A critical examination of the involvement of Canadian high-performance athletes in the development of anti-doping policy

The use of certain perfonnance enhancing substances and methods has been defined as a major ethical breach by parties involved in the governance of highperfonnance sport. As a result, elite athletes worldwide are subject to rules and regulations set out in international and national anti-doping policies. Existing literature on the development of policies such as the World Anti-Doping Code and The Canadian antiDoping Program suggests a sport system in which athletes are rarely meaningfully involved in policy development (Houlihan, 2004a). Additionally, it is suggested that this lack of involvement is reflective of a similar lack of involvement in other areas of governance concerning athletes' lives. The purpose ofthis thesis is to examine the history and current state of athletes' involvement in the anti-doping policy process in Canada's high-perfonnance sport system. It includes discussion and analysis of recently conducted interviews with those involved in the policy process as well as an analysis of relevant documents, including anti-doping policies. The findings demonstrate that Canadian athletes have not been significantly involved in the creation of recently developed antidoping policies and that a re-evaluation of current policies is necessary to more fully recognize the reality of athletes' lives in Canada's high-perfonnance sport system and their rights within that system.

Proportionality of sanctions under the WADA Code : CAS jurisprudence and the need for a strict approach

This article suggests that the issue of proportionality in anti-doping sanctions has been inconsistently dealt with by the Court of Arbitration for Sport (CAS). Given CAS’s pre-eminent role in interpreting and applying the World Anti-Doping Code under the anti-doping policies of its signatories, an inconsistent approach to the application of the proportionality principle will cause difficulties for domestic anti-doping tribunals seeking guidance as to the appropriateness of their doping sanctions.

Anti-doping testing at the 2008 European football championship.

Big sports events like the 2008 European Football Championship are a challenge for anti-doping activities, particularly when the sports event is hosted by two different countries and there are two laboratories accredited by the World Anti-Doping Agency. This challenges the logistics of sample collection as well as the chemical analyses, which must be carried out timeously. The following paper discusses the handling of whereabouts information for each athlete and the therapeutic use exemption system, experiences in sample collection and transportation of blood and urine samples, and the results of the chemical analysis in two different accredited laboratories. An overview of the analytical results of blood profiling and growth hormone testing in comparison with the distribution of the normal population is also presented.

The Application of a Pluralist Approach of Global Administrative Law on the Governance of Doping in Sport

Plusieurs problèmes liés à l'utilisation de substances et méthodes interdites de dopage dans les sports posent de grands défis à la gouvernance antidopage. Afin de lutter contre le dopage, certains pays ont mis en oeuvre des cadres juridiques basés exclusivement sur le droit pénal tandis que d'autres pays ont plutôt misé sur des mécanismes et organismes spécialisés trouvant fondement en droit privé ou sur un régime hybride de droit public et privé. Ces différentes approches réglementaires ont pour conséquence de faire en sorte qu’il est très difficile de lutter efficacement contre le dopage dans les sports, notamment parce que leur exécution requiert un degré de collaboration internationale et une participation concertée des autorités publiques qui est difficile à mettre en place. À l’heure actuelle, on peut par exemple observer que les États n’arrivent pas à contrer efficacement la participation des syndicats et organisations transnationales liés au crime organisé dans le marché du dopage, ni à éliminer des substances et méthodes de dopage interdites par la réglementation. Par ailleurs, la gouvernance antidopage basée sur les règles prescrites par l’Agence mondiale antidopage prévoit des règles et des normes distinctes de dopage distinguant entre deux catégories de personnes, les athlètes et les autres, plaçant ainsi les premiers dans une position désavantageuse. Par exemple, le standard de responsabilité stricte sans faute ou négligence imposé aux athlètes exige moins que la preuve hors de tout doute raisonnable et permet l'utilisation de preuves circonstancielles pour établir la violation des règles antidopages. S'appliquant pour prouver le dopage, ce standard mine le principe de la présomption d'innocence et le principe suivant lequel une personne ne devrait pas se voir imposer une peine sans loi. D’ailleurs, le nouveau Code de 2015 de l’Agence attribuera aux organisations nationales antidopage (ONADs) des pouvoirs d'enquête et de collecte de renseignements et ajoutera de nouvelles catégories de dopage non-analytiques, réduisant encore plus les droits des athlètes. Dans cette thèse, nous discutons plus particulièrement du régime réglementaire de l’Agence et fondé sur le droit privé parce qu’il ne parvient pas à répondre aux besoins actuels de gouvernance mondiale antidopage. Nous préconisons donc l’adoption d’une nouvelle approche de gouvernance antidopage où la nature publique et pénale mondiale du dopage est clairement reconnue. Cette reconnaissance combiné avec un modèle de gouvernance adapté basé sur une approche pluraliste du droit administratif global produira une réglementation et une administration antidopage mieux acceptée chez les athlètes et plus efficace sur le plan des résultats. Le nouveau modèle de gouvernance que nous proposons nécessitera toutefois que tous les acteurs étatiques et non-étatiques ajustent leur cadre de gouvernance en tenant compte de cette nouvelle approche, et ce, afin de confronter les défis actuels et de régler de manière plus satisfaisante les problèmes liés à la gouvernance mondiale du dopage dans les sports.

