Fingers are pointing again at the Essendon Football Club for its failures in the long-running supplements fiasco. This follows the Court of Arbitration for Sport’s (CAS) decision to ban 34 past and present players for one year for contravening the World Anti-Doping Code.
A club’s coaches and other officials are supposed to have a duty of care to ensure a safe working environment and practices that are compliant with the anti-doping code. But the club’s failings in this area have already been dealt with. The AFL penalised Essendon heavily in 2013 for health and safety shortcomings that were judged to bring the game into disrepute.
But what of the players’ liability?
What does the code say?
One might be forgiven for thinking that the players were unwitting victims in this saga. They claim to have questioned the supplements regime and believed they were administered thymosin and not the banned thymosin beta-4.
The 2009 World Anti-Doping Code’s principle of strict liability makes athletes ultimately responsible for what goes into their bodies. It states:
It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes are responsible for any prohibited substance or its metabolites or markers found to be present in their samples. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping violation …
Whether the athletes believed they were receiving thymosin when they were actually receiving the banned thymosin beta-4 is not the question. The mere presence of banned doping agents in the athlete’s system is sufficient for the World Anti-Doping Agency to deem it an infraction.
The code also makes it clear that in exceptional circumstances (for example, proven unintentional doping) the sanction for the rule violation may be reduced or eliminated, but the infraction stands.
Some might think the principle of strict liability is too harsh. But the players unfortunately may be barking up the wrong tree if they think they are innocent victims.
The CAS decision disclosed material that further implicated the Essendon players. Despite having undergone anti-doping education programs, the players agreed to injections they knew little about, made no enquiries about them, kept the injections from the team doctor and failed to declare them during routine Australian Sports Anti-Doping Agency (ASADA) testing sessions.
Following the decision, ASADA CEO Ben McDevitt said:
At best, the players did not ask the questions, or the people, they should have. At worst, they were complicit in a culture of secrecy and concealment.
On this account, it is one thing for players to have trusted team officials and unwittingly taken a banned substance, but quite another not to have consulted the team doctor or disclosed the supplement use to ASADA. Taking this evidence into account, CAS would appear to have no reason to reduce or eliminate sanctions for the anti-doping rule violation.
One of the take-away messages from the latest stage in the supplements saga is that players will need to be more confident and courageous to challenge the conditions under which they are expected to perform. This could involve collective agreements on the full disclosure of benefits and risks prior to the introduction of cutting-edge performance-enhancement measures and methods.
At the same time, the bar will need to be raised about duty of care and informed consent. Clubs contemplating the implementation of innovative performance-enhancement methods will need to be especially diligent in understanding their performance, health and integrity implications and ensuring that athletes are made fully aware of them.
Team officials and high-performance managers might also need to be aware of the power differential between them and players. This can sometimes compromise a player’s ability to question – let alone say no to – what might be considered dubious performance-enhancement regimes.
All this needs to come in a sport culture where there are high expectations, as well as financial and social pressures and rewards, for playing well and winning.