The facts in this case, as in many similar doping cases, are unclear. Who was the mysterious friend who gave Contador the meat? Why did Contador eat it when it had not been cleared by his team doctors, knowing the stringent standads imposed on professional athletes? And how else might the drug have got into his system given that he was subjected to a rigorous year round programme of drug testing? No 'smoking gun' was ever produced to show that the doping was deliberate, but the cyclist has nonetheless been stripped of his titles, will miss the Tour and Giro d'Italia this year, will lose many other benefits such as lucrative sponsorship deals, and may never escape the shadow of being seen as a drug cheat as past (and future) achievements are tainted by suspicion.
|A specialised activity?|
And so to cycling. Here we see the same sort of arguments being lined up: that professional athleteswho derive enormous financial benefits from sport should have to prove that they are clean; that this burden of proof is justified because doping technology moves so fast that the enforcers cannot keep up with all the latest innovations; and that the public benefit of a clean sport (and healthy participants) outweighs the potential burdens on athletes. This though is not uncontroversial, especially in a case like Contador's where while no criminal penalties are imposed the ruling is clearly penal in effect.
So is strict liability justified, either in sport or in criminal law more generally? For me the key argument here is the question of who is subject to these regulations. In professional sport athletes have to sign up to the regime, and are made aware of the hazards and penalties of non-conformity. It is like a contract - you sign up to the conditions to play the game, and this presumed awareness is then used to justify the strict liability. This same may be true in may areas where strict liability is used in the criminal law. If you produce food, or engage in a manufacturing process involving environmentally hazardous material, or sell alcohol, you would normally hvae to undergo some sort of licensing procedure which, amongst other things, should make you aware of the risks and burdens involved in that activity. The penalty for breach then, while criminal in nature, is of a slightly different nature to penalties for breach of criminal rules of general application. By analogy with professional sport trict liability may be justified under these conditions, because of the specialised nature of the activity and the 'licensing' involved, where its more general use in the criminal law may continue to be unjustified.