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Presumed Guilty

Maria Sharapova’s 15-month suspension ends on 26 April. Many of her sponsors have maintained that she is an innocent victim of a flawed anti-doping system. Credit: Yann Caradec CC BY-SA 2.0

Maria Sharapova’s 15-month suspension ends on 26 April. Many of her sponsors have maintained that she is an innocent victim of a flawed anti-doping system. Credit: Yann Caradec CC BY-SA 2.0

By Stephen Moston & Terry Engelberg

A study of 100 cases of doping in sport has concluded that the system is flawed.

Imagine a criminal justice system based on a presumption of guilt. In this system, prosecutions would be based on evidence with no clear scientific basis, and the defence cannot dispute or in any way question that evidence.

Into that system place a suspect, an otherwise upstanding citizen with no intention of committing any offence. Accuse that person of an offence, which even the prosecution agrees was so utterly inconsequential that no objective harm was done, and that the suspect did not benefit in any conceivable way.

Finally, imagine that the whole system is overseen by an organisation with a vested interest in ensuring a high conviction rate. It’s a bit far-fetched, isn’t it?

Except it’s not. This is essentially the system in place for dealing with athletes suspected of doping. If that sounds like a cynical take on things, John Fahey, former President of the World Anti-Doping Agency (WADA), recently described the system as “a strange set of rules which effectively says if the drug is in your system, guilt is a given and the only room left is to endeavour to reduce the sanction”. Forget innocent until proven guilty. This is guilty until proven innocent, and then still guilty.

Doping, defined in a somewhat circular fashion as a breach of anti-doping rules, exists as an offence where the public perception of an offender is in many cases quite different from reality. For example, if you Google “doping” you find images of needles and bulked-up athletes, which is basically what we are supposed to think of when we hear the word “doping”. Popular thinking would suggest that doping is performance-enhanced cheating.

But what about athletes who used a banned substance accidentally, and in such low quantities that they would have obtained literally no performance enhancing benefit? Or what if that banned substance was actually a detriment to performance? How does an athlete in such a scenario prove their innocence? The simple answer: they can’t.

An archival analysis of 40 anti-doping cases involving tennis players in 2003–07 found that a prohibited substance was taken to enhance performance in only 13 cases. Most tennis players identified as using prohibited substances were guilty of little more than administrative errors. It was accepted at the independent hearings that there was no intent to enhance performance in 19 of the 40 cases, and no (significant) fault or negligence in eight cases. Nevertheless, sanctions were applied in all cases.

Similar examples are abundant within the literature, each highlighting WADA’s doctrine of strict liability, a belief that all athletes found using banned substances are doping cheats, and that harsh sanctions should be enforced in almost all cases. According to WADA, strict liability:

means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.

The Court of Arbitration for Sport has supported adherence to strict liability. The rationale behind such a policy is largely pragmatic, in that it is argued to be more appropriate that the occasional athlete who inadvertently dopes be prosecuted than to complicate matters and potentially allow the real doping athletes a loophole by which they may escape conviction.

This is further demonstrated by the Code’s view of the burden of proof, which is “in all cases greater than a mere balance of probability but less than proof beyond a reasonable doubt”. This is evidently done to provide maximum legal power to the judicial body and minimal legal power to the athlete. Clearly, the system in place provides insufficient opportunity for athletes to prove their innocence.

The Case of Maria Sharapova

While anti-doping authorities take a largely sceptical stance on denials of doping, other stakeholders appear more open to the possibility that a denial might be valid. This can be illustrated by the case of tennis player Maria Sharapova. The authorities concluded that Sharapova had concealed her use of the drug Mildronate and was “the sole author of her own misfortune”. Specifically:

To none of the medical practitioners or specialists who treated her over 3 years did she disclose the fact that she was taking Mildronate. Her explanation in evidence is that none of them had asked what medication she was taking... There is no document after 2010 in the player’s records which relates to her use of Mildronate. Nor was the use of Mildronate disclosed to the anti-doping authorities on any of the doping control forms which Ms Sharapova signed in 2014 and 2015.

The lack of credibility in Sharapova’s defence was commented on:

The tribunal is not required to accept evidence which it finds to be wholly incredible. The idea that a professional manager, entrusted by IMG with the management of one of its leading global sporting stars, would so casually and ineptly have checked whether his player was complying with the anti-doping programme, a matter critical to the player’s professional career and her commercial success, is unbelievable.