Making visible the invisible act of doping

This paper describes the construction of the visual space of surveillance by the global anti-doping apparatus, it is a space inhabited daily by professional cyclists. Two principal mechanisms of this apparatus will be discussed—the Whereabouts System and the Biological Passport; in order to illustrate how this space is constructed and how it visualises the invisible act of doping. These mechanisms act to supervise and govern the professional cyclist and work to classify them as either clean or dirty in terms of the use of prohibited doping substances or methods. Contrary to the analysis of liberal anti-doping scholars such as Hanstad, Loland and Møller this paper argues that Foucault’s Panopticon paradigm is a useful tool for the analysis of this apparatus. The Whereabouts System and Biological Passport are the instruments by which the anti-doping apparatus intensifies the construction of the space of surveillance in professional sport. This space of surveillance not only locates and makes visible the physical location of each individual cyclist, but it also makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. In making the cyclist visible the instruments do not allow the cause of doping, or the event of doping to be known or observed. Rather what they do is cast the body in terms of abnormalities of time, place or blood. In the case of an abnormality of the cyclist’s blood, the cause itself cannot be identified with any certainty, all that is made visible is a suggestion, or a probability, that doping may have occurred. The ultimate effects are twofold—an internalisation and continual monitoring of one’s self as well as by the authorities, and a radical change in the nature and the definition of the offence of doping. No longer is it positive evidence of doping that is punishable, but what becomes punishable is an abnormality, in the cyclist’s location, or their body, which suggests a probability that the invisible act of doping may have occurred. In the course of this process accepted manners of proving an offence by the use of scientific evidence and expert commentary are transformed. The Whereabouts System and the Biological Passport open up a new manner in which the invisible can be visualised. Through the discourse and the attendant commentary of the expert a new alliance between doping and the law is constructed. The result is a redistribution of the way in which the law visualises and treats the symptoms (the signifier) and the signified act of doping. The Whereabouts System and Biological Passport are the instruments by which the anti-doping apparatus intensifies the construction of the space of surveillance in professional sport. This space of surveillance not only locates and makes visible the physical location of each individual cyclist, but it also makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. In making the cyclist visible the instruments do not allow the cause of doping, or the event of doping to be known or observed. Rather what they do is cast the body in terms of abnormalities of time, place or blood. In the case of an abnormality of the cyclists’s blood, the cause itself cannot be identified with any certainty, all that is made visible is a suggestion, or a probability, that doping may have occurred. The ultimate effects are twofold—an internalisation and continual monitoring of one’s self as well as by the authorities, and a radical change in the nature and the definition of the offence of doping. No longer is it positive evidence of doping that is punishable, but what becomes punishable is an abnormality, in the cyclist’s location, or their body, which suggests a probability that the invisible act of doping may have occurred. In the course of this process accepted manners of proving an offence by the use of scientific evidence and expert commentary are transformed. The Whereabouts System and the Biological Passport open up a new manner in which the invisible can be visualised. Through the discourse and the attendant commentary of the expert a new alliance between doping and the law is constructed. The result is a redistribution of the way in which the law visualises and treats the symptoms (the signifier) and the signified act of doping.

The worldwide fight against doping: from the beginning to the World Anti-Doping Agency

This article describes the worldwide endeavor to combat doping in sports. It describes the historical reasons the movement began and outlines the current status of this effort by international sports groups, governments, and the World Anti-Doping Agency. The purposes, strengths, and limitations of the various entities are illustrated; and recommendations for improvements are made.

Sporting Justice: An Arbitrator's Perspective

Drawing on my experience of a number of sports dispute resolution tribunals in the UK and Ireland (such as Sports Resolutions UK; Just Sport Ireland; the Football Association of Ireland’s Disciplinary Panel and the Gaelic Athletic Association’s Dispute Resolution Authority) I intend to use this paper to review the legal arguments typically made in sports-related arbitrations. These points of interest can be summarised as a series of three questions: the fairness question; the liability question; the penalty question.

