And you’ve seen the IOC, FIFA, International Cricket Council, all those governing bodies who are supposed to be the police of corruption in their respective jurisdictions, are corrupt themselves. So I think some of those insidious practices have been bred from the top, and it’s very hard to get real policing effectively done within a sport without an independent body to actually oversee that. And some of the challenge is about having that global challenge, and people like cricketers, who are playing in maybe five or six leagues a year in limited overs cricket and T-20 tournaments, are going from place to place in different levels of policing of their behaviour.
It changes dramatically about where they are, the jurisdictional powers of each of the governing bodies for sport. Francis Leach The big moment came for the IOC, and it was amazing, when Sir Philip Craven with the Paralympics – whose quote will gladden the heart of anyone who wanted somebody within the power structures of international sport to stand up and be counted – and I’ll read you what he said when he banned the Russian Paralympics team at the time. He said, “I believe the Russian Government has catastrophically failed its para-athletes: their medals over morals mentality disgusts me.”
Why didn’t we hear that from the IOC, because the same principle surely applies, but they didn’t have the courage to follow through? Catherine Audway I think your point is right, it is about courage, and Russia is one of the super powers of sport in the world, absolutely. We’re not dealing with a country like Kuwait where they were able to sideline and suspend their membership because they felt that there was political interference in Kuwait.
Nobody was crying out for the Kuwaiti athletes to see them in Rio, but when it was the scenario for Russia, it was completely different for the IOC. And I found it quite perplexing to understand the IOC position when they were looking at WADA and blaming WADA for their negligence because they weren’t heavily testing Russian athletes enough or making sure the international federations were when, actually, the International Olympic Committee half funds WADA and they sit around the board table. So the International Olympic Committee representatives are all there and they’re going to the meetings in Montreal every quarter, or however often the meetings are. So if WADA is not doing what they should be doing then what’s the IOC doing about that? They have had their opportunity. So I found their decision quite bizarre.
Francis Leach This gets to the interesting point about the international institutional co-dependence. So the IOC feels it can’t blanch Russia because the consequences for them down the track, whether it’s in commercial terms or future events, are too great, or that they are maybe in hock to certain Russian institutions and/or people that they don’t want to ruin those relationships or be exposed for that. Catherine Audway I think there might have been two things at play: one is you look at how expensive it is to host an Olympic Games, and there are a limited number of countries around the world that can do that. We saw how the position changed for Brazil from when they received the hosting rights in 2009 to their financial position today; it’s really put them through the ringer. There are not many other countries that want to put their hand up for an Olympic Games; Russia is one of those that has hosted the games recently – Francis Leach Has the world Cup coming up in two years’ time.
Catherine Audway Has the World Cup coming up. And there aren’t that many countries, so they want to keep in sweet with those countries, I guess, that have the capacity to do it otherwise they’re going to run out of contenders. That’s one side. Francis Leach So different rules for some because of their power. Catherine Audway Maybe. The other side too is that, in terms of an Olympic brand, they want to have the best athletes on the stage.
So at Rio the argument was: we want to see the fastest, highest athletes competing, and if we wipe out the whole of the Russian team, that was going to be 400 athletes that we wouldn’t get to see perform, and is that in the best interests of the Olympic brand? I think that was the question that went through. Paul Marsh Can I make a point here?
It’s about money, though, isn’t it? They’ve sold television rights to the Olympic Games and they want the best athletes to come, so now there are sports that are coming up, “What’s going on? “, WADA perhaps isn’t as effective as it should be, the IOC isn’t actually taking the decisions it should take because they’ve sold rights for billions of dollars and they want the best people here. Francis Leach So are we at a point – and this is the crucial question for fans of sport – where it no longer matters?
Waleed Aly is a colleague and friend of mine, and I heard him on Offsiders on Sunday talking about Usain Bolt running, and running beautifully. Now, the internal Jamaican doping processes are terribly flawed – and Catherine, you probably know more about this than anyone – they’ve had numerous problems in verifying the authenticity of those tests, the independence of those tests, they’ve had a number of athletes banned over the last three or four years. There are serious questions about Usain Bolt’s running because of that, and Waleed said straight out, “I don’t care” and he was genuine about it, “it just looked beautiful.” Are we at that point now where it no longer matters because it looks beautiful and sport has simply become entertainment and to hell with integrity? I’ll go down the panel and I’ll start with you, Russell. Are we at that point?
