The regulation of substances is a fraught area, that even the criminal law struggles deal with. If we look at the Psychoactive Substances Act 2016 in the UK, it attempts to circumvent the gray area of categorisation that arises in the case of so-called ‘legal highs’, by explicitly banning all psychoactive chemicals, with exceptions made for alcohol, caffeine and nicotine. Whether rightly or wrongly, this catch-all approach was what the UK decided was needed to combat the constant emergence of slight chemical alterations, which were then new drugs, uncontrolled.
The administration of banned substances lists is also a difficult area, see for instance when Ireland accidentally made over 100 drugs, including MDMA and magic mushrooms, legal due to the Court of Appeal ruling that the mechanism by which Ministers added substances to the banned list was an illegal delegation of Oireachtas power. This was later amended.
When it comes to doping regulations, it becomes even more perilous. There are many medications that are in common use in the wider public, but that can become performance enhancing when used in the sporting arena. Asthma medications are just one branch of steroid that are a lifesaver for many, but when used improperly, can provide performance boosts to athletes. There are rules there in this instance, but that does not prevent athletes from falling foul of the regulations. Sometimes these bans are set aside once the athlete makes their case, sometimes they are not.
In the particular case of Mamadou Sakho, we do not, as David Thomas outlined
, know the full facts. However, Ben Rumsby’s article in the Telegraph
does give us some illuminating information. Sakho tested positive for the substance higenamine, which Sakho’s representatives say was checked against the WADA banned substance list. Further to this, the Telegraph report suggests that it is not even routinely tested for, the particular laboratory in Cologne where the samples were sent is only one of two that test for it. However, after Sakho tested positive, WADA decided to initiate proceedings, apparently against the advice of the lab director in charge. WADA’s decision seems to be based on its belief that higenamine should be included in the beta2 agonist list of banned substances.
There’s no word yet on why WADA believed higenamine should be included in this list, but it’s probably safe to assume that higenamine has properties that are similar to the those that are on the beta2 agonist list. So then surely a ban seems reasonable enough?
Dave Thomas provides a three question test that he argues needs to be satisfied if Sakho is to be actually innocent of wrongdoing. I’m not sure I agree with the premise of the test, but lets consider it for a moment.
1. The substance he took was NOT banned at the time he began taking it and was NEVER banned during his duration using it.
2. He consulted with both the club’s medical department AND checked with the anti-doping bodies that regulate doping in football.
3. He was 100% truthful during all investigations by UEFA, WADA and the club.
The first is the most important, in my opinion. From the findings, it seems that UEFA have accepted that higenamine was not banned during the duration of Sakho using it. WADA don’t agree, but that can be explained as follows. Higenamine can have properties close to those of banned substances and not yet be banned. This is exactly the issue of categorisation that saw the UK implement the Psychoactive Substances Act.
WADA can argue that its properties are so close to those of banned substances that it should be treated as a banned substance, but from the Telegraph article is suggests that Sakho’s representatives were capable of presenting medical evidence that it is sufficiently different from the banned substances on the list that it would require its own ban, it cannot simply be rolled in under a previously existing heading.
Secondly, if WADA seeks to expand the categorisation of substances, it has to do this through proper mechanisms and inform all parties. The fact that this drug is not routinely tested for suggests that it is not one that is well known as a doping substance. The fact that WADA seem to have attempted to add higenamine to the beta2 agonist list only after the test results is therefore similar to the reason that Ireland accidentally legalised a number of drugs – the administrators attempted an overreach of power, adding the substance to a category in a way that was not clear, a breach of principles of natural justice at least.
As for the second, it seems that Sakho did check with his own medical advisers, who checked against the WADA list. It’s not possible for advisers to foresee WADA attempting to expand the definition of categories to include substances that are not on the list, one of the reasons (I believe) that the proceedings against Sakho failed, as I explained above – any change in the list would have to be clearly communicated to all parties, it is not enough to add substances after the fact.
I don’t believe there is any onus on athletes to check every substance with the governing bodies, firstly, since the myriad of sports substances are so complex and secondly, because it’s simply not possible to go to the governing authorities with everything you’re planning to ingest. I think checking with your own medics is enough. He should, I accept, have checked with club doctors.
Thirdly, we have no reason to believe that Sakho was anything less than truthful during proceedings with all those bodies.
So, in conclusion, the world of pro-sports in the modern era is one that is fraught with complexity. There are any number of substances that much be checked and controlled. All athletes are doing their utmost to get incremental gains in any area they can. The most we can do is expect athletes to follow the letter of the law and hope that the governing bodies regulate them adequately. We cannot expect athletes to refrain from taking substances that might have performance bonuses if they’re not illegal, in some nebulous interest of fair play. We see players downing caffeine shots during breaks in play, any number of supplements are used to bulk up or improve performance. The regulation of these things is a complex area, but we can’t expect people to avoid all of them in case they fail tests.
WADA seem to want to fight this, perhaps only to see off a lawsuit, but from the facts we have (and I must stress, so far) it seems unlikely they will succeed. Cases like these are often heavily in favour of the individual athlete, who did his due diligence. In cases of workers’ rights like this, very strict readings of the regulations is the norm. WADA, after all, have the expertise, both legal and scientific, to not make errors, far exceeding Sakho’s ability to make judgements in this area. Therefore, it usually falls on the governing body to avoid error, not make the player suffer from a difference in interpretation.
There is a very real chance that this is a one-off, that higenamine will now be added to the controlled substances list, where perhaps it always should have been. But at a time where there is a proliferation of new substances offering performance boosts to players, we can only regulate what is and isn’t allowed to be taken by the law as it stands. And it seems that in this instance, Sakho has gotten away with it.