lifetime ban, you’d be seeing a lot more of these kinds of “inadvertent use” defenses. If you’re that athlete, you’ll throw everything at sowing doubt, and a drawn out appeals process would result. Also, the concept of strict liability COMBINED with a lifetime ban would be very difficult to justify – as it is, strict liability is an extreme policy that many deem unreasonable on athletes. So how can we make the athlete completely liable AND ban them for life when they make mistakes? It’s just too harsh – you would not find this kind of extreme requirement in any other profession.
Remember, I’m not talking here of deliberately cheating. This is not an athlete who takes a syringe, fills it with a drug and then injects it carefully to avoid detection. This is an athlete who takes a supplement that is legal and then gets the dreaded call that they’ve failed the doping test anyway.
The end result of this risk, however small, is that we’d be seeing a lot more drawn out cases, and ultimately, more reduced sentences. Why? Because if the punishment is changed and made this harsh, then the burden of proof, legally, would be much, much higher. The problem, once again, is that the science cannot, at this moment in time, meet that burden.
In the longer term, drawn out appeals processes and challenges would, I believe, add to the ever-rising costs of prosecuting dopers, and this could ultimately cripple the entire system.
Remember, this is a system already straining under the legal load. The result is that the introduction of compulsory lifetime bans will mean fewer tests, because federations would find themselves spending more and more money on prosecution of dopers. Therefore, the second prediction is that if we introduced lifetime bans, the knock-on effect would be that federations would spend all their money in protracted court cases and legal battles, trying to nail down positive test results that somewhere down the line, the money to actually conduct the testing would dry up. This has already happened in cycling, where the biological passport costs a good deal of money to defend, and it erodes the spending on implementation.
In the short-term, then, lifetime bans may seem a good disincentive, but in the longer term, I’d have grave reservations that the legal process they introduce will force authorities to spend money elsewhere, where it is less effective, and the disincentive to dope would actually increase! That’s not a good situation to be in.
3. The risk matrix approach – however small the probability, if the consequence is severe, it’s a problem
Now, I believe that the point of anti-doping is two fold. Yes, it’s there to catch dope cheats, but it’s also there to give those competing cleanly an equal chance of success, and “peace of mind”. The problem with life-bans is that it doesn’t merely affect the cheats, it puts the innocents on a razor’s edge, where they too have the axe hovering over their heads. And yes, they are innocent and therefore have nothing to fear, but even if the chance of contamination and false-positives are 1%, that’s a big risk when the punishment is quite that harsh.
Businesses often use a risk-matrix to try to quantify how serious certain identified risks are. That risk matrix takes not only the probability of an event into account, but also the severity of the outcomes should that event occur. For example, the risk of sponsors withdrawing their support for your sports team may be low to moderate, but if it were to happen, it could be disastrous, and so you invest a lot of time and energy in keeping them happy. To give a more personal example, if you’re choosing a babysitter for your only child, the probability of choosing someone psychotic, reckless and irresponsible may be incredibly low, but the impact of that event would be catastrophic if it did happen, and so you make really sure that you’re getting a good reference and someone you trust!
Now, for anti-doping, the probability of falsely condemning someone to a doping ban may be low. As I mentioned, I don’t have a figure, but it may be 1%, 5% or 10%. But the problem is that if we raise the ban from a 2-year punishment to a life-time, then that risk takes on an entirely different meaning, because the severity is so much higher – for a young athlete, it is a catastrophe. The risk of a life-time ban is thus just too high. One athlete whose career is ended wrongly can’t be weighed against those who are justly banned – it’s not a balance I’d like to try to strike!
The moral case – second chances
OK, so this whole picture is somewhat philosophical, and I’m talking in generalities here. For most people reading this, the current case will boil down to two names – David Millar and Dwain Chambers, the two men spoken of in the media as the beneficiaries of this decision by CAS.
I’d warn against allowing individuals to personify the case, however. It’s too easy to “like” or “dislike” the specific people involved, and allow that to obscure the big picture and concepts. But nevertheless, this will happen, but I would steer clear of the specific cases and rather establish a framework for how to evaluate cases like theirs.
However, my personal take is that people make mistakes. Young athletes, in a team environment, encounter doping and often find that their future depends on becoming part of the “beast”. I’m sympathetic to athletes for this reason – I had neither the talent nor the opportunity to find myself in that situation, but I shudder to think what I would do if my dreams were wrapped up in a web of doping deceit. I guess, in a sense, I’m lucky I never had to make that call, because for a young athlete on the verge of realizing a dream, it must seem an impossible call to make. As a result, it’s a brave person who condemns a young athlete for doping when they’ve never been in a situation similar to that themselves.
So having been the beneficiary of many second chances in life (hands up if you’ve never had a second chance), I’d say that second chances in sport are right, as they are in life. I appreciate that sometimes, we don’t give people second chances, and yes, we exclude people from doing certain jobs based on previous convictions (theft as banktellers, sex offender as teachers for example). Those are compelling arguments, without, perhaps, a right or wrong answer. But my take is that we should give second chances, provided the person involved shows a willingness to work within the system, repent and do things differently the second time around.
Discretion and compromise: Sentences can be independent of verdicts, and move towards a 4-year ban
There is compromise here, of course, and it is two-fold. First of all, use discretion. This already happens, of course – the cases I mentioned previously in SA Rugby were all given reduced bans (or no bans) because it was quite clear that the doping was from contamination and that the athletes involved did all they could to ensure the “safety” of their supplements. So one can argue that life-time bans should be introduced so that in cases that arise where athletes are clearly cheating for an advantage, and show no remorse, they can be banned for life. Neither Millar nor Chambers fit this category, incidentally, and I think both have earned some aspect of second chance through their reaction to doping bans.
I’d have no problem with life-time bans for some people, however, but I hope people realize that it means that doping cases will go the way of criminal cases, where the sentence exists independent of the verdict. That is, you’re found “guilty” on the basis of the test results, but sentenced on the basis of a host of other factors, including your attitude and willingness to comply with authorities. I think this is actually a good thing, and it happens to some extent already, with dopers given more lenient sentences for co-operations. This is a good thing, and if we had the option of life-time bans (as opposed to a rule of life-time bans), expect it to happen much more, with a much higher proportion of “reduced sentences” and “failed convictions”, as mentioned.
The second thing that must happen, as I mentioned yesterday, is to tighten up the testing process, to ensure that doping is caught more effectively. The contamination issue is so complex I don’t see it ever going way, but false-positives and better anti-doping can happen. If it did, then the current 2-year ban might be increased to four years, and that would always cost an athlete at least one Olympic cycle, which is a good thing. So my suggestion is to move towards this goal – rather spend our energy on having the ban increased to 4 years as a result of better doping controls (which involves many things – more testing, a cleaner list of substances and a wider array of ‘weapons’ to test with).
The bottom line is that there’s a lot of emotive accusation and condemnation going on. And far be it for me to be a “doping apologist” – those of you who read this site often will know me as a very harsh anti-doping advocate. But there’s a line, I believe, between being unrealistic about doping control and providing the right balance. I believe that line should be drawn at about four years!
But practically, as of May 2012, I don’t believe the science of anti-doping is quite up to the legal challenge that a four-year ban would bring to the table (and to the courtroom), let alone a life-time ban. The financial and legal implications of harsher punishment can’t simply be ignored, for the federations and the innocent athletes who, as small as the probabilities may be, have to be thought of too. Let’s rather work towards better testing, more certainty, and use that as the disincentive, and be slower to shout “off with their heads”. For now, anyway!