In answer to the fairness question, the aim is to give a brief outline on best practice in establishing a "fair" sports disciplinary tribunal. The answer, I believe, is always twofold in nature: first, and to paraphrase Lord Steyn in R v Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 at [28] "in law, context is everything" – translated into the present matter, this means that in sports disciplinary cases, the more serious the charges against the individual (in terms of reputational damage, economic impact and/or length of sanction); the more tightly wrapped the procedural safeguards surrounding any subsequent disciplinary hearing must be. A fair disciplinary system will be discussed in the context of the principles laid down in Article 8 of the World Anti-Doping Code which, in effect, acts as sport’s Article 6 of the ECHR on a right to a fair trial.

Following on from the above, in the 60 or so sports arbitrations that I have heard, there are two further points of interest. First, the claim before the arbitral panel will often be framed in an argument that, for various reasons of substantive and procedural irregularity, the sanction imposed on the appellant should be quashed ("the liability"). Second, and in alternative, that the sanction imposed was wholly disproportionate ("the penalty").

The liability issue usually breaks down into two further questions. First, what is the nature of the legal duty upon a sports body in exercising its disciplinary remit? Second, to what extent does a de novo hearing on appeal cure any apparent defects in a hearing of first instance? The first issue often results in an arbitral panel debating the contra preferentum approach to the interpretation of a contested rule i.e., the sports body’s rules in question are so ambiguous that they should be interpreted in a manner to the detriment of the rule maker and in favour of the appellant. On the second matter, it now appears to be a general principle of sports law, administrative law and even human rights law that even if a violation of the principles of natural justice takes place at the first instance stage of a disciplinary process, they may be cured on de novo appeal. Authority for this approach can be found at the Court of Arbitration for Sport and in particular in CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v UEFA at para 87.

The question on proportionality asks what, aside from precedent found within the decisions of the sports body in question, are the general legal principles against which a sanction by a sports disciplinary body can be benchmarked in order to ascertain whether it is disproportionate in length or even irrational in nature?

On the matter of (dis)proportionality of sanction, the debate is usually guided by the authority in Bradley v the Jockey Club [2004] EWHC 2164 (QB) and affirmed at [2005] EWCA Civ 1056. The Bradley principles on proportionality of sports-specific sanctions, recently cited with approval at the Court of Arbitration for Sport, will be examined in this presentation.

Finally, an interesting application of many of the above principles (and others such as the appropriate standard of proof in sports disciplinary procedures) can be made to recent match-fixing or corruption related hearings held by the British Horse Racing Authority, the integrity units of snooker and tennis, and at the Court of Arbitration for Sport.

Accurate mass-based analysis in human sport doping control : Application of liquid chromatography - time-of-flight mass spectrometry

Human sport doping control analysis is a complex and challenging task for anti-doping laboratories. The List of Prohibited Substances and Methods, updated annually by World Anti-Doping Agency (WADA), consists of hundreds of chemically and pharmacologically different low and high molecular weight compounds. This poses a considerable challenge for laboratories to analyze for them all in a limited amount of time from a limited sample aliquot. The continuous expansion of the Prohibited List obliges laboratories to keep their analytical methods updated and to research new available methodologies. In this thesis, an accurate mass-based analysis employing liquid chromatography - time-of-flight mass spectrometry (LC-TOFMS) was developed and validated to improve the power of doping control analysis. New analytical methods were developed utilizing the high mass accuracy and high information content obtained by TOFMS to generate comprehensive and generic screening procedures. The suitability of LC-TOFMS for comprehensive screening was demonstrated for the first time in the field with mass accuracies better than 1 mDa. Further attention was given to generic sample preparation, an essential part of screening analysis, to rationalize the whole work flow and minimize the need for several separate sample preparation methods. Utilizing both positive and negative ionization allowed the detection of almost 200 prohibited substances. Automatic data processing produced a Microsoft Excel based report highlighting the entries fulfilling the criteria of the reverse data base search (retention time (RT), mass accuracy, isotope match). The quantitative performance of LC-TOFMS was demonstrated with morphine, codeine and their intact glucuronide conjugates. After a straightforward sample preparation the compounds were analyzed directly without the need for hydrolysis, solvent transfer, evaporation or reconstitution. The hydrophilic interaction technique (HILIC) provided good chromatographic separation, which was critical for the morphine glucuronide isomers. A wide linear range (50-5000 ng/ml) with good precision (RSD<10%) and accuracy (±10%) was obtained, showing comparable or better performance to other methods used. In-source collision-induced dissociation (ISCID) allowed confirmation analysis with three diagnostic ions with a median mass accuracy of 1.08 mDa and repeatable ion ratios fulfilling WADA s identification criteria. The suitability of LC-TOFMS for screening of high molecular weight doping agents was demonstrated with plasma volume expanders (PVE), namely dextran and hydroxyethylstarch (HES). Specificity of the assay was improved, since interfering matrix compounds were removed by size exclusion chromatography (SEC). ISCID produced three characteristic ions with an excellent mean mass accuracy of 0.82 mDa at physiological concentration levels. In summary, by combining TOFMS with a proper sample preparation and chromatographic separation, the technique can be utilized extensively in doping control laboratories for comprehensive screening of chemically different low and high molecular weight compounds, for quantification of threshold substances and even for confirmation. LC-TOFMS rationalized the work flow in doping control laboratories by simplifying the screening scheme, expediting reporting and minimizing the analysis costs. Therefore LC-TOFMS can be exploited widely in doping control, and the need for several separate analysis techniques is reduced.

