Friday, June 14, 2013

May Editorial: Moving the goalposts

Would you spray a product derived from deer antler velvet into your mouth in order to aid recouperation from a back or knee pain? You would do that without question? OK. If you were a professional athlete, would you use such a spray if you knew it came from a company called Sports With Alternatives To Steroids (SWATS)? Comfortable with that? OK. How about if you visited the SWATS website and were greeted by background pictures of bodybuilders ‘feeling the burn’ and stocked with products such as ‘Jacked Spray’. Still comfortable? If you looked at the people behind SWATS and found they were bodybuilders and not scientists. Still unconcerned? How about if you checked the ingredients of the spray and found that it contained IGF-1, which features on the World Anti-Doping Agency’s Prohibited List?

Vijay Singh’s lawsuit is surprising, because under the strict liability conditions mandated by Article 2.1 of the Code, he has been very lucky. Professional athletes know that they are responsible for what goes into their body and that ignorance is not a defence for violating the World Anti-Doping Code. Singh’s lawsuit claims that he checked the spray bottle and SWATS said that their products were all-natural and didn’t contain any banned substances. There is a raft of case law in anti-doping which illustrates that this is no defence.

However, the lawsuit again highlights the difficulties that international sporting federations face when the World Anti-Doping Agency (WADA) moves the goalposts. Singh’s lawsuit arose because the PGA Tour was forced to drop its charges against him after WADA confirmed that it no longer considers ‘deer antler spray’ to be prohibited. This was news to the PGA Tour. It now faces a legal battle which if Singh wins, will undermine the anti-doping process and in which it is accused of 'recklesss administration and implementation of its Anti-Doping Program'.

If Singh’s lawsuit is successful and he is awarded damages, the danger is that this case could embolden athletes who have (arguably) not carried out sufficient checks on the substances they are using. Currently, the onus is on the athlete to check that the substance they are using is not on any prohibited lists. Do we really want to put the onus on international federations to check with WADA that their lists have not been amended? This will be something for the court to decide…

For more on the Vijay Singh lawsuit, see this news article and this feature, from Stacey Shevill of Squire Sanders.

Andy Brown


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