5th March 2018

Analysis: Criminalisation of supply of drugs to athletes recommended

The Digital, Culture, Media and Sport Committee (DCMS) Committee of the UK Parliament (DCMS Committee) has recommended the criminalisation of the supply of drugs to athletes with the intent to enhance performance in a Report on Combatting Doping in Sport (PDF below). The 52-page Report was also critical of the efforts of sports bodies to tackle doping, and argued that the institutions that police them to not have the resources or funding to solve the problem.

It also recommended that British Cycling and Team Sky should compensate UK Anti-Doping (UKAD) for the costs of an investigation into a package delivered to Bradley Wiggins at the end of the 2011 Criterium du Dauphiné, as the investigation was ‘made longer and harder by their failure to keep proper records’. It concluded that UKAD was underfunded, and that it was ‘attracted’ by the idea of using a percentage of sponsorship and TV revenue from sport to fund anti-doping.

However, it accepted evidence from UKAD CEO, Nicole Sapstead, that extra funding alone would not solve the problem. Social scientists have also concluded that more funding does not necessarily equate better anti-doping – just more anti-doping.

Criminalisation of supply of drugs to athletes

The Report recommended that criminal sanctions should be considered in cases involving ‘the supply of drugs or promotion of unnecessary medical procedures’, but dismissed the idea of extending criminal sanctions to athletes that dope. It added that the government should ‘give serious consideration to criminalising the supply of drugs to sportspeople with intent to enhance performance rather than to mitigate ill-health’, as such supply defrauds the clean athletes they are competing against.

This is consistent with a Review into the criminalisation of doping, completed in October last year. ‘There is no compelling case to criminalise the act of doping in the UK’, it concluded. However, the Review was commissioned to investigate the need to create a specific criminal offence for doping in sport in the UK.

Therefore, the opposition was to new criminal legislation seeking to prosecute athletes, rather than those who supply athletes. In that Review (PDF below), UK Minister for Sport & Civil Society, Tracey Crouch, outlined that the government would ‘continue to take a strong stand in responding to any new developments or emerging threats’.

Today’s DCMS Report adds that legislative changes could give UKAD more investigative power. UKAD’s lack of such power was a problem that frequently arose in the many hearings held by the DCMS Committee and its predecessor, the CMS Committee, from August 2015. The DCMS Committee was heavily critical of sporting bodies for not sharing information about potential doping with national anti-doping agencies, such as UKAD.

It recognised that UKAD had no power to compel sporting bodies to provide evidence when investigating them. Under Article 5.1.2 and 5.8 of the World Anti-Doping Code, NADOs are required to actively investigate both doping cases and any ‘intelligence’ that may cross their path. In other words, they have to investigate doping cases and intelligence.

WADA’s International Standard for Testing and Investigations (ISTI) also requires NADOs to ‘do everything in their power to ensure that they are able to capture or receive anti-doping intelligence from all available sources, including Athletes and Athlete Support Personnel’. Article 11.4.2 of the ISTI also requires NADOs to share such information with other NADOs and the police, if it relates to a criminal offence.

Article 12.3.1 of the ISTI also requires NADOs to ensure that they are able to investigate ‘effectively’. This includes a requirement to ‘gather and record all relevant information and documentation as soon as possible’, as well as ‘make use of all investigative resources reasonably available to it’. However there are issues with implementing this, as prosecutorial authorities often require a doping case to be linked to an actual crime.

In UKAD’s case, it is required by the Code to investigate doping cases, but has no powers to force sporting bodies to comply with its investigations. Criminal legislation against doping has helped national anti-doping organisations (NADOs) in other countries meet the above requirements.

Delegates at last year’s Play The Game conference heard that Germany’s National Anti-Doping Agency (NADA Deutschland) has benefitted from extra investigatory powers since the country criminalised doping in 2015. “There must be some proof for public prosecutors from any country to start an investigation”, said Lars Mortseifer, CEO of NADA Deutschland. “In 2015, we had the first case where we went to a criminal investigation. In most previous cases, the criminal prosecutor said to me, OK, it’s good that we have information that there’s an anti-doping rule violation based on a positive test, but it’s not enough for me to investigate. 

“Now, they must investigate. They can quit the case if they want, but starting from the beginning, they must investigate. That’s a huge step forward. So as a NADO, you can go to the highest person in that entity and ask why they haven’t investigated? This is why I have asked my colleagues to implement this in other countries as well.”

Failure of sporting bodies

The DCMS Report is clear about the reason that it is proposing such legislation. Its numerous hearings have illustrated that sporting bodies do not share information with NADOs unless they have to, and do not keep adequate records allowing NADOs to investigate. All of the allegations within the Report have been examined in detail before. However, the strength of the DCMS Report’s criticism is striking.

‘In particular, our inquiry has found acute failures in several different organisations in athletics and cycling: a failure to share appropriate medical records with anti-doping organisations; a failure to keep proper internal records of the medical substances given to athletes; and a failure to outlaw the use of potentially dangerous drugs in certain sports’, reads a summary of the Report. ‘All of these failures have occurred in an under-resourced national anti-doping infrastructure, which has had neither the financial means nor powers of enforcement. Some steps have been taken to alleviate this context and the failures it has permitted, but these measures have come too late. We call on those bodies identified in this report to pay serious attention to our recommendations; we cannot afford to allow these same failures to happen again.’

