THE TORTIOUS LIABILITY OF DOPING

SUBMITTED BY: SUBMITTED TO:

SARANSH KHANDELWAL MR. ROHAN C.
THOMAS

Roll no.: 1819, Faculty of Law of Torts

Semester-2, BA.LLB(Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

Winter Session
(JANUARY-MAY 2020)

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 SYNOPSIS

Research topic - Elucidation on Doping in sports as a tort and the repercussions

faced and improvement in present measures to curtail the same.

Research Methodology - Doctrinal Method or Qualitative Method

Research Objective - The objective of the research is to conduct a study into the causes and
adverse effects of the doping in sports, the flaws present in doping test and suggest steps to curb
the same.

Abstract - Firstly, we set out to answer the question of what Doping is and the body which keeps
a check on this with the help of doping test and the contemporary need to elaborate upon the
same. Discuss a brief history of usage of steroids in sports, reasons for the increase and the
repercussions that athletes face after failing the test. Also analyze if the present repercussions are
barring the use of steroids or if there is need of stricter policy. The paper also analyses that how
the flaws in doping test leads to innocent players paying the price and getting their career
destroyed. Steps to curtail doping and also steps for making the doping test trustworthy have
been suggested after extensive research into the same

Limitations - Due to the following of a doctrinal method, first-hand information is lacking.

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 ACKNOWLEDGEMENT

On the completion of this project, I, Saransh Khandelwal take the opportunity of thanking the
people who contributed in the completion of it, without whose aid, contribution and help this
project wouldn’t have seen practicability.
First, I extend my heartfelt gratitude to, my mentor and Professor of Law of Torts, Mr. Rohan C.
Thomas, Faculty of Law of Torts, whose continuous guidance and support provided me with the
much-needed impetus and gave me a better insight into the topic. I am grateful to the IT Staff for
providing all necessary facilities for carrying out this work. I thank all members of the Library
Staff for providing me the assistance anytime needed.
I also thank my friends and batch mates for providing me the much-needed aid whenever needed.

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 TABLE OF CONTENTS

SYNOPSIS......................................................................................................................................2

ACKNOWLEDGEMENT...............................................................................................................3

INTRODUCTION...........................................................................................................................5

WHO DETECTS DOPING &HOW...............................................................................................7

DOPING - A TWO FACED COIN.................................................................................................9

SOME DOPING CASES IN SPORTS..........................................................................................11

CRITICISM...................................................................................................................................13

CONCLUSION..............................................................................................................................16

BIBLIOGRAPHY..........................................................................................................................17

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 INTRODUCTION

Sports are an integral part of our lives as it teaches us the values of competition, team work,
sportsmanship & leadership in our lives. It is one of the best sources of entertainment not only
for the one who plays it but also the one who watch it as audience. But as the number of sports
played are increasing number of complications related to it are increasing too. The various things
that are at stake in these sports like respect, of not only the players but the team, coach,
management and all those related to the team, the colossal amount of money that is put on stake
in these sports in various forms like winning prize, money put on betting and others, winning has
become all the way more important. By whatever means as much illegal or unethical it may be
what they just want is finishing on top. Most of the times they choose the path of using
performance enhancing drugs are substances used to improve performance. They usually work
by causing the body to build more muscles or increasing the stamina. 

The substances that athletes use to dope are:

Androgens and anabolic steroids: These drugs are designed to behave like testosterone and
dihydrotestosterone, and lead to increased muscle growth and quicker recovery times, but also
kidney damage, aggression and low sperm count in    
Stimulants: These can help athletes overcome fatigue, and make them more alert, but are also
addictive and can lead to heart problems.

Diuretics: These force liquid out of the body and can be used to prevent detection of banned
substances or help athletes lose weight – useful for fighters who want to squeeze into a certain
weight category, for example.

Painkillers: Certain painkillers such as codeine are allowed, but stronger sedatives, such as
morphine and oxycodone – which can be used to mask painful injuries – are banned.
These are just a few of the substances banned under doping rules, but the full list encompasses
everything from beta-blockers to insulin.

Blood doping: This can involve a number of different methods, from transfusions to the use of
Erythropoietin (EPO), but it mainly involves increasing red blood cell mass, which lets the body

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transport more oxygen. This can increase stamina and performance, but can also lead to kidney
and heart failure.

These gives rise to questions of regulating such behaviour of these sportspersons. How should
the questions of doping and using banned substances be addressed from a legal perspective?
What are the bodies at the international and domestic sphere to address these issues? The
principle of strict liability and its application to these above-mentioned questions.

