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How to lose a doping case in three easy steps: grappling with WADA

Doping cases have dominated the sporting headlines in the region as of late. It is a highly specialised and often misunderstood area of law that appeals to not only lawyers and law students, but the public at large.

In this article, I set out the three sure-fire ways to lose a doping case:

Photo: Iconic Argentina football star Diego Maradona heads for a drug test during the USA 1994 World Cup.
Maradona was ejected from the illustrious tournament after testing positive for five banned stimulants.

(Ignore the WADA Code)

The World Anti-Doping Code (the ‘Code’) governs the anti-doping regime throughout the world. It is either incorporated directly into the anti-doping provisions of each country or incorporated ‘in substance’ (the provisions of the Code still prevail in the event of a conflict or inconsistency though).

The Code and the International Standards are intended to be a comprehensive and self-contained scheme for, among other things, the collection and testing of athlete’s samples (be it urine, blood or otherwise). It is premised on a ‘strict liability’ regime, which is fancy legal speak for saying that once a banned substance is found in your system we don’t really how care it got there. You’re screwed. Even if the banned substance was mere nanograms, entirely unintentional or had no sporting benefit, we don’t care. After all, we’re fighting a ‘war’ on doping, and in this war there are casualties.

However, much like the speed limit on a highway, the Code can safely be ignored. Instead it is more important to treat anti-doping matters like criminal cases. Plead for leniency, demonstrate how co-operative the athlete was during the sample collection process and expect the anti-doping body to prove their case beyond a reasonable doubt.

Photo: South Africa track phenomenon Caster Semenya.

(Don’t use Experts)

Experts are expensive. Depending on the alleged anti-doping infraction, the anti-doping body will usually call an expert of their own. The expert will say things like ‘there’s no way to tell if this was intentional or unintentional’, ‘there is simply no way to tell how long the substance was in their body’, ‘everyone’s metabolism is different’, ‘nanograms today could be grams last week’ and ‘what we know—for sure—is that banned substance was indeed found in their sample’. Classics. Shakespearean almost.

But like I said, don’t bother calling your own expert to rebut that testimony or to provide independent expert testimony in support of the athlete’s position. No. Waste of time. Instead, you should simply cross-examine the anti-doping bodies’ expert. Channel your inner Harvey Specter from Suits or, better yet, Chuck Rhoades from Billions.

(Spoiler: the quotes above will basically be their answers to almost any question on cross-examination.)

Photo: Trinidad and Tobago’s Njisane Phillip celebrates after defeating Germany’s Robert Forstemann during the London 2012 Olympic Games men’s sprint round on 4 August 2012.
(Copyright AFP 2016/Leon Neal)

(Assume the Best)

Doping cases are notoriously difficult to win. The complete elimination of a proposed ban happens only in the absolute rarest of cases (e.g. sabotage). But you’re better than that. You have ‘truth’ and ‘justice’ on your side. Plus, the doping infraction was ‘unintentional’ and ‘accidental’. How could you possibly lose?

Ignore the strict liability regime, rely entirely on your cross-examination skills and the scant few cases (worldwide) where an athlete has had their proposed ban entirely eliminated. Those are the sure-fire ways to lose a doping appeal.

About Dr Emir Crowne

Dr Emir Crowne
Dr Emir Crowne is a barrister and attorney-at-law attached to 
New City Chambers in Port-of-Spain.

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