Russell Hoye I think when you think about the drugs issue, it comes down to the equity issue. So a lot of athletes may have access to the same amount of drugs or expertise to actually deliver a performance-enhancing dosage to come up with a better performance. Some athletes won’t have access to that.
So if you open it up to a level playing field it’s still not going to be even. So if you legalise drug-taking in sport and say, “Okay, let’s produce the fastest human on earth and let the sports science take total control over that” you’re still going to have an inequitable field between the poorer nations in the region, so you’re still going to have an uneven field. Francis Leach Someone will have a richer, stronger monster. Russell Hoye Yes.
Francis Leach Could you imagine a time when we’ll to that, Paul, if money is the only thing that matters? Paul Marsh I hope not. The people that are the most affected, in my view, by cheating, are the athletes themselves.
Let’s look at the Olympics: they’ve trained for however long to get there on the day, and they want an equal chance of success, and they’re being robbed of that by someone who’s cheating. But I don’t think sport’s actually empowering the athletes themselves to try to solve this problem. There are some sports where I think that is the case; I reckon golf is a great example: the athletes are empowered to call up any player that breaches any sort of – I don’t know if you saw the female golfer a few weeks ago in one of the major championships.
Golf – which I play a lot of – is a really stupid game in terms of the rules of it. If you put the ball in the bunker and you touch a grain of side in the bunker, you’ll get penalised. Well, this female player did that and she lost the tournament because of that. But for golfers, culturally the way to go forward is to actually call it up.
I don’t think we’ve made an effort in sport, I don’t think the sports have empowered the athletes to try to take an approach like that across the board. That’s a big cultural shift, but the athletes, I think, are part of the solution here, whereas in most cases they’re actually not the cause of the problem, it’s others that are trying to corrupt them, from a match-fixing perspective, or in a doping perspective. The biggest issues we’ve seen are clubs, governments, institutions systematically doping athletes. So I think that’s part of the solution.
Francis Leach Yes. Or in the Armstrong case, being too big to fail, like the UCI turning a blind eye to his cheating because he delivered the circus that had delivered the rivers of gold. But I’m interested with you, Catherine – and I’ll ask you, Nick, about this as well – we got to a point with the Rio Olympic Games where even the testing itself was considered to be haphazard. It was amazing for many of us to discover about two months to play slots online canada games that the lab that was set up to govern the testing of the games was actually basically shut down because it hadn’t met standards.
Two months out from the Olympic Games, they weren’t going to use the lab that they’d been building and they had to basically come up on the run with a testing regime which, from what you understand, was appallingly short of what was required. What does that say about how highly valued the integrity of sport is when it comes to doping in, say, the Olympic Games? Catherine Audway That’s correct.
It sounded like a bit of a shemozzle at Rio, to be honest, in the anti-doping setting, and it would be very interesting to see what the World Anti-doping Agency independent observer report is like. At every major event WADA sends in a group of independent observers and they have a look at the doping control process to see that it’s being done in accordance with the international standards. So there are international standards for the laboratory, and that’s the one that the Rio lab failed in – and not for the first time – but we haven’t seen that happen immediately before a major event like this before. But it’s also the doping control process, the training of the staff. And you know that one of the most crucial elements in the whole chain of custody is the witnessing of the sample, and only the athlete and the chaperone are there during that process. So the system falls down completely if the chaperones (a) don’t show up, or if they accept a bribe, or if they are turning their head away and haven’t been trained properly, or something like that.
So it’ll be very fascinating to see, from the WADA independent observer report, how well the process was done. Because the reports at the moment are that they weren’t done very well at all. Francis Leach Nick, when we look at the processes themselves, let’s look at the ASADA case against Essendon and the way that that was conducted, that was a real revelation for a lot of people here in Australia about the nature of doping control and how it works, and how an organisation like ours was underfunded and not ready to deal with what seen to be a systemic doping case within a major professional sport. You covered that pretty widely. Just how underprepared was ASADA for the circumstances with which it was confronted?