The author in this research paper will analyze the problems that occur during the process of
doping & will suggest changes to pave way for a balanced approach for dealing with this
offence. In the end will provide critique to procedure followed in doping

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 WHO DETECTS DOPING &HOW

The use of performance-enhancing substances in sports is not merely a recent

phenomenon.However, the present regime for doping control in the international arena, finds its
roots in the modern Olympic movement. The International Olympic Committee took the
initiative and convened the First World Conference on Doping in Sport in February 1999,
concluding in the establishment of the World Anti-Doping Agency (the "WADA") on 10th
November, 1999.

World Anti-Doping Agency:

Its key activities include scientific research, education, development of anti-doping capacities
and monitoring of the World Anti-Doping Agency Code (WADC) a document which seeks to
harmonize regulations regarding anti-doping in sports, scientific research concerning doping,
education and training of athletes, keeping track of developing technologies in sports to suggest
revisions to the code, updating the list of prohibited substances in sports.1

The WADC Code has set 10 Anti-Doping Rule Violations (ADRV). Violation of one or more of
these rules entertains investigation:

1. Presence of a prohibited substance in an athlete’s sample

2. Use or attempted use of a prohibited substance or method

3. Refusing to submit to sample collection after being notified

4. Failure to file athlete whereabouts information & missed tests

5. Tampering with any part of the doping control process

6. Possession of a prohibited substance or method

7. Trafficking a prohibited substance or method

8. Administering or attempting to administer a prohibited substance or method to an athlete

9. Complicity in an ADRV

1
Vidya Narayanaswamy Et. Al., Regulating doping in sports, THE SPORTS LAW & POLICY CENTRE, (2ND JULY
2011).

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10. Prohibited association with sanctioned Athlete Support Personnel

A participant, which includes not only the athlete but his support personnel as well, when
agreeing to participate in any international or national event of a body affiliated to the WADA,
undertakes to conform to the norms of 22 WADA, and submits to testing conducted by it. Anti-
doping provisions and rules have now become mandatory in the athlete participation forms and
the rules of membership for the various sports governing bodies. Participants under the code are
obliged to adopt and implement policies and rules against doping that conform to the Code, and
assure that all members also fulfill the same.

 National Anti-Doping Agency of India

The Government of India set up the National Anti-Doping Agency of India (the "NADA") as a
registered society on 24th November, 2005. NADA is the national organization responsible for
promoting, coordinating, and monitoring the doping control program in sports in all its forms in
India. NADA accepted a revised version of the WADC on 7th March, 2008 and framed the Anti-
Doping Rules of NADA in conformity with the WADC.

Anti-Doping Rules of NADA2: Unfortunately, these Anti-Doping Rules were adopted by NADA
in verbatim without taking into consideration the realities on the ground in India. The Anti-
Doping Rules place a strict responsibility on athletes to be aware of what substances enter their
body. However, in India, most athletes are not educated to the same level as in foreign countries
and lack adequate access to resources which would enable them to identify the ingredients of
what they consume. When athletes attend and reside at training camps for several months in a
year, the camps are responsible for their food and supplements and the athletes cannot be
expected to monitor or refuse the food being provided to them in these camps or by their
coaches.

2
The Anti Doping Rules, NATIONAL ANTI DOPING AGENCY INDIA , 2015.

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 DOPING - A TWO FACED COIN

Doping is mainly done with the intent to cheat and to have an edge over the others. But in a
country like India, where a majority of athletes come from rural backgrounds & are not literate
enough to know about consequences of intake of some products, the issue of lack of awareness is
pretty evident. The doping infringements that take place in India are largely due to lack of
knowledge of banned products & substances, unlike that in western countries. One of the most
common reasons that athletes give before the Anti-Doping disciplinary panels are that they are
unaware of the rules and the substances prohibited under the rules

Most ordinary medicines for curing illness for common pains contain banned substances. Even
the daily used products contain banned substances. In National Anti-Doping Agency v. Jyotsna
Pansare3, a banned substance entered into bodyof athlete due to the use of a beauty product that
contained geranium oil, hence, being an adverse analytical finding. While the sentence in the
case was reduced, it was evident that an athlete getting the best of training does not have
knowledge of the list of banned substances

Also, in the case of Manjeet Singh v. NADA4 the athlete was referred by Sports Authority of
India to the doctors specializing in sports medicine. However, the doctors prescribed him the
medicinecontaining the prohibited substance. Therefore, assurance that prohibited substance do
not enter into the body of an athlete at every instance, cannot be prohibited

