Month: May 2017

World records: a thing of the past?

For those familiar with recent major sporting headlines, few will have missed this one.

The International Association of Athletics Federations (“IAAF”), the international governing body for athletics, is to debate proposals containing new ratification criteria for all athletes competing in approved international events. The new criteria will require the:

  1. athlete to submit to an agreed number of doping control tests before competing in the event; and
  2. athlete’s urine and blood samples to be stored and made available for re-testing for up to 10 years after the event.

Since the IAAF has only stored these samples from 2005, the impact of this could be extraordinary. Many historical world records, such as Radcliffe’s 2003 marathon world record, Zelezny’s 1996 javelin throw, Powell’s long jump record in 1991 and El Guerrouj’s 1500m and 1-mile records in 1998 (amongst others) could be at risk of being declared “unofficial”, or even wiped from the record books entirely (a BBC article listing further examples at risk can be found here).

The proposals, put together by a project team commissioned by the European Athletics Council (“EAC”), are scheduled to be discussed when the IAAF meets in London in August. To date, the proposals have fuelled sensationalist media headlines and sparked criticism, major debate and threats of legal action. This article discusses the motive and potential impact of the proposals, and reviews whether this is the best solution available.

Motive and Background

In recent years, global athletics has suffered repeated setbacks over its credibility and integrity. Last year’s McLaren Report (copy available here), commissioned and published by The World Anti-Doping Agency (“WADA”) uncovered a doping epidemic across a range of sports. It is feared that athletics (a sport built upon pushing the limits of physical human capability) will become discredited if people don’t believe, or doubt, that the records are legitimate. A sport that is “rigged” is, arguably, not a sport at all.

Spectators must remember that, whilst sport has been played for thousands of years, doping control is a far more modern intervention, dating back only as far as the 1960s (the IOC’s establishment of its ‘Medical Commission’ in 1967). WADA was only established in 1999, 11 years after Ben Johnson famously tested positive for a banned substance (stanozolol) in the 1988 Seoul Olympics’ 100m final. Since then, WADA created its World-Anti-Doping Code in 2004 (the “Code”) to incorporate an agreed list of prohibited substances, uniformity around doping offences, common standards of sample collection and analysis, and harmonised sanctions. 2005 marks the critical point when athletics’ governing bodies and doping control organisations began storing samples for re-analysis. By 2007, 40 governments had committed, politically, to the Code and WADA by ratifying a UNESCO Convention against doping in sport.hist of sport

However, these EAC proposals go further than the existing regulatory framework: they call for higher technical standards of, and increased, doping control measures and new personal integrity requirements for record holders[1].The effect could be to create new household names in athletics, and expand the sport’s appeal after what has been a prolonged period of negativity (that’s the theory). Conversely, the effect could also be to totally alienate both the sport from the fans and the IAAF from its athletes.

What is a “record”?

These proposals will, if approved, re-calibrate our understanding of a “world record”.

Traditionally, an athletics record was [relatively] straightforward: the highest leap, the longest throw, or the quickest time (for example), was recorded against a name and the event (the author recognises that some records have previously been made subject to conditions, such as Geoffrey Mutai’s 2011 Boston Marathon world record being discredited due to the track gradient being too much in his favour, but as a rule most records stand). Going forward however, a new concept of “record” will be introduced. A record will no longer be simply about who is the fastest, or who jumped the furthest. Under the EAC proposals, a ‘record’ will only stand if the holder satisfies a set of performance, qualitative, quantitative, regulatory and integrity-based criteria. If the proposals are ratified, in their current form at the time of writing, a new “record” may only be official if:

  • the time/distance/height (or other measurement) is greater than any previous performance for that same event, recorded anywhere in the world (performance criterion); provided that the:
  • performance was achieved at a pre-approved competition, where the highest standards of officiating and technical equipment can be guaranteed (qualitative criterion);
  • athlete has submitted to, and passed, an agreed number of doping control tests in a specific period prior to the performance (quantitative criterion);
  • athlete has submitted a blood and urine sample for testing after the performance, and made the sample available for retest for up to 10 years (regulatory criterion); and
  • athlete has not committed any other doping or integrity violation during any performance in any event, anywhere in the world, at any time (integrity criterion).

