Jack Anderson: 'More cheats caught, but justice delayed is justice denied'
When Australian swimmer Mack Horton refused to acknowledge victories by Chinese swimmer Sun Yang at the last month's world swimming championships, the very public protests riveted the swimming world and cast a spotlight (again) on suspected doping in sport.
But amid the drama, a separate, failed drug test was slightly overshadowed. Uzbek wrestler Artur Taymazov became the 60th athlete - and seventh gold medallist - to retrospectively test positive for doping from samples taken at the 2012 London Olympics.
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In addition to the nine athletes caught doping during the games themselves, that brings the total number of disqualified athletes from London to 69, more than triple the number caught doping at the 2004 Athens Olympics.
That athletes from the 2012 Olympics are still being caught cheating might come as surprise. But the World Anti-Doping Code (WADC 2015) provides for retrospective testing, a 10-year window following a competition to test athletes' samples for a possible doping violation.
The WADC's limitation period first came to prominence in 2010, with the release of Andre Agassi's autobiography, Open. In it, the tennis star admitted to taking a banned drug, crystal methamphetamine, in 1997. He also revealed he avoided suspension by the tennis authorities, who, in confidence, accepted his plea that the positive test had resulted from a drink spiked by one of his entourage.
The then-head of WADA, John Fahey, wrote to the tennis authorities for an explanation but further investigation was barred because the statute of limitations had long since expired.
In another prominent case in 2012, the US Anti-Doping Agency (USADA) argued it should be able to expunge all of cyclist Lance Armstrong's competitive results from 1998 onwards - including all seven of his Tour de France victories. This was due to evidence that Armstrong's cycling team had run the most sophisticated, professionalised and successful doping programme that sport has ever seen.
USADA acknowledged this would be in breach of the WADC's statute of limitations but justified the move on the grounds that Armstrong had fraudulently concealed his doping for many years. The International Cycling Union did not challenge USADA's interpretation of the time limitation rule and Armstrong's results were subsequently erased.
Due to the level of doping in the sport at the time, no retrospective champion was declared for the seven Tours between 1999 and 2005.
The reason for the 10-year window is because testing has failed to keep pace with cheating. There is a lag period between WADA both becoming aware of a new performance-enhancing substance that it needs to prohibit and developing a test that can, with scientific accuracy, detect it. So, the 10-year window allows anti-doping authorities to retrospectively test samples of athletes after new methods allow them to do so, thus acting as a deterrent against doping in the future.
In 2017, WADA testing figures revealed that of the 322,050 samples taken in and out of competitions that year, only 1.43 per cent led to an adverse analytical finding. But some research indicates the prevalence of doping among athletes may be much higher than that.
The hit rate of retrospective testing in the Olympics has increased in recent years. The International Olympic Committee began storing samples and allowing retrospective testing from the Athens Olympics in 2004. Five athletes were caught retrospectively from those games, followed by 65 from the 2008 Beijing Olympics and now 60 (and counting) from London.
In theory, USADA's interpretation in the Armstrong decision - which was supported by rulings in the Court of Arbitration for Sport - leaves open the possibility that the statute of limitations for drugs violations could be extended even further.
This could allow the IOC to revisit the results from the Olympics of the 1970s and 1980s, where there is documented evidence - from Stasi files, for example - that countries such as East Germany engaged in a state-sponsored doping programme to achieve sporting success.
Interestingly, one of the first former Australian Olympians to support Horton in his protest last month at the world swimming championships was Raelene Boyle, who has long claimed she was denied two gold medals at the 1972 Olympics by East German athletes suspected of doping.
Although more cheats are being caught, this doesn't mean the system of retrospective testing is working perfectly.
For starters, a decade-late public declaration that an athlete was the rightful winner of a championship offers some recompense, but the denial of immediate glory often has severe financial and even health consequences.
In 2016, Rob Heffernan became the first Irish athlete to receive an Olympic medal at home after being awarded a bronze medal for the 50km walk at the London 2012 Olympics. The Russian gold medallist Sergey Kirdyapkin was retrospectively disqualified for doping.
In the same year, another Irish walker, Olive Loughnane who had originally finished second behind Olga Kaniskina in the Berlin World Championship 20km race walk in 2009, was upgraded to gold after the Russian was stripped of her medal by the Court of Arbitration for Sport.
Heffernan and Loughnane thoroughly deserved their medals, but for sport generally, having to correct the result of events held years previously may be adding to a growing public indifference to doping. For example, the men's 94kg weightlifting event from the 2012 Olympics shows just how little confidence remains in certain sports: all three medallists were disqualified for doping, as were the fourth, sixth and seventh-placed finishers.
But this testing regime is not without flaws. For instance, an athlete who tests positive for a performance enhancing substance has the right to appeal and, if they can afford it, to go to the Court of Arbitration for Sport in Switzerland. Once that process is exhausted and if the positive test still stands, their anti-doping samples, as with all proven cases, are then destroyed. This is a questionable, unnecessary practice. Although the scientific integrity of the anti-doping testing regime has greatly improved thanks to WADA, the system is not perfect.
Former Liverpool player Mamadou Sakho, for instance, is suing WADA for an alleged drug-test blunder.
Then there is the Irish sprinter Steven Colvert, who tested positive for EPO in 2014 and was banned for two years. Colvert's case has attracted some publicity regarding the issue of false positives and the scientific sensitivity of WADA testing for EPO.
Sport Ireland's anti-doping personnel are very well respected globally, as is the WADA lab that tested Colvert's samples; nevertheless, the fact that his samples were destroyed means his chance of proving forensically that he may have been the victim of a miscarriage of justice is rendered all but futile.
WADA protocol could easily be changed to mandate that all samples be maintained for 10 years to allow athletes who have been punished for a positive test to later challenge that sanction, with the aid of advancing technology.
The strength of any justice system lies not only in how often it closes cases against athletes rightly accused of doping, but how open it is to giving athletes the opportunity to the show that, on occasion, the system got it wrong.
This article was originally published in the Conversation. Jack Anderson is a professor of law at the University of Melbourne
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