It is also to be noted that many players are not fluent with English nor can understand it properly.
Indeed, in many of the cases the athletes pleaded that unknowingly committed the violation due
to lack of knowledge which led to the violation. 5 What happens next is that they are unaware
about how to further proceed to contest cases in front of disciplinary panels. Due to the fear of
harsh punishment and losing their career, they are compelled to forfeit their right of fair hearing

Doping is normally detected via urine tests, using mass spectrometry. This involves ionising the
particles and analysing the arrangement of masses in a sample. If this matches with a known
steroid or other illegal substance, then it can be flagged as doping. For EPO and other blood
doping cases, blood samples are taken and analysed.In 2009, WADA introduced biological
3
National Anti-Doping Agency v. Jyotsna Pansare, Appeal No. 13. ADAP.2012.
4
Manjeet Singh v. NADA, ADAP.12.2012
5
NADA v. Reena Bittan, Appeal No. ADAP/01/2012.

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passport, to help catch otherwise undetectable doping methods such as blood transfusions. This
involves monitoring the effects of the doping, rather than the substance itself. Certain stats about
an athlete are recorded over time, and if there is a drastic change then authorities are alerted. This
method has had its critics, with some claiming the system isn’t effective at detecting micro-
dosing of illegal substances.

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 SOME DOPING CASES IN SPORTS

Johnson v Athletics Canada and IAAF6: The plaintiff, Benjamin Johnson, was banned for two
years in 1988 at the Olympic Games in Seoul. He was then reinstated and participated in various
competitions. In 1993 he competed in an event in Montreal and was tested after the race. The
sample tested positive & he was therefore banned for life.

Ban of Russia’s Olympic Team7:Russia’s Olympic team was recently banned from the 2018
Winter Olympics in PyeongChang, South Korea following International Olympic
Committee ruling. The ruling came as the result of a prolonged investigation into the “systemic
manipulation of the anti-doping system in Russia”, and was the IOC’s most severe action yet to
punish Russia for state-sanctioned doping; something the organization called an “unprecedented
attack on the integrity of the Olympic Games and sport”.

Six Indian Gold Medalists InThe Commonwealth Games Were Accused For Doping 8:
Tested positive for the presence of anabolic steroids in their urine samples taken both in and out
of competition. It was not disputed that their coach provided the Ginseng pills to them. Anti-
Doping Disciplinary Panel held that the athletes bore "no significant fault or negligence" and
issued a reprimand and suspension for a period of one year from the date of the positive test.
Later in the appeal the CAS, under the Anti-Doping Rules of the IAF and the WADC read with
the NADA Anti-Doping Rules, held that the athletes were at fault and issued the full sanction of
two years' ineligibility for four of the athletes.

Lance Armstrong9: The Tour de France cyclist won the race seven years in a row - but had
those victories stripped from him after it was found he had been taking drugs to help his
performance during this time. He also received a lifetime ban from competing in all sports which
follow the Word Anti-Doping code.
Justin Gatlin10: The American sprinter, who won the 100 and 200m at Helsinki in 2005, was

6
Johnson v Athletics Canada and IAAF, (1997) O.J. No. 3201, para 29.
7
Winter Olympics: Ban on 47 Russian athletes and coaches upheld, BBC NEWS, (9TH FEB 2018).
8
Solomon & Co, Anti-Doping Regulations in India, MONDAQ connection knowledge and people, 29 August 2017
9
Jacque Wilson Et. Al., Lance Amstrongs’s doping drugs, CNN HEALTH, (18TH JAN 2013).
10
Claire Newell, Justin Gatlin embroiled in new doping scandal, THE TELEGRAPH, (19 DEC. 2017).

11
banned for 4 years after he had been tested positive for testosterone.He previously had been
given a one-year ban for testing positive for amphetamines.

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 CRITICISM

a) Inadvertent Occurrences
Critics of the application of the principle of strict liability to cases of doping argue that a
presumption that the liability is of the athlete only could lead to unfair results for the
athletes,wherein the athletes were subject to inadvertent doping and had no intention to
increase or enhance their performance. Therefore, a positive result may not highlight the
fault of the athlete. Instances where such a scenario could occur include acting on the
advice of the team doctor, an error made by the prescription dispenser or a pharmacist, a
reasonable belief that the item in question was in fact not prohibited, and in extreme
cases, athletes could become easy targets for being ‘set up’, meaning that interested
parties could spike the food or drinks of the athlete, leading to inadvertent consumption
without any knowledge. Thus, such a principle makes it easy for the athletes to become
sitting ducks, targets for third parties, who could plant one instance of a prohibited
substance to tarnish the record, pasts and future of an athlete.11
b) Procedural Issues
The idea of due process is absent in anti-doping hearings where procedural rights are not
respected and are without the real consent of working athletes. 12 Working athletes will
lose their livelihood if they do not consent to anti-doping rules and therefore, the consent
is ‘non-voluntary’. Likewise, the consequence for working athletes of imposed sanctions
and public shaming can be a loss of their livelihood. In its quest for reducing doping
tendencies among athletes, such a regime qualifies as an unreasonable restraint on trade
for earning a livelihood, besides being an invasion of their rights of privacy. 13There are
few appeals an athlete can make to a domestic authority, so the checks on doping

