22,01,2025
INTRODUCTION
There are fairly a number of definitions of doping, however Beckamanns Sports Dictionary defines doping as the use of performance-increasing substances which would place an athlete in a more superior position than what he would have normally attained.
In ancient days, doping was done in local ways with performance-enhancing mixtures gotten from local doctors; during this time, there was no fight against doping, and it was acceptable for anyone to enhance their performance. Athletes’ agents even encouraged their athletes to opt for doping to do well in their sports.
However, over the years, doping evolved from local mixtures to safer and more advanced methods such as injectable supplements drinks, among others and has proved to be dangerous to both the health of athletes and the sport, especially after the death of Tom Hicks who died in 1904 after using a mixture of cognac and strychnine to enhance his performance. Twenty-four years later, the International Athletics Federation became the first international federation to ban doping in all athletic competitions. In 1960, anti-doping tests were introduced and in 1972, the first doping control for conventional substances in the Olympics was in Munich. Four years later, anabolic substances were also banned at the Olympics in Montreal; during this Olympics, athletes' test results were made public, and those found with any banned substances were banned, and this marked the beginning of the fight against doping
Anti-doping moved out of the Olympics into other sports in 1989, and in 1999, the World Anti-Doping Organization was formed to fight against doping in all kinds of sport; the anti-doping was fully adopted in 2004. Despite the fight against doping, some athletes still dope intentionally and unintentionally with prohibited substances that can be found in different forms such as supplementsfoods, among others.
The Case of Jannik Sinner
In March 2024, the fast-raising tennis star Jannik Sinner tested positive for doping using clostebol, which is commonly derived from testosterone. Jannik’s first sample for testing was taken on 10th March at the tournament in Indian Wells, and on 18th March a second sample was taken for second testing during the out of competition test in Maimi, and both tests were positive. Both Tests had less than a billionth of a gram. Jannik was informed of the results and issued a provisional ban from competing in tennis on 4th April. He appealed the suspension immediately after being informed and later faced a provisional ban between 17th and 20th April 2024.
In August, the International Tennis Integrity Agency opened a doping case against Sinner at the independent tribunal. During this case, Jannik argued that his tests came out positive due to contamination; which is a valid defense against in doping, however, in Jannik’s case, the contamination he claimed was from his physio which he was unaware about it. He claimed that his physio had contaminated him with Trofodermin, a common medical cream used to treat wounds and that he was unaware he had used it and had been contaminated. Jannik Sinner’s defense was accepted by the International Tennis Integrity Agency tribunal and his ban was lifted with experts claiming his defense was plausible.
However, the World Anti-Doping Agency appealed this decision at CAS seeking to nullify the decision of ITIA. WADA argues that Jannik committed two ADRVs according to article 2 (1) and/or Article 2(2) without application of article 10(5) of the Tennis Anti-doping Programme. WADA also seeks one to two years as ineligibility period issued to Jannik Sinner and his disqualification of all results obtained during the BNP Paribas Open Indian Wells (USA).
WHY IS WADA APPEALING TO CAS: Legal Analysis of Strict Liability in Doping
Since the campaign against doping was launched, since that time, several measures have been put in place to make sure all athletes don’t enhance their performance in one way or the especially because in the era of technology, those involved in doping are always a step ahead of the regulators. The campaign had to put in place stringent means to fight against doping, among which was the principle of strict liability. This is a legal principle that simply means that an athlete is completely liable for what is in and enters their body intentionally or unintentionally. Under this principle, when a banned substance is found in an athlete’s body, the athlete will be liable for such and would face consequences for the same such as sporting ban. A case in point is Paul Pogba’s case whose ban was not lifted but reduced after his appeal to court where he claimed that the diagnosing doctor gave him supplements which increased testosterone in his body without his knowledge.
This principle is simply made to deter athletes from doping and being cautious about what enters their systems and what their bodies are in contact with at all times. Without this concept, many athletes would simply claim ignorance or even negligence for the presence of banned substances in their bodies since they may not always be liable for what is in and enters their bodies, which would defeat the heart of the matter of the fight against doping.
In the case of Jannik Sinner, WADA is taking a similar approach as that in the case of Pogba. The agency relies on the principle of strict liability to argue against the decision held by ITIA. Simply according to WADA, whether Jannik was aware or unaware of the usage of Trofodermin by his physio, which resulted in contamination, Jannik should be found completely liable for doping as he should have cautioned the physio against contamination or usage of any treatments that may contain any prohibited substance. Additionally, Jannik should be aware of what is in or enters his body. Logically, Jannik should have warned his physio about contaminating him or treating him with any substance that is prohibited by WADA, just like any athlete should inform their doctor.
According to articles 2.1 and 2.2 of the TADP which the WADA relies on in their case against Jannik, an athlete is prohibited from using any banned substances unless they have been granted a Therapeutic Use Exemption. The same articles provide that an athlete should be careful about what enters their bodies and if any prohibited substances are found in their bodies, they would be fully liable for that and face consequences such as sporting bans.
These articles implicitly provide for strict liability, with the exception of TUE. The TUE is an exemption given to athletes to use some substances which maybe on the list of prohibited substances or have any performance enhancing substances in certain measures and extents for the well-being of the athlete.
In arguing in line with the above-mentioned articles, which implicitly provide for strict liability, the WADA seeks to make sure that this principle is strictly enforced as it has been done before in similar cases. In the logical understanding of the case pleaded by Jannik, the athlete appreciates that his samples were positive but not on his own accord; however, under the doping rules, he is liable for the doping as he is supposed to be cautious of what enters his system at all times. Consequently, he must face a sporting ban without application of article 10.5 of the TADP, which provides that an athlete may not face a sporting ban if they can prove the existence of a TUE, basically without a TUE, an athlete cannot prove otherwise if any prohibited substance is found in their samples and they must therefore face a sporting ban. To enforce the principle of strict liability, the athlete is liable immediately if any banned substance is found in their body. This liability does not change even in the presence of TUE, though the athlete may not face any consequences if the TUE was correctly provided and followed. In instances where an athlete may prove contamination or due diligence, the athlete would still face a sporting ban, just like Paul Pogba still faced a sporting ban.
The logic behind the stringent enforcement of strict liability in doping is to ensure that despite the fact that those involved in doping are always ahead of regulators due to technology, athletes should be deterred from enhancing their performance and strictly adhere to doping regulations.
By: Pauline Mbanza, International Sports Lawyer
Edited By: Anushree Srivastava, Senior Editor
Comments