When the World Anti-Doping Agency (WADA)’s Foundation Board, whose members include FIFA President Joseph Blatter, assembles in Montreal this weekend, it could helpfully reflect on the kerfuffle stirred up by this month’s announcement of the sanction meted out to Tyson Gay, the US sprinter, in the wake of his adverse analytical finding.
Gay received just a one-year suspension, and a loss of results dating back to July 2012, including an Olympic silver medal, after testing positive for “the presence of an exogenous androgenic anabolic steroid and/or its metabolites”.
This was as a consequence of the athlete being given a 50 percent reduction of the otherwise-applicable two-year sanction for providing “substantial assistance” to the United States Anti-Doping Agency (USADA).
This particularly high-profile irruption of the concept of plea-bargaining into the fight against doping got, I think it is fair to say, a pretty spiky reception, with even athletes who might normally think that discretion was the better part of valour when it came to criticising the anti-doping police speaking out.
It is not the main purpose of this piece to argue whether it is right or wrong to write plea-bargaining into the World Anti-Doping Code.
I can see both sides of the story.
Yes, it seems just for a given offence almost always to attract a uniform punishment.
But I can also see how harvesting information from athletes found to have violated the rules might prove a significant help in the fight against doping.
Incentivising those in this position to cooperate as fully as possible may, in some cases, be a tolerable price to pay for evidence/information that enables real inroads against the big fish of doping to be made.
As WADA director general David Howman points out, “People sometimes forget an athlete’s entourage cannot be tested scientifically.
“So it is important to gather information about their behaviour in other ways.”
What I thought would be more useful is to give those who have just cottoned on to the scope for plea-bargaining in the current rules fair warning that in all probability they ain’t seen nothing yet.
On 1 January 2015, a revised code comes into effect – and whereas at present at most 75 percent of an otherwise-applicable ban can be suspended, under the new code, “in exceptional circumstances” WADA may agree to an athlete serving no ban at all. And/or returning no prize money. And not paying any fines or costs.
Furthermore, WADA’s decisions in this context may not be appealed by any other anti-doping organisation.
And “in unique circumstances”, WADA may authorise an anti-doping organisation to enter into “appropriate confidentiality agreements limiting or delaying the disclosure of the substantial assistance agreement or the nature of substantial assistance being provided”.
Given the way this month’s Tyson Gay announcement was received, I can hardly imagine the reaction when the first big name has the sanctions s/he would otherwise have been hit with suspended in their entirety, so enormously substantial has her assistance been.
So, while views on plea-bargaining and its place, if any, in the fight against doping, may diverge, it seems to me fairly self-evident that WADA, and other anti-doping authorities have a big, and rather urgent, education job on their hands to try and foster greater understanding and acceptance of a concept that, like or not, is written into the code for the foreseeable future.
Of course, widespread opposition to a course of action does not necessarily mean that course of action is misguided or wrong.
As WADA’s Howman asserts, “We are not afraid of challenge because that’s the only way you find out whether these things work appropriately or not”.
But I really think that anti-doping bodies would be well-advised to endeavour to build more support for this idea of, if you like, winning time off for telling the authorities what you know, than appears to exist at the moment.
It seems to me that part of the problem lies in the secrecy with which the nature of the substantial assistance provided will almost inevitably be shrouded, at least to begin with.
This may make it particularly difficult for national anti-doping authorities convincingly to rebut charges of showing undue leniency to their own athletes, even if other bodies have the right to appeal what they believe to be unjustifiably light sanctions.
Under the circumstances there may be a case for setting up a small independent panel, drawn from the Great and the Good of the fight against doping, whose job would be to scrutinise plea-bargaining agreements, including details that could not be made public, and verify that a fair bargain, in the interests of competitors who abide by the rules, had been struck.
Those of us outside the ranks of the privileged few would still, ultimately, have to take things on trust.
And the panel’s existence would probably make little difference to those who oppose plea-bargaining on principle.
But, populated by the right individuals, such a plea panel would, I think, afford an important extra layer of protection against lack of consistency or possible abuse.
David Owen worked for 20 years for the Financial Times in the United States, Canada, France and the UK. He ended his FT career as sports editor after the 2006 World Cup and is now freelancing, including covering the 2008 Beijing Olympics, the 2010 World Cup and London 2012. Owen’s Twitter feed can be accessed at www.twitter.com/dodo938