11
Annelize du Pisani, A contractual perspective on the strict liability principle in the World
Anti-Doping Code, DE JURE, available at http://www.dejure.up.ac.za/index.php/volumes/46-
volume-4-2013/36-volumes/46-volume-4-2013/217-a-contractual-perspective-on-the-strictliability-
principle-in-the-world-anti-doping-code.
12
Gabrielle Kaufman-Kohler & Antonio Rigozzi, Legal Opinion on the Conformity of Article
10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes,
(Nov. 13, 2007), http://www.wada-ama.org/rtecontent/document/Legal_Opinion_
Conformity_10_6_complete_document.pdf.
13
JAN WILLEM SOEK, THE STRICT LIABILITY PRINCIPLE AND THE HUMAN RIGHTS OF ATHLETES
IN
DOPING CASES (2006).

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 Law remain with the international athletic organizations and challenges under
14
international law. Without tests that can actually detect doping, the strict liability
principle has no use. Conversely, unreliable tests that detect cheaters but produce false
positives will undermine the use of strict liability and weaken the current regulatory
system.
c) Impossible Standards
Of all the arguments against doping that have been put forward, the argument that the use
of doping substances endangers the user’s health is used the most. The majority of
international federations concentrate on safeguarding the mental and physical health of
athletes in their particular branches of sports. Recent scandals involving clenbuterol in
the foods in China and Mexico highlight the difficulties that athletes face in ensuring that
“no prohibited substances enter his or her body”. It is simply impossible to expect that
athletes are able to control every step of the food and pharmaceutical processing chain. 15
The use of dietary supplements by athletes is a concern because in most countries
manufacturing and labeling of supplements may not follow strict rules, which may lead to
circumstances where a supplement containing anundeclared substance that is prohibited
under anti-doping regulations. However, the WADA’s stand on supplements is clear –
taking poorly labeled dietary supplements is not an adequate defense in a doping hearing.
Athletes are required to be fully aware of the dangers of potential contamination of
supplements and of the significant effect of the principle of strict liability. Since the
WADA does not engage in the preparation of any commercial materials, the testing of
dietary or nutritional supplements is not conducted prior to its use by athletes.
d) Other criticisms
The strict liability principle has been criticized for ruining the careers of many athletes,
who were not necessarily maliciously involved in doping. The principle creates a power
imbalance between WADA and athletes, by automatically creating a negative
presumption upon the latter. An alternative suggested by Blumenthal seeks to shift the
burden from the athletes, by allowing pharmaceutical experts to testify in cases to clarify
the probability that a doping violation was committed with the intent to enhance the

14
Matthew Hard, Caught in the Net: Rights of Athletes and the World Anti-Doping Agency, 19
SOUTHERN CALIFORNIA INTERDISCIPLINARY LAW JOURNAL, 533 (2010).
15
Saul Friedman, Contador, Doping and Strict Liability, Sports Law e-Journal, art. 16 (2012).

14
 athlete’s performance.16 It is important to note that athlete support personnel, including
doctors, coaches and support staff, are also subjected to anti-doping policies and can be
sanctioned if they are involved in any anti-doping rule violation. Whenpractically
applied, it is not an adequate defense to state that the athlete placed complete trust in the
physician and/or coach.Further, medical personnel must be aware of their obligations
towards sportsmen and not use prohibited methods or substances merely for gaining
fitness or added advantage over other athletes.17 The Court of Arbitration for Sports has
recognized that this is a clear transportation of civil (tort) law concept of strict liability. 18
Authors have also held that the remedies by the private contractual law, even though
finding wide application in the doping law, are more likely than not ‘fall wide off the
mark’.19

16
Gabrielle Kaufman-Kohler & Antonio Rigozzi, Legal Opinion on the Conformity of Article
10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes,
(Nov. 13, 2007), http://www.wada-ama.org/rtecontent/document/Legal_Opinion_
Conformity_10_6_complete_document.pdf.
17
Torri Edwards v. IAAF, CAS/OG/003 (2004).
18
CAS Award Number 98/222 (1999-08-09).
19
JANWILLEM SOEK, THE STRICT LIABILITY PRINCIPLE AND THE HUMAN RIGHTS OF ATHLETES
IN
DOPING CASES 220 (2006).

