This is a guest post by lawyer and lecturer, Daniel Goldsworthy

I do my best writing in the morning, on an empty stomach after two black coffees.  I find it enhances my performance.  In fact, I am one black coffee in as I type this.  In sporting parlance, I find coffee (caffeine specifically) to be an ergogenic aid, that is, one that boosts my performance.  The level of performance enhancement following the ingestion of caffeine differs substantially between individuals.  In fact, for some, the effect of two black coffees might be ergolytic – that is, it may detract from performance.  Or it may send you straight to the bathroom.

If I were an athlete prior to 2004, by drinking caffeine, I would have tested positive to a banned substance.  But then, with the stroke of a World Anti-Doping Authority’s (WADA) pen, caffeine was no longer banned, although WADA considered applying the white-out last year and putting caffeine’s status in the ‘no’ column yet again. This suggests that ‘doping’ and the negative connotations associated with it, are somewhat relative.

The practice of ingesting substances to increase athletic performance is as old as sport itself.  The word doping itself derives from ‘dop’, a stimulant drink consumed by the native peoples of South Africa.  After returning from South Africa, the Dutch used ‘dop’ to enhance their canal swimming prowess.  In 1889, the word appeared in an English dictionary referring to a narcotic mixture of opium used for racehorses.

Japan’s 21 year old short track speed skater Kei Saito was the first Winter Olympian to be suspended for a positive drugs test in PyeongChang.  An out-of-competition test showed signs of acetalozamide, which can be a masking agent and is used as a diuretic.  It is almost certain that more athletes will breach doping regulations.  So much is clear from the language used by almost every news outlet in reporting on the “first doping case” of the Games.

Yet, in PyeonChang this year, the concept of “first” is as relative as what is “in and out” of the doping list.  Just before the 2018 Winter Olympics commenced, the Court of Arbitration for Sport (CAS) upheld the bans of 47 Russian athletes and coaches implicated in the doping scandal that has subsequently marred the 2014 Sochi Winter Olympics.  Russia had been banned from competing in PyeongChang by the International Olympic Committee on the basis of systemic, state-sanctioned doping.  Notwithstanding, 168 Russian athletes passed a vetting process allowing them to compete in the Games, but under a neutral flag as ‘Olympic Athletes from Russia’.

The litmus test used by WADA to determine whether a substance or method should be on WADA’s Prohibited List rests on three pillars.  If the substance or method meets any two of the following criteria, it may be banned: (a) if its use may enhance performance; (b) if it carries potential health risks; and (c) if it violates the ‘spirit of sport.’

It is this third pillar that gives one to pause for thought.  What is the spirit of sport, and what may lead to its violation?

The very notion of the ‘spirit of sport’ has not always extended to prohibiting the ingestion of weird and wonderful substances.  Ancient Greek athletes used hallucinogenic mushrooms.  The winner of the 1904 Olympic Marathon, Thomas Hicks, was reported to have taken the ‘spirit’ of sport rather literally, ingesting brandy and strychnine sulphate.  He was carried over the finish line by his trainers in a time of 3 hours and 28 minutes.  His time is really all the more impressive, given he essentially ingested a cocktail of hard liquor and rat poison.

But what happens if you unknowingly ingest rat poison, or any number of other unpronounceable substances prohibited in WADA’s newly revised 2018 list?  Bad luck.  Or as lawyers will often refer to it, this is a ‘strict liability offence’ – simply a more eloquent translation of the same equally unpalatable outcome.  The Court of Arbitration for Sport in Quigley v. International Shooting Union (UIT) CAS 94/129 Award, 23 May 1995 explained it this way, “the vicissitudes of competition, like those of life generally, may create many types of unfairness, whether by accident or the negligence of unaccountable persons, which the law cannot repair.”  This, essentially, amounted to the Court’s affirmation of the ‘bad luck’ doctrine.  But is the ‘bad luck’ doctrine contrary to the spirit of sport?  Should it be?

To answer this, one turns to philosophy and ethics.  One hundred years before Hicks’ rat-poison-fuelled marathon victory in St Louis, one of history’s greatest thinkers and foreheads, Immanuel Kant, passed away – but not before having developed his theory of morality, the basis upon which certain subsequent truths were held to be ‘self-evident’.

Kant was born in what was then Prussia, (aerial) striking distance from the Kremlin, now a Russian enclave on the Baltic between Lithuania and Poland.

Kant is credited with originating the philosophical cornerstone of the modern human rights movement.  Known as the categorical imperative, his theory of morality holds that it is immoral to use another person merely as a means to an end (say, to uphold the ‘spirit of sport’ even if an athlete is unaware of how a prohibited substance entered their body), and that people must be treated as ends in themselves.  This suggests that the ‘bad luck’ doctrine of strict liability doesn’t stack up from a human rights perspective.

The concept of strict liability is also contrary to the oft-cited legal maxim (for some lawyers anyway), ‘actus reus non facit reum nisi mens sit rea’, Latin for, an act does not make a defendant guilty without a guilty mind.  An even simpler translation being, ‘back luck does not equal guilt; knowledge is required’.

Therefore, strict liability is anti-Kantian.  As human beings, we are ends in and of ourselves possessing inherent dignity and value.  By extension, we have certain ‘human’ rights.  These rights cannot be subverted, even for a higher goal such as the Olympic ideal or the ‘spirit of sport’.   Such rights include the right to a fair trial, the presumption of innocence until proven guilty, and the right to ingest brandy-laced rat poison – if we know we are taking it.

As I return to my second black coffee and scratch my Kantian-sized forehead in contemplation of other historically permissible performance-enhancing elixirs like boiled ox testicle or magic mushrooms – it is likely that in the search for an edge over the competition, PyeongChang athletes will be not only continue to push their physical limits but the limits of their clinicians and chemists.

One expects that the contest between athletes’ human rights and strict liability will once again be brought back into the spotlight.  One outcome is certain. Such a contest is sure to be an EPO-fuelled cross-country marathon race, not an anabolic speed-skating sprint.

Daniel Goldsworthy is an Australian lawyer and lecturer at the College of Law and Justice, Victoria University. He has qualifications in Law as well as Sport and Exercise Science. He is also a tribunal chair for Basketball Victoria.  When he writes, he sips black coffee from little cups. He enjoys being run by his kelpie x border collie Harvey, basketball, freediving and longboarding – generally not at the same time. He also enjoys writing from time-to-time, even though his partner doesn’t enjoy reading it (Ed: I’m sure that’s not true).