The Needle and the Damage Done

Does the World Anti-Doping Code Sufficiently Protect the Rights of the Athlete?

By

Brian Patrick Daly

A Dissertation submitted in partial fulfilment

of the requirement for the Degree of

LL.M. Masters in Law

The Postgraduate School of Law

Trinity College Dublin, the University of Dublin

2014

Declarations

This dissertation has not been submitted as an exercise for a degree at this or any

other university.

Signed: ____________________

Date: _____________________

This dissertation is, except where otherwise indicated, entirely my own work.

Signed: ____________________

Date: _____________________

The Library and School of Law, Trinity College Dublin may lend or copy the

dissertation upon request.

Signed: ____________________

Date: _____________________

Acknowledgements

I would like to offer my sincerest thanks to my supervisor Professor Neville

Cox, FTCD, Barrister-at-Law, for his assistance and direction throughout the writing

of this dissertation. His willingness to regularly engage in constructive debate was

invaluable to the overall process. I would also like to thank Kelley McCabe for all her

help throughout the year and for accommodating any requests or queries I had. I

would finally like to thank my parents Angela and Ciaran Daly for their constant

support; I could not have done it without them.

Brian Daly

2014

Table of Contents

Summary

Introduction 1

Chapter 1: The Evolution of Anti-Doping Laws. 3

Part I: The Emergence of Anti-Doping Laws 4

Part ii: The Deficiencies of Anti-Doping Laws 7

Part ii (a): Discordance Amongst Sports Governing Bodies 9

Part ii (b): Festina Affaire & Establishment of WADA 13

Chapter 2: The 2015 World Anti-Doping Code 16

Part I: The 2015 WADA Code & the Rights of the Athlete 17

Part I (a): Burden & Standards of Proof 17

Part I (b): Right to a Fair Hearing 21

Part I (c): Sanctions 25

Chapter 3: Liability, Injustices & the Severity of Sanctions 30

Part I: Strict Liability 31

Part I (a): Justification for Strict Liability Rules 31

Part I (b): Criticisms 33

Part I (c): Suggested Reform 35

Part ii: Culpability in Determining Sanctions 36

Part iii: Proportionality & Severity of Sanctions 41

Chapter 4: Right to a Fair Hearing under the 2015 Code 50

Part I: Due Process Protection in Disciplinary Hearings 51

Part ii: Hearing Rights under WADA Rules 55

Part iii: Concerns about WADA Science 60

Part iii (a): Difficulty in challenging WADA-accredited Labs 65

Chapter 5: Are Anti-Doping Laws Justifiable? 70

Part I: Anti-Doping Rationales 71

Part I (a): Spirit of Sport 71

Part I (b): Health of the Athlete 74

Part I (c): Level Playing Field 78

Part I (d): Protection of the Clean Athlete 80

Part I (e): Protection of Youths 81

Conclusion 85

Bibliography 91

Table of Legislation

International Treaties

Anti-Doping Convention, 1989.

Convention for the Protection of Human Rights and Fundamental Freedoms

(European Convention on Human Rights), 1950.

European Sports Charter, 1992.

International Covenant on Civil and Political Rights, 1966.

International Convention against Doping in Sport, 2005.

Treaty Establishing the European Community (Treaty of Nice), 2003.

Private International Law Documents

Court of Arbitration for Sport Code 2013.

IAAF Code of Ethics 2002.

Olympic Movement Anti-Doping Code.

UCI Anti-Doping Examination Regulations 1999.

World Anti-Doping Code 2003.

World Anti-Doping Code 2009.

World Anti-Doping Code 2015.

Table of Cases

B v FINA CAS 98/211

C v FINA CAS 1995/141

Calle Williams v IOC CAS 2005/A/726

Claudia Pechstein v International Skating Union SFT 4A_612/2009

Dona v Mantero Case 13/76,E.C.R. 1333 Doug Walker v UK Athletics and IAAF [2000] HC, 25th July, Unreported Edwards v IAAF and USATF CAS OG 04/003 M v Federation Italianne de Cyclisme CAS 97/169

G v FEI CAS 92/63

H v FIM CAS 2000/A/281

IAAF v OLV & Elmar Lichtenegger CAS 2004/A/624

Knauss v International Ski Federation CAS 2005/A/857

Krabbe v IAAF [1995] LG Munich SpuRt Krabbe v IAAF [1996] OLG Munich SpuRt Landis v USADA CV-08-06330 Meca-Medina and Majcen v Commission [2006] Case C- 519/04P Meca-Medina and Majcen v Commission - CFI Judgement [2004] Case T- 313/02

Modahl v British Athletic Federation [1999] House of Lords, 22th July,

Unreported

N v FEI CAS 94/126

Puerta v ITF CAS 2006/A/1025

Raducan v IOC CAS OG 2000/ 0111 Rebagliati v IOC NAG OG 98/002 Re: Pergamon Press [1970] ECWA Civ J0713-2 Robertson v Australian Professional Cycling Council [1992] Supreme

Court of New South Wales, Unreported. Squizzato v FINA CAS 2005/A/830

Union Royale Belge des Societes Case C-415/93, de Football Association ASBL E.C.R. I-04921 v Jean Marc Bosman USA Shooting & Quigley v UIT CAS 94/129 USADA v Gaines CAS 2004/0/649

USADA v Jenkins AAA No. 30 190 0 0199 07 USADA v Landis AAA No. 30 190 0 0846 06 Valverde v Coni [2010] 1st Civ. Ct, 4A_234/2010 WADA v Despres CAS 2008/A/1489 WADA v ITF & Gasquet CAS 2009/A/1930 WADA v Jessica Hardy & USADA CAS 2009/A/1870

Walrave & Koch v UCI Case 36/74, E.C.R 1405

Summary

This dissertation examines the World Anti-Doping Agency’s harmonised set

of anti-doping rules, known as the World Anti-Doping Code. The predominant focus

of this study is the consequences which an athlete faces when confronted with the

accusation that he or she has committed an anti-doping rule violation. The

fundamental principles and rights as articulated in international human rights

instruments, namely the European Convention on Human Rights and the

International Covenant on Civil and Political Rights, will be referred to throughout

this study and are the barometer for determining whether the rules of the Code

sufficiently protect the rights of the athlete.

The rationales which underpin the World Anti-Doping Code will be critically

analysed and an informed assessment will be made as to whether the myriad of

justifications for these harmonised set of anti-doping rules are sufficiently

compelling in light of the affects that an anti-doping rule violation has on inter alia

the livelihood and reputation of the athlete.

This study affirms that the World Anti-Doping Code is neither justifiable in its

current format nor does it sufficiently protect the rights of the modern athlete.

1

Introduction

Two scenarios were put to a sample of 198 sprinters, swimmers, power

lifters and other Olympians or aspiring Olympians, in a poll taken in 1997. The

scenarios are as follows.

Scenario One: You are offered a banned performance-enhancing substance

with two guarantees: 1) You will not be caught. 2) You will win. Would you

take the substance? One hundred and ninety-five athletes said yes; three

said no1.

Scenario Two: You are offered a banned performance-enhancing substance

that comes with two guarantees: 1) You will not be caught. 2) You will win

every competition you enter for the next five years, and then you will die

from the side effects of the substance. Would you take the substance? More

than half the athletes said yes2.

This poll is as relevant to sport now as it was seventeen years ago. It is

considered self-evident that sport in the modern era suffers from a doping problem

– that is, that drug use is rampant and that this rampant use is problematic3. When

an athlete utilises substances to enhance his or her performance, it is regarded as a

slight on athletes with “sporting integrity” who train and compete in an honest

fashion4 and is regarded as undermining the credibility of sport. What ultimately

can manifest is disillusionment and suspicion as a response to remarkable feats of

human accomplishment and sporting achievement such as the performances of

Michael Phelps at the 2008 Olympics in Beijing - where he amassed 8 gold medals

and broke 7 world records - Usain Bolt at the 2008 Olympics – where he ran the

Men’s 100 metre and 200 metre finals in a record 9.69 seconds and 19.30 seconds,

respectively - and Rafael Nadal – who has won a remarkable 14 grand slam titles at

the age of 28. Combatting doping in sport is both laudable and should be supported

1 Michael Bamberger and Don Yaeger, The Use of Performance-Enhancing Drugs is Common, in William Dudley, Drugs and Sports, (Greenhaven Press Inc.), at 11. 2001. 2 ibid. 3 Neville Cox, Legalisation of Drug Use in Sport, International Sports Law Review, Vol. 2, No. 4, at 77. 2002 4 Richard H. McLaren, Corruption: It’s Impact on Fair Play, Marquette Sports Law Review, Vol. 19, at 15. 2008-2009.

