Volume: 16 Issue: 3
The UK’s Digital, Culture, Media and Sport Committee (‘DCMS Committee’) published its report ‘Combatting doping in sport’ on 5 March 2018, which has found amongst other things “acute failures in several different organisations in athletics and cycling” in relation to anti-doping, that the Therapeutic Use Exemptions (‘TUE’) system is open to abuse, and that subjecting doping athletes to criminal procedures and penalties would not be effective. The DCMS Committee requests that the bodies identified pay serious attention to the recommendations set out in the Report to ensure that the same failures are not allowed to happen again.
Under the section ‘British Cycling and Team Sky,’ the DCMS Committee states that following analysis of the evidence received by the DCMS Committee it believes that during its period of investigation, and particularly in 2012, Team Sky used triamcinolone to prepare Bradley Wiggins, and possibly other riders supporting him, for the Tour de France. The Report goes on to state that the purpose of such drug use, despite the application for a TUE, was not to treat medical need, but to improve his power to weight ratio ahead of the race. The DCMS Committee noted that the triamcinolone TUE application for Bradley Wiggins, ahead of the 2012 Tour de France, also meant that he benefited from the performance enhancing properties of this drug during the race itself, and that such use, whilst it does not constitute a violation of the WADA Code, does however cross the ethical line that David Brailsford, the General Manager of Team Sky, says he himself drew for Team Sky. “In this case, and contrary to the testimony of David Brailsford in front of the Committee, we believe that drugs were being used by Team Sky, within the WADA rules, to enhance the performance of riders, and not just to treat medical need,” states the Report.
David Seligman, Associate at Brandsmiths, is concerned about the suggestion that there is an ‘ethical line,’ which does not constitute a violation of the rules. “You have either broken the rules or you haven’t,” comments Seligman. “There should be no wiggle room whatsoever. Uncertainty breeds dishonesty. A rule change would be welcomed and would appear essential.” In response to the Report’s findings, Team Sky issued a statement on 5 March 2018 strongly refuting the claims that medication was used by Team Sky to enhance performance, as made by the DCMS Committee in the Report. “The report also includes an allegation of widespread triamcinolone use by Team Sky riders ahead of the 2012 Tour de France. Again, we strongly refute this allegation. We are surprised and disappointed that the [DCMS] Committee has chosen to present an anonymous and potentially malicious claim in this way, without presenting any evidence or giving us an opportunity to respond,” states Team Sky.
The DCMS Committee concludes that it is clear from the evidence considered that the TUE system is open to abuse. “It is inevitable that the TUE regime will have to be re-assessed,” states Antonio Rigozzi, Partner at Lévy Kaufmann-Kohler. “While it is difficult to find the right balance between a legitimate health condition and risk of abuse, I think that WADA should have sufficient statistical data to conduct such a re-assessment. Information gathered by the DCMS Committee should also be considered in this context taking into account that it concerns one single rider and team.” In addition to this, Michiel van Dijk, Partner at CMS, believes that a complete ban on corticosteroids, a class of primarily synthetic steroids used as anti-inflammatory and antipruritic agents which includes triamcinolone, could be a good idea. “It is very hard to prove if corticosteroids are used for medical reasons or mostly for performance enhancing reasons. I agree with the suggestion of the DCMS Committee that if an athlete is so ill that they can only compete by using a drug that is on the doping list, they should not compete at all,” adds van Dijk. “There has to be a complete and objective assessment of the TUE rules as they are at this moment. If this evaluation leads to the conclusion that there are no options to close or at least improve the system to counteract abuse, then the next step will be the abolishment of TUEs.”
The DCMS Committee also investigated the prevalence of doping within athletics, which included looking into the investigations carried out by The Sunday Times and German Broadcaster ARD, and WADA’s investigations into doping in Russia. The Report lists the failure of the International Association of Athletics Federations (‘IAAF’) to share information regarding “suspicious” blood tests held in its database of tests taken from 2001-2012 with national anti-doping agencies as a matter of “deep concern,” questioning the IAAF’s commitment to fully investigate difficult issues when they arise. The Report also identifies concerns relating to the IAAF in relation to the Russian doping scandal, stating that Lord Sebastian Coe, President of the IAAF, was “misleading” in his statements before the DCMS Committee in December 2015 that he had no knowledge of allegations of doping in Russian athletics, and that whilst he may not have read an email sent to him by David Bedford, who had sought to inform Lord Coe about the allegations of corruption, “it is certainly disappointing that Lord Coe did not take the opportunity […] to make sure he was fully informed of the serious issues at stake.”
In the final section of the Report the DCMS Committee addresses the debate about resources and enforcement powers of anti-doping authorities, and the possibility of subjecting athletes that dope to criminal procedures and penalties. The Report states that the DCMS Committee does not think it would be effective to subject doping athletes to criminal penalties and that longer bans on competing are likely to be more of a disincentive for athletes. The Report recommends that the Government seriously consider criminalising the supply of drugs to sportspeople. “I am not convinced by the criminalisation of doping as far as the athletes are concerned,” concludes Rigozzi. “There is no indication that in the countries like Italy, that have adopted such criminalisation, that anti-doping has significantly improved. I do not think longer bans are part of the solution either - quite apart from the issue of whether they would withstand legal scrutiny, there is no evidence that the increase of the base sanction from two to four years has had any impact on the prevalence of doping.”