In recent times, the media often features stories about athletes being banned for doping, yet they claim they never intended to cheat.

The Nairobi Law Monthly September Edition

Whether it is sprinters who have been suspended because of tainted supplements or cyclists who have been thrown off the official list because they have unknowingly used a prescribed drug, the question always arises over whether there should be a penalty when there has been an unintended, rather than an intentional wrongdoing.

The principle of strict liability provides the answer to this question through holding athletes liable for any prohibited substances found in their bodies, regardless of fault or intent.

The driving force behind global anti-doping law is the World Anti-Doping Code, which enforces the principle of strict liability. Under this principle, athletes are held liable for any of the prohibited substances in their body. While applying the rule, how a prohibited substance entered the body and the intention of the athlete do not matter.

A positive test is enough to prove the violation. Such an approach strike athletes harshly, although it is normal in a legal sense. Most of our daily rules work in the same manner. A speeding motorist cannot escape liability by claiming to have missed a sign, by the fact that his speedometer was not working well or by any other excuse. The offence is complete once the rule has been broken.

Anti-doping organisations defend strict liability because, without it, implementation cannot work properly. The problem is that by relying on intent as a defense, athletes could turn every case into a debate and it would be nearly impossible to determine a case of cheating. The rule thus makes athletes extremely cautious about everything they ingest, be it medication and supplements.

In reality, this establishes a continual responsibility for one to be watchful. By setting this high standard of responsibility, strict liability ensures both fair competition and maintains the respect of the general population for the sports.

The major reason for the existence of strict liability is to provide fairness in sport. Ignorance (intent) as a defense would undermine anti-doping efforts, since every athlete found positive would claim they did not know how the substance found its way into his or her body.

Therefore, it would be difficult to prove otherwise, and real cases of cheating could pass without punishment. Strict liability fills this gap because it does not take into consideration intent. It puts the responsibility directly on athletes. This solution minimises loopholes and stops challenges to the system by using the excuse that an offender did not know.

The rule can also serve as a deterrent. Athletes understand that they should be careful while taking supplements, medication, or other regular products. Such caution aids in keeping sport free of negligence and carelessness. Strict liability also brings international harmonisation at the same time.

The rules of anti-doping are applied identically, regardless of the location of the athlete (Africa, Europe, or Asia). Such uniformity prevents ambiguity and makes it impossible to implement a lower standard in any given region or sport.

Through the establishment of consistency, the system seeks to ensure that the same norms are applied to all athletes and this will help in enhancing confidence that the eventual winners are rewarded because of talent and hard work and not due to the use of chemicals.

Strict liability has received heavy criticism, yet it has its purpose. It is claimed that the rule is too extreme when it comes to players who are deprived of legal or scientific help. Elite professionals are able to employ lawyers, nutritionists and medical professionals to keep watch over all aspects of what they eat, but the vast majority of athletes are not.

A sprinter training in one of the local clubs or a cyclist at the regional level might not be able to test all the supplements or confirm the content of all their prescriptions. Still, they are viewed equally compared to world champions in terms of the law.

This reality often leads to long bans being imposed on athletes who did not have the intention to cheat or lacked the means to defend themselves effectively.

Yet, contamination of supplements is becoming an acute problem. Research has found that certain vitamins and protein powders contain additives that are not declared because of poor manufacturing standards.

An athlete who consumes such a product in good faith may end up testing positive and suffer career-threatening ramifications. There are also complaints about unfairness; rich athletes can organise more serious defenses, negotiate shorter sentences, or even question laboratory findings, whereas poor athletes have little chance of success.

Such disparity leaves some doubts regarding fairness in the application of the principle across different athletes.

Strict liability is at the centre of anti-doping law due to the clarity, consistency, and protective elements it exhibits regarding sport integrity. Yet, the same rule that safeguards fairness also makes athletes vulnerable to the results that may appear to be unfair, especially in the case of negligence or contamination.

The conflict is obvious; a system that is set up to disallow excuses can also reprimand the innocent. The difficulty regulators have is maintaining credibility without losing compassion.

As the debate drags on, it is critical to note that clean sports require not only strict rules but also a fair and balanced application.

Dr Ogama is a lawyer and researcher on doping interventions.


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