THE staging of the ISSA Boys’ and Girls’ Championships highlights Jamaica’s passion for sports both as a recreational activity and as a business. The event is an important one for athletes, coaches, sponsors, organisers and merchants. In the midst of our euphoria, we should not forget the serious side to sports: the likelihood of doping and the effect that cheating may have on the decline of sports generally.

The Anti-Doping In Sport Act was passed in 2008 to regulate doping in sports and applies generally to athletes. An athlete is defined under the Act as any person who participates in a sport as an international-level athlete or as a national-level athlete (as determined by the Jamaica Anti-Doping Commission). An “international-level athlete” is defined as an athlete who is designated by one or more international sporting federations as being within the Registered Testing Pool (persons subject to both in and out of competition testing) for an international sporting federation.

The athletes who may be governed by the Act include athletes who have been selected to compete as representatives of Jamaica in an international sporting competition, currently compete in a national sporting competition or have been assessed to have the potential to represent the country in an international sporting competition. Notably, the Act covers the athlete who may have been assessed by a national sporting organisation or an international sporting federation as having reached such a standard of performance in his sport as to be capable of representing the country of which he is a citizen or in which he is ordinarily resident. The Act also applies to athletes who receive financial or other sport-related support from the Government of Jamaica or an agency of the Government. What is clear, however, is that this Act covers athletes who compete in both popular and unpopular sports.

The Act provides that an athlete commits an anti-doping violation if a prohibited substance or its metabolites or markers are found in his body unless the athlete holds a Therapeutic Use Exemption Certificate and is in compliance with such a certificate. This violation is the most important violation under the World Anti-Doping Code (on which it appears that the Anti-Doping in Sport Act is largely based). International tribunals have decided that it is a violation of strict liability, ie that no intent on the part of the athlete need be proved. Accordingly, each athlete is personally responsible for any prohibited substance which enters his or her body despite a lack of intention to ingest the substance.

In addition, an anti-doping violation is committed where an athlete refuses or fails, without compelling justification, to submit a sample after notification or otherwise evades sample collection. A New Zealand tribunal, in a decision on a similar provision, noted that “as a general principle it is proper to treat a failure to supply a sample as seriously as the provision of a sample which returns a positive result, otherwise, athletes would have an incentive to cheat”. An athlete also violates the rules by failing to be available for out-of-competition testing or failing to provide information on one’s location. Further, an athlete who tampers with any aspect of the doping control processes (such as the sample) or traffics a prohibited substance commits an anti-doping rule violation.

However, where an athlete has a medical condition which requires him to use a prohibited substance or a prohibited method, he may obtain a Therapeutic Use Exemption Certificate through the Jamaica Anti-Doping Commission (JADCO) or the relevant authorised international sporting federation. Except in the case of an emergency, an athlete should make an application for a Therapeutic Use Exemption Certificate no later than 21 days before the athlete’s participation in an international sporting event.

It is important to note that the prohibited substances and methods are those which are found on the Prohibited List published by the World Anti-Doping Agency (WADA). This list is amended by WADA from time to time, therefore, it is important for athletes and coaches to keep abreast of changes made to the list.

The Anti-Doping Act establishes JADCO, the JADCO Disciplinary Panel and an Appeals Tribunal. The Disciplinary Panel has the following functions, among others:

* To receive, examine and hear evidence relating to the violations;

* Conduct disciplinary hearings related to these violations;

* Determine whether a violation has occurred; and

* Impose consequences for the violation of the anti-doping rules.

The decisions of this Disciplinary Panel may be appealed to the Appeals Tribunal. Such appeals may be brought by an athlete or any other person who is the subject of the decision, JADCO, an international sporting federation, a national sporting organisation, the Jamaica Olympic Association or WADA. However, where an appeal is in respect of an international event or involves an international-level athlete, the decision may be directly appealed to the Court of Arbitration for Sport in Lausanne, Switzerland.

The Anti-Doping In Sport Act emphasises the need for athletes to become knowledgeable of the substances which they ingest and the various doping violations. A clean sporting arena will not only benefit the athletes themselves but also the investments which are currently being made in the sports industry.

Grace Lindo is an Associate in Myers, Fletcher & Gordon’s Commercial and Intellectual Property Departments. She is also a member of the Firm’s Entertainment and Sports Law Practice Group. She may be contacted at grace.lindo@mfg.com.jm or at 1.876.922.5860-9