Any “record” that does not satisfy the above will, we understand, remain on the “all-time list”, but will not receive official recognition as, and the associated prestige of, a world record. Many would be forgiven for thinking that modern athletes will need to meet excessive standards to hold an official world record in future.

Contractual position

As discussed later, ratifying the EAC’s proposals may expose the IAAF to legal challenge. In its simplest form, a contract will exist between a competitor and the event organiser when a competitor enters, and competes in, any sporting event. Typically, the contract will comprise the event entrance form and will incorporate (either expressly or by participation) any codes of practice or ethics guides for athletes issued by the event organiser, the relevant governing body and/or anti-doping agency for the sport (such as WADA and the Code).

All competitors are normally required to complete the form accurately and in full as a condition of entry. In practice, such forms are often completed by the federation or team represented by the athlete, which bind the athlete to them. However, the leading case of Modahl[2] confirms that simple participation in an event is enough to bind the athlete both to the event’s rules, and the rules of any other relevant authority (such as WADA and/or the IAAF). An athlete competing in an event agrees (as implied by their participation) to be bound by, and subject to, the event’s rules and the relevant authority’s rules.

In its simplest form, the EAC proposals (if ratified and adopted by the IAAF) would equate to a unilateral variation of the contract that existed between the athlete and the event organiser, over 12 years after the contract was performed. Athletes entering events are legally bound to compete, honestly and ethically, under a duty of good faith. Athletes who do so have a legitimate and reasonable expectation to receive equal treatment from both the event organiser and any governing body (including verification as a world-record holder, if applicable). Ratifying these proposals, on the basis that the IAAF cannot prove the athlete would have failed a drugs test had they taken one at the relevant time, would be contractually unlawful and unethical for those athletes who have competed honestly and ethically.

Reputational

It is arguable that athletes who cheat effectively defraud event organisers, sponsors, spectators and fellow athletes. For clean athletes, drug testing is a critical validation tool that can enhance and preserve their reputation.

These proposals will, however, attack athletes’ performances indiscriminately and arbitrarily based on the date and time of the event. Both legitimate and illegitimate performances by athletes (whether proven or otherwise) are in danger of being discredited. This risks substantially damaging the reputations of many global athletes who have subsequently become ambassadors for their sports, charities and organisations worldwide on the back of these performances (such as Michael Johnson and Jonathan Edwards). The consequential damage this could have for the athletes who have had their legitimate performances de-classified, and the not-for-profit organisations they are associated with, will be seen as unjustified.

Proprietary rights

Several potentially affected athletes have added fuel to this debate by threatening high profile legal action against the IAAF over these proposals. Many claims will be borne out of abuse of process arguments and breach of contract (the breach being the unfair unilateral variation of the contract by the IAAF).

The Code specifically states (Article 8) that, before any sanction can be enforced, any athlete suspected of committing a doping violation must [in summary] receive a fair and impartial trial, time to prepare and the right to call and question witnesses and evidence. Further, the burden of proof of establishing a violation rests with the anti-doping organisation (Article 3). Readers can be re-assured that simple ratification of these proposals may not wipe world records from the books overnight.

English law does not recognise the existence of proprietary intellectual property (“IP”) rights in a sports event. IP rights that arise in events or performances arise under copyright and related ‘performer’s’ rights. However, sporting events are not considered “dramatic works” in which copyright may subsist because they cannot, legitimately, be re-performed in the same way (such as a stage play). This means that, under English law, athletes will not be able to assert any infringement of any proprietary IP right in the world records they hold against the IAAF should their records be stripped.

IP rights (copyright) in the broadcast of a world record performance will remain vested in the broadcaster, as will personality rights in the athlete’s image, name, likeness and reputation arising from the relevant performance. However, the world record itself will remain an attribution or accreditation issued or verified by the relevant event’s governing body (such as the IAAF), and issued subject to the governing body’s rules in force at the time of the event. It would seem, therefore, that it can be taken away by the governing body for a breach of its rules, or any applicable anti-doping code. However, removing a world record as a result of a unilateral and subsequent rule change really tests our understanding of “fairness” under ordinary principles of natural justice. Any breach must be proven as a result of a fair trial and fair process. The EAC’s proposals do not presently reflect this. Athletes cannot be expected to compete in an event bound by rules or criteria not yet in force, or train to be judged by technology that does not yet exist.

