WADA chief calls for more four year bans for doping offences

UCI and WADA chiefs agree on the need for longer bans, but the lawyers are watching

by Tony Farrelly   November 12, 2010  

Syringe

The director general of the World Anti-doping Agency (WADA), David Howman, has echoed recent calls by UCI president Pat McQuaid to ban more drugs cheats for four years instead of the two-year suspension currently typically applied for first offenders.

At present, WADA’s code provides for a four-year suspension for a first offence in cases where “aggravating” circumstances are present, but Howland believes that governing bodies and national doping agencies have shied away from imposing it, possibly due to potential legal challenges or because they are content to stick with the two-year ban.

Speaking to the Associated Press in an interview reported on ESPN.com, Howman said: "This four years was something that people who were advocating stronger penalties really wanted us to include, and so it was included. But 18 months later, it's hardly being used, if at all.

"When it comes to the crunch, obviously people are not willing to be as tough as they sound."

He added that the imposition of the shorter ban disadvantaged clean athletes, saying: "They don't want to be lining up against people who cheat. They get a two-year penalty and, quick as a flash, they're back again."

Earlier this month, McQuaid revealed that the UCI would be pressing for four-year bans in cases of “pre-meditated” cheating and that the sport’s world governing body would be urging national federations to do likewise.

“I'm increasingly going for four years because two years is very quick," said McQuaid. "An athlete returns to the peleton very quick. I think it's unfair to the clean athletes that guys who have cheated in premeditated cheating can come back so quickly."

"At least cycling has made the statement that we're serious about getting rid of dopers," he added.

That push towards longer bans now seems to be gaining increased traction across the sporting world. Arne Ljungqvist, who heads anti-doping efforts at the International Olympic Committee (IOC) and is a vice president of WADA, also says that four-year bans aren’t being used as much as they should.

"No one has been doing it, so we are waiting for a suitable test case," he explained.

"So far people are still living with the idea that two years is the standard ban, which should not be the case in serious cases like EPO and steroids and the like. We will take action once we have a good case to pursue."

Opposition to such a lengthy ban is partly explained by the prospect of lengthy court cases from banned athletes who may argue that such a punishment is in effect a restraint of trade.

One sports lawyer who specialises in doping law, Mike Morgan of the London-based law firm Hammonds, rated “second to none on doping cases” in the 2010 edition of the Legal 500, told Associated Press that “a four-year ban is effectively a life ban in most sports."

"It is a very big step to take to impose that,” he added. “The day we start seeing four-year bans, it has to be justified. They really have to back it with some robust arguments and evidence."

Four years used to be the standard term for doping bans, but was reduced to two years due to fears that they weren’t enforceable at law and that the punishment was too harsh.

From 1 January 2009, however, under Article 10.6 of the World Anti-doping Code (WADC), it has been reintroduced in cases where there are “aggravating” factors in play.

Those are defined in the commentary to Article 10.6 as:

  • the athlete or other person committed the anti-doping rule violation as part of a doping plan or scheme, either individually or involving a conspiracy or a common enterprise to commit anti-doping rule violations;
  • the athlete or other person used or possessed multiple prohibited substances or prohibited methods or used or possessed a prohibited substance or prohibited method on multiple occasions;
  • a normal individual would be likely to enjoy the performance-enhancing effects or the anti-doping rule violation(s) beyond the otherwise applicable period of ineligibility;
  • the athlete or person engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation.

One case related to cycling that has seen a four-year ban imposed is related to the Austrian former cyclist, Bernard Kohl. In June this year, Austria’s anti-doping agency banned triathlete Hannes Hempel for four years for supplying performance enhancing substances to Kohl.

Few sports, however, impose such a lengthy ban, one exception being weightlifting, whose governing body the International Weightlifting Federation (IWC) was forced to act in 2008 after it risked being dropped from the Olympics due to the extent of doping within the sport.

Monika Ungar, legal counsel for the IWF, told Associated Press that the governing body “did not want everyone's first reaction to weightlifting to be about doping and cheating. We wanted to show that this is a sport and not something dirty which everyone looks at with a crooked eye.

"When we made the change, we received warm congratulations from others, but no one followed our lead," she added.

According to Howman, one problem is that there is not universal agreement on the definition of "aggravating circumstances."

"It's probably one of the reasons that people shy away from it," he explained. "What makes it worse than an EPO case? Or is an intentional EPO case aggravated? That's the balance and I don't think that's been found and it will take cases to find it."

However, he believes that the time is ripe for talking to stop and action to be taken. "I'd just like to see people get off the starting blocks," he maintained. "Otherwise we're only two years into the changed code and it hasn't been used. When it gets reviewed again, people are going to say, 'What's it there for?"

Doubtless, if and when a cyclist is banned for four years, a legal challenge will ensue. For now, however, it has to be conceded that McQuaid and others have a point in saying that a two-year ban can be over all to quickly, particularly when it is backdated, as in the case of Alejandro Valverde, banned for two years in May but with the punishment running from the start of January, leaving him free to race again at the start of 2012.