When a professional athlete tests positive for a prohibited substance, the consequences can be severe. The athlete may be banned (either for a set period or for the remainder of their lifetime), they may have their results revoked, they may face the imposition of a financial penalty (together with any financial loss that occurs as a result of any ban) and they are likely to face significant reputational damage.

However, the Australian rugby player Ben Barba, who recently tested positive for cocaine, appears likely to be able to pursue a lucrative sporting career notwithstanding the 12-match ban that was imposed upon him by the National Rugby League (“NRL”).

Barba is reported to have tested positive for cocaine just four days after his now former club, the Cronulla-Sutherland Sharks, won its maiden NRL Premiership title on 2 October 2017.

Following the positive test, the Sharks released a statement confirming that they had agreed to release Barba from his playing contract:

“The club wishes to advise that it has agreed to provide Ben Barba an immediate release from his playing contract in order for him to address some significant personal issues.

While this decision has not been easy for either party there is full agreement that it is one made in the best interests of Ben, his young family and our club.”

Later that morning, the NRL confirmed that Barba’s positive test was the second time that the presence of cocaine was found in his system. As it was a second offence, the NRL imposed upon Barba the mandatory suspension of 12 matches. The NRL’s statement confirmed that:

“Given Barba has been released from his current contract, the suspension will apply if he returns to the NRL in the future.”

The NRL’s Illicit and Hazardous Drugs Policy

All NRL players are subject to the NRL’s Illicit and Hazardous Drugs Policy (the “Policy”), which operates independently from the NRL clubs and is conducted by an independent and fully certified third party provider. This process is distinct from the NRL’s performance-enhancing drugs testing programme, which it conducts in association with the Australian Sports Anti-Doping Authority (“ASADA”).

In order to ensure that the Policy is effective, neither clubs nor players are made aware of the timing or number of tests. Samples are reportedly collected in a private and controlled environment by third-party personnel with detailed knowledge of Australian and New Zealand testing standards. The samples are then analysed for amphetamines, ketamine, cannabis, cocaine, opiates and synthetic versions of those drugs, as well as for prescription drugs.

Where a player tests positive for the first time, he will be given a suspended fine and will be required to undertake a mandatory treatment programme. He will also be placed on a monitoring programme which involves targeted testing.

Where a player tests positive for a second time, he will serve a mandatory 12-match ban and face the prospect of contract termination, together with further rehabilitation treatment and ongoing monitoring. This is the punishment that was meted out to Barba.

Yet Barba’s suspension has not prevented him from moving forward with his sporting career. On 1 February 2017, it was reported that Barba had decided to leave rugby league behind and that he had signed a two-and-a-half year deal with French rugby union side Toulon. It has been reported that Barba will earn $1 million per season, making him one of the highest paid rugby union players in the world.

What about Barba’s suspension? The 12-match ban was imposed by the NRL. The NRL is the top league of professional rugby league clubs in Australiasia and is run by the Australian Rugby League Commission. The NRL implements the Policy but has no jurisdiction over players that participate in rugby union, which is an entirely separate code of rugby with a different governing body. As such, Barba has effectively side-stepped the suspension that was imposed upon him, unless he wishes to return to the NRL in the future. This was confirmed by the CEO of the NRL, Todd Greenberg, who stated that the ban would not commence until Barba had completed any overseas playing commitments:

“Ben does not have a registered contract with the NRL so he is free to make a decision to play in a different code with a new club. But the NRL will not consider any contract for registration until he has completed his contract with other sports.”

On first blush, this seems a curious outcome. Barba is effectively able to pursue his career, without serving a ban, by trading rugby league for rugby union. Yet this is a fairly unique situation. Elite-level sport is more competitive than ever and the likelihood of a highly-trained and finely-tuned athlete being able to trade one sport for another is exceedingly low. Just as one would not necessarily expect to see a surgeon swap his career in medicine for a career as an accountant, one would not expect to see an elite level cricket player cross over and become a top-level basketball player: the skill-sets required of each job are simply very different.

That is not the case when one compares rugby league and rugby union. There are of course distinctions between the rules and the styles of play but the basic premises which underpin the sports are, for all intents and purposes, very similar. Indeed, inter-code swaps are not unusual in the world of rugby. Sonny Bill Williams, for example, started his career playing rugby league in 2004, before leaving for the world of rugby union in 2008. Williams swapped back to rugby league again in 2013, before a final return to rugby union in 2014. Williams then played rugby sevens for New Zealand (including in the 2016 Summer Olympics in Rio). Perhaps Williams is not such a good example, as he also boxed professionally six times. In any event, this code-swap ‘loop-hole’ is unlikely to apply to many athletes that have tested positive for banned substances.

Good behaviour moving forward?

While Barba has made a number of mistakes in the past, he is undoubtedly a talented player and it will be intriguing to see how well he fares upon trading codes. Toulon are clearly alive to the issue of Barba’s past behaviour, particularly given the sums that it is reportedly willing to pay to him. Toulon’s owner, Mourad Boudjellal is reported to have told French newspaper L’Equipe that Barba’s deal contains strict behavioural clauses and that he would be sacked following the first infraction.

Sports Shorts has covered ‘good behaviour clauses’ in the past. Clauses that incentivise players are common, while morality clauses are regularly found in commercial contracts between athletes and their sponsors. Yet clauses that actively require good behaviour are less common and, in the case of Mario Balotelli at the very least, of arguable utility. Boudjellal will certainly be hoping that Toulon has no need to enforce any such contractual clauses in the case of Barba and that rugby league’s loss is rugby union’s gain.