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 CONCLUSION

The Anti Doping Rules of NADA states that if supplements consumed are contaminated and
restricted the fault is that of the Athlete. It is the reasonable duty of the Athlete to conduct
research before consuming any supplement even though it may be advised by his coach or
doctor. However, there is a lack of laboratories in India that carry out such specific tests on
supplements and if an athlete finds such a laboratory, the cost of carrying out the tests are high
which makes it unreasonable for an athlete to spend so much on the testing of supplements

Apart from modifying the NADA Anti-Doping Rules, other steps have to be taken by the NADA
to educate athletes about the dangers of doping. Athletes should be provided with safeguards
against their seniors and coaches. They should be made aware of doping substances and
methods. NADA should not only engage in deterrent measures by punishing athletes but should
also educate and empower them so that they can avoid doping in the first place. NADA should
be more of a body apprising athletes of the harmful effects of doping and the need to comply
with the norms, rather than discharging only the negative duty of punishing of the athlete.
Because in the end it is against the spirit of sports.

I’VE SEEN THE MAN USE THE NEEDLE, SEEN THE NEEDLE USE THE MAN, I’VE SEEN THEM CRAWL
FROM THE CRADLE TO THE GUTTER ON THEIR HANDS. THEY FIGHT A WAR BUT IT’S FATAL, IT’S SO
HARD TO UNDERSTAND.

It is also to be noted that giving only two years of ban in the first instance and than giving a
lifetime ban at next instance to an athlete found guilty of doping does not create a difference in
the mindset of the person instead when he returns from the ban he again turns towards same path
of using steroids for improving the performance which does not help in fighting war against
doping. So to solve this problem the ban that is given at the first instance should be increased
from two to four as it won’t be easy for returning after a gap of 4 years so the athlete will always
have a fear of losing his career.
For sports to exist as we know, ensuring vigilance remains paramount otherwise the modern day
sports industry will become a commercialized product, bereft of fairness, and competitive spirit
and strict liability will indeed play a vital role in that part.

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 BIBLIOGRAPHY

Cases

Johnson v Athletics Canada and IAAF, (1997) O.J. No. 3201, para 29........................................11
Manjeet Singh v. NADA, ADAP.12.2012......................................................................................9
NADA v. Reena Bittan, Appeal No. ADAP/01/2012.....................................................................9
National Anti-Doping Agency v. Jyotsna Pansare, Appeal No. 13. ADAP.2012...........................9
Torri Edwards v. IAAF, CAS/OG/003 (2004)..............................................................................15

Statutes

The Anti Doping Rules, NATIONAL ANTI DOPING AGENCY INDIA, 2015.......................................8

Other Authorities

CAS Award Number 98/222 (1999-08-09)...................................................................................15

News Paper Articles

Claire Newell, Justin Gatlin embroiled in new doping scandal, THE TELEGRAPH, (19 DEC.
2017)..........................................................................................................................................11
Winter Olympics: Ban on 47 Russian athletes and coaches upheld, BBC NEWS, (9TH FEB 2018).
...................................................................................................................................................11

Journals

Matthew Hard, Caught in the Net: Rights of Athletes and the World Anti-Doping Agency, 19....14
Saul Friedman, Contador, Doping and Strict Liability, Sports Law e-Journal, art. 16 (2012).....14

Articles

Annelize du Pisani, A contractual perspective on the strict liability principle in the World........13
Gabrielle Kaufman-Kohler & Antonio Rigozzi, Legal Opinion on the Conformity of Article.....15
JAN WILLEM SOEK, THE STRICT LIABILITY PRINCIPLE AND THE HUMAN RIGHTS
OF ATHLETES IN....................................................................................................................13
JANWILLEM SOEK, THE STRICT LIABILITY PRINCIPLE AND THE HUMAN RIGHTS
OF ATHLETES IN....................................................................................................................15

17
Solomon & Co, Anti-Doping Regulations in India, MONDAQ connection knowledge and
people, 29 August......................................................................................................................11
Vidya Narayanaswamy Et. Al., Regulating doping in sports, THE SPORTS LAW & POLICY
CENTRE, (2ND JULY 2011).............................................................................................................7

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