A brave new world? The AFL’s updated illicit drug policy

This week the AFL announced revisions to its illicit drug policy. With strident critics calling for “zero tolerance” and even criminal sanctions for transgressions, it is an opportunity to reflect on why such policies exist in sport, and to evaluate what the AFL’s latest iteration means by way of change.

Illicit drugs: internal regulation

In advanced nations like the US, UK and Australia, many professional sports have chosen to be internal regulators of athlete conduct in terms of illicit substances.

I have argued previously that the AFL, like other peak sport bodies, has five key aspirations with its illicit drug policy. These can be summarised under three headings: the management of risk, reputation and welfare – whether to players or the sport.

While the AFL is hardly the only sporting league in Australia to have an illicit drugs policy, it has attracted criticism that it is too “soft” on users of illicit drugs (three “strikes” before a suspension), and that it is “hiding” drug users (counselling under a medical model rather than “naming and shaming”).

Taking those cues, it’s worth mentioning that AIS athletes have four “strikes” under a policy conceived by the nation’s peak sporting body, the Australian Sports Commission (ASC).

In the A-League there appears to be no testing of footballers out-of-competition for illicit drugs. The statutes and regulations on the FFA’s website do not disclose a policy position other than compliance to the WADA code. Curiously, there has been no invective directed towards either the ASC or the FFA in respect of their illicit drug policies.

In Australia there is healthy scepticism about any industry that self-regulates. In terms of illicit drugs, critics have every right to question whether a sport’s commitment to an internally developed voluntary code is genuine or a mere public relations exercise.

Given that concern, are there prospects for external bodies overseeing illicit drug testing and player transgressions, whether in the AFL or another Australian sport? Is it time for heavy regulation by non-partisan authorities?

Illicit drugs: external regulation

What about global intervention? Unlike the case with performance enhancing drugs, there is no international external regulator in respect of illicit drugs in sport.

When the champion American swimmer Michael Phelps was “caught” smoking marijuana, WADA was in effect disinterested. Phelps was at a party and out of competition. Yet if he had used cannabis during the Olympics, he would have been issued with an Anti-Doping Rule Violation. As U2 might have said, WADA moves in mysterious ways.

What about police intervention? According to critics, sports like the AFL and the NRL, which conduct their own illicit drug-testing under a harm minimisation model, are violating the law by not “dobbing in” athletes to police. A problem with that assumption is that, as explained to me by a relevant source, police focus their resources on people in possession of such substances, and more seriously upon those who traffic them.

So from an illicit drug policy perspective, police aren’t particularly interested in the “use” of illicit drugs by athletes; their prime focus is with the supply chain in wider society. Police are appreciative of “intel” that allows them to investigate traffickers. That is less likely, ironically enough, if athletes who record a strike are publicly named; their suppliers will be alerted.

What about government intervention? Political parties are tough talkers in terms of illicit drugs in sport, such as with the publicity associated with the Australian Crime Commission report in 2013.

Federal Sports Minister Sussan Ley hinted this week that a “National Sport Integrity Commission” was needed to root out corruption and crime in sport, including illicit drug use.

Would a national illicit drugs policy for all sports be feasible? There are many challenges, but I will mention only two. First, the Department of Health has long had “guidelines” for illicit drugs policies, but only required them of the ASC (and thus AIS athletes), not national sport organisations generally. This is the four-strike policy that, I suspect, would raise the blood pressure of zero tolerance pundits.

Second, all drug testing is costly. Some sports may not be in a position to fund this type of monitoring; would the government then step in to cover the cost? If we look specifically at anti-doping, the ASADA budget will fall from A$15.3 million in 2014-15 to $14.5 million in 2015-16. If that’s an indication of federal government spending in this area, it’s reasonable to be pessimistic about a national illicit drugs policy for all sports.

It’s fair to conclude, therefore, that external regulation of illicit drugs in sport is presently unlikely. So what are we to make of changes to the most-prominent internally regulated illicit drugs policy in Australian sport?

The AFL’s new illicit drugs policy

As explained ad nauseum, there is no requirement for AFL players to sign up to the league’s illicit drugs policy. But they have again done so, represented in negotiations by their player association (the AFLPA) in discussions with the AFL Commission.

The underlying principle continues to be a medical model of treatment and a harm minimisation approach, but there have been slight alterations to the consequences associated with a second transgression, with an athlete now publicly named and a four-week suspension made mandatory.

• First detection: $5000 financial sanction (suspended) and compulsory counselling and education programs.

• Second detection: four-match suspension and $5000 sanction imposed. Club notified and the suspension confirmed publicly.

• Third detection: 12-match suspension and $10,000 sanction.

Another minor alteration is that if a player wishes to self-report a transgression, they can do so only once without a strike being recorded.

The de-facto change with most potential relates to hair testing, which is more effective than urinalysis because it is able to detect illicit drug use 90 days prior. The inference is that four hair tests per year could provide a comprehensive picture of illegal substance use for all AFL players.

Yet there remains resistance, as explained by Caroline Wilson:

While the majority of clubs are pushing for hair test results to count as drug strikes, the AFL Players Association has rejected the move. But the prevailing view is that year-round hair testing will ultimately become part of the three-strikes drug code that remains under review.

… a player showing evidence of high drug dosages through hair testing will be warned to clean up his act before his identity is revealed to his club chief executive. That information will be communicated by the AFL medical officers.

Should target hair testing provide further evidence of illicit drug use, the player will be forced to undergo additional counselling and treatment with the knowledge of his club bosses, whether or not he has provided a positive [urine] sample.

Monitoring illicit drug use is understood by AFL players to be a health and well-being issue, but there is also the career-ending prospect of inadvertent doping through the consumption of a so-called “recreational” drug if it has been cut with a performance-enhancing substance.

This year, two AFL players, Lachlan Keeffe and Josh Thomas, were suspended from sport for two years after ingesting cocaine on a pre-season trip; this batch of drug was laced with clenbuterol, a substance that is banned by WADA both in and out of competition. These footballers have thus been treated as performance-enhancing drug “cheats”.

The AFL acknowledges that there is no “silver bullet” policy that will address all of the concerns of various stakeholders, internal and external. Some will argue that “bad” policy is better than no policy at all. But even the most stern critics are likely to see this iteration as a modest improvement – except for those who want zero tolerance.

A problem with that view is that the Australian government has been conducting a “war on drugs” since the 1970s, and the problem is growing. Australia’s athletes are part and parcel of a wider societal conundrum.