When will the world take a hard line on drugs?

The Times, Tuesday October 28, 2003

Rio Ferdinand may have allowed himself a brief sigh of relief. On the day that the Football Association announced it had received all the evidence relevant to its enquiry into his failure to take a drugs test, the press was awash with the revelation that the fastest man in Europe, Dwain Chambers, had tested positive for the new designer steroid, THG. For a day, at least, someone else could take the flak. But unfortunately for him, Ferdinand's spell away from the media gaze looks set to be as short-lived as his memory.

For all that the England players - and his club, Manchester United - may bemoan what they regard as a 'prejudgment' of the 30million defender, Ferdinand has entered a realm where the words 'strict liability' loom large. Under the Football Association's Doping Control Regulations, "the failure or refusal by a player to submit to a drug test as required by a competent official" is a strict liability offence, rather like having a bald tyre: intention is irrelevant, and the mere fact of the action, or omission to act, is enough. As such, whatever Ferdinand may offer by way of excuse for his failure to attend the test will only have a bearing on mitigation, not whether he is guilty or not.

Add to this a highly politicised sporting landscape, as London seeks to host the 2012 Olympics and football is asked to sign up to a new anti-doping policy drafted by the World Anti-Doping Agency, and it is clear that that Ferdinand ingenu or not - has landed himself in deep trouble. Sepp Blatter, the president of FIFA, world football's governing body, has led calls for the footballer to be banned, while the Professional Footballers' Association is standing by its man, insisting that any punishment meted out to Ferdinand should be no more severe than the 2,000 fine imposed on Manchester City's Christian Negouai for missing a drugs test last season. It seems that whatever decision is ultimately made by the FA, someone will be aggrieved.

If so, where do they go? The answer is to Lausanne, in Switzerland, where the Court of Arbitration for Sport (CAS) is based. Set up in 1984 after an initiative by International Olympic Committee (IOC) chairman Juan Antonio Samaranch, CAS is an independent body composed of more than 150 arbitrators from 55 countries, charged with resolving legal disputes in the sporting world through arbitration. As sports lawyer and member of CAS Ian Blackshaw says: "CAS is the ultimate appeal court within the sporting world, with its international arbitration awards recognised under the 1958 New York Convention on Arbitration. Under the Convention, signatory countries agree to uphold and enforce arbitral awards under their national law."

The Ferdinand matter could end up before CAS if either the player or FIFA object to the FA's decision. A charge of misconduct could result in Ferdinand being banned, but if the ban is felt to be too lenient by FIFA, it could intervene and impose a longer ban. This, given Blatter's comments, would appear to be on the horizon. On the other hand, Ferdinand and United might object to a ban. Either way, the issue would ultimately fall to be determined by CAS. Similarly, if Dwain Chambers elects to contest what seems likely to be a lengthy, perhaps even lifelong, ban by his sport's governing body, UK Athletics, it will be to CAS that he has to take his arguments. Chambers has insisted that he had no idea that he may have been ingesting THG in nutritional supplements.

But if its history is anything to go by, CAS is unlikely to be sympathetic to sportsmen found to have breached rules on doping, however innocent they might be. The popular Scots skier Alain Baxter appealed to CAS when he was stripped of his bronze medal in the 2002 Winter Olympics, after testing positive for using a stimulant found in an over-the-counter cold cure. CAS upheld the decision, as it did the nullification of Romanian gymnast Andreea Raducan's gold medal in the Sydney Olympics for use of nurofen. Raducan had been prescribed the treatment by the Romanian team doctor, after complaining of a headache. Unbeknown to her, it contained a banned substance that was widely thought to be more likely to have impeded rather than enhanced her performance. But as with the Baxter case, CAS applied the strict liability principle, and, as such, Raducan was guilty. She went on to contest CAS's decision in the Swiss courts (CAS is subject to Swiss law), but lost.

Many observers felt that the Raducan case was unduly harsh. There have been calls to revise the strict liability principle in doping cases, and complaints that as a child of the IOC, CAS uncritically adopts the IOC's stringent anti-doping policies, to the detriment of individuals such as Raducan who, to most people, were innocent. Some sports lawyers also question the viability of going to CAS in the first place. As Fraser Reid, of Addleshaw Goddard's sports group, says: "The existence of a specialist sports tribunal is welcome, but given the huge disparity in the finances of various sports, CAS may not be the appropriate forum for, say, an athlete, as opposed to a wealthy Premiership footballer." Indeed, for an impoverished sportsperson CAS can represent a costly hurdle before civil law remedies can be explored.

Any of Ferdinand, Manchester United and FIFA all have the resources to go to CAS, if necessary. But if it remains to be seen whether Ferdinand will end up acquainting himself with the workings of CAS, one thing is certain: 'strict liability' is not a phrase he is likely to forget.