Doping, defamation and an own goal

6th November 2020 Media Law

There are few more contentious issues within sport than cheating.

The idea that competitors will break the rules to obtain an advantage of their opponents undermines the notion of fair play which is at the very heart of sport.

Even before Baron Pierre de Coubertin revived the Olympic Games in 1896 with a slogan which urged athletes to go higher, stronger and faster, the temptation to cheat was too great for many to resist.

Numerous episodes of skullduggery have hinged on the equipment used by sportsmen and women, including metal cricket bats, doctored fencing épées or even running spikes.

However, for more than half a century the focus has been on the athletes themselves and trying to prevent them taking substances which might give them an edge.

The fight against performance enhancing drugs is generally considered by participants, spectators and sponsors to be a noble one which requires constant vigilance in order to avoid a possible return to the state-sponsored doping of the Cold War era.

Yet, as I've been telling Matt Lawton, the Times' Chief Sports Correspondent, that cause has sustained serious and arguably avoidable damage in recent days.

In 2016, the French international footballer Mamadou Sakho, then at Liverpool, served a one-month provisional suspension after testing positive for a banned fat-burner, higenamine, which he said had been contained in his wife's diet pills. He did not play for the remainder of the 2015-'16 season.

The test had been overseen by the World Anti-Doping Agency (WADA), the body established in 1999 to "promote, coordinate and monitor the fight against drugs in sports".

However, football's European governing body, UEFA, dismissed the case because it turned out that higenamine wasn't on the list of proscribed substances at the time of Mr Sakho's test.

Nevertheless, WADA stuck to its guns in briefings to several media outlets.

Mr Sakho sued for defamation and loss of earnings. His month-long suspension effectively meant that he missed Liverpool's Europa League Final and a chance to represent his country at the European Championships.

He also blamed the controversy for Liverpool's decision to sell him to Crystal Palace, his current Premier League club.

Now, the four-year long saga has come to a close with nothing short of a grovelling apology by WADA.

A statement read out in open court this week to mark the settlement between the Agency and the player sets out just how shambolic its treatment of Mr Sakho was.

It makes abundantly clear that WADA had prioritised its own reputation over that of Mr Sakho.

Having already been found to be wrong, it compounded its initial errors by persisting in making highly defamatory statements about Mr Sakho until, faced with legal proceedings, it capitulated.

In addition to its apology, WADA has also agreed to pay substantial damages and costs.

As someone who has represented numerous sportsmen and women with their own defamation claims, I believe this to be an extremely troubling episode.

Firstly, WADA must have been fully aware of the fact that allegations of this nature are potentially career-ending for a professional sportsman or woman.

Elite performers in a wide range of sports will also reasonably question whether an organisation which is supposed to protect fair play is incapable of playing fair itself.

Might they be subjected to similar treatment if they find themselves in the same sort of situation as Mr Sakho?

Although WADA has agreed to recompense Mr Sakho for the "distress, hurt and embarrassment caused to him", he has missed out on the prospect of winning tournaments and the possible chance to remain with English football's current pace-setters.

Allegations of being a drug cheat go to the heart of a sportman's professional and personal reputation, and his decision to sue has been vindicated.

WADA does important work and this case alone should not necessarily be used as an excuse to undermine the fight against doping in sport.

However, in financial and reputational terms, on this occasion, WADA has scored a significant own goal.

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Nick McAleenan is a Partner located in Manchester in our Media & Reputation Management; Data Protection & Privacy department

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