Despite this lack of credibility, many of Sharapova’s sponsors, most significantly HEAD, have maintained that Sharapova is an innocent victim of a flawed anti-doping system. Sharapova’s public relations efforts have followed the same basic pattern, and while her reputation has been tarnished, there is little reason to believe that this will have any significant effect on her earning potential once her career resumes after her doping ban.

Incredible Athletes (and Some Credible Ones)

Psychologists specialising in the study of criminal denials suggest that believability is the core dimension in which observers (including detectives, judges and jurors) assess denials. Simply put, some denials are more credible than others, and as such are more likely to be believed.

Denials can take many forms, but these can normally be classified into one of two broad typologies: passive and active. A passive denial is one in which the suspect denies the accusation but does not provide any exculpatory detail. An active denial does include exculpatory detail.

Passive denials, in the doping context, can take many forms, including:

  • simple denial of charge (e.g. “No, I didn’t take steroids”);
  • denial of knowledge (e.g. “I don’t know how that got in my sample”); and
  • denial of motivation (e.g. “Golf is a skill sport; no drug will help you putt straight”).

Active denials can also take many forms, including:

  • denial of offence, where the suspect actively argues that no offence was actually committed (e.g. “I did not take the test because I felt unwell”);
  • denial of interpretation, where the suspect might claim that an innocent behaviour has been misinterpreted as a doping behaviour (e.g. “I used some pharmacy cold and flu tablets”); and
  • denial of causation, where the suspect attempts to shift the blame onto another person (e.g. “I accidentally drank a spiked soda”).

In many doping cases, denials are openly ridiculed and are sometimes even compiled into lists of “best doping excuses”. Such scepticism is also reflected in the public comments of leading anti-doping figures, who generally disregard anything athletes say in their defence: essentially a variant of “Well s/he would say that, wouldn’t s/he?”.

While some denials are rather obviously not credible, little is known about how many athletes attempt to deny doping, and how they try to overcome the perception that they are guilty and are simply lying to evade severe sanctions.

Therefore, we recently conducted an archival study of 100 consecutive Australian sanctioned doping cases. In this study, we combined an analysis of official reports of doping sanctions with publicly available data, primarily sourced from media interviews. From this broadly representative sample we identified 23 athletes who had publicly claimed that their doping offence had been either accidental or inadvertent. There may have been more accidental cases in our overall sample but, as the current system encourages acquiescence (don’t deny, just accept the sanction), some athletes may have chosen to accept the sanction without attempting any defence.

Content analysis of the statements made by the 23 athletes revealed seven different defence strategies (i.e. the excuse or explanation the athlete offered to suggest that their anti-doping rule violation was accidental or inadvertent). The numbers and percentages of each strategy use are shown in Table 1.

Ten of the cases (43.5%) featured claims that banned substances were present in nutritional supplements, often involving substances purchased over-the-counter. The next two most frequently identified strategies (four cases each) were that the banned substance was present in a medical treatment prescribed by a medical practitioner, or that the purchase of the banned substance was accidental.

Overall, our study shows that athletes who claim to have accidentally or inadvertently doped are placed in a no-win position. They can accept the charge, making them “doping cheats”, or they can deny the charge, making them “lying doping cheats”. At this moment, there is little to be gained in attempting to claim innocence. Quite how this aligns with WADA’s stated aim – “We develop policies, procedures and practices that reflect justice, equity and integrity” – is, at best, unclear.

It’s our belief that anti-doping needs to change to a criminal justice system-style of investigations and prosecutions. Yes, some doping athletes will evade prosecution, but it’s far less likely that innocent athletes will be punished. Just as importantly, it might even make some sort of sense, which is clearly not the current situation.

The alternative is to continue with a system where the real winner of a race in 2008 is confirmed in 2016.

Perhaps Gian-Franco Kasper of the International Olympic Committee was right when he recently said: “We need to stop pretending sport is clean. It’s a noble principle, but in practice? It’s entertainment. It’s drama.” If that’s the view of a senior figure in the sporting world, what exactly are we fighting for?

Stephen Moston and Terry Engelberg of James Cook University’s College of Healthcare Sciences are the authors of Detecting Doping in Sport (2017, Routledge, UK).