Applying similar logic, are we now to say that the outcome of the 1966 FIFA World Cup final should no longer stand because Geoff Hurst’s controversial goal in extra time would [arguably] not have been given had goal-line technology been used (as it now can be…50 years later)?

The only solution?

Hand waving a red flagRemoving or de-classifying previous world records is one example of a sanction imposed to try to eradicate doping in sport by deterring athletes from doping (and it is the writer’s view that it sits at the extreme end of the spectrum). Similarly extreme (and arguably fanciful) actions include more vigorous and regular testing (possibly on a daily basis), housing athletes in sterile environments prior to events, or storing samples to await technology being available to show an athlete was drug free at an undefined point in the future (a more extreme form of modern “biological passporting”). Alternative deterrents include giving those honest athletes legal aid to challenge doping athletes in claims for losses of earnings and opportunity (on the basis they can prove they competed drug-free). Lottery funding could, perhaps, be refused to those athletes found to have committed doping offences, for example.

Alternatively, perhaps the idea of having two world records (rather than de-classifying previous records entirely) would be a better compromise. In 2011 the IAAF passed a motion changing the eligibility criteria so that women’s world records must be set in single-gender competitions. Thus, Radcliffe’s 2h 17m 42s performance at the 2005 London Marathon would override her previous world record from 2003. After strong protest, both marks now stand (although the former was surpassed this year at the London Marathon) as world records: “mixed gender” and “single gender” records.

However, just because a solution is arbitrary does not mean it is inherently unjustifiable: a line must be drawn in the sand somewhere. Few would dispute that the use of performance enhancing drugs (“PEDs”) by athletes to gain an unauthorised advantage over their competitors is a low form of cheating (possibly the lowest). Applying this view, a rigorous regulatory response to the problem of drugs in sport would seem to be justified, and the IAAF would be right to protect and preserve sporting integrity. However, the issue with the EAC proposals will likely come down to proportionality and/or plain injustice.

Exposure to breach of contract

Introductory wording to the Code contains the following statement: “Doping is fundamentally contrary to the spirit of sport”. Article 9 of the Code states that an anti-doping rule violation will lead to automatic disqualification of individual results. The EAC proposals, however, do not prompt a re-testing of all athletes pre-2005 to assess whether a violation has occurred (as stated, there are no samples to test); they simply brandish all performances before this date with a permanent mark of uncertainty because they cannot be officially ratified under modern doping rules and technologies. Placing modern credibility of a sport over and above the previous legitimate achievements of hard-working athletes to accomplish a ‘clean-break’ will be seen, by many, as unjust. Further, under common law jurisdictions worldwide, it is a well-established principle in civil proceedings that the party asserting the breach of contract must prove the breach, the loss and the connection between the two. The EAC proposals effectively grant the IAAF the unilateral right to reverse this burden of proof by claiming that because the athletes cannot prove they competed clean, their records should no longer stand as legitimate. This will expose both the IAAF and the event organisers to legal challenge should they pursue any affected athlete on the back of this change.

Removing world records from athletes may also expose the relevant athletes to commercial damages claims as major event organisers seek to recover prize monies paid to those who may now lose their medals. Under English law, any contracting party is entitled to recover reasonably foreseeable losses arising from a breach of that contract. Losses are calculated to put the affected party into the position they would have been had the contract been properly performed. The challenges of retrospective recovery faced by event organisers should not be ignored, and are discussed in a previous article written by Kerman & Co, published here.

On the other side, should the proposals be ratified and the world records stripped or de-classified in the manner proposed, affected athletes would be exposed to declining sponsorship and product endorsement income due to the resulting damage to their reputations as they will not be able to legitimately refer to themselves as the world record holder. As stated above, athletes would have strong defences against any event organiser who seeks to recover prize monies paid to them whose performances are now rendered “unofficial” by these proposals. Statutory limitation periods may also save a lot of these athletes from major financial penalties.