2

and this study does not seek to negate the importance of having such rules. It does

however seek to critically analyse anti-doping rules in their current format as a

means of combatting doping in modern sport.

The crux of this dissertation is primarily concerned with the rules of the

World Anti-Doping Agency as articulated in their comprehensive and unitary

document, the World Anti-Doping Code, and whether they comply with

internationally recognised principles of fundamental human rights like those

enshrined in the European Convention on Human Rights and the International

Covenant on Civil and Political Rights and thus, whether the rules sufficiently

protect the rights of the modern athlete. This study will then conclude by assessing

the rationales which underpin the World Anti-Doping Code and whether they offer

a compelling justification for the application of such draconian rules, particularly in

light of the adverse effects the rules can have on an athlete who commits an anti-

doping rule violation.

3

Chapter 1

The Evolution of Anti-Doping Laws

Introduction

The timeline this first chapter establishes is not indicative of the long history

doping has had with sport. A phenomenon which appears to be rooted in modernity

can be traced as far back as 3,000 years ago in Ancient Greece, where athletes

would reputedly ingest anything from mushrooms and plant seed extracts to

stimulating potions in order to gain a competitive edge over fellow athletes1. It

therefore should not be used as a conclusive starting point; It is merely

representative of a time when doping became a legitimate concern for sporting and

governmental authorities.

While the Council of Europe, the EU and a number of governments became

increasingly committed to eradicating the pervasiveness of doping in sport, the

deficiencies in anti-doping laws amongst sporting organisations coupled with the

IOC’s initial indifference to adopting a central policy position on the issue – despite

its position at the apex of the sporting hierarchy - was preventing any effective

coordinated response on the issue. The disparities between the application of

sanctions, the attribution of blame, the procedural process and the question of

jurisdiction were cited as the main reasons for the purported necessity of an

independent agency and unitary document to deal with doping in sport. This

chapter will predominantly focus on the evolution of anti-doping laws – which is of

critical importance to the overall fabric of this study in contextualising and clarifying

the modern dimensions of anti-doping laws - from the perspective of the Council of

Europe, individual governments, the International Olympic Committee and a range

of sports governing bodies. A critical analysis of the deficiencies of the main

protagonists’ policy response will then be conducted. These deficiencies, together

1 Ryan Connolly, Balancing the Justices in Anti-Doping Law: The Need to Ensure Fair Athletic Competition Through Effective Anti-Doping Programs vs. the Protection of Rights of Accused Athletes, Virginia Sport & Entertainment Law Journal, Vol. 5, No.2, at 162. 2006. See also Robyn J. Rosen, Breaking the Cycle: Balancing the Eradication of Doping from International Sport while upholding the rights of the Accused Athlete, Entertainment & Sports Lawyer, Vol. 25, No. 1, at 3. 2007.

4

with a series of watershed moments - which Houlihan dubbed as “agenda setting

through crisis”2 - ultimately led to the formation of the World Anti-Doping Agency

in 1999 in Lausanne and the subsequent establishment of the World Anti-Doping

Code in 2003.

(I)

The Emergence of Anti-Doping Laws

Restrictions on the use of pharmaceuticals in sports were reportedly

introduced since 1920 with the IAAF prohibiting doping in 19283. Official testing on

humans was not yet performed during this period and therefore the restrictions

were rendered rather obsolete. There were a series of high profile doping incidents

in the early-to-mid 1960s which represented a paradigm shift that brought the issue

of doping – which was very much of limited private concern at that point – on to the

radar of the public and into the agenda of a small number of governments and

sporting bodies4. The death of Danish Cyclist Knud Enemark Jensen at the Rome

Olympics in 1960 - due to a fatal dose of amphetamines and Ronicol - initiated an

interventionist approach from the Council of Europe into doping matters. In 1963,

three years after the death of Jensen, an official definition of the term “doping” was

developed by the Council of Europe (albeit a vague and ambiguous one). Doping

was defined as:

The administration to, or the use by, a competing athlete of any substance

foreign to the body or any physiological substance taken in abnormal

quantity or by an abnormal route of entry into the body, with the sole

2 Barry Houlihan, Dying to Win, (2nd Edition Council of Europe), at 178. 2002. 3 The Handbook of the International Amateur Athletic Association 1927-1928, Section 22, defined doping as “the use of any stimulant not normally employed to increase the power of action in athletic competition above the average”. 4 See Houlihan, [N2], at 151. 2002.

5

intention of increasing in an artificial and unfair manner his performance in

competition5.

Notwithstanding the imperfections & vagaries in the previous definition; the fact

that the Council of Europe were beginning to take a hands-on approach in doping

was significant. It acted as a sharp reminder that governments also had an interest

in the conduct of doping6.

During a session of the French Senate held in 1964, legislation was enacted

following a presentation from the Cultural Affairs Committee which listed a number

of cycling deaths which were directly attributable to drug taking7. Likewise, the

Belgian government, profiting from a number of studies conducted by the Council

of Europe, enacted similar legislation in 1965. International Federations began to

introduce anti-doping laws during the same period with UCI and FIFA instituting

doping tests in 19668, while the IOC and IAAF established their own medical

committees in 1967 and 1972, respectively. The IOC Medical Commission, following

its “re-establishment” in 1967, was tasked with drafting the first ever prohibited

substance list that same year. By the mid-1970s most International Federations had

established anti-doping laws and were conducting testing, but the reduction in the

use of stimulants and amphetamines coupled with the prevalence of anabolic

steroids meant that “initial enthusiasm was slowly replaced with a growing

appreciation of the organisational and financial costs of effective testing”9.

The approach taken by the Council of Europe was of marked contrast to that

of sports organisations. The European Sport for All Charter in 1975 and the Second

Conference of European Ministers Responsible for Sport in 1978 represented a

wider policy approach towards doping from the Council of Europe. The charter

detailed a series of moral ideals and ethical standpoints relating to drug abuse in

5 Barnes, L. Olympic Drug Testing: Improvement without Progress, Physician and Sports Medicine, Vol. 8. 1980. 6 See Houlihan, [N2], at 153. 7 Jean Constant, Belgian Legislation against Drug-Taking in Sport, Northern Ireland Legal Quarterly, Vol. 19, No.2, at 162. 1968 8 Rudhard Klaus Muller, History of Doping and Doping Control, in D. Thieme and P. Hemmersbach, Doping in Sports, Handbook of Experimental Pharmacology, Vol. 195, at 8. 2010. 9 See Houlihan, [N2], at 153.

6

sport. Despite sidestepping the difficult task of formulating a definition of doping,

the conference raised a number of salient points:

The first key point laid out at the Conference concerned the importance of

finding an efficient means of testing the substances prohibited on the IOC’s banned

substance list. Secondly, it stressed the need to identify ways of instituting regular

testing “at and between events”10. This was an attempt at facilitating a strong policy

response to combat the use of anabolic steroids. While there was a relatively

effective system in situ for identifying stimulants and amphetamines, the

sophistication in the development of anabolic steroids and their rampant use

throughout the period required a more collegiate attempt to harmonise and co-

ordinate anti-doping policies. Finally, the third key point referred to the need for

stricter sanctions inclusive of third parties such as the athletes’ entourage, doctors

and trainer, who aided or abetted in administering, procuring or encouraging the

use of banned substances11.