Nick McKenzie Before I get to that, we do have systems in place in Melbourne – let’s go local – that are set up to catch cheats. You’ve got Graham Ashton, our Chief Commissioner, who has made it really one of his key issues in the last few years about cheating and doping in sport. He set up a sports integrity unit, it’s got phone taps, you had the Purana taskforce – the most well-resourced organised crime taskforce – looking at this very issue for a number of years. You’ve got Sal Perna, the Sports Racing Integrity Commissioner, you’ve got the AFL has just hired the ex head of Purana, they’ve got lawyers, ex-coppers. They’re all out there trying to catch these guys and trying to improve the system. It often works really well: people get caught, and that’s a huge deterrent.
For the athletes that get caught, the amount of shame and the deterrence value throughout their sport, and across the world if it’s a global sport, can be immense. So it’s not all bad. Where there’s money, there’s corruption, of course, but there are these great systems in place, and the major challenge, really, is the globalisation of gambling, online gambling, the science; doping is going so fast.
ASADA tackled those science problems because it had this new murky world of peptides. A law enforcement agency in the ACC first tackled it. The Australian Crime Commission looked at this as a law enforcement problem where you had organised crime overlapping with sports scientists importing funny peptides into the country. There was the murky area as to what was legal and not legal, and then ASADA was doing the job of cop, of scientist, which is a really complicated resource-intensive job, against immensely powerful interests: the AFL, Essendon itself, the NRL clubs involved at an individual level up in New South Wales.
Francis Leach And politicians at a federal level. Nick McKenzie And politics, yes. Was it mishandled?
Yes. Was it clumsily handled? Yes. Is there any one party to blame? Not really.
You can actually understand why many things did happen. The conspiracies which you read about in the press largely didn’t happen, there weren’t people plotting in people’s kitchens about how to defeat the Australian Crime Commission. There weren’t tip offs.
That’s been blown out of proportion. Catherine Audway More incompetence, isn’t it? Nick McKenzie More incompetence, yes, and a system trying to really struggle against all these competing pressures, from the political pressures to the basic question of science.
But at least the system was in place. And I think what we did see at the end of the day, love or hate the result, was some level of accountability where ultimately this international body stepped in and said, No, these are the global rules and this is what you’re going to play by” and we all know what the outcome is. Francis Leach And that comes to the issue of the players, Paul, and this gets to the very heart of it and the foundation stone, if we’re talking about doping in sport: a regime of enforcement can only really exist and run on a single principle of strict personal liability. Because, at the end of the day, the athlete has to take full ownership of what’s in their body, and everything flows from that. Yet the Essendon players predominantly were arguing, counterintuitive to that, that they didn’t know and therefore they weren’t responsible.
What’s your position on the idea of strict personal liability at the bedrock for integrity in team sport? Paul Marsh I think it’s important to know that Essendon players never tested positive, so the whole strict liability is irrelevant in this case; there was never a positive drug test. So strict liability means if it’s in your body and you test positive then you’ve basically got to prove that there is a reason why it’s in there that’s not against the anti-doping code.
So I’m happy to answer your question; I’m not sure it’s relevant on this particular point though. Francis Leach Okay, well, let’s just talk about the notion of strict personal liability. Do you believe it should be the cornerstone of what is the responsibility of athletes when it comes to protecting the integrity of sports that they play and participate in? Paul Marsh I’ve never quite understood why we can’t handle these cases like you would in a court of law and actually look at the facts in front of you and, yes, if there’s something in an athlete’s body, they’ve got to prove why it’s in there and it wasn’t because they were trying to cheat.
But you get smart people in every other walk of life: they want to actually sit down and judge a case on its merits. The WADA Code is, in my view, completely inflexible. If it’s in your body now you’re looking at a four-year ban. There are times where there may be plausible reasons, but we jump straight to guilt every time there’s a player who has a positive anti-doping test.
I’ve seen players’ careers ended. You’re a huge soccer fan: Stan Lazaridis is a great example. His career was ended on the back of a substance that was removed from the doping list literally months after that had happened. So there’s no flexibility in this code, and I think that’s one of the big issues.
Catherine Audway And that wasn’t him trying to cheat either, just to be clear about the Stan case, if people don’t remember that one. Paul Marsh In my early says in cricket there was a young state cricketer who had been given a substance by his own doctor to remove a boil on his back, and this was just before the WADA Code had come in. The facts were heard, he was guilty of taking the substance, he got a one month suspension. If that had happened another year or so later he was looking at a two-year ban. Everyone knew he didn’t do it to cheat.
