Should dopers be banned for life? Or is two years enough? A debate of crime vs. punishment
Yesterday, we looked at the case of Dwain Chambers, disgraced sprinter from Britain who served a two year suspension for his use of the designer steroid THG and who is now making a bid to run for Britain, first at the World Indoors (which he will run in) and then in the Olympic Games (where he’s trying to get to). Even failing this, he’s likely to push for the World Champs and other big races in the future. His desire to do so has sparked lively reactions, polarizing opinion among present and former athletes for Britain.
For example, double Olympic Champion Kelly Holmes has said:
This was an athlete who went to America, knowingly took a drug that was undetectable at the time, got caught, admitted he’d taken drugs, then went on to say that you can’t win anything without taking drugs. It doesn’t put us in a good light allowing a cheat, who has admitted he’s a cheat, to represent us.
She is backed up by Steve Cram, former 1500m champion, and now a commentator and journalist, who suggests that a lifetime ban for any drug cheat should be in order:\
I think a lot of us in the sport feel that a two-year ban is never enough for people committing that type of offence. And I would hope that as the next few months follow on, this isn’t really just about Dwain Chambers at all, it’s about the sport’s attitude towards those who’ve committed serious drugs offences.
As things stand, Chambers will never take part in the Olympic Games, because the British Olympic Authorities do issue a lifetime ban to all convicted drug cheats. So for now, Cram, Holmes, and others who agree with them, can be satisfied knowing that the Olympics, at least, are out of reach.
However, there are those who support Chambers and are fully behind his efforts to run again. In effect, they are saying that “he has done the time, now let him come back and make a new start”. They apply the letter of the law, which says that a convicted doper gets two years, and then is allowed to return to sport.
For example, Kim Collins, former 100m world champion, is quoted as saying:
If they don’t pick him then UK Athletics would be bending their own rules. He should be allowed to run and he should be representing Great Britain because he’s the man for the job. He did serve his time and unless they are willing to change the rules and keep it ‘once and you’re out’, he should be able to run.
Now, bear in mind that all this has been said against the backdrop of the issue of Chambers’ selection of the British team for the world indoor championships in March, so people are commenting more on that issue than perhaps the issue of what to do with a convicted doper.
Should we be considering a four-year ban for dopers? Or criminal charges?
But it got me thinking about the severity of the punishment for a doping offence. This issue, as you might imagine, is debated extensively, and some have suggested that any positive test should result in a lifetime ban, or at the very least, a four-year ban, as Lord Sebastian Coe and Ed Moses have recently suggested.
Coe, for his part, has been pushing for a four-year ban for drug cheats since last year. If that sounds extreme, others within the IOC have even suggested that doping offences should be criminalized – jail time the result of a positive test.
The problem with increasing the punishment – testing will be even more vulnerable to attack
What interests me about this is that no one is looking at the testing procedure and systems, but rather assuming that testing is capable of reliably catching athletes who do cheat. For the implicit assumption when one calls for increased bans, is that the process that will ultimately give that ban is sound, and not likely to collapse under what would become even more pressure to be correct. If the system for testing and then processing positive tests is even slightly flawed, increasing the bans simply invites even more legal wrangling and controversy.
Now, believe me, I’m the last person to side with those who cheat in sport – I wish we could watch sport knowing that the most any athlete is using is a Vitamin C supplement! But the problem is that the process AFTER A POSITIVE TEST seems to be so flawed that if the punishment was made more severe, the already creaky structures under which athletes are tested would come crashing down under the “burden of proof” that would be required to send a runner to jail!
The “Innocent Man” syndrome
I recently read John Grisham’s book “The Innocent Man”, which is about a man who is wrongfully sentenced to death as a result of a flawed justice system – he loses 11 years of his life on death row before being exonerated. It would take me pages to run through just how flawed the system was, and besides, this is The Science of Sport, not a Book Club (though I’d highly recommend the book)! But the point is, it would be terrible if someone could write a book in 2015 about an athlete who spends 2 years in jail and/or is banned for life for testing positive for any drug, when he’s actually been wrongfully convicted!
