WADA: Time for 4-year bans
London - Enough with the tough talk. Let's see some action.
That's the message from international anti-doping officials, who are becoming convinced that two-year suspensions are too weak and want sports bodies to start imposing four-year bans to send drug cheats a stronger message.
Under the World Anti-Doping Agency code that took effect nearly two years ago, athletes can be punished with bans of up to four years for a first offense in "aggravating" cases.
However, federations and national doping bodies have stayed away from the four-year penalty, apparently worried that tougher penalties won't stand up in court or simply because they're content to stick with the two-year sanctions.
WADA Director General David Howman said those who wanted the option of tougher punishments seem to have lost their nerve.
"This four years was something that people who were advocating stronger penalties really wanted us to include, and so it was included," Howman said in an interview. "But 18 months later, it's hardly being used, if at all.
"When it comes to the crunch, obviously people are not willing to be as tough as they sound."
Howman said the longer ban is intended to benefit clean athletes.
"They don't want to be lining up against people who cheat," he said. "They get a two-year penalty and, quick as a flash, they're back again."
Arne Ljungqvist, the International Olympic Committee's top anti-doping official and a WADA vice president, agreed that the four-year sanction hasn't been used enough.
"No one has been doing it, so we are waiting for a suitable test case," Ljungqvist said. "So far people are still living with the idea that two years is the standard ban, which should not be the case in serious cases like EPO and steroids and the like. We will take action once we have a good case to pursue."
Some legal experts argue a four-year ban for a first violation is Draconian and a restraint of trade. Costly court cases could make sports bodies think twice before trying to impose a four-year punishment.
"A four-year ban is effectively a life ban in most sports," said Mike Morgan, a London-based lawyer specializing in doping regulations. "It is a very big step to take to impose that. ... The day we start seeing four-year bans, it has to be justified. They really have to back it with some robust arguments and evidence."
Four-year bans used to be the norm, but the penalty was cut in half after there were complaints that it went too far and wasn't legally enforceable.
The four-year option was reintroduced in the code approved at the November 2007 world anti-doping conference and went into effect on January 1, 2009.
The WADA provision states that bans can be increased "up to a maximum of four years" in the event of "aggravating circumstances."
Possible examples that WADA cites include: being involved in a doping conspiracy, using or possessing multiple banned substances or using drugs on multiple occasions, being involved in "deceptive or obstructing conduct" to avoid detection.
The key phrase refers to cases where an athlete "would be likely to enjoy the performance-enhancing effects of the anti-doping rule violation beyond the otherwise applicable period of ineligibility."
Howman and Ljungqvist said medical research has shown that the effects of anabolic steroids can last four years or more.
"It was that scientific evidence that made the legal people say, 'Yes, there are good reasons for extending the ban from two years to four years in anabolic steroid cases," Ljungqvist said.
Yet, the few times where four-year bans have been used recently were in cases where people were accused of supplying - not using - drugs.
Last month, the Court of Arbitration for Sport upheld a decision to impose a four-year ban on a Bulgarian soccer coach, Edward Eranosian, for giving his players pills containing steroids before matches in Cyprus. In June, Austrian triathlete Hannes Hempel received a four-year sanction from the national anti-doping agency for allegedly providing drugs to former cyclist Bernhard Kohl.
An exception is the International Weightlifting Federation, which decided on its own in 2008 to double the penalty for a first offense from two to four years after the sport became so riddled with drug scandals that its Olympic future was thrown into doubt.
"The IWF did not want everyone's first reaction to weightlifting to be about doping and cheating," said Monika Ungar, legal counsel at the IWF offices in Budapest. "We wanted to show that this is a sport and not something dirty which everyone looks at with a crooked eye.
"When we made the change, we received warm congratulations from others, but no one followed our lead."
Cycling is another sport that has been plagued by doping, with the current investigation into three-time Tour de France champion Alberto Contador for a positive test for clenbuterol just the latest example.
Without referring to Contador's case, international cycling federation president Pat McQuaid said he favors four-year bans to help stop cheaters. He said he has instructed the UCI's anti-doping department to seek four-year penalties for "premeditated" doping and urged national federations to do the same.
"I'm increasingly going for four years because two years is very quick," McQuaid said. "An athlete returns to the peloton very quick. I think it's unfair to the clean athletes that guys who have cheated in premeditated cheating can come back so quickly."
Morgan, the sports lawyer, said there needs to be a clear definition of what amounts to premeditation.
"An athlete may have taken the banned substance just once, on purpose - that's premeditated," he said. "How do you distinguish that from someone who has been doing it for six years and is taking six or seven banned substances and is part of a wider doping scheme? There has to be distinction between those cases."
Track and field's governing body, the International Association of Athletics Federations, had previously imposed four-year bans on a regular basis and had no comment on the issue of returning to longer sanctions.
The IAAF's rules allow for penalties longer than two years, but they have not been used - except in the case of seven Russian females who were suspended for two years and nine months by CAS in an organized affair involving manipulation of urine samples.
"There's a lot of strength when people are voicing opinions, but when it comes to putting them into practice or reality, that fierceness turns out to be pretty timid," Howman said. "I think some of that does stem from a fear of a legal process. If that's a fear, maybe it's something that people shouldn't be advocating in the first place."
Howman acknowledged that not everyone agrees on the meaning of "aggravating circumstances."
"It's probably one of the reasons that people shy away from it," he said. "What makes it worse than an EPO case? Or is an intentional EPO case aggravated? That's the balance and I don't think that's been found and it will take cases to find it."
Meantime, Howman is running out of patience with the stalemate.
"I'd just like to see people get off the starting blocks," he said. "Otherwise we're only two years into the changed code and it hasn't been used. When it gets reviewed again, people are going to say, 'What's it there for?"'