The continuing influence of the Council of Europe could be seen via the

inauguration of The European Sports Charter of 1992, which was the culmination of

the set of principles first espoused under the aforementioned ‘European Sport for

All Charter’ and the Second Conference of European Ministers for Sports. The

charter engendered a set of guidelines & common principles which reflected the

Council of Europe’s broadened social commitment towards anti-doping policy in

Europe. It re-affirmed a duty towards protecting and expounding the “moral and

ethical bases of sport”12.The responsibility for the promotion of these ethical

standards and notions of fair play espoused in the Charter were based on a

tripartite system of cooperation between governments and their agencies, sports

organisations and individuals.

The Declaration of Sport, which was annexed to the Amsterdam Treaty in

1997, provided the political impetus for extending a socio-cultural agenda in

Europe. It represented a formal recognition of the evolving value and social

10 ibid, at 156. 11 ibid. 12 European Sports Charter 1992, Article 1.2.

7

significance of sport within the community which sought to go beyond a focus on

mere economic interests, despite possessing no legal cogency. A series of

consultation exercises followed which were used by the Commission to form the

basis for the first EU conference on sport in 1999, whose agenda was dominated by

the nature of sport within the EU and the fight against doping13. The findings at the

conference were subsequently used to formulate The Helsinki Report on Sport in

December 1999, an important document which stressed that “insufficient

coordination between the protagonists of sport (federations, Member States and

the European Community)…would risk thwarting the efforts to achieve the shared

principles [espoused in the Helsinki report]”14.

(II)

The Deficiencies of Anti-Doping Laws

A series of reports emerged in the late 1980s which effectively illustrated

the deficiencies in anti-doping laws and led to intensification in the development of

anti-doping policies, particularly at a governmental level. The Times in 1987

published an investigation into the state of play of doping in British Sports,

contending that British athletes at international level were engaging in regular and

systematic drug abuse, as part of an extensive doping network involving high levels

of collusion between coaches, doctors, athletes and other third parties15. The

investigation contained interviews with a number of high profile former British

Olympians. The publication triggered the Coni Report – an enquiry conducted by

the Amateur Athletics Association. The report concluded that there was “no doubt”

that many British athletes had been taking anabolic steroids in the 1970s and 1980s.

The report was also highly critical of the level of testing conducted during that time

period – “The claims that had been made as to the possibility of detection had been

grossly overstated, and the testing systems introduced were far less rigid than they

13 Richard Parris, Sport Regulation in the European Union: A New Approach? Managing Leisure, Vol. 6, at 193. 2001. 14 [1999] Helsinki Report on Sport, European Commission, IP/99/918, at 10. 15 See Houlihan, [N2], at 165.

8

ought to have been”16 . The results of this inquiry, which stressed the need for

government intervention, aided in establishing the Doping Control Unit in 1988

which was responsible for providing information and for conducting testing.

Similarly, The Australian Institute of Sport was the subject of a senate inquiry

regarding numerous allegations of doping and complicity involving the AIS and the

Australian Olympic Federation. The inquiry revealed a plethora of deficiencies

particularly a lack of harmonisation and scant regard for adherence to any anti-

doping regulations as AIS funding was conditioned on Olympic success17. Like

Britain, The establishment of the Australian Sports Drug Agency in 1990 supported

by the Australian Sports Commission – a government body - further demonstrated

the interventionist approach governments were increasingly taking following

revelations of doping.

The Ben Johnson scandal at the Seoul Olympics in 1988 was the most high-

profile doping case in the history of the Olympics and it captured the attention of

the public, the media and the relevant regulatory bodies and national governments

like no other previous incident had. It acted as the catalyst for the adoption of the

Anti-Doping Convention in 1989. The Convention required governments to take an

active role in making public subsidies conditional to rule adherence while working

alongside sports organisations with regards to testing, promoting active

participation by athletes in discouraging doping and to clarify and harmonise rules

of eligibility following positive test results18. Former Associate Chief Justice Charles

Dubin headed an inquiry conducted by the Canadian Federal Commission into the

events that unfolded in Seoul. Dubin noted that the organisational conflicts within

the Olympic governance structure prevented any salient attempt at enforcing a

universal set of doping regulations. Members of the IOC, following the conclusion of

16 Coni Report, at paragraph B15, 1988 in Ivan Haddington and Andy Smith, An Introduction to Drugs in Sport: Addicted to Winning? (London: Routledge), at 108. 2008. 17 Wayne Smith, Drugs inquiry 'amateur hour' - former senator John Black slams ACC investigation, The Australian, February 15th, 2013, found at http://www.theaustralian.com.au/sport/drugs-inquiry-amateur-hour-former-senator-john-black-slams-acc-investigation/story-e6frg7mf-1226578247263, accessed on 21/12/2013, at 14:52. 18 Neville Cox and Alex Schuster, Sport and the Law, (Dublin: First Law Limited), at 111. 2004.

9

the Dubin inquiry, conceded that the doping problem was systemic and that there

was a need for a wider range of enforcement mechanisms19.

The Ben Johnson scandal together with the aforementioned series of

investigations and reports which emerged in Britain, Australia and Canada starkly

portrayed many of the shortcomings in anti-doping laws. These countries

subsequently increased their involvement in matters of doping policy following

recommendations from the respective inquiries. The Anti-Doping Convention of

1989 instituted a series of common standards and best practices with regard to

legislative, administrative, financial and educational regulations. Moreover, the

sporting infrastructures of states within the Eastern Bloc had disintegrated with the

fall of communism in 1989 and the Council of Europe gave these poverty stricken

states the opportunity to join the COE itself, often under the condition that they

acceded to the Anti-Doping Convention20.

A) Discordance amongst Sporting Organisations

The establishment of the Court of Arbitration for Sport in 1983 was an

attempt by the IOC to bring a measure of fair procedure and uniformity into doping

disputes as there was a lack of agreement between sports federations & between

national and international organisations as to, inter alia, the appropriate sanctions

for breaches and the requisite standards of proof21. Furthermore, there was no

significant jurisprudential base regarding the interpretation of IF doping rules (or at

least one that fostered consistent interpretation)22. The CAS has previously

underlined that arbitrators were not empowered to create a doping offense

through their decisions; if there was no legal basis for such a decision present within

19 Thomas M. Hunt, Drug Games: The International Olympic Committee & The Politics of Doping, 1960-2008, (University of Texas Press), at 83. 2011. 20 Houlihan, [N2], at 162. 21 Justice Tricia Kavanagh, The Doping Cases and the Need for the International Court of Arbitration for Sport, UNSW Law Journal, Vol. 22, No. 3, at 722. 1999. 22 Richard H. McLaren, An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sport, Marquette Sports Law Review, Vol. 16, No. 2, at 198. 2006.

10

the rules of a Federation, the CAS could annul a decision (which it has previously

done) 23.

The application of different standards of proof contributed to discrepancies

in the sanctioning of doping offenses between International Federations. There

were a number of pre-WADA cases which demonstrated the difficulties of

establishing a doping offense without the presence of a blanket principle of strict

liability24 or the comfortable satisfaction standard25 which are now inscribed in the

Code. The strict liability rule has been criticised for blurring the distinction between

the guilt and innocence of the athlete (an assertion which holds significance

currency and will be dealt with further in chapter three) particularly with regards to

inadvertent cases of doping infractions which, for instance, could materialise due to

the presence of prohibited properties in OTC medications taken by the athlete

(which would not have the net effect of being “performance enhancing” per se).

However, the absence of a strict liability standard in anti-doping laws prior to the

Code did result in less uniformed interpretations. The IAAF’s anti-doping laws

evidenced this quite well. They stipulated that “the use of or taking advantage of

forbidden techniques” and an admittance of “having taking advantage of, or having

used…a prohibited substance or a prohibited technique” constituted a doping

offence26. This has subsequently been rendered redundant by Article 2.2.2 of the

2015 WADA Code27. O’Leary contends that the IAAF’s anti-doping rules prior to the

Code promoted confusion and inconsistency as establishing the criterion of “use” or

“taking advantage” i.e. deriving intent, was quite difficult for the IAAF to do28.

