Should AFL players be open to bans for doping?

On ANZAC Day eve, the Essendon Football Club made a public admission the anti-obesity drug AOD-9604 had been administered to some of its players last year.

A few days earlier, WADA had put out a media release clarifying the situation surrounding said drug.

It contained devastating news for Essendon and also potentially the Melbourne Football Club, with WADA stating categorically that AOD-9604 is a banned substance.

WADA’s determination was made with respect to substances that are prohibited at all times and appears under the heading ‘Non-Approved Substances’:

“Any pharmacological substance which is not addressed by any of the subsequent sections of the List and with no current approval by any governmental regulatory authority for human therapeutic use (e.g. drugs under pre-clinical or clinical development or discontinued, designer drugs, substances approved only for veterinary use) is prohibited.”

Many have said WADA’s banning of AOD-9604 with regard to it having never received government regulatory approval would not carry weight retrospectively, but the wording of the relevant clause is a ‘catch-all’ that encompasses all and any drugs that failed to receive the necessary tick required for human use.

All WADA has done is state that AOD-9604 falls under the scope of that clause, which has existed since 1 January 2011, well before the period Essendon has admitted the drug was administered to members of its playing group.

There have been claims WADA had earlier provided, in writing, a determination that AOD-9604 was indeed not a banned substance.

The Bombers said they relied on the authenticity of that document with respect to the drug’s use.

John Fahey, the head of WADA, when asked about such a practice said, “I have never heard of WADA informing an individual club on what’s on the prohibited list.”

The section relating to ‘Non-Approved Substances’ is numbered S0.

It comes before a group of other sections numbered S1 to S5, which cover the full gamut of drugs specifically banned under the WADA Code – the likes of anabolic agents, peptides, EPO and masking agents.

In accordance with the WADA Code, the use of AOD-9604 brings with it the standard two-year ban.

One of the most fundamental tenets of the WADA Code is enshrined in Article 2.1.1, where it states clearly the roles and responsibilities of the athlete:

“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…”

Already the AFL Players’ Association has flagged any players who are hit with a ban will almost certainly take legal action under rules 10.5.1 and 10.5.2 of the WADA Code, which covers the principle of ‘no fault or negligence’.

History indicates successfully overturning or reducing a mandated ban using these rules is extremely rare – the explanatory notes that accompany these rules in fact state they are “meant to have an impact only in cases where the circumstances are truly exceptional”.

One of the rare victories by an athlete challenging a ban under these rules was achieved by Ukrainian ice hockey player Oleksandr Pobyedonostsev.

After being hit with a two-year ban for returning a positive test to a metabolite of the anabolic steroid nandralone, following an international between Ukraine and Sweden in May 2005, he sought to have the penalty overturned.

His appeal to the Court of Arbitration for Sport was successful as his legal counsel was able to show the drug found in his system was administered while he was unconscious.

Following a strong body check in a game in Belarus in March 2005, he hit the ice so hard he had to be taken from the rink and transported to hospital where, in the emergency room, he was treated for a heart condition, during which time he was administered intravenous and intramuscular injections that contained nandralone.

Given he was unconscious at the time, there was no reasonable way that he could have known about or prevented such an occurrence and, on those grounds, his two-year ban was lifted.

There is little argument such an event is rightly deemed exceptional.

The question that will exercise many a legal brain, should bans be handed out with respect to the Essendon case, will be just how exceptional the circumstances are with respect to AFL footballers who were administered a banned substance under the auspices of a supplement protocol overseen by their club.

A reading of the explanatory notes within the WADA Code attached to rules 10.5.1 and 10.5.2 indicates any players who are banned for having been administered AOD-9604 will have a very hard time getting their penalties overturned.

The notes specify “the administration of a prohibited substance by the athlete’s personal physician or trainer without disclosure to the athlete” does not constitute an acceptable excuse to have a ban overturned.

Should bans be issued as a result of ASADA’s ongoing investigations, there will no doubt be a degree of sympathy for the players concerned from certain areas of the community.

Many may argue the players were simply complying with instructions given to them by people they believed were in a position of trust, who had been installed within the club by its administration following a test of due diligence.

It will be said the young men in question were simply acting on good faith when asked to submit to certain medical protocols.

After all, the men intrusted to look after their conditioning and medical protocols were employed by the club, who they would believe was acting in their best interests at all times.

Alas when it comes to doping in sport, it is the ultimate responsibility of the athlete for what is given to them.

Unlike Pobyedonostsev, they had the ability at all times to query fully what they were about to receive.

Yes, it may seem a harsh reality but perhaps it is best if we compare it to other cases that have preceded it.

Back in the 1970s and ‘80s, myriad young athletes in countries like East Germany were handed little coloured tablets on a regular basis by medical staff they also believed were doing the right thing by them.

They were often told that they were merely vitamin pills.

History now shows what they were given were far more sinister substances – testosterone and anabolic steroids.

The only problem was back then there was no out of competition testing, as there is nowadays, and as such a carefully calculated protocol with regard to the delivery of their performance enhancing drugs assured they would not be detected during testing at competitions.

Yet most Australians would deem those athletes were severely in breach of the anti-doping laws that govern sport and if they had tested positive they should have been outed from their sport as a result.

Using that standard, it is hard then to moralise against bans for athletes in this country while fully supportive of those in other nations being firmly dealt with.

Many of the athletes banned for breaking the anti-doping laws have done so as a result of being administered a drug they were told was legal.

In the end, should players be given a stint on the sidelines there is little doubt there will be a raft of legal suits flying around.

And, in essence, so they should.

But, unfortunately, given the framework of the WADA Code and the way it has been applied since it was codified, it is hard to see any leniency being granted to those who were administered banned substances.