ABSTRACT
If you listen to the sporting federations talk of doping, you will hear the language of war. The talk is of ‘fights’, ‘combat’, ‘battle’ and the ‘war against drugs’. The new Anti-Doping Code of the Olympic Movement begins its preamble by talking of ‘the fight against doping’.1 The European Union’s latest initiative is entitled Plan to Combat Doping in Sport.2 The courts also echo this language. In Modahl v BAF,3 Lord Woolf MR, at the very beginning of his judgment, quotes the IAAF regulations that talk of doping as a ‘deadly threat to sport’. Later in the same judgment, he cautions against courts interfering, ‘as otherwise the whole war against drugs in sport could be undermined’. Likewise, Scott J, in Gasser v Stinson,4 spoke of the innocent being hurt along with the guilty, as if these were regrettable but justified casualties in war. He said ‘the moral innocent may have to suffer in order to ensure that the guilty do not escape’. This language allows a perception that normal legal safeguards to protect the victims of this war, the innocent athletes who suffer injustice and the destruction of their careers, can be ignored or compromised. All’s fair in love and war. There are, however, always other ways of seeing the problem and talking about it. David Moorcroft, Chief Executive of UK Athletics, when the International Amateur Athletics Federation (IAAF) confirmed bans on British athletes who had tested positive for nandrolone, said: ‘... the IAAF have given the benefit of the doubt to the system, not the athletes.’5 He, by contrast, talks the language of the criminal law. This implies that athletes are accused criminals who are entitled to the benefit of any reasonable doubt and who should be treated as innocent until proven guilty. Different ways of talking not only pose the problem of doping differently; they help to shape the solutions to the problem. There are many different ways of
talking about the regulation of drugs. These ways of talking will be termed ‘discourses’. This chapter explores these discourses and tries to assess the role that law has played in shaping them.