23 M. v. Federation Italianne de Cyclisme, CAS 97/169, in Frank Oschutz, Harmonisation of Anti-Doping Code through Arbitration: The Case Law of the Court of Arbitration for Sport, Marquette Sports Law Review, Vol. 12, at 682. 2002. 24 Strict liability was a principle which came from governing bodies pre-Code, but it was not unitary. The CAS merely elucidated to the fact that it did not violate basic notions of fair procedure. 25 While the standard necessary to establish a doping offence varied from federation to federation, the Court of Arbitration for Sport did contend with relative consistency that the standard fell between the civil and criminal standard i.e. to the comfortable satisfaction of the panel. 26 IAAF Code 2002, Rule 60(1) 27 “The success or failure of the use or attempted use of a prohibited substance or prohibited method is not material” 28 John O’Leary, USADA v Montgomery, in James Anderson, Leading Cases in Sports Law, (Asser International Sports Law Series), at 200. 2013.

11

Pre-Code doping laws within the myriad of sports governing bodies also

lacked uniformity with regard to the sanctions imposed. The disparity in the

imposition of sanctions between federations can be seen in the following example:

In the UCI’s Anti-Doping Examination Regulations of 1999, Article 90.129 asserted

that an elite cyclist who tested positive for a prohibited substance shall be

suspended for a minimum of 6 months to a maximum period of 12 months for a

first offense. However, in FINA’s doping case report of 200130 Nauris Pundors and

Michael F. Pichotte were banned for a period of 4 years, evidencing a clear

dichotomy in sanctioning between the swimming and cycling bodies. Additionally,

“athletes [had previously] been able to argue successfully that inconsistent

penalties among IFs and NFs…[represented] an unreasonable restraint of

trade...[and] the fact that other sports had imposed lesser sanctions could…show

that the length of the particular sanction was not reasonable”31. This has been

eliminated by Article 10.2.1 of the Code which imposes standard minimum

penalties for doping violations32. It has been argued that the imposition of such

uniform penalties is intrinsically unfair and contrary to notions of fair procedure

particularly when coupled with the application of a strict liability principle (a

sentiment which will be fleshed out further on in this study), but it has evidently

reduced the incongruity of anti-doping laws pertaining to the administration of

sanctions. One of the Code’s primary objectives was to establish a level of

harmonisation that was not there prior to its indoctrination.

Furthermore, any hope for consistency was complicated and often nullified

by the structural composition of sporting organisations and the jurisdictional battles

which ensued. Differing organisations within a sporting structure would often

promulgate their own set of rules, resulting in high levels of confusion for the

29 UCI Anti-Doping Examination Regulations 1999, Article 90.1. Found at, http://d3epuodzu3wuis.cloudfront.net/UCI+Anti-Doping+Rules+1999-03-10.pdf, accessed on 12/02/2014, at 09:45. 30 FINA Press Release No. 70, 26th September, 2003. 31 Anne Amos & Saul Fridman, Drugs in Sport: The Legal Issues, Sport in Society: Cultures, Commerce, Media, Politics, Vol. 12, No. 3, at 359. 2009. 32 The prospective 2015 Code will implement 4 year bans for first offense doping violations.

12

athlete. In Robertson v Australian Professional Cycling Council Inc33., cyclist Bill

Robertson’s sanction was set aside on restraint of trade grounds based “largely on

grounds related to inconsistency between the relevant rules of the National

Federation and International Federation”34.

The case of Mary Slaney gives an excellent illustration of the bureaucratic

labyrinth that athletes were subjected to prior to the Code and the lack of

uniformity in procedural processes between different organisations. In 1996, Mary

Slaney tested positive for excessive levels of testosterone (breaching the 6:1

testosterone to epitestosterone ratio) at the US Olympic Track & Field trials. The

procedural disparities between the IAAF Anti-Doping Code and the US Track & Field

Governance Manual stalled the hearing process and Slaney subsequently

participated in the 1996 Olympic Games. In 1997, Slaney was banned from

competition by the IAAF, a decision which was supported by the USA T&F35. Slaney

challenged the validity of the 6:1 testosterone ratio claiming that oral

contraceptives, alcohol and menstruation could individually and collectively cause

fluctuation in female testosterone levels to the extent that it would exceed the

allowable threshold; a decision which the USA T&F doping panel accepted36. The

IAAF did not accept Slaney’s defence however and she was subsequently banned

for failing to demonstrate that her excessive levels of testosterone were caused by

a physiological anomaly.

The potential for such inconsistencies arising from procedural divergences,

differing standards of proof, non-uniformed sanctioning and jurisdictional ambiguity

were among the primary reasons for the purported necessity of the World Anti-

Doping Code.

33 Unreported decision, Supreme Court of New South Wales in S Gardiner et al, Sports Law (3rd ed. Cavendish Publishing Ltd), at 127. 2006. 34 See Amos & Fridman, [N31], at 358. See also James Duffy, Proportionality of Sanction under WADA Code: CAS Jurisprudence and the need for a Strict Approach, Australian Dispute Resolution, Vol. 24, No. 1, at 26. 2013. 35 Despite it being contrary to Reg. 10A(D)(3) of the USA T&F’s Governance Manual which dictated that an athlete must be afforded a hearing prior to suspension. 36 Michael Straubel, Doping Due Process: A Critique of the Doping Control Process in International Sport, Dickinson Law Review, Vol. 106, No. 3, at 528. 2002. See also Jessica K. Foschi, A Constant Battle: The Evolving Challenges in the International Fight against Doping in Sport, Duke Journal of Comparative & International Law, Vol. 16, at 472. 2006.

13

B) Festina Affaire & Establishment of WADA

The Festina Affaire during the Tour de France in 1998, served to highlight

many of the aforementioned areas of conflict which plagued anti-doping policies,

namely the lack of harmonisation and consensus regarding the list of prohibited

substances and practices, the principles of testing and the regime of sanctions, their

nature, their duration and attribution of blame37. Team Festina’s masseuse was

reprimanded by French customs for being in possession of a significant number of

doping products, including erythropoietin (EPO) and human growth hormones

(HGH). Houlihan states that these revelations were significant for a number of

reasons, namely that the UCI was at the forefront of anti-doping efforts for so long;

the scandal demonstrated that drug use was clearly an institutionalised

phenomenon in professional cycling; and also the strong reaction the French

government took in rejecting the UCI’s protestations that it was an issue to be

resolved by the unions, instead asserting that doping was a matter of public

concern and would consequently be dealt with by the courts and the police38.

The actions of the French state authorities delivered one of the most

important blows against doping since the 1988 Ben Johnson case and the

subsequent Dubin Commission hearings. “These actions reflexively demonstrated

the impotence of the sports authorities and their testing programs from the purely

practical point of view of successfully catching drug cheats”39. Furthermore, The

Festina Affaire led to an EC community response through the initiation of a support

plan – a communication championed by the Commission to the Council, the

European Parliament, the Economic and Social Committee and the Committee of

the Regions – which promoted projects in the field of the fight against doping

namely through the now discontinued HARDOP (Harmonisation of methods and

37 Patrick Mignon, The Tour de France and the Doping Issue, The International Journal of the History of Sport, Vol. 20, No. 2, at 235-236. 2010. 38 See Houlihan, [N2], at 169. 39 John J MacAloon, ‘Doping and Moral Authority: Sport Organizations Today’ in Wayne Wilson and Edward Derse (Eds), Doping In Elite Sport: The Politics of Drugs in the Olympic Movement, (Human Kinetics: Campaign) at 205, 2001.

14

measurements in the fight against doping) and CAFDIS (Concerted action in the fight

against doping in sport) development programmes40.

Most importantly however was the response of the IOC to this scandal in

summoning a World Anti-Doping Conference in Lausanne in 1999. The conference

aired many of the hostilities which plagued and hindered previous harmonisation

efforts between international federations, the IOC and government agencies. There

was distrust between the IFS and IOC toward governmental involvement in

international sport. They regarded it as politically motivated. Moreover,

government agencies criticised the IOC for failing to effectively implement efficient

doping procedures, despite the phenomenon being prevalent, particularly

throughout the three preceding decades. However, despite these concerns, a

consensus emerged from the conference that the formation of an independent

agency was required to oversee the development of doping policies. Following a

protracted period of negotiations, the World Anti-Doping Agency was established.