Doping, sport and the law: time for repeal of prohibition?

This article concerns the legal issues that surround the prohibition of doping in sport. The current policy on the use of performance enhancing drugs (PEDs) in sport is underpinned by both a paternalistic desire to protect athletes’ health and the long-term integrity or ‘spirit’ of sport. The policy is put into administrative effect globally by the World Anti-Doping Agency (WADA), which provides the regulatory and legal framework through which the vast majority of international sports federations harmonise their anti-doping programmes. On outlining briefly both the broad administrative structures of international sport’s various anti-doping mechanisms, and specific legal issues that arise in disciplinary hearings involving athletes accused of doping, this article questions the sustainability of the current ‘zero tolerance’ approach, arguing, by way of analogy to the wider societal debate on the criminalisation of drugs, and as informed by Sunstein and Thaler’s theory of libertarian paternalism, that current policy on anti-doping has failed. Moreover, rather than the extant moral and punitive panic regarding doping in sport, this article, drawing respectively on Seddon’s and Simon’s work on the history of drugs and crime control mentality, contends that, as an alternative, harm reductionist measures should be promoted, including consideration of the medically supervised use of certain PEDs.

Ultra high performance supercritical fluid chromatography coupled with tandem mass spectrometry for screening of doping agents. II: Analysis of biological samples.

The potential and applicability of UHPSFC-MS/MS for anti-doping screening in urine samples were tested for the first time. For this purpose, a group of 110 doping agents with diverse physicochemical properties was analyzed using two separation techniques, namely UHPLC-MS/MS and UHPSFC-MS/MS in both ESI+ and ESI- modes. The two approaches were compared in terms of selectivity, sensitivity, linearity and matrix effects. As expected, very diverse retentions and selectivities were obtained in UHPLC and UHPSFC, proving a good complementarity of these analytical strategies. In both conditions, acceptable peak shapes and MS detection capabilities were obtained within 7min analysis time, enabling the application of these two methods for screening purposes. Method sensitivity was found comparable for 46% of tested compounds, while higher sensitivity was observed for 21% of tested compounds in UHPLC-MS/MS and for 32% in UHPSFC-MS/MS. The latter demonstrated a lower susceptibility to matrix effects, which were mostly observed as signal suppression. In the case of UHPLC-MS/MS, more serious matrix effects were observed, leading typically to signal enhancement and the matrix effect was also concentration dependent, i.e., more significant matrix effects occurred at the lowest concentrations.

A Pragmatic Approach to Ethical Inquiry on Transhuman Athletes and Gene Doping in Sport

Gene doping is the most recent addition to the list of banned practices formulated by the World Anti-doping Agency. It is a subset of doping that utilizes the technology involved in gene therapy. The latter is still in the experimental phase but has the potential to be used as a type of medical treatment involving alterations of a patient‘s genes. I apply a pragmatic form of ethical inquiry to evaluate the application of this medical innovation in the context of sport for performance-enhancement purposes and how it will affect sport, the individual, society and humanity at large. I analyze the probable ethical implications that will emerge from such procedures in terms of values that lie at the heart of the major arguments offered by scholars on both affirmative and opposing sides of the debate on gene doping, namely fairness, autonomy and the conception of what it means to be human.

Inadvertent doping through supplement use by athletes: assessment and management of the risk in Australia

Many athletes report using a wide range of special sports foods and supplements. In the present study of 77 elite Australian swimmers, 99% of those surveyed reported the use of these special preparations, with 94% of swimmers reporting the use of non-food supplements. The most popular dietary supplements were vitamin or mineral supplements (used by 94% of the group), herbal preparations (61%), and creatine (31%). Eighty-seven percent of swimmers reported using a sports drink or other energy-providing sports food. In total, 207 different products were reported in this survey. Sports supplements, particularly supplements presented as pills or other non-food form, are poorly regulated in most countries, with little assurance of quality control. The risk of an inadvertent "positive doping test" through the use of sports supplements or sports foods is a small but real problem facing athletes who compete in events governed by anti-doping rules. The elite swimmers in this survey reported that information about the "doping safety" of supplements was important and should be funded by supplement manufacturers. Although it is challenging to provide such information, we suggest a model to provide an accredited testing program suitable for the Australian situation, with targeted athlete education about the "sports safety" of sports supplements and foods.