Anti-doping rules reform on cards
New Zealand not alone is seeking a fair middle ground, reports Dana Johannsen.
New Zealand’s anti-doping rules could be reformed following high-level criticism over Drug Free Sport NZ’s (DFSNZ) handling of recent cases involving recreational athletes. DFSNZ is consulting with the sports sector over the introduction of a new policy to provide some discretion in the application of anti-doping rules to social and recreational sports people.
The move comes after stinging commentary from the Sports Tribunal and NZ Rugby Judiciary over DFSNZ’s approach. In the past six months, four independent QCs have raised concerns over the national anti-doping agency’s ‘‘unannounced executive decision’’ to police lowlevel athletes.
In March the Sports Tribunal implored sports leaders to take a close look at how the anti-doping rules were being applied after it was asked to rule on the case of ‘Athlete XYZ’ – the pseudonym given to a member of a local surflifesaving club, who had purchased steroids online for weight loss reasons. While the tribunal reluctantly found in favour of DFSNZ, the panel made up of QCs Bruce Robertson (chair), Alan Galbraith and Dr James Farmer, were uncomfortable with the implications of their decision.
‘‘[This] is a matter of public interest which deserves attention and debate and careful consideration by those who are responsible for rule making and rule application,’’ the decision read.
In May, the NZ Rugby post hearing review body (PHRB), chaired by Nigel Hampton QC, likened DFSNZ’s approach to a ‘‘sledgehammer attempting to crack the tiniest of nuts’’, when it overturned a sanction against a retired club rugby player found to have ordered Clenbuterol online.
The PHRB also questioned whether DFSNZ’s decision to relentlessly pursue the case was an appropriate use of resources.
DFSNZ chief executive Nick Paterson says his organisation is in a difficult position.
He maintains there is no provision under the Wada (World Anti-Doping Agency) code to apply the rules differently to people competing at club or social level, than they would professional and elite athletes. However, he admits recent cases have highlighted inherent inequities in a system that does not differentiate between the two.
‘‘The world anti-doping code does not provide us with any discretion. It says where there is evidence of a potential anti-doping rule violation, you must advance that,’’ Paterson says.
‘‘If you compare that to the criminal world . . . in order for the police to bring a case they’re required to prove evidential sufficiency, but also, is it in the public interest to advance a criminal prosecution, so there is an evidence test and a public interest test. We want to explore whether it is possible to introduce [the public interest test] into our systems.’’
Paterson is asking the sports community firstly whether it believes DFSNZ should adopt a policy that provides some discretion in which cases result in formal action, and secondly, what factors the agency should take into account when considering whether to bring proceedings against an individual.
Paterson stresses the criteria likely to be applied will be robust.
‘‘I should say off the bat, if you’re an elite athlete, you’re not going to meet these criteria. This is not available to you,’’ he says.
‘‘Probably, no matter what level of sport you’re at, if you’re anybody buying anabolic steroids, for instance, you’re not getting discretion. Because there is only one reason to buy steroids, and that is you’re trying to cheat.’’
Paterson’s position suggests that even if such a policy did exist at the time, it is unlikely it would have impacted DFSNZ’s handling of the Clenbuterol investigation, which has been the source of debate among sports law and human rights experts.
The investigation was sparked after Christchurch man Josh Townshend was convicted in 2017 of trafficking steroids online. As part of an information-sharing agreement with Medsafe, DFSNZ was then granted access to Townshend’s customer database and set about crossreferencing the names with those registered to national sporting organisations.
This approach not only ensnared athletes competing at national and provincial level, but also club athletes and weekend warriors who were using the products for vanity reasons, leading to accusations DFSNZ was overprosecuting these cases.
Unlike professional sportspeople and elite athletes, who are part of a drug-testing pool, those competing at the lower levels do not have any anti-doping education, medical oversight and nutritional support. Most would not even be aware that registering to a club team means they are bound to sport’s anti-doping rules.
In its ruling in the case of Athlete XYZ, the tribunal has noted the messy human rights issues that arise from applying the rules in a blanket manner.
‘‘The tribunal has no discretion in appropriate cases to absolve a respondent who lacks genuine culpability. That is a position that does not accord with jurisprudence in this country as administered by our courts and which is rooted in proportionality, culpability, fairness and common sense with a strong overlay for concern for human rights,’’ the decision read.
The tribunal also raised serious concerns over the judicial creep of DFSNZ, and the ‘‘lack of any public announcement to the sporting and sports club community’’ that it was adopting this approach.
Despite the criticism, Sport NZ chief executive Peter Miskimmin says his organisation did not put any pressure on DFSNZ to introduce discretion in its decision-making.
‘‘It was more that a review was required, because everyone was asking that same question,’’ says Miskimmin. ‘‘I felt a little bit sorry for [DFSNZ], because at the end of the day they were only administering the letter of the law and obviously then even if they develop this policy then Wada will be the final arbitrator of whether they take proceedings against an athlete or not.
‘‘I think other jurisdictions around the world now are starting to take a more pragmatic approach, which seems sensible.’’
If the consultation reveals there is an appetite for a different approach to be taken in the case of low-level athletes, Paterson says DFSNZ will draft up a policy and seek approval from Wada.
Historically, DFSNZ has not been able to gain a lot of traction when it comes to seeking common sense policy amendments from Wada. Every year, DFSNZ submits that cannabis should not be on the prohibited list, given there is no evidence of performance-enhancing properties, and every year Wada ignores the advice.
However, Paterson is confident the world governing body will be willing to listen to DFSNZ on this issue.
‘‘I’d like to think we can find a way to make this work. Wada, for all their faults, have genuinely got some good people in there at all levels,’’ Paterson says.
‘‘This is a problem that is a hot topic domestically, but also as it turns out, internationally and everyone is trying to solve it, so I’m hopeful we can come up with a solution that will be agreeable to all parties.’’
*The consultation period for the introduction of a discretion policy closes on October 29. All feedback should be sent to feedback@drugfreesport.org.nz
‘‘. . . there is only one reason to buy steroids, and that is you’re trying to cheat.’’ Nick Paterson