WADA’s principle tasks would be to co-ordinate an anti-doping program at

international level, develop common and effective standards for doping control,

commission unannounced out-of-competition testing, publish an annual list of

prohibited substances and ultimately to work with existing authorities to promote

the harmonisation of anti-doping policies and procedures41. Additionally, the

Lausanne Declaration recognised the exclusive responsibility of the IFS, NOCS and

IOC in first instance appeals and the authority of the CAS in last instance appeals,

while re-iterating that general principles of law should apply in ensuring that the

rights of the athlete in the area concerning disciplinary procedures are protected.

Many of WADA’s objectives are realised within the World Anti-Doping Code42 which

came into force originally in 2004, was amended in 2009 and has since been

revised, with the new Code set to come into effect in January 2015.

40 Simon Gardiner et al, EU, Sport, Law and Policy: Regulation, Re-Regulation and Representation, (TMC Asser Press), at 458. 2009. 41 IOC Press Release, 9 September 1999. See Houlihan, [N2], at 171. See also Foschi, [N36], at 461. 42 See Cox and Schuster, [N18], at 109.

15

Conclusion

This chapter has demonstrated how a number of watershed moments in the

early 1960s sparked an interventionist approach from the Council of Europe and a

number of state governments, which culminated in the promulgation of the Anti-

Doping Convention in 1989. Sports governing bodies’ approach towards doping in

sport was plagued by deficiencies. Discordance amongst the sporting authorities in

relation to the applicable standards of proof, questions of jurisdiction, range of

sanctions and procedural differences were preventing any meaningful fight against

doping in sport. As was the case in the early 1960s, it took a scandal to re-invigorate

commitment towards doping and the Festina Affaire of 1998 did just that. It acted

as a catalyst for the formation of WADA in 1999 and the promulgation of the World

Anti-Doping Code in 2003.

The following chapter will examine the prospective WADA Code and the

concerning issues pertaining to the rights of the athlete, namely the burdens and

standards of proof, the uniformity of sanctions and the right to a fair hearing.

16

Chapter 2

The 2015 World Anti-Doping Code

Introduction

The World Anti-Doping Code, as ascertained in the previous chapter, was

brought into being inter alia to promote fairness and equality, to protect the

fundamental rights of the athlete in participating in a doping-free sport and to

ensure the uniformity of doping policies at an international level, in order to

countenance the disparities which plagued anti-doping laws pre-WADA1. The

formation of an independent agency to deal with doping was welcomed by the

majority of sports organisations and by a host of governments. The enforceability of

the Code from a legal perspective is two-fold. Firstly, the Code derives from an

agreement between the participants in elite sport and their respective

organisations. However, before this can occur, there is a requirement that the Code

be brought into force nationally. Countries and sports organisations which do not

adopt the Code are barred from participating in the Olympic Games. The

International Convention against Doping in Sport, founded by UNESCO in 2005,

created a framework whereby governments could legally adopt the Code. The

International Convention mandates state parties to withhold funds to any sports

organisation who do not comply with the rigours of the Code2. In Ireland, the Irish

rules came into force via the Irish Sports Council, which is a state body,

underpinned by the work of the Department of Transport, Tourism and Sport. The

Code prescribes WADA the responsibility of monitoring the International

Federations to ensure compliance with the rules and regulations detailed in the

Code. Signatories are compromised of the IOC, NOCS, IFS, national anti-doping

organisations and major event organisations. In order to conduct a thorough human

rights audit of the Code, it is necessitous to first examine the rudimentary features

of this unitary document.

1 Robyn R. Goldstein, An American in Paris: The Legal Framework of International Sport and the Implications of the World Anti-Doping Code on Accused Athletes, Virginia Sports and Entertainment Law Journal, Vol. 7, No. 1, at 156. 2007. 2 UNESCO International Convention against Doping in Sport, at 6. Found at, http://portal.unesco.org/en/ev.php-URL_ID=31037&URL_DO=DO_TOPIC&URL_SECTION=201.html .

17

The focus of this chapter will primarily be centred on the most pressing

areas of concern within the prospective 2015 WADA Code as they pertain to the

rights of the athlete. Many of the issues touched upon in this chapter will be dealt

with in a more comprehensive fashion in chapters 3 and 4. The predominant topics

being considered in this chapter are: The burdens and standards of proof; the right

to a fair hearing; and the sanctions imposed for doping violations. This study will

look at these tenets from the perspective of the 2015 Code and will shed light on

any departures made to these relevant sections from the 2009 Code. The primary

innovations within the 2015 Code, which are of relevance to this study, pertain to

the changes made to Article 8 of the Code - which deals with the athlete’s right to a

fair hearing - and the emergence of a four year ban for a first time doping offence,

ascribed in Article 10.2.1. The latter is the most prominent and important

amendment to the 2015 Code and is liable to have significant legal ramifications as

it will most likely invoke challenges on the athlete’s right to a livelihood, the

principle of proportionality and possibly restraint of trade. Ultimately, despite a

choice few positive alterations, most of the problems inherent in the 2009 Code still

appear here. This chapter refers to the 2015 WADA Code unless otherwise

specified.

(I)

The 2015 WADA Code and the Rights of the Athlete

A) Burden and Standards of Proof

Article 3.1 of the WADA Code establishes the burdens and standards of

proof for anti-doping organisations and athletes, respectively. The burden of proof

initially lies with the anti-doping authority – i.e. the accusing party - to demonstrate

the objective elements of the doping violation and until this is established, the

presumption of innocence operates in the athlete’s favour3. The standard of proof

necessitated of the accusing party must be to “the comfortable satisfaction of the

3 Neville Cox, B v FINA CAS 98/211, in Jack Anderson, Leading Cases in Sports Law, (Asser International Sports Law Series), at 175. 2013.

18

hearing panel bearing in mind the seriousness of the allegation” and that this

standard is “greater than a mere balance of probabilities but less than proof beyond

a reasonable doubt”4. The Michelle Smith de Brúin case in B v FINA5 clarified this

appropriate standard of proof. The CAS dispelled De Brúin’s assertion that the

“burden of proof lay upon the respondent to eliminate all possibilities other than

the [purported] manipulation by the appellant”, countering that this position did

not reflect a correct legal analysis and that the burden was to make the panel

comfortably satisfied that the appellant was culpable6. Once established, the

burden of proof then shifts to the athlete to rebut the positive finding. H v FIM7, in

accordance with the expressed view of a plethora of CAS panels, espoused that

“common principles of law and the human rights of the accused” allow the “person

responsible…the right to discharge himself through counter-evidence”8. That is, the

athlete has a legal entitlement to rebut a positive drugs test to a lower standard of

proof, namely on a “balance of probabilities”9. The lower standard of proof,

theoretically, safeguards the athlete’s rights to fairness and due process and is

comparable to cases involving professional misconduct, unfair trade practice cases,

immigration cases and civil rights cases and as such, would appear to be

appropriate for anti-doping incidents10.

The “comfortable satisfaction” standard has warranted much scholarly

attention particularly how it correlates with the nature of anti-doping laws and 4 WADA Code 2015, Article 3.1. 5 CAS 98/211. 6 ibid, at 39-40. 7 CAS 2000/A/281. 8 G v FEI, CAS 92/63, at 115. 9 See Frank Oschutz, Harmonisation of Anti-Doping Code through Arbitration: The Case Law of the Court of Arbitration for Sport, Marquette Sports Law Review, Vol. 12, at 691. 2002; See Klaus Vieweg, The Definition of Doping and the Proof of a Doping Offense under Special Consideration of the German Legal Position, Marquette Sports Law Review, Vol. 15, No.1, at 42. 2004; See Ryan Connolly, Balancing the Justices in Anti-Doping Law: The Need to Ensure Fair Athletic Competition through Effective Anti-Doping Programs v the Protection of Rights of Accused Athletes, Virginian Sports & Entertainment Law Journal, Vol. 5, No.2, at 175. 2006; See Nicholas Hailey, A False Start in the Race against Doping in Sport: Concerns with Cycling’s Biological Passport, Duke Law Journal, Vol. 61, at 403. 2011; See Dr. Chris Davies, The Comfortable Satisfaction Standard of Proof: Applied by the Court of Arbitration for Sport in Drug-Related Cases, University of Notre Dame Australia Law Review, Vol. 14, at 11. 2012. 10 Peter Charlish, The Biological Passport: Closing the Net on Doping, Marquette Sports Law Review, Vol. 22, No.1, at 66. 2011. See Vieweg, ibid, at 42. See Michael Straubel, Enhancing the Performance of the Doping Court: How the Court of Arbitration for Sport can do its Job Better, Loyola University Chicago Law Journal, Vol. 36, at 1267. 2005.

