Imagine this: you are an elite athlete, you’ve just finished fourth in an Olympic track final, you’ve trained all your life to get here and now you’ve just missed out on a medal. The winning athletes are off on a lap of honour as the crowd goes wild, whilst you stand there on the track, alone. You find yourself wondering whether those who beat you have been secretly using banned performance enhancing substances and your mind moves to the hard training you will need to do for the next Olympics in four years’ time.
Arguably, with more and more allegations being made, the use of performance enhancing substances is widespread enough that many modern athletes may well consider the doping route: use them and risk a lengthy ban if caught, or stay clean and perhaps never win a medal that you might otherwise have won in a fair contest.
You may have seen the BBC’s Panorama investigation "Catch Me If You Can", which made allegations of unethical practice and perhaps doping in relation to the Nike Camp Oregon Project - allegations that are denied by all involved in the Project. From an anti-doping law perspective, there were two particularly topical aspects to the programme.
The first is the increased sanctions under the revised 2015 WADA Code, which came into force on 1 January of this year. A key change was to raise the usual sanction for the core doping offences from a two to a four year ban. If the most serious allegations made by Panorama - that athletes and coaches had in their possession testosterone containing supplements and that these were given to athletes - were to be proven, they could carry a four year ban for the athletes involved. The likely charges would be use or attempted use of a prohibited substance (Article 2.2) or possession of a prohibited substance (Article 2.6).
The second topical aspect is the remarkable ease with which journalist Mark Daly was allegedly able to beat WADA’s flagship biological passport test using micro-doses of self-administered erythropoietin ("EPO"). EPO is a protein naturally produced in the kidneys that controls red blood cell production. Artificially increasing EPO levels raises red blood cell concentration in the blood and improves aerobic exercise performance (key for endurance events). Using EPO purchased over the internet from China, and without the expert medical team an elite athlete would have, Mark Daly was able to increase his aerobic athletic performance by 7% in seven weeks, a huge amount in the context of elite sport.
The biological passport tracks an athlete’s body biochemistry over time. It is designed to identify changes in biochemical parameters that track the effect of doping and so catch a doping athlete even after the banned substance has left their system (for EPO it would track red blood cell parameters). If Mark Daly's experiment - and a similar study broadcast in France in May of this year - is more than a fluke, then regulators may be further behind in the race to keep sport clean than they would like to admit (however, in a statement WADA said "the [French] study does not accurately follow the Athlete Biological Passport (ABP) guidelines, and therefore its relevance to the ABP is not entirely clear"). Academic psychology tells us that it is the perceived likelihood of being caught, rather than the length of the sentence if caught, that most dissuades us from rule breaking. Thus, if the biological passport can be broken with ease, it may perhaps encourage those on the edge of doping, for whatever reason, to do so.