This is a guest post from Martin Hardie, an Australian legal academic at Deakin University Law School.
Australian sports people have been offered advice from all sorts of weird and wonderful angles since the infamous “Blackest Day in Australian Sport” media conference in Canberra last month. So why not a bit of home-spun wisdom from Mark Brandon “Chopper” Read: “Never Plead Guilty.“
It’s advice that politicians Craig Thomson, Peter Slipper and Geoff Shaw seem to have followed to the nth degree.
So why not a Cronulla-Sutherland rugby league player, or an Essendon footballer?
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Since that press conference, the Australian Sports Anti-Doping Agency and one of its former staffers have conducted a campaign to try to get sports people to confess to something, almost anything.
This is because right now it appears they have little or no evidence, as distinct from the new word on the block – intelligence – to charge anyone with breaches of the doping code.
The National Rugby League asked ASADA to provide names last Friday so that infraction notices could be issued.
ASADA’s response was that it was not in a position to do so … yet.
However, reading the media reports and the manner in which the case is being handled one could be excused for thinking that there is no doubt that the Sharks are drug cheats.
We are told that ASADA works quietly in the background and by law cannot release information to the public but it is clear that in this case (as with so many Anti-doping cases overseas in the past) the cat is well and truly out of the bag.
Out there fanning the fire is former ASADA head Richard Ings with claims like the “future of the NRL is under a cloud”.
This is great stuff if you are after a controversial grab for the news in order to further incite the situation but it’s hardly the stuff of fact and law. Sadly, much of the noise that exists around anti-doping is not based in law or fact – cycling has been the battleground of trial by media for over a decade.
In a number of instances in that sport we have seen athletes condemned, vilified and expelled from their sport on the basis of media claims and hysteria. Even when the law does get involved it’s not the kind of law – with its guarantees of fair procedures and common law rights such as innocent until proven guilty – that we are used to in the rest of society.
This position is reinforced by the fact that without any evidence being provided ASADA is asking Cronulla players to accept a reduced ban for alleged doping offences. The basis for the reduced ban is found in Article 10.5.3 Substantial Assistance in Discovering or Establishing Anti-Doping Rule Violations of the WADC … that is when they give substantial assistance to anti-doping authorities a ban may be reduced by up to three quarters.
Former ASADA head Richard Ings tells us that in the end the athlete is responsible for what enters their body – the so called principle of strict liability. All an athlete would need to do is ring ASADA and check if they had any doubts as to what they were being administered.
The problem is, as Mr Ings well knows, is that it isn’t that simple. Putting aside athletes’ reluctance to go to the policeman and ask them if something that they may or may not be taking is illegal or not, in the area of peptides it is near impossible for an athlete to know whether the powdered supplements they might take are actually on the banned list.
First of all the Sydney Morning Herald reported last Thursday that the substances alleged to have been taken by the Sharks did not appear on the WADA Prohibited List at the time they were meant to have been taken. This is a significant point that seems to have been missed in the hysteria to hang the Sharks out to dry – were the substances actually on the prohibited list?
If one consults the WADA Prohibited LIst the substances in question, Thymosin Beta 4 and CJC-1295 peptides, do not appear.
Surely, I can hear people thinking, if they were not on the WADA Prohibited List one could assume that there has been no doping offence committed – if this is the case one would need to ask oneself “what is all this about?”
Let’s go back to Mr Ings for a moment. If, as he says (correctly) an athlete is responsible for what enters their body and as he suggests, if they have any doubt about a substance and to avoid any problems, they can just ask ASADA if it’s on the list. With such high stakes at play one would expect the list to be pretty clear about what is banned or not.
But, and this is the second point, the WADA Prohibited List is not as clear as one would hope or expect and anti-doping authorities never give answers in respect of the grey areas. In this situation the grey area is made up of two statements that appear under the relevant heading (see page 4, “PEPTIDE HORMONES, GROWTH FACTORS AND RELATED SUBSTANCES”) on the 2011 WADA Prohibited List.
Immediately after the heading we are told that “The following substances and their releasing factors are prohibited”.
It might be easy enough for an athlete to know that a listed substance is banned but what about their “releasing factors?”
The issue is compounded with the concluding statement which tells us that “any other growth factor affecting muscle, tendon or ligament protein synthesis/degradation, vascularisation, energy utilization, regenerative capacity or fibre type switching; and other substances with similar chemical structure or similar biological effect(s)” are also banned.
The upshot of this is that an athlete is responsible, and hence liable for a mandatory two year ban from competition, for any substance that may enter their body that may have releasing factors, similar chemical structures or similar biological effects as the substances that are explicitly set out on the Prohibited List.
Not being a scientist but a lawyer, without reading reams of scientific literature I can find out that Thymosin Beta 4 is a protein which consists of amino acids and which is found in the human body. Wikipedia is a bit more generous with CJC-1295 as it tells us that CJC-1295 is a tetrasubstituted 30-amino acid peptide hormone, primarily functioning as a growth hormone releasing hormone (GHRH) analog. Now even after trying to find out what these substances are I am still not any clearer as to whether or not Thymosin Beta 4 and CJC-1295 were actually banned in 2011.
Given that CJC-1295 is a growth hormone releasing hormone, I can begin to guess that what we are talking about is a hormone which causes the body to produce growth hormone – that is it initiates a naturally occurring bodily process.
My point here is not to get into the merits of whether or not these substances should be banned or not.
Rather it is to point out that what we have among all this hysteria that has painted the Sharks as drug cheats is that after consulting the WADA Prohibited List it is not surprising that the Sydney Morning Herald wrote that the substances were not banned.
Nor in these circumstances would it be surprising if a Sharks player was not aware of the status of the substances in question. What we have here are substances that might be banned but in order for that to be known with any degree or certainly one would need good scientific advice.
Given that most sporting clubs in this country do not employ full time medical staff the chances of a player getting any definitive answer on their status would appear nigh on impossible.
But this situation is compounded by the manner in which ASADA operate and by the manner in which the organisation’s former CEO presents himself as the media oracle. Are we really to believe that the future of the NRL is under a cloud because players may have taken something that prima facie doesn’t appear to be banned?
Are we really to believe that this is the equivalent of the Festina and Balco scandals? On top of that when we find that ASADA has been held by the Administrative Appeals Tribunal to have misconceived its powers and when it has in the past illegally accessed Medicare files of athletes should we trust that all this is being done in a fair and responsible manner?
It seems that the Sharks players are faced with a Hobson’s choice under Australia’s anti-doping legislation: Fess up now to taking something which was possibly on the Prohibited List and take a six month ban even if it wasn’t your fault – that is – fess up despite the fact that no evidence is being proffered and in circumstances were the media trial will drag on and on and on.
Or dig in and fight the case where even if you have done no wrong and you are found guilty or you will be found guilty no matter what and receive a two year ban.
At first glance the situation hardly appears fair.
But then again the Sharks should be used to that – history shows (1973 and 1978 grand finals)* that the Sharks have rarely been treated fairly.
So the real choice seems to be to give in to the demands being touted in the media, or heed the sage advice of Chopper Read.
Never Plead Guilty.
* Martin Hardie and Bob Gosford are Cronulla-Sutherland Sharks tragics. Despite taking the minor premiership in 1988 and 1999 we’ve yet to win a Premiership. We’ve come close a few times.