19

whether they are classified as private contract, criminal or quasi-criminal. German

speed skater Claudia Pechstein challenged the comfortable satisfaction standard in

the Swiss Federal Tribunal, but they rebuked the challenge and re-iterated the view

of the CAS that the standard “does not violate public policy but refers to the

allocation of the burden of proof and the standard of evidence which…even where

disciplinary measures of private sporting [organisations] are under review – cannot

be determined…[by] criminal law standards11”. Therefore, before assessing the

procedural issues at the heart of the Code and how they equate to the equity of

elite athletes, it is first necessary to examine the status of doping infractions and

determine whether they do in fact constitute matters of private contract law or are

they more akin to pseudo-criminal law and thus analyse whether the standards of

proof are appropriate in upholding the rights of the athlete.

There are two prevalent views on this issue, neither of which can be

routinely dismissed. The first opines that doping infractions are rooted in private

contract law. The argument goes that upon entering into competition, athletes

agree to be bound by the rules which govern their respective sport. If the athlete in

question breaches said rules, they are subject to punitive measures which are at the

discretion of the respective governing body. In short, doping law is the enforcement

of these private agreements12. The other view likens doping infractions to the

criminal law. The terminology roundly employed in referring to the athlete

convicted as “guilty”, rather than a “breaching party”, and the use of the term

“punishment”, is parlance more concomitant to criminal law and one which is not

traditionally associated with private contract law. All athletes are obliged to adhere

to the doping regulations in situ, whereby party autonomy is at a premium, which

isn’t dissimilar to the criminal law. Moreover, the sanctions imposed for an anti-

doping rule violation are in their nature and consequence closer to a criminal

sanction. They would be regarded as non-minor offences under the criminal law

11 [2009] Swiss Federal Tribunal, 4A_612/2009, at 6.3.2. 12 See Connolly, [N9], at 175. See also Straubel, [N9], at 1259.

20

and this has led many to pronounce that the anti-doping system is more akin to a

quasi-criminal code13; an assertion which this author agrees with.

CAS jurisprudence has consistently asserted that doping disciplinary

proceedings are civil in nature. The lex sportiva of the CAS perpetuates the assertion

that they are not akin to criminal proceedings and that the burden of proof in

reflecting this thus lies between the civil and the criminal. Classifying doping

proceedings as civil in nature is a problematic assertion. First, the contractual

agreement between athletes and sports authorities is not one of voluntary

association. If this were the case, athletes would have an input into the formation of

the association’s rules, which they do not. Moreover, athletes do not have an

alternative association to join. Despite doping disputes being classified as private

contract law, re-classifying this relationship as quasi-criminal would be more apt

and would offer the athletes more due process protections.

However, despite the misclassification of the nature of doping laws, the

standards and burden of proof articulated in Article 3.1 of the Code are an

important requirement of fairness. In USADA v Gaines14, the panel asserted that “as

often becomes evident when the question of the standard of proof is debated, the

debate looms larger in theory than in practice”. There may be occasions where

there is, in actuality, little difference between the civil and criminal standards but

this is very much subject to the vagaries of each case, particularly whether they are

prima facie cases or non-analytical positive findings. When the facts are in dispute

and there is competent and compelling evidence on both sides, the imposition of

the comfortable satisfaction standard on the anti-doping organisation and the

subsequent rebuttal standard on the athlete can be important. The rigours of the

burden and the standard of proof specified in the Code “impose a heavy burden on

the anti-doping organisation”15. This is exemplified in Calle Williams v IOC16, where

the CAS panel found that the IOC had not sustained its burden of proving to the

comfortable satisfaction of the panel that the substance the athlete tested positive

13 ibid. 14 CAS 2004/0/649, at 36. 15 Adam Lewis & Jonathan Taylor, Sport: Law and Practice, (Tottel Publishing LTD.), at 932. 2008. 16 CAS 2005/A/726

21

for – Isomethephene – was sufficiently similar to any substance on the prohibited

substances list. The slightly peculiar case involving Richard Gasquet17 further

substantiates the contention that the rebuttal standard safeguards the rights of the

athlete. In March 2009, professional tennis player Richard Gasquet tested positive

for a cocaine metabolite – benzoylecgonine - and a very small amount of non-

metabolised cocaine. Gasquet, prior to the failure of his doping test, had shared

several kisses with a woman named Pamela. Consequent to a negative test on a

sample of Gasquet’s hair for cocaine and benzoylecgonine, he asserted that the

cocaine must have been ingested accidentally by way of kissing Pamela. A test on

her hair subsequently found cocaine and its metabolites “within the average

concentration measured in known cocaine users” and the ITF tribunal concluded

that “one specific way of ingestion is marginally more likely than not to have

occurred… [And] that it was more likely than not that Pamela’s kisses were the

source of Gasquet’s contamination”18.

Ultimately, the standards and burden of proof are an aspect of anti-doping

law which seek to protect the rights of the athlete by requiring the anti-doping

authorities to prove a doping offense to a standard less than that of criminal

proceedings but greater than that of ordinary civil proceedings. It is an area of the

World Anti-Doping Code which safeguards the rights of the athlete in proceedings

which are incorrectly delegated as civil in nature.

B) Right to a Fair Hearing

Article 8 of the World Anti-Doping Code governs the right of an athlete to a

fair hearing and notice of a hearing decision. Article 8.1 stipulates that each anti-

doping organisation must provide a fair hearing in an expedited manner by a fair

and impartial hearing panel19. The supplemental comment to Article 8.1 has been

re-defined in the prospective Code and includes references to fair procedure

principles enshrined in article 6.1 of the European Convention on Human Rights.

17 WADA v ITF & Gasquet, CAS 2009/A/1930. 18 ibid, at 2.34 and 5.9. 19 WADA Code 2015, Article 8.1.

22

The Code also contends that “this article [8.1] is not intended to supplant each anti-

doping organisation’s own rules for hearings but rather that each anti-doping

organisation provides a hearing process consistent with these [ECHR] principles”20.

The addition in the 2015 Code of an explicit reference to article 6.1 of the European

Convention’s principles seems important. It is questionable whether Article 6 of the

ECHR is applicable to doping disputes carried out by WADA who are considered a

private legal entity. However, there is an argument to be made that the potential

severity of doping sanctions can render them by nature to be of a criminal

character. Jean Paul Costa’s legal opinion piece regarding the prospective Code’s

compatibility with international human rights law maintains that Article 8.1 of the

Code should be understood as falling within the purview of Article 6.1 of the

European Convention on Human Rights. Costa’s piece specifically asserts that the

following safeguards should be applied to the Code: The independence and

impartiality of the tribunal and of the member or members composing it; the

guarantee of equal means for all parties; public nature and transparency of the

proceedings; reasonable length of the proceedings; the possibility to appeal the

tribunal’s decision, subject to certain exceptions; and the prompt and complete

enforcement of the tribunal’s decision21. Applying the safeguards enshrined in

Article 6.1 verbatim to the Code would have a substantive and transforming effect

as firstly; proceedings are typically initiated by anti-doping organisations – although

article 8.5 of the Code now allows parties to bring a doping case directly to CAS –

who have no claim to independence from the subject matter. Furthermore, the

hearing bodies of the International Federations are private in nature, are not

independent and the proceedings are not made public.

