Illustration: ISTOCK
Illustration: ISTOCK

GIRMAY Birahun is a little-known Ethiopian marathon runner who will soon hold a unique and unwanted distinction — he will be the first athlete sent to jail for doping. He tested positive for meldonium and, in terms of a new Ethiopian Athletics policy will spend three years in prison for his “crime”.

Meldonium was the drug that Maria Sharapova and dozens of other athletes fell foul of at the start of 2016. Most were cleared completely. They claimed that the drug stayed in their bodies long enough to be detected even after they stopped using it.

Because the authorities did not have strong pharmacological evidence to refute this claim, and nobody knew with certainty how long it would take to clear the drug from the body, this line of defence worked.

Sharapova, on the other hand, confessed. She claimed she‘d failed to read an e-mail warning her about the ban on the drug, and that she'd been using it to treat heart problems and a family history of diabetes.

She ended up receiving a ban of 15 months, and should return to play at the French Open this year.

Birahun, in other words, got the pointy end of a very short stick. While everyone else was going free or getting lenient bans, he's going to jail.

Some will say “about time”. They believe that these harsher punishments are the only way to combat doping's toxic effects on sport. At the very least, they‘ll argue, dopers should receive lifetime bans, with no prospects of ever returning to the sport.
After all, the decision to dope is one of risk versus reward. How likely am I to be caught and punished, weighed up against the money, prestige and future the drug may help me attain?

Going back three decades, there was no testing and thus no punishment. Athletes could dope with impunity, get all the benefits, and the risk of detection was effectively zero. As better testing came along, backed by bans, the balance tilted. Nowhere near enough, because if the probability of being caught is say, 5%, and is followed by a legal proceeding that might reduce a ban to say, one year, then the reward still outweighs the risk. Nevertheless, it‘s a more equitable balance now than it was.
Getting that balance right thus requires one of two things, and preferably both. Either the probability of being caught must increase enormously, or the sanction when caught must be harsher.

That's the context into which life bans, and even more severely, criminal charges, have been introduced by Ethiopia (Germany has also introduced legislation to criminalise doping).

But here's the problem: the punishment must fit the crime, and it also has to be backed up with reliable, unimpeachable evidence.
Right now, neither exists. Can you imagine being an athlete who inadvertently ingests a banned drug because your supplement was contaminated, and the next thing you know, you're sharing a cell with John, who got six years for armed robbery?

Or consider the cases of so many athletes who are forced to take banned drugs by coaches (as happened in Russia), or who innocently take them because they‘re provided by a trusted coach or doctor as “necessary vitamins”. They're not the criminals here, but would be the ones serving jail time.

It's a preposterous idea, made more outrageous if you understand that the process of catching dopers is far from perfect. False positives, contestable testing procedures, and a general shakiness of the law and order that underpins doping, means that life bans, let alone jail time, ask more from the anti-doping system than it can currently provide.

So while Birahun and future inmates might represent a theoretical ideal for anti-doping, in reality they force it to confront its failings. Perhaps coaches and doctors should be the target of criminal proceedings, but only if the investigative procedures to catch them are as robust as we would expect from detectives investigating real crime. It is not right to criminalise an athlete for taking a chemical, given all the problems swirling in the anti-doping waters.

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