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The Legal Meat in the Case of Canelo Alvarez

Ahead of Canelo's NSAC hearing on April 18th, we consider what standards should be applied to professional athletes who test positive for performance-enhancing drugs.

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The Legal Meat in the Case of Canelo Álvarez

By Paul Frolish

As the world now knows, Saúl ‘Canelo’ Álvarez tested positive for the consumption - one way or another - of the banned substance, Clenbuterol.

Of course, Canelo and his team claim innocence - innocence of intent, that is, and this is the issue that we will now consider more closely. Canelo and his team fully accept the legitimacy of the test results, and therefore are not disputing the presence of the drug in his system. They are also not claiming that someone, unbeknownst to them, injected him with the drug - which would, if true (though obviously absurd, and untrue), absolve Canelo of all blame. Rather, they are claiming that Canelo 'accidentally' consumed meat contaminated with the performance enhancing drug.

A question, then, that needs to be asked, is: what standard ought to be applied to professional athletes with regard to performance-enhancing drugs, especially in combat sports, which by their very nature could result in the serious injury or death of one's opponent, with regard to holding them responsible for what they consume?

Should we say that they ought only to be subject to punishment if we can prove 'intent' beyond reasonable doubt? Which, of course, would mean we would need some kind of confession, or video evidence, or some other hard evidence of the 'intent element' of the fact pattern. Or, should there be an expectation that banned substances will not be found in their systems, and if they are found, that they be held responsible for that fact, based on what in a legal context would be called a 'duty of care' or a 'duty to know' regarding the substances they are consuming - given the potentially catastrophic effects that either malice or negligence could have.

Many analogous cases could be described in a legal context. In criminal law there is the concept of 'strict liability' offences, in which grossly negligent or reckless behaviour is criminal in and of itself, irrespective of the effects of that behaviour. Equally, there are many cases in a civil law context in which a 'legal presumption' - in the absence of a legally valid excuse - given certain facts, will hold one party responsible, and hold them to a higher standard than might otherwise be the case.

The practical effect of constructing offences in this way is to reverse the burden of proof from the accuser to the accused. So, given certain facts, the presumption of innocence is waived, and guilt is presumed unless the accused can prove otherwise - because it was the accused's responsibility to stop the offence from occurring, and it was reasonable to expect that it was within their power to stop it from occurring.

There are certain 'special relationships', such as doctor/patient, teacher/pupil, and the driver/pedestrian relationships, where the former party is held to a higher standard. For example, in the case of the doctor/patient relationship, there is a presumption of expert knowledge on the part of the doctor, such that the patient is being reasonable when they act on the doctor's advice, and if that advice turns out to be defective, the doctor will be held responsible for the outcome.

Perhaps a closer analogy to the present case would be that of a driver pulled over and found to have a blood alcohol level over the legal limit. In such a case the law is not concerned with whether the alcohol was consumed accidentally. The failed test is sufficient to establish guilt, because the driver had a duty of care with regard to other road users and pedestrians.

So, the question is: do boxers have a duty of care with regard to their opponents, and is it within their power to control what substances they consume? Or, put another way, should a boxer's failed drug test be a strict liability offence like drink driving?

Another legal concept that is pertinent here is that of 'reasonable foreseeability'. Given the widely known problem of contaminated meat in Mexico, and a history of Mexican athletes failing drug tests 'because of this' (as they claim), is it not, by now, reasonably foreseeable that consuming Mexican meat from unverified sources might lead to failed drug tests? And of course, it is reasonably foreseeable. In other legal contexts, when an outcome is held to be reasonably foreseeable, you will be held responsible for your actions if they result in negative, but foreseeable, outcomes.

Perhaps merely negligent consumption of banned substances could rightly be distinguished from cases where clear intent could be proven or presumed from the nature of the case - and perhaps this is one of those cases where intent can be presumed from the nature of the facts - but it is clearly arguable that even in the cases of negligent consumption, such negligence itself ought to be culpable and actionable, even if the punishment is significantly lighter.

It will also not go unnoticed that it is no coincidence that the drug Canelo has tested positive for does exactly what he would want if he was going to take one. It increases stamina, burns fat, enhances protein synthesis, and strengthens muscles. All of these effects would be those most desired by a fighter who struggles to make weight, gassed out in the first fight, and failed to land strong enough blows to slow Golovkin down.

Of course, everyone would still want to see this fight even if Canelo had tested clean for the remainder of his training, but no one can be foolish enough to think that the advantages gained will have completely disappeared come fight night. Would anyone think that a bodybuilder using steroids would not still be displaying some of the effects of those drugs two months after stopping using them?

Perhaps Canelo hasn't been 'using' any drugs and the effects of what has entered his system will amount to nothing, and perhaps his story is true. But it would be a tragedy for boxing if he has, and possibly even more so for Golovkin if he were to be seriously hurt in the rematch, should it still happen later this year or in 2019.