Rigozzi et al22 asserts that Costa’s legal piece misinterprets the reference to

Article 6.1 of the ECHR and that this reference has a “symbolic power”, but is

unlikely to have any substantial practical effect. The Code, by citing Article 6.1, is

20 WADA Code 2015, comment to Article 8.1. 21 Jean Paul Costa, Legal Opinion Regarding the Draft 3.0 Revision of the World Anti-Doping Code, 25th June, 2013, at 2. Found at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-The-Code/Code_Review/Code%20Review%202015/WADC-Legal-Opinion-on-Draft-2015-Code-3.0-EN.pdf, accessed on 10/03/2014, at 22:14 22 Antonio Rigozzi, Marjolaine Viret & Emily Wisnosky, Does the World Anti-Doping Code Revision Live up to its Promises?, Jusletter, No. 11, at 33. 2013.

23

merely requiring anti-doping organisations to respect notions of due process and to

instigate proceedings in a timely manner. The enumeration that all persons accused

of a doping violation are “entitled to benefit from all civil components of the rights

enshrined in Article 6.1 of the ECHR” presupposes the intervention of an actual

judicial body and not an initial hearing process conducted by a private

organisation23. While Article 6 of the ECHR may not have any direct applicability in

doping disputes, this does not mean the principles contained within it are null and

void. The right to a fair hearing and the applicability of Article 6 of the ECHR to

doping disciplinary law will be dealt with comprehensively in Chapter 4.

Presumption of Scientific Validity

There has been considerable debate as to whether the WADA Code can

afford true due process to an athlete when there is a presumption of validity that

WADA’s accredited laboratories have conducted all testing in accordance with the

International Standards for Laboratories. An athlete’s ability to refute an anti-

doping rule violation by challenging the presumptive validity of WADA-accredited

laboratories under Article 3.2.1 of the Code is exceptionally difficult and the lack of

discovery rights they are afforded represents an infringement on their due process

rights.

The manifestation of Article 3.2.1 of the Code gives the impression that

WADA are safeguarding the rights of the athlete by enshrining a legal capability to

challenge the results of anti-doping violations on the basis of procedural errors but,

in actuality, it is extremely difficult to rebut the presumptive scientific validity of

WADA’s laboratories. The athlete is not given access to detailed scientific and

technical information concerning inter alia, “the laboratory’s testing process,

sequencing, instrumentation and methods used, the reliability and accuracy of test

results, internal protocols…and competency of lab personnel” which would appear

23 ibid.

24

critical in order to mount a challenge against WADA’s laboratories24. There’s clearly

a dichotomy between the athletes possessing the right to rebut the cogency of

WADA’s laboratories yet not being afforded the right of access to the materials

which are imperative in instituting such a rebuttal. By way of this deficiency, the

athletes are then beholden to the discretion of the panel to grant additional

information or amici curiae.

Prior to the inculcation of the 2009 WADA Code, there was a proviso within

Article 4.4 of Annex B to the International Standards for Laboratories whereby

laboratory directors, when sought by the CAS, could not testify in defence of the

athlete. This was dubbed the “Code of Silence” or omertá and created an

“impermissible conflict-of-interest” which impeded the athlete’s burden in

establishing test errors25. This required (and still does require) athletes to scour the

world for experts who are not affiliated with WADA but who still possess the

competencies required to critique the compliance of their laboratories. Even

pending the successful completion of this arduous task, the CAS has maintained, en

masse, that these experts lack the proficiency and familiarity with the procedural

processes compared to WADA’s laboratory personnel26. While Article 4.4 of Annex

B was ultimately amended to ensure that laboratory experts should not be an

advocate to either party, not solely the athlete; the capabilities of an athlete to

meet his/her burden are bordering on insuperable through a lack of discovery rights

and particularly without the ability to procure the assistance of qualified experts

whose opinion is regarded with equal weight and substance to that of WADA’s.

The 2015 Code has further consolidated this presumption towards the

scientific validity of WADA accredited Laboratories in order to further prevent 24 Maureen Weston, Doping Control, Mandatory Arbitration and Process Dangers for Accused Athletes in International Sports, Pepperdine Dispute Resolution Law Journal, Vol. 10, No.1, at 34. 2009. See also Andrew Goldstone, Obstruction of Justice: The Arbitration Process for Anti-Doping Violations during the Olympic Games, Cardozo Journal of Conflict Resolution, Vol. 7, at 361, 383. 2006. 25 USADA v. Landis, AAA No. 30 190 0084 06. See also Michael A. Hiltzik, Presumed Guilty: Athlete’s Unbeatable Foe, Los Angeles Times, December 10th, 2006. Found at http://www.latimes.com/news/la-sp-doping10dec10,0,5150673.story?page=2#axzz2xZOPrbVN, accessed on 31/03/2014, at 20:38. 26 See Weston, [N24], at 36, 37. See also Mark Rabuano, An Examination of Drug-Testing as a Mandatory Subject to Collective Bargaining in Major League Baseball, Journal of Business Law, Vol. 4, No.2, at 10. 2002.

25

challenges to positive analytical results. The amended Article 3.2.1 makes it more

difficult, for all intents and purposes, to challenge such findings. The presumption in

article 3.2.1 of the 2009 Code27 was predicated upon the laboratory not departing

from applicable custodial procedures whereas article 3.2.1 of the 2015 Code has

extended the presumptive domain to the scientific validity of the applicable

procedures, based on “consultation within the relevant scientific community…which

have been the subject of peer review”28. This caveat raises some issues. For

instance, will WADA keep pace with the ever evolving nature of scientific validity

and apply this accordingly? Ensuring laboratory procedures are in line with the

opinions of the scientific community is a positive addition to the 2015 Code, as

many of WADA’s testing methods have received criticism from members of the

scientific community, as will be demonstrated in chapter 4. Ultimately, as Rigozzi et

al allude to, this new presumption is less than likely to have any real practical

significance as CAS panels have been consistently unwilling to entertain challenges

towards the scientific validity of WADA laboratories29.

C) Sanctions

The sanctioning regime under the forthcoming Code proscribes harsher

penalties for intentional dopers while also professing to create additional flexibility

for inadvertent dopers. Article 10.2 represents the most significant change to the

2015 WADA Code by extending the period of ineligibility from two years to four

years for an anti-doping rule violation – which now includes Article 2.3 and 2.5

which deal with evading and tampering, respectively30 - where the violation does

not involve a specified substance, unless the athlete can establish that the anti-

27 WADA Code 2009, Article 3.2.1: “WADA-accredited laboratories are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for Laboratories” 28 WADA Code 2015, Article 3.2.1: “Analytical methods or decision limits approved by Wada after consultation within the relevant scientific community and which has been the subject of peer review are presumed to be scientifically valid” 29 See Rigozzi et al, [N22], at 11. See USADA v Landis, [N25]. 30 WADA Code 2015, Article 10.3.1: “For violations of Article 2.3 or Article 2.5, the period of Ineligibility shall be four years unless, in the case of failing to submit to Sample collection, the athlete can establish that the commission of the anti-doping rule violation was not intentional (as defined in Article 10.2.3), in which case the period of Ineligibility shall be two years”

26

doping rule violation was not intentional31 or the violation involves a specified

substance and the anti-doping organisation can establish that the violation was

intentional32. If neither Articles 10.2.1.1 nor 10.2.1.2 apply to a particular doping

violation, then the period of ineligibility will be two years. Ergo, while it is not

necessary that intent, fault, negligence or knowing use on the athlete’s part be

demonstrated in order to establish an anti-doping rule violation under Article 2.1 of

the Code, the new Code professes to establish a reduced period of ineligibility once

the Athlete can prove that the violation was not intentional for a non-specified

substance. Intention, which was purportedly added to the 2015 Code in order to

extricate the real cheats from the inadvertent ones, is defined in Article 10.2.3 of

the prospective Code as “[an] athlete or other Person engaged in conduct which he

or she knew constituted an anti-doping rule violation or knew that there was a

significant risk that the conduct might constitute or result in an anti-doping rule

violation and manifestly disregarded that risk”. It is difficult to know how reducing a

period of eligibility based on intent in Article 10.2 will play out. Rigozzi et al argues

that, based on WADA's stated commitment to flexibility for inadvertent dopers, and

the frequency with which Specified Substances appear in such cases, “a four-year

period, much like the aggravating circumstances in the 2009 WADA Code, is only

envisioned to be imposed in exceptional circumstances”33. Ultimately, this will hinge

on how the hearing panels at the CAS will determine how the “new” concept of

intentionality coalesces with the traditional notions of no fault or negligence when

considering the reduction or elimination of sanctions under Articles 10.5.1 or 10.4,

respectively.

