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THE AFL'S ILLICIT DRUGS POLICY IN QUESTION

Prior to the May 2013 changes there was no limit to the number of times a player could self-report illicit drug use to AFL medical officers thus escap- ing a strike against his name and consequent sanctions. The player could instead commit to counselling and other support programmes if this was deemed necessary. Due to an increase in self-reporting, it comes as no sur- prise that one of the changes implemented specifies that a player can only self-report illicit drug use just one time during the player's career (McNicol, 2013). The IDP Three Strike Rules mechanism has been quite controversial for a number of other reasons. Ongoing controversy surrounds the confi- dentiality non-disclosure clause meant to protect the identity of positive tested players. Non-disclosure of that information prevents the release of the offending player's name to his own club until a third strike is recorded (Ryan, 2013). The problem consequently is twofold. Firstly, due to the non-disclosure of that information, the club itself then is unable to inter- vene and provide assistance and support for the player. Secondly, based on fairness (to the club and team mates) and cultural influence (team mates and fan base), the offending player being contracted to the club entails cer- tain reciprocal obligations. Even more pertinent is the extent of the drug abuse, since the player may not only be at risk of becoming a liability to the club but also more specifically there is potential damage to the player's own health and career. For what prevents a player using illicit drugs any number of times and only self-reporting when suspected or asked to submit to testing?

These points are significant in relation to fairness because the 18 AFL clubs employ typically thirty or more professionals, such as health nutri- tionists and sport psychologists, high performance coaches, etc. to service players, an expenditure the clubs bear. Consequently, unfairness results in terms of the relationship players have with the employed professionals at their respective clubs whose role in part is to educate and assist the players to minimise risky off-field behaviour. For this reason, it is my contention that the confidentiality clause, though ethical in principle, is somewhat counterproductive relative to other AFL club structures and procedures.

Player drug testing is conducted through a random process unless a player is 'targeted' for regular testing (usually only after already having incurred a strike or for evading testing). It is because players are subject to random testing that raises the question as to the overall leniency afforded players in self-reporting when indeed there is in place a three-strike mechanism. This is tantamount to allowing players to use illicit drugs and be forgiven up to the disclosure point of self-reporting. After that time the process proper begins whereby a player receives another three opportunities as recorded in strikes to change their behaviour before any sanctions are incurred. Players should not be treated as above the law. Given the increase in positive tests, the current preventative measures to educate players are arguably largely ineffective.

A common response by commentators echoing the AFL regarding the

basis of the 'medical model' revolves around the notion of 'harm minimisa- tion'. Yet this consideration suffers from inconsistency and one wonders whether its account as a justification, though genuine in concern perhaps, in application is nothing more than lip service. Given that there has been a dramatic spike in the number of positive tests, something is not working as hoped. The education programmes are sponsored mainly by the ALF Players Association and the costs borne by clubs themselves. So, on the one hand, the current drug awareness education programmes for players have simply not provided the preventative success expected. On the other hand, the question must be raised regarding the extent to which the self- reporting mechanism has indeed served to encourage rather than discou- rage illicit drug use?

Harm minimisation in the form of self-harm and harm to others is obviously an important consideration motivating the AFL to maintain its IDP. There are two further points, however, that diminish the harm- minimisation justification offered in support of the existing IDP. Firstly, the IDP cannot exist in isolation from the WADA Code, which was devel- oped to deter the use of any prohibited substance classified as performance- enhancing or that carries health risks for the athlete or that violates the spirit of sport. Secondly, harm itself is concomitant to risk and as such part of the game in virtue of its being a contact sport. The concept of harm requires further examination. One form of harm, for example, is coercion, though it is the least, if at all, considered in this context. Examples extend from peer pressure in a variety of forms to meeting required courageous expectations in competitive game situations. Examples of coercive harm are also common in other sports, notably in professional cycling with the Lance Armstrong case. Closer to home is the current scandal concerning the St Kilda player Ahmed Saad who tested positive to a banned substance. Saad had taken a supplement Before Battle (produced by his sponsor Viking Protein) which contained the banned substance (The West Australian, 2013, p. 95). Saad pleaded ignorance yet the untold story relates to the level of pressure Saad felt conditionally to the sponsorship deal. What sort of scrutiny is applied to these individual cases and sponsor- ship deals? Does the responsibility lie with the player, the club or the AFL Commission, as the 'keeper of the code' responsible for the administration of the competition? According to its own Anti-Doping Code under (b) cited above, the AFL is negligent in this instance.

