On Sunday morning I was on Radio National talking about the previous weeks news. Of course the big news was the whole drugs in sport thing that had blown up – first with Essendon and then the Crime Commission press conference.
My argument was that many of the so-called banned drugs are not actually illegal, merely that competitors in various sports cannot use those drugs as they may enhance performance. So the ban of various drugs is part of a business model that professional sporting organisations use to earn profit. How the private sector chooses to organise its affairs is its own business. I cannot see why the government should protect business models. I’ve pushed this sort of argument a few times over the years but everyone I’ve spoken says something like, “You don’t understand, it’s cheating”. To assist with my understanding they usually speak louder and emphasise “cheating”. It may well be cheating but I can’t see why it should be a crime.
So I’m very pleased to see that argument being articulated in The Australian:
There are, of course, a range of performance-enhancing substances that are banned by the Australian Sports Anti-Doping Authority and the World Anti-Doping Authority.
But that is not a legal regime. It is based on the willingness of the major commercial sporting bodies, particularly the football codes, to voluntarily impose suspensions on competitors who are found, as a result of testing, to have used the banned drugs.
There are, however, ways in which the use of performance-enhancing substances such as peptides may be contrary to law and so illegal if, for example, it is: a prohibited import under the federal Customs act; a legal import but able to be used only under medical prescription, which was not provided; used under a fraudulent medical prescription.
But all that hardly need involve a specialised crime unit. Smuggling and fraudulent medical prescriptions and the like are already crimes and are policed by the normal methods – this problem is not unique to professional sport.
The most puzzling question in all of this is how performance-enhancing substances came to be an area of massive federal regulation. ASADA is a body established by commonwealth legislation and funded by taxpayers. The AFL and NRL, like the other major football codes and the governing bodies of tennis and cricket in Australia, are private businesses with substantial revenues, particularly from sponsorship and media rights. They are presumably quite capable of regulating drug use within their sports if they wish to do so.
The answer from Canberra no doubt would be that the federal government puts a lot of money into all major sports, including $300 million towards the team that was sent to the London Olympics last year. It is possible to be a sports fan, however, and still question whether this is a proper use of the limited pool of taxpayers’ dollars.
The lengthy investigation by the Australian Crime Commission is another aspect of the role of federal government in this area. If there is significant evidence of match-fixing, itself a criminal offence, or the role of organised crime, the commission is entitled to be involved. But it is not easy to see what its concern would be with breaches of ASADA’s code of conduct.
It gets worse. It seems that the ACC has no actual evidence and no police investigations are under way.
THE Australian Crime Commission did not gather any new information about organised crime or doping in sport through telephone taps as part of its 12-month intelligence operation, which Victoria Police Chief Commissioner Ken Lay says has not provided any basis for a criminal investigation.
The lack of specific, suspected crimes documented within the classified version of the ACC report has prompted Mr Lay to seek more information from the federal agency. Mr Lay said Victoria Police had examined both the published and unpublished versions of the report and not found any information on which to base a criminal investigation. He has requested the ACC provide unreported intelligence gathered as part of the operation.
“The advice available to us is there is little for us to investigate,” Mr Lay told Radio 3AW’s Neil Mitchell.
They have nothing – reminds me of the time the ACCC raided oil companies looking for evidence of price fixing.
So where does this actually leave us? Well Fairfax is making excuses:
Reportedly, the ACC has no current criminal investigation into any sport, merely a body of intelligence. This is hardly surprising; it is a small and modestly resourced body. But someone had to start somewhere.
Naturally, this has led to charges that the report is a political stunt, shaped to fit an election year. Within the AFL, some are feeling used. Again, this is predictable. But it does not mean that that this is a case of ”nothing to see here, move along”. What is the worse political sin: to grandstand, or to sweep all under a carpet?
I can see no reason why that somebody starting somewhere should be doing so with taxpayers money and/or the coercive power of the criminal law behind them.
If the ACC has so little work investigating actual crime that it starts persecuting sport people and protecting private business models, then maybe it should be lined up as a budget saving.