The IAAF must recognise, however, that it may only be able to go so far in pursuing its idea of a drug-free sport. Some commentators argue that the vision of a completely level playing field is a form of inaccessible utopia. Contractually, a fairer and safer approach for the IAAF might be just to let sleeping dogs lie in relation to results pre-2005, or have two records existing in parallel either side of this date.

Value of past precedent?

It is safe to say that the IAAF has a record of altering conditions or rules in athletics events. Take the javelin; in 1986 the IAAF’s technical committee modified the javelin by moving its centre of gravity forward by 4cm and increasing the surface area behind this point. The effect is that the javelin now turns into the relative wind during flight, reducing lift and thus the flight distance by around 10%. Manufacturer modifications to javelins to try to recover some of this lost distance (holes, dimples, rough paint) were forbidden in 1991. Consequently, any javelin records prior to these dates were nullified as it was deemed unfair by the IAAF that future athletes would not be able to break previous world records.

Most recently, Nike’s “Breaking2” world best marathon time of 2h 25 seconds (set on 6 May 2017) does not stand as an “official” record because it did not meet IAAF standards. This is because it relied on a rotating team of pacers who followed a pace vehicle displaying a race-clock that projected lasers onto the track to indicate where the lead pacer should be to set a world best time. Thus, it won’t count.

Prevention better than cure?

There will be many who consider that an anti-doping code that is punitive, rather than rehabilitative, will have a more positive effect on eradicating doping or PEDs. However, it may not need to be this way, as a mere doping allegation can be enough to cloud an entire sporting career. Positive PED tests can be fatal and instil significant insecurity in athletes (again, see Modahl [2001] referred to above), as once a positive result is established, chances of explaining away the results are remote. Consequently, a better approach by the IAAF and other governing bodies, would be to invest time, resources and cost in informative and educative anti-doping programs, particularly at grassroots levels, to preserve and uphold the spirit of sport (as described in the introduction to the Code).

The Code and its provisions are predominantly curative rather than preventative. Programs that inform participants on banned substances, health consequences of PEDs, doping control procedures and their rights and responsibilities as an athlete, would increase awareness and undoubtedly go some way to deterring athletes (especially young and aspiring athletes of tomorrow) from straying from the beaten track of integrity.

Who is to blame?

For those who hold a negative view of these proposals, this is one question you will undoubtedly seek answers to. Many [have been led to] believe that modern athletics is in dire straits, and that desperate times call for desperate measures (see the McLaren Report, referred to above). Athletes must of course shoulder some responsibility for the substances they ingest (see Maria Sharapova). However, their coaching, training and medical staff have a duty to advise the athlete correctly and lawfully, at all stages of their careers, so they too cannot be excused from blame.

Athletics federations and national teams also have a duty to the governing bodies and the event organisers to ensure that the athletes they select to represent them in major athletics competitions have complied with any IAAF rules and the Code. Whilst it may be asking too much for national teams to be held responsible for the integrity of its athletes, they can be reasonably expected to shoulder some responsibility when it comes to educating its athletes on the perils of PEDs.

Nonetheless, the IAAF will have a lot to answer for should it proceed to ratify the EAC’s proposals in their present form. A unilateral variation of event rules and applicable anti-doping practices with retrospective enforceability, more than 12 years after the event took place, is both contractually unlawful and competitively unfair.

At the very least, the IAAF should permit these pre-2005 records to stand, and accept that former technology and anti-doping procedures may not have been good enough, and apply these more stringent rules going forward. Failure to do so will tarnish the reputations of many athletes, several of whom are role models to millions worldwide, risk alienating many spectators (and consequently sponsors and broadcasters if viewing figures fall) and place added strain on the relationship between athletes and event organisers with the IAAF. Alienating stakeholders does nothing to enhance the profile of any sport, and governing bodies would be wise to introduce measures that balance their respective interests.

In the quest to eradicate doping from track and field athletics, part of the wider objective of rebuilding its integrity, ratifying these proposals may well be one step forward: In practice, it will more likely reveal itself to be two steps back.

[1] https://www.iaaf.org/news/news/european-athletics-records-plan

[2] Modahl v The British Athletic Federation Ltd [2000] https://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990722/modahl.htm