The matter of IDP design has been an ongoing concern ever since the inception of the WADA Code due in part to its policy of 'strict liability' as necessarily exercised by all signatory bodies. The AFL IDP is meant to be an out-of-competition policy to ensure a level of player integrity and due to its three-strike mechanism is a variation and part of the uniqueness of the AFL version compared to other sporting drug policies. As earlier stated, the WADA Code makes no distinction in relation to Anti-Doping Rule Violations between in-competition and out-of-competition. Recreational drugs are also listed by WADA as prohibited drugs. For instance, in the Code under the 'Prohibited Substances, S6 Stimulants' under the 'Non- Specified Stimulants' section listings are substances such as: 'amphetamine, cocaine, methamphetamine-(d-) and pmethylamphetamine'. Under the 'S7 Narcotics' listing are diamorphine (heroin), methadone and morphine, which are also considered as recreational drugs. Under the heading 'S8 Cannabinoids: Natural or synthetic' are T9-tetrahydrocannabinol (THC) and THC-like cannabinoids (e.g. hashish, marijuana, etc.), which are also considered recreational drugs (WADA, 'The world anti-doping code', 2013, pp. 7-8). This consideration alone makes evident the inconsistent nature of the AFL IDP.

Usage exemption for any listed substance can be gained for a player by first obtaining a Therapeutic Use Exemption (TUE) clearance through a need verification process that ends with the Australian Sports Drug Medical Advisory Committee (ASDMAC). AFL players are afforded discretionary non-disclosure privileges under the IDP three strikes rule, shielding them from criminal sanctions. To reiterate, up until May 2013 a player could self- report any number of times. Since then a player may still self-report one time before a strike is incurred for illicit drug use. The condition of self- reporting is not extended to the general public in the criminal code. The major point in this analysis in terms of service and benefit to the players and the clubs is the inherent problem for the franchising clubs of not being privy to that information until a third strike has been incurred by a player. Add to this the perception that players are somehow above the law. Players who choose to break not only anti-doping but also criminal laws by using illicit drugs are behaving in a manner injurious to their health, to the image of the game and to the public in terms of negative cultural influence towards the impressionable aspirants of the game, if not team mates.

A critic may challenge the fairness claim made here, since there are in fact several court drug diversion programmes available to members of the public. In response I add that it is not enough to point out that some States and Territories have made available drug diversion programmes that keep drug users out of the criminal courts. The AFL crosses all borders as it is constituted as a National League. In addition, due mostly to their celebrity status, players are role models whose behaviour is subject to public atten- tion; hence, they exert considerable cultural influence. Children aspire to be like their superstars. Families likewise pledge allegiance as measured in memberships, etc. In the interests of the game, of player welfare and of club player investment through education programmes and training, the clubs can best serve their respective players when they have all the informa- tion about at-risk players as early as possible. Transparency is important to this process, particularly when contextualised within the changing landscape of once successful outcomes achieved from drug diversion programmes (Australian Institute of Health and Welfare, 2008; Ogilvie & Willis, 2009). Reoffending individuals using drug diversion programmes as a means of escaping substantial penalties or incarceration is on the increase (Robertson, 2013). Good programme processes provide the strongest foundation for good programme results.

Furthermore, concerning the changes announced by CEO Demetriou, I refer to the implementation of prescriptive and compliance measures to control and monitor the use of supplements used by the AFL clubs. These measures relate to the introduction of stricter reporting requirements, lim- iting and defining by stipulation an approved supplement list to be used by the clubs. This includes greater scrutiny and screening measures to come into effect in relation to 'suspicious characters' (whatever that means) endeavouring to infiltrate the AFL clubs. Friends and other associates of the players and club officials closely involved with the clubs will come under scrutiny (Gordon, 2013). The full extent of these mea- sures is not yet known but this looms large as a concern for civil rights. Even with these measures in place the aforementioned player, Ahmed Saad, fell through the gap and was heavily sanctioned with an 18-month suspension for using a banned substance produced by his sponsor (Quayle, 2013). These specified changes have been implemented arguably because of the AFL Commission's governance failure to ensure that all AFL clubs comply with the rules and regulations specified in the WADA/AFL Code. Arguably then there has been a breach of expected due diligence in its offi- ciating capacity. Good governance is an art, since it requires the effective application of a robust organisational development framework, which includes the implementation of workable policies based on good compli- ance and evaluation mechanisms, by a strong and confident management team and Board. Good sports governance is no different. The AFL expe- dited these changes in response to the ongoing ASADA investigation of multiple AFL clubs (and NRL clubs). One aspect of the current investiga- tion revolves around the 'supplement programmes' introduced by sport scientist Stephen Dank during his association with the Essendon club.

The revelation that these so called 'sports scientists' were able to assume authority on medical matters relevant to the supplement programmes, allegedly in the Essendon saga overriding the authority of the club doctor, is nothing short of alarming. However, it is only fair to state that the AFL has acted swiftly to minimise damage and to rectify and strengthen compli- ance procedures. Yet a legitimate criticism is that the AFL has only done so in response to the investigation of its clubs by ASADA. My concern is that the AFL has not done enough.

 
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