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Basketball Legal Corner

Please send your questions to Legal Corner author John B. Kern
FIBA's Anti-Doping Regulations - The Burden is on You - Jul 16, 2012


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EUROBASKET CENTER
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When NBA player Charles Jenkins was asked why he doesn't have any tattoos on his body unlike many of his teammates, Jenkins responded, "Have you ever seen a bumper sticker on a Maybach?"

This attitude captures the essence of FIBA's anti-doping policy. Many players are not aware that a "first offense" of FIBA's anti-doping rules leads to a two year suspension, from the time that the laboratory results are confirmed and a suspension imposed. As employers, basketball clubs take very little time to inform their players about how they can test positively for banned substances, and this can lead to tragic results for the careers of players. Players must be vigilant about taking care of their bodies and, as a recent case underscores, players themselves are ultimately responsible for what they allow to be introduced into their bloodstreams and bodies.

Recently, a National Team player, whose country and name shall remain unstated, was sanctioned by FIBA for a total of 22 months after he failed a random drug test. This poor fellow missed the first half of the 2011-12 season due to an injury and the second half of the season due to an interim suspension. This player will miss the Olympics, the 2012-13 season and the first half of the 2013-14 season due to this transgression - his first of any kind. The player was forced to return all salaries earned from his club prior to the suspension and was ordered to pay a fine.


The offense: Accepting the medical treatment offered by the player's national team doctor for persistent pain after suffering a broken ankle.

In this case before a disciplinary panel established by FIBA, the player was not accused of intentionally taking drugs, human growth hormones or steroids. FIBA found that the only way in which the banned substance, "19-norandrosterone," a steroid, was introduced to this player was that following 40 days of physiotherapy with few signs of improvement, the national team doctor determined the player would benefit from the single injection. The player reasoned that the doctor must have known what he was doing. He did not. Consequently, in the words of FIBA, the player wrongly "delegated" the authority over the injection of the prohibited steroid into his own body and had no excuse for doing so.

FIBA found that although the player had more than a decade of professional club and national team experience, he had never been given any anti-doping education. As a result of moving from one club to another throughout his career, the player had not established a doctor-patient relationship which would have allowed him to secure a doctor of his own.

Most importantly, the doctor and the player were apparently unfamiliar with the World Anti-Doping Agency's adoption of the process of awarding special permits allowing "Therapeutic Use Exemptions" from the rigors of anti-doping testing. These TUEs are subject to be obtained from committees established by the WADA and the national sports federations in each country, often which double as the Olympic committees of nations.

Absent a TUE, FIBA's Anti-Doping Regulations are tough, to say the least. The rule provides as follows: "It is each Player's personal duty to ensure that no Prohibited Substance enters his or her body. Players are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Player's part be demonstrated in order to establish an anti-doping violation under Article 2.1."

This means that there is no reuirement that the sanctioning bodies find any evidence of adverse "intent" to use the drugs. Similarly, it is of no import if the player reasons that the substances don't benefit their playing condition.

For a first violation, the presumed period of ineligibility is two years according to Article 10.2 of the FIBA Anti-Doping Regulations.

These rules led the FIBA sanctioning panel in this recent case to conclude "the Player was apparently in a desperate situation, not being able to recover from the injury and feeling considerable pain 3 months after the fracture in his [ankle]. He also submitted that he felt obliged to visit this particular doctor who collaborates with his national federation since the injury took place while playing for the national team and at a time when he was not under contract with any club." Nonetheless, FIBA concluded, that the player's delegation of authority to the national team's doctor "does not excuse the Player from his responsibility."

The lessons are clear. Players are urged to gain a complete understanding of the consequences of each item that they ingest in their diet and each dose of medication that they are prescribed and administered by their doctors.

Don't take any chances, and don't treat your body like a Subaru when God has given you a Maybach to carry you around throughout your career.

_________________________________________

The Eurobasket Legal Corner is written by John B. Kern, an American lawyer with offices in the United States and San Marino, who focuses on international sports rights and arbitrations. The legal principles discussed are general in nature. Laws change and even similar circumstances may call for the application of different laws.

If you have a question for a future edition of The Eurobasket Legal Corner, please write to Mr. Kern at kern@jbkinternational.com.

2012 JBK International Law LLC. All rights reserved. 120701
  



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