Athletics: Sue the cheat and see him run: Catherine Bond on a legal solution to the problem of drugs in athletics

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The Independent Online
WHEN an athlete is caught cheating, and duly punished, that is thought to be the end of the story. They are banned from the sport, their reputation is forever tarnished, justice has been done. But in the week that Ben Johnson was dispatched to sporting oblivion, another question presents itself. What of all those athletes who have raced against, and lost to, someone subsequently proven to have been a cheat? Is there any redress for them?

It follows, of course, that in a world where cheating athletes are making huge sums of money, non-cheating athletes are being deprived of the glory and spoils of success. Such athletes may be living a life of relative obscurity by losing important races to athletes who cheat. Take the British distance runner Mike McLeod - well known in his sport, but missing out on the greater glory which he could well argue should be his.

McLeod's big moment was the 10,000 metres final in the 1984 Los Angeles Olympics. First across the line was the Italian Alberto Cova, followed by Martti Vainio of Finland, and then McLeod. Five days after the race, Vainio was disqualified for use of steroids. McLeod was then awarded the silver medal. But in 1986 there were accusations by the Italian national coach, Romano Tordelli, that Cova had used blood doping techniques in the 1982 European championships, and Cova himself admitted after the 1984 Olympics that he had blood doped during his career. If it had been proved that Cova had blood doped during the Los Angeles race, McLeod would now be an Olympic champion. And in terms of status and earning potential, his life would have been very different.

What then is the scope for one athlete sueing another in such situations? Sport and the law is a complex area, but athletes are increasingly prepared to explore it. There are various options open.

An athlete who resorts to the use of forbidden substances or techniques may be guilty of criminal fraud. No athlete has ever been charged with this offence. But if one were, and found guilty, he would be subject to fines and possibly imprisonment.

The civil law awards damages to compensate people financially for loss suffered by another's wrongdoing. There may be two successful actions in the civil law based on deceit and negligence which would award damages to the innocent athlete who has suffered loss, for example by being deprived of victory.

An award of damages would not only compensate the innocent athlete but it would also make the cheating athlete pay. It could therefore act as an effective deterrent against taking steroids. Of course, it is not worth suing a person unless they have sufficient money to pay the damages, but at the highest level athletes are earning vast sums. These are paid into trust funds controlled by the IAAF and could be available to pay damages to a successful claimant.

The huge damages payable to an athlete were illustrated when Butch Reynolds was awarded a judgment of dollars 27.3m by a court in Ohio as a result of the IAAF wrongfully banning him from competition. A substantial amount of this would be for loss of earnings. The courts would work out the sums by assessing what an athlete might otherwise have earned in terms of sponsorship, appearance money and prize money.

An athlete could even be compensated for being denied the title that should have been his. This would vary as to the period of time between the race and the discovery that an athlete had used forbidden techniques to enhance his performance. For example, in the Seoul Olympics in 1988, Carl Lewis was denied his 100 metres title for only the two days it took to expose Ben Johnson. Such miscarriages could last a lot longer, and be compensated for accordingly.

The only present deterrent against taking steroids is a ban, but the evidence is that it is proving insufficient. It would thus be beneficial for the world of athletics and sport as a whole if a criminal or civil action were successful.

Litigation is an expensive business, of course. However, a sports body such as the IAAF or the Sports Council could support an athlete in a test case, and it would also serve to show that they were really serious about stamping out the use of drugs. If an athlete was made to pay for the real harm that he or she caused then they might be forced to think again about the serious consequences of cheating.

The author specialises in sport and the law at the London solicitors Jaques & Lewis.

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