WADA: The Death of Strict Liability?

Wow, astounding news. WADA is considering relaxing the strict liability rule for clenbuterol, a prohibited substance, anabolic steroid, and bronchodilator that has been abused among professional cyclists to increase performance for years. The pretext for relaxing the rule comes under the auspices of accidental ingestion by athletes of the drug through contaminated meat products. According to the British Broadcasting System Radio large quantities of clenbuterol are used in China and Mexico to induce lean muscle mass among cattle destined for slaughter.

Wonderful. WADA has finally admitted that the draconian, unreasonable strict liability ethos of mere presence of a prohibited substance detected in an athlete constitutes a grounds for criminal culpability and a grounds for punishment; regardless of intent. For years WADA has treated athletes who by accident came into contact with a prohibited substances through ignorance, or by chance, or through the carelessness of pharmaceutical companies, or because of changes in chemical formulations; the same way as they they treated athletes who used prohibited substances to gain an unfair advantage. Even in cases where it was clear that the athlete was not to blame; WADA still exacted a year long suspension.

This farce has always been considered as an unfair judicial process that dehumanizes the athlete, subjects the athlete to prolonged media attacks, introduces into the process unfair characterizations and innuendos, and jeopardizes future career opportunities. Also, the concept of strict liability exacts an outrageously large and prolonged financial burden on the athlete in legal expenses, a financial burden that is not equally shared by the anti-doping authorities who are publicly financed. Cases that are complex in nature may require complicated arbitration rulings, additional testing, discovery challenges, appeals: all the while the athlete is expected to live in limbo as to the final resolution of his or her case. Certain cases have had litigation costs into the millions of dollars, and have taken over to two years to resolve.

It is commendable that the WADA executive committee should consider allowing for a possible extenuation in the case of accidental exposure to clenbuterol; but why not expand the same reasoning to include all substances on the prohibited list? It is as likely to be accidentally exposed to one drug as another; and in the interests of harmony all accidental exposure should be treated in an equal fashion.

However, there is the danger that in reducing the criteria of strict liability for prohibited drugs detected, to a new standard of drugs detected explained away by an argument of accidental exposure; that this relaxation in policy will encourage recreant behavior by athletes, team doctors, professional medical consultants, or coaches, who may encourage the use of micro dosing techniques; in effect, rolling the dice in the hope of foiling the current doping detection methods with an obvious intent to gain an unfair advantage over the competition. And, as in the case of clenbuterol, once the genie is out of the bottle, it is most convenient to explain to the anti-doping federation that the meat was most unfortunately imported from China, and shipped to the dinner table in a hermetically sealed blood transfusion bag. A preposterous story of this nature attempts not only to justify the presence of a drug, but even better, the unusually high level of plastic residues found in blood and urine tests of this hypothetical athlete. And, of course, this fable explains away everything in a most convenient fashion. If this fable is successful in eliciting an exoneration by the anti-doping agency responsible for case management of the athlete, instead of a suspension for the athlete, this will encourage fables of a similar origin. Fabricated excuses will be invented ever and anon every time a doping strategy is detected by the laboratories.

Catch-22, damned if you do, damned if you don't. There are perils in both arguments. But the reform of the WADA code has taken much too long to evolve.