In September 2015, the Department of Culture Media and Sport Committee’s (“Committee”) launched an inquiry into Combatting Doping in Sport Inquiry (“Inquiry”).  This post looks at the origins of the Inquiry, its scope and finishes by looking at its powers and asking whether they are sufficient.

Origin

Not even the most loyal fan could deny that Sport has had many doping scandals: Balco (athletics and baseball), Festina (cycling), Armstrong (cycling) and Operation Puerto (cycling) to name just a few.

Doping in sport is a divisive topic. Some claim the war on drugs in sport is lost; others claim drugs should be legalised; some claim doping should be criminalised.

Regardless of where you previously fell down on the argument, in December 2014 German broadcaster ARD/WDR published a documentary produced by investigative journalist, Hajo Seppelt, that, in this author’s opinion, severely challenged the assumptions on which current anti-doping strategies and public confidence in the integrity of sport were based.  The documentary, ‘Top Secret Doping: How Russia makes its Winners’, was made possible as a result of inside information leaked by former Russian 800m runner Yulia Stepanova (nee Rusanova) and her husband Vitaly Stepanov (a former employee of the Russian Anti-Doping Agency); it alleged that up to 99% of Russian athletes were guilty of doping.  In essence, it showed that mass doping programmes, such as those seen in East Germany during the 1970s, were still possible under the harmonised anti-doping code administered and enforced by the World Anti-Doping Agency (WADA).

Seppelt’s work was to be the catalyst for a series of incredible yet terrible doping revelations across a wide spectrum of sports. It was the sporting equivalent of the revelation during the global financial crisis that sub-prime mortgages packaged together and traded as credit default obligations (bearing an inflated rating) were, in fact, worthless.

The revelations, scandals and cover-ups seemed, at times, to be never ending. As a result, it was almost impossible to keep pace with the twists and turns of a doping saga that encompassed far more sports, athletes, nations and governing bodies than even the most sceptical commentator might have predicted.  A few ‘stand out’ milestones:

1. 2 August 2015 – The Sunday Times published a number of articles concerning blood doping in athletics and, in particular, concerning a secret database of blood testing results stored at the Monaco headquarters of the International Association of Athletics Federation (IAAF). A whistle-blower had leaked the contents of the database to ARD/WDR giving the Sunday Times and ARD/WDR access to the results of 12,000 blood tests from 5,000 athletes between 2001 and 2012;

2. 9 November 2015 – Professor Richard H. McLaren publishes his first report into doping in athletics. Amongst other things, the report accuses Russia of ‘state sponsored doping’. Russia is provisionally suspended as a member of the IAAF;

3. 8 March 2016 – Maris Sharapova, the global tennis superstar, admits to failing a drugs test for repeatedly taking Meldonium over a 10 year period. Meldonium was added to WADA’s banned substance from 1 January 2016. Sharapova is banned by the ITF for 24 months, later reduced to 15 by the CAS, and will be eligible to play again on 25 April 2017. As a result of a number of athletes failing doping tests for Meldonium that they claimed was taken prior to 1 January 2016, WADA later publishes updated guidance that asserts that cases with low concentrations of the drug are compatible with a ‘no fault finding’;

4. 16 June 2016 – WADA publishes its own report that provides details of the evasive and extensive actions Russian athletes took to avoid doping control officers;

5. 24 July 2016 (12 days prior to the start of the Rio 2016 Olympic Games) – the IOC took a complex decision not to accept the entry of any Russian athlete into the Games unless he or she fulfilled certain criteria but left the assessment of such eligibility to be carried out by the International Federations. Following criticism of that decision from a variety of sources, notably WADA, eligibility to compete was ultimately decided by a three-person IOC panel on 4 August 2016 (one day prior to the start of the Games);

6. 7 August 2016 – the IPC took the decision to suspend the Russian Paralympic Committee, a decision upheld by the CAS on 23 August 2017;