The Report heavily criticised the International Association of Athletics Federations (IAAF) over its response to:

• The leak of a blood database containing 12,359 blood tests from over 5,000 athletes collected from the 2001 World Championships until the London 2012 Olympics;
• The findings of the Tübingen study, which it found that the IAAF had attempted to block. This prevalence study – which utilised the randomised response technique – found that a large proportion of athletes claimed to have used prohibited substances during the past year.

It was also heavily critical of the IAAF President, Sebastian Coe, over his answers to the questions it posed. It said that:

• the answers given regarding his knowledge of doping in Russia were ‘misleading’;
• that it ‘stretched credibility’ to believe that he was not aware of allegations that IAAF officials had extorted money from Russian athletes in order to cover up positive doping tests;
• That he forwarded an email from Dave Bedford to Michael Beloff in August 2014 stating that he had been ‘made aware’ of the allegations regarding Russia. This was four months before the December 2014 ARD documentary, which he previously told the (D)CMS Committee was the first time he became aware of such allegations.

The Report was also critical of British Cycling and Team Sky over its response to investigations into a package delivered to Dr. Richard Freeman for Bradley Wiggins at the end of the 2011 Criterium du Dauphiné. It found that:

• An application was made for Bradley Wiggins to use triamcinolone was made on 30 May 2011, but a therapeutic use exemption (TUE) was not granted until 26 June 2011.
• Bradley Wiggins recalls being treated with fluimucil on 12 June;
• There is no evidence that of what was in the package requested by, and delivered to Dr. Richard Freeman by Simon Cope on 12 June;
• Dr. Freeman asked for the package to be delivered and initially claimed that it contained fluimucil, however he has recently declined to comment further due to legal advice, as he is subject to an investigation by the General Medical Council (GMC) for not keeping adequate records;
• Team Sky’s account of what happened regarding the delivery of the package to be inconsistent.
• That evidence indicates that triamcinolone was used by Team Sky during competition periods;
• That evidence indicates that corticosteroids were used outside of competition to ‘lean down’ ahead of major races;
• That evidence indicates that Bradley Wiggins may have been treated up to nine times with triamcinolone in and out of competition during a four year period, and that such treatment goes beyond that mandated by a TUE;
• That triamcinolone was used to prepare Bradley Wiggins, and ‘possibly other riders supporting him’, for the Tour de France;
• That the organisation of the medical store used by British Cycling and Team Sky at the Manchester Velodrome was ‘chaotic’ and ‘disorganised’, and was without a filing system (UKAD’s findings);
• That Team Sky riders used tramadol, and it was offered to them by Dr. Freeman.

Bradley Wiggins refutes the idea that he used any drug without a legitimate medical need. He later denied using triamcinolone in order to prepare for the Tour de France in an interview with the BBC (click here for a transcript). A statement from Team Sky added that ‘we strongly refute’ that medication was used to enhance performance. A British Cycling statement attempted to distance itself from the allegations, which it said related to ‘a very different organisation’ from the one investigated by the DCMS Committee.

‘To many people, the whole story of the package seems implausible, to say the least’, reads the Report. ‘If the package was needed urgently, why, according to travel records given to the Committee by British Cycling, did Simon Cope collect it from Manchester on 8th June, but not fly out with it until 12th June. If the package did indeed contain Fluimucil, why was someone asked to bring it out from Manchester, when one of the pharmacies where Team Sky had previously sourced this same drug was just a few hours’ drive away in Switzerland, at the Pharmacie De La Plaine, in Yverdon.’

The Report was also critical of treatment administered to Mo Farah, arguing that this was not properly recorded by UK Athletics. ‘The Committee was shocked to hear that the former Chief Medical Officer of UK Athletics, Dr Chakraverty, gave an injection of L-carnitine to Mo Farah—a treatment that Dr Charkraverty had never before given and that Mo Farah had never before received—yet did not record the dose on Farah’s medical records’, it reads. ‘UK Athletics has a responsibility to ensure that proper records are kept for its athletes’.

TUE system

Given its findings regarding British Cycling, Team Sky, and UK Athletics, it is not surprising that the Report condoles that the TUE system is open to abuse. ‘The TUE system needs to be kept under permanent review, but the question inevitably remains, that if an athlete is so ill that they can only compete using a drug that is otherwise banned during competition, then why are they competing at all?’ it concluded. ‘From the expert evidence received by the Committee, a case can be made that better management of an athlete’s long term health conditions, and particularly asthma, should remove the need to apply for a TUE’. Again, social scientists have independently come to the same conclusion.

Conclusion

The DCMS Committee’s Report doesn’t reveal a ‘smoking gun’ in terms of concrete doping allegations against an athlete, or allegations of malpractice at a sports governing body. What is does reveal is that the current anti-doping system is woefully ill-equipped to investigate any such allegations, as it is set up as a testing agency.

It also illustrates that without legislation forcing compliance with investigations, sporting bodies can talk their way around and out of them. The World Anti-Doping Code currently requires NADOs such as UKAD to actively investigate any intelligence about doping that crosses their path. At present, UKAD can only ask sporting bodies to cooperate, and can only garner police support if a criminal offence has taken place. If the supply of doping products to an athlete with an intent to enhance performance is a criminal offence, then UK police have to cooperate.

If that had been the case earlier, perhaps we would know what was in that jiffy bag. Perhaps access to communications between Seb Coe and IAAF officials could have been accessed, or he would have been compelled to attend hearings into his conduct. Perhaps British Cycling and Team Sky officials would have faced prosecution over their lack of record keeping. Perhaps clean athletes would have been better protected.

• The Sports Integrity Initiative has analysed the Report and the responses to it in detail on Twitter. To view that analysis, click here.

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