The Australian and New Zealand Sports Law Journal 2023: Vol 16

ARTICLES

Collateral Damage in the War on Doping: Athletes’ Human Rights
Jones, Millie

Clean sport and fair play are laudable pursuits of the World Anti-Doping Agency and national integrity organisations alike. Accordingly, most athletes are willing to sacrifice some personal liberties to the overarching anti-doping regime in order to maintain an equal playing field in their respective sport. However, with their livelihood, wellbeing and reputation at stake, athletes are contractually bound to a system which provides limited protection for their rights. This article conducts a proportionality analysis between the pursuit of clean sport and athletes’ rights when viewed in light of the strict liability principle, mandatory punishment and a lack of other procedural safeguards.

The World Anti-Doping Agency’s Ten Year Limitation Period: Concerns for Athlete Fairness and Human Rights
Sharkey, Laura

Recently, the high profile cases of swimmers Shayna Jack and Brenton Rickard have demonstrated the harshness of the World Anti-Doping Code on athletes who have inadvertently doped. The introduction of a contaminated product category in 2015 and the May 2021 decision to introduce minimum reporting levels for select banned diuretics are recent attempts to incorporate flexibility for inadvertent doping. However, Article 17 of the Code allows the World Anti-Doping Agency (‘WADA’) to retrospectively re-analyse samples using improved testing techniques for up to 10 years after the sample was collected. The rationale behind this provision is to allow time for the science to catch up with those who dishonestly create new and undetectable performance enhancing substances. However, for those who have inadvertently doped, the re-analysis viii Australian and New Zealand Sports Law Journal 2023 16(1) period means that today’s ultra-sensitive tests can detect miniscule traces of substances that earlier pharmaceutical packaging did not identify. Further, it means that evidence is often destroyed or no longer available to defend the doping charges. This article will argue that the re-analysis period is contrary to international standards of fairness and human rights which WADA and the International Olympic Committee preach.

Reputations on the Line: Defamation Risks for Sports Organisations in Disciplinary Investigations, Hearings and Decisions
Olsen, Marina

Sports disciplinary investigations, hearings and decisions by their nature involve allegations of disreputable conduct, with varying degrees of seriousness. Anything said or written by a participant in a disciplinary process that is likely to cause serious damage to a person’s reputation, whether by lowering their reputation in the eyes of an ordinary person, bringing them into hatred or ridicule, or causing people to shun or avoid them, is defamatory. The risk of a defamatory publication being made in the sports disciplinary context starts where the process starts: at the complaint stage. It remains throughout: as an informal complaint is formalised, through the investigation, during the hearing, in the publication of a decision and then in the period after the decision is made public and media coverage ensues. However, even if each of the elements of defamation is made out, a defendant (which in this context might include a sports body, a complainant or a media organisation) has available to them a range of defences to protect their conduct.

Enlisting Cultural Change in the Battle Against Corruption in Sport
Mills, Marie

Corruption pervades all parts of society where money, power and influence are currency. It has taken on new dimensions with the emergence of sport as big business, and the social and economic stakes are extraordinarily high. Despite a raft of measures focused on legislation, regulation, technology, enforcement, international cooperation and information sharing, structure and governance, and increased education and training, there has been a significant increase in corruption over the past two decades. While the traditional methods are critically important in fighting corruption, there is another powerful and underutilised tool – cultural transformation.

Awareness raising and education are not enough, particularly when current programs are often specifically targeted at narrow audiences (usually elite athletes) and focus on learning about the rules, compliance, whistleblowing, and governance and managerial measures. Sport needs to re-set (or establish) a strong moral compass – and harness not just the sporting community – athletes, organisations, clubs, administrators, governments, sponsors, legal gamblers – but its legions of fans and everyone in the community who has a sense of fair play. Cultural change campaigns can help sport set and nurture a culture of integrity – and there are numerous lessons and inspirations to be taken from
modern popular best practice.

Effective cultural change programs would target ‘hearts and minds’ and help create an environment where the highest levels of integrity are the norm; what constitutes misconduct and corruption is clear, and instinctive as well as prescribed; corruption is more readily exposed and reported; and there is a strong foundation for anticorruption measures. Cultural change is not a silver bullet, but a positive part of the armoury.

THE HAYDEN OPIE KEYNOTE ADDRESS, 2023 ANZSLA ANNUAL CONFERENCE
Seven Step Analysis of Planning and Running an Investigation
McLaren, Richard