7. 15 September 2016 – Russian hackers leaked details of WADA’s Therapeutic Exemption (TUE) lists naming GB cyclists, Team Sky compatriots and former Tour de France champions Chris Froome and Bradley Wiggins. Bradley Wiggins’ reputation subsequently came under attack after it was revealed that he required TUEs on three occasions between 2011 and 2013, and in each case, the substance in question was taken prior to his major race for that season;

8. 2 December 2016 – Lord Coe, deputy President of IAAF from 2007 to August 2015 (following which time he was elected President), is questioned by the DCMS Committee as to his knowledge of extent of the doping crisis in athletics;

9. 9 December 2016 – Richard H. McLaren publishes his second report into doping in Russia and confirmed ‘institutionalised manipulation of doping control processes’ and revealed that more than 1,000 Russian athletes were involved in a ‘doping conspiracy’ across 30 sports; and

10. 31 January 2017 – one of Lord Coe’s allies, Nick Davies, of the IAAF is sacked after he allegedly lied to investigators regarding receipt of a $30,000 payment from Papa Massata Diack. Lord Coe releases an email saying he had been ‘made aware’ of the allegations made by Liliya Shobukhova against Russia four months prior to anyone else.

Given the involvement of British representatives in the allegations concerning the IAAF and British cycling, the Committee was tasked to investigate and report upon combatting doping in sport.

Scope

The Committee’s role is to:

“…monitors [sic] the policy, administration and expenditure of the Department for Culture, Media and Sport and its associated bodies, including the BBC, on behalf of the House of Commons and the electorate. It also conducts inquiries into areas of current interest within its remit…”

The scope of the Inquiry is:

“In August the Sunday Times published a series of articles commenting on a database of test results from athletes taken between 2001 and 2012, which its experts argued showed abnormal results for a number of endurance runners.

The Committee explores the allegations (which have been strenuously rebutted by the International Association of Athletics Federations) that the IAAF failed to follow up test results from some prominent athletes which[sic] raised suspicions that blood doping had occurred.”

As at 30 January 2017, the DCMS Committee had heard from, amongst others:

• Sir Craig Reedie, the President of WADA and Olivier Nigglli, WADA’s Director General;

• David Bedford OBE, former Olympic athlete;

• Robert Howden OBE, Dr George Gilbert, Shane Sutton and Sir David Brailsford of British Cycling;

• Dan Stevens, a whistle-blower and Jonathan Calvert, Sunday Times Insight team;

• Ed Warner and Nicole Sapstead, the Chairman and CEO of UK Anti-Doping;

• Lord Coe, IAAF President;

• Nicole Cooke MBE (in writing); and

• British Cycling (in writing).

The DCMS attendees form an impressive list of the ‘who’s who’ in British sport today. Many have been involved in the golden era of British Olympic success that we, the public, have revelled in.

Powers

The Committee: (i) has no power to compel persons to attend; and (ii) while it is set up to scrutinise actions and hold decision makers to account, it is not a court of law.   Importantly, it has no power to sanction those that come before it; it is limited to producing a report of its recommendations.

With ever increasing amounts of public money being invested in British sports organisations leaders, is it time to have an overarching UK sports regulatory body? The banking, legal and medical industries each have at least one regulatory body that is capable of taking action against its members.

While arguably such a body would be a welcome addition to the British sporting landscape, its purpose and existence would be difficult to reconcile with the IOC’s fiercely protected principle of the autonomy of sport. Nations that breach the principle run a real risk of being suspended by the IOC.

As a result, perhaps a preferable approach is to promote, protect and develop the work that the Committee is carrying out. If those that appear before the Committee are committed to anti-doping and to rebuilding the image of British sport then the Inquiry will likely extract some key information; if that person chooses not to cooperate, the Committee will have limited ability to act. By its very nature, the Committee’s effectiveness is dictated by the participant’s willingness to cooperate.