Now, I think that’s part of the problem. I want to make the point we do believe in anti-doping, we believe that cheats should be heavily punished, but at the moment there are just too many athletes who aren’t cheating, in our view at least, that have been kicked out of the sports for two – and now it’s four – years. And that’s where one of the biggest flaws in the system is, from where we sit. Francis Leach Catherine, you’ve been heavily involved in any number of cases, and part of what you’ve done as a solicitor over the years is be involved in the Court of Arbitration for Sport, and representing there.
What do you think of Paul’s attitude towards it, and what’s the middle path then, if Paul’s correct that that hard line when it comes to strict personal liability is too hard? Catherine Audway I do appreciate the position that Paul’s taking in the athlete’s position. I think that the anti-doping movement has grown a lot and learnt a lot over the years. It took, certainly, a very hard line at the beginning. We had people going out for two years for marijuana, back when I first started doing prosecutions, and that’s just ludicrous; people are not feeling like we need to smash every athlete that comes back with a positive test anymore. There’s a greater understanding now about the contamination of supplements, for example, than there ever used to be.
So they’ve tried to soften the code whilst creating a standardised and harmonised system. Because we’ve seen the scenario from the McLaren Report where in Russia you have a system that breaks down, and, on the horizontal, we have the International Athletics Federation where the system breaks down. If you don’t have some blanket rules that apply to all countries then suddenly you have a scenario where we say, “Well, obviously our athletes wouldn’t cheat; here in Australia they’re all very lovely and we can understand that there are reasons for why they would have taken it. It’s Finasteride, it’s a hair loss product, it’s something like that that’s very lovely.”
But if that happened to a Chinese athlete that we were racing against, if that happened to a Russian athlete that we’re competing against, then of course the excuse is just being made up to cover up, and that’s where the system breaks down. And they’ve taken a very hard line and created the strict liability principle, which we do see in other parts of the law: we see it in drink driving, for example. The police will pull us up and we have to blow into the bag, and there’s no, “Well, it was my friend’s 21st party” or something or other else, “that’s why I’ve got the high reading.” You don’t get to argue that.
It’s strict liability. Nick McKenzie I know there was no actual doping found in the Essendon players’ systems, but one thing about that scandal that really at least surprised me, is that I think not one player spoke out and challenged the team culture, which is defensible to the extent that some are young, they were following a very powerful hierarchy, but the reason you have that personal liability or individual responsibility built into the code is ultimately the pressures can be so immense, you do need athletes to take responsibility. The failure to have that individual culture and that sense of personal responsibility at Essendon, we know what the cost of that has been, and I hope that that’s something the AFL, I’m sure, has picked up to say to players, “Yes, you’re part of the team, but you’ve got to look after yourself as well.
Seek a second opinion, ask questions, because it’s your job, it’s your career on the line, at the end of the day.” Francis Leach And it’s also the wider philosophical question, Russell, isn’t it, that athletes who are participating in a professional sport have a responsibility to the integrity of their sport for future generations. It’s one of the things that I’ve found mystifying about the Essendon situation a lot of people didn’t seem to want to talk about, was that if a regime of peptides was institutionalised within football clubs and became standardised, we would have got what we got with cycling for about five years, and that’s young professional cyclists turning up to tour with European teams and then being confronted with a choice, “If you want to be a professional cyclist, you have to get on the programme. Because if you’re not on the programme you’re not going to be riding for one of these teams.”
So your choice is your career, and that means doping, or going and getting a real job somewhere else. If we’d allowed peptides to become standardised across the AFL the way that that was heading, then young aspiring professional footballers coming out of the TAC Cup would have been presented with the same question, “You want to play AFL football? Well, all of these AFL clubs are now using these cutting edge up-to-the-line peptides, and we’re not quite sure what they’re going to do to you, but if you want to play you’re going to have to use them, or else its back to the VAFA.” And that’s the question that clubs and sports and players have to be mindful of, is it not: that they are responsible for those that come behind them? Russell Hoye I think every player who’s playing a sport, whether they be at sub-elite, elite or mainstream professional sport, have an enormous responsibility to adhere to the codes of the game that they’re playing, but also to be the role model. And they’re often held up as role models, clearly, for younger athletes, but you have to understand the reality of an 18-year-old professional athlete under enormous pressure for performance, just recently out of adolescence, having to cope with fame, social media, having a salary, having a really regimented workplace environment, particularly in AFL football.