But the even bigger problem – dopers will get away with more under the increased burden of proof
Now, if you’re thinking I’m going soft of dopers, let me address the balance. Because while the chance of “false positive” is a real one, what concerns me more is that dopers who test positive will have even more chance of getting away with it, because the entire process that ultimately delivers their sentence would now be under even more pressure to avoid a false conviction.
What we have seen in recent years is a dramatic change in how doping cases are managed. In the past, it was a case that an athlete would test positive, receive their ban, and disappear for four years – think Ben Johnson in 1988. He got caught, took his punishment, and we didn’t hear from him again, until the ban was served.
But these days, “positive” doesn’t mean positive, it means start the legal fight.
But what is happening more and more today is that athletes are wising up to the “grey areas” in the system. There is almost a “guide book” on how to respond when you test positive. You begin by attacking the personality and integrity of your accusers, you go after the credibility of the laboratory testing you, you cry out that people are out to get you and that you’re being discriminated against. Then you take your defence into the media and put all kinds of articles on Wikipedia to claim your innocence. You might even consider writing a book about it, and you definitely hire an expensive legal team who help you concoct defences like the “vanishing twin theory” which is more at home on an episode of “House” than in a sports tribunal, or you simply bombard the system with so much doubt that you escape punishment because no one can prove the use amidst all that uncertainty. And all the while, you deny, deny, deny, because actually proving that you used drugs is no longer as simple as testing your blood or urine and finding the presence of drugs in it! (and this doesn’t even take into account the fact that a lot of drugs can’t even be detected!)
The positive drugs test, formerly definitive proof that an athlete has doped, is now nothing more than the start of a usually messy, drawn out fight that is played out in the media and undermines the sport more than even the drugs use does. The problem is that sometimes the athlete has a case, because there are flaws and mistakes, and the system is not beyond reproach, which it needs to be in order to issue life bans. The result of this is that I honestly believe that we are headed for the day where an athlete who tests positive will face a trial consisting of a judge and a jury of their peers, who will have to assess their guilt based on days of testimony and evidence…think “Boston Legal” and “The Practice” for sport.
So my concern with increasing the length of a doping ban, and possibly criminalizing the use of drugs in sport is that the testing procedures, which are already “losing their teeth” in terms of actually following through with a positive test will become completely toothless as a result of increased bans — taking a decision to ban an athlete for two years can be done a little more lightly than sending that same athlete to prison and preventing them from ever competing again!
So while in theory and principle, I’m all for a lifetime ban or even criminal charges, actually proving it poses a problem and until WADA and the federations figure out how to regain the upper hand in the “post-positive test” battle, increasing the ban will do little more than intensify the pressure they are under.
Back to Dwain Chambers – what should be done?
But let’s get back to Dwain Chambers, for as Cram points out, the issue is not solely about one athlete, but about the attitude of the system towards its “cheats”. And I’d love to hear from any of our readers who have some sports law experience, or even some experience in employment law on this one, because the issue here is bordering on that of “restraint of trade”, where someone is prevented from earning a living unfairly.
Do you believe that a lifetime ban can be enforced for something like drug use? Or does this amount to restraint of trade, unfairly preventing the athlete from earning a living or surviving? Is it possible to block an athlete’s participation based on one “mistake”, willful or not?
I tried to think of the analogy from the world of business – if a businessman was caught defrauding his company, he’d without doubt be fired, and probably face criminal charges. But would he ever be able to work in the same industry again? Would the business world consider issuing a lifetime ban on a corrupt businessman? Well, rhetorical question, because there’s no “system” to ban him from. But there’s a good chance he’d be labeled and unable to find work, at least in the same area. Is that the same situation as Chambers and the Olympic Games?
All questions for which I don’t have an answer – if you do, or have an opinion, please do let us know!