The rigidity of the “exceptional circumstances” clause of the 2009 Code

which is based on no fault or negligence in Article 10.5.134 or no significant fault or

31 WADA Code 2015, Article 10.2.1.1 32 WADA Code 2015, Article 10.2.1.2 33 See Rigozzi et al, [N22], at 22. 34 WADA Code 2009, Article 10.5.1: “If an Athlete establishes in an individual case that he or she bears No Fault or Negligence, the otherwise applicable period of Ineligibility shall be eliminated. When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete's Sample in violation of Article 2.1 (Presence of Prohibited Substance), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility eliminated. In the event this Article is applied and the period of Ineligibility otherwise applicable is eliminated,

27

negligence in Article 10.5.235 has attracted a great level of censure. The parameters

of the exceptional circumstances clause are highly restrictive and have rarely been

invoked successfully under the 2009 Code. WADA, in recognising that the ingestion

of contaminated products - most commonly involving nutritional supplements that

contain prohibited substances unbeknownst to the athlete – were the cause of a

considerable number of adverse analytical findings under the 2009 Code, have

inserted an article specifically dealing with contaminated products into the 2015

Code36. Article 10.5.1.2 was amended to specifically deal with the contaminated

product dilemma which commonly arises due to the presence of a prohibited

substance or its metabolites in nutritional supplements ingested by an athlete. The

2015 Code defines a contaminated product, found in appendix 1, as “a product that

contains a Prohibited Substance that is not disclosed on the product label or in

information available in a reasonable Internet search”. A defence under Article

10.5.1.2 requires an athlete to establish no significant fault or negligence. Where

the Athlete can establish No Significant Fault for an Adverse Analytical Finding

involving a Contaminated Product under article 10.5.1.2, the period of Ineligibility

may range from at a minimum a reprimand and at a maximum, two years. There

was a recurring objection to this provision during the consolation process where it

was claimed that such a provision would be subject to abuse such as collusion

between “cheating athletes and unscrupulous supplement manufacturers that

would manufacture products containing a prohibited substance but not include the

the anti-doping rule violation shall not be considered a violation for the limited purpose of determining the period of Ineligibility for multiple violations under Article 10.7” 35 WADA Code 2009, Article 10.5.2: “If an Athlete or other Person establishes in an individual case that he or she bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable. If the otherwise applicable period of Ineligibility is a lifetime, the reduced period under this Article may be no less than eight (8) years. When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete's Sample in violation of Article 2.1 (Presence of a Prohibited Substance or its Metabolites or Markers), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility reduced” 36 WADA Code 2015, Article 10.5.1.2: “in cases where the athlete or other Person can establish no Significant fault or negligence and that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years Ineligibility, depending on the athlete’s or other Person’s degree of fault”

28

substance on the label”, therefore providing the cheating athlete with a defence37.

Despite the professed flexibility for inadvertent dopers in the new Code, it must be

noted that the CAS has consistently maintained that an athlete is responsible for

what he/she consumes and the culpability provisions have traditionally been

applied narrowly and inconsistently. The new Code still requires an athlete to

establish how a prohibited substance entered his or her body which is a significant

impediment to exonerating athletes who have inadvertently doped. It will be

interesting to see how Articles 10.4 and 10.5.1 play out in practice and whether

there is a genuine increase in flexibility for athletes who inadvertently ingest a

prohibited substance.

Conclusion

This chapter has demonstrated how many of the problems associated with

the 2009 World Anti-Doping Code are still inherent in the prospective Code. The

burdens and standards of proof are an undoubtedly positive aspect of the Code

which ensures that sports governing bodies are required to prove a doping offense

to a higher standard than that of an ordinary civil proceeding, but less than a

criminal one. In addition, when the burden is transferred to an athlete, they are

required to rebut a positive drugs test to a lower standard of proof, that is, on a

balance of probabilities. While the CAS maintains that doping disciplinary

proceedings are civil in nature – an assertion which this author believes does not

reflect the true nature of such proceedings and concurrently does not provide

athletes with sufficient due process protections -, the burden and standards of

proof do correlate more closely with pseudo-criminal law and thus ensure the

athlete’s rights are safeguarded. The right to a fair hearing as articulated in Article 8

of the Code fails to provide athletes adequate due process protections. This derives

from the nature of disciplinary hearings, which are considered to be civil in nature

owing to the law of associations, which is purportedly voluntary. However, as this

chapter has established, the voluntary association between athletes and governing

37 2015 WADA Code Review, 2nd Phase, Comment to Article 10, paragraph 32, (Australian Government/Bill Rowe); See also 2015 WADA Code Review, 3rd Phase, Comment to Article 10, paragraph. 54, (Sixth Floor Wentworth-Selborne Chambers/ John Marshall).

29

bodies is a guise while the sanctions imposed for a doping offense are more akin to

criminal sanctions then the mere suspension from a voluntary association. The right

to a fair hearing will be fleshed out fully in chapter 4 of this dissertation. Finally, the

four year sanctions imposed for a first time doping offense under the 2015 Code are

likely to lead to challenges on the basis of proportionality and adversely affecting an

athlete’s right to a livelihood, which is a topic which will be considered in chapter 3.

The alterations to the prospective Code as they relate to the sanctioning regime,

particularly the addition of a professed level of flexibility for inadvertent dopers

under Articles 10.5.1.1 and 10.5.1.2, appear to be more superficial than substantial

as these culpability provisos have historically been notoriously difficult to activate

and the prospective Code maintains that athletes must still establish how a

prohibited substance entered his or her body.

The following chapter will critically examine the strict liability standard and

the injustices it has caused before assessing the difficulty an athlete faces in

discharging his or her positive duty when attempting to invoke the culpability

provisions, following an initial positive finding. Finally, the principle of

proportionality and the severity of sanctions will then be considered.

30

Chapter 3

Liability, Injustices & the Severity of Sanctions

Introduction

This chapter will firstly examine the application of the strict liability standard

in doping violations, undertaking an analysis of its legal definition, the purported

necessity for having such a standard in doping disputes and the harsh injustices that

it has inflicted on many innocent athletes for the inadvertent ingestion of

prohibited substances with no ergogenic effect. The second part of this chapter will

proceed to critique the sanctioning regime - where the strict liability standard is

eased following the initial disqualification of the athlete for an anti-doping rule

violation - particularly the difficulties athletes face in reducing or eliminating a

sanction based on ‘no fault or negligence’ or ‘no significant fault or negligence’

under Articles 10.4 or 10.5.1 of the 2015 Code, respectively. The chapter will

conclude by scrutinising the severity of sanctions in light of the principle of

proportionality and how Article 10.2.1 of the 2015 Code, which mandates a four

year period of ineligibility for a first time offence, is likely to face challenges in

national and supranational courts for unjustifiably restricting the athlete’s right to a

livelihood.

The strict liability standard is one of the most scrutinised aspects of doping

disciplinary law. It is regarded in some quarters as the most harmful facet of current

doping laws and in the context of this dissertation warrants examination.

Furthermore, the difficulties athletes face in reducing or eliminating sanctions

based on fault or negligence is exacerbated by the reality that doping sanctions are

akin to criminal sanctions in their severity and have a significant impact on an

athlete’s livelihood. Therefore, a critical analysis of the Code’s culpability provisions

as well as the proportionality question regarding the severity of sanctions must be

undertaken in order to ascertain whether the 2015 World Anti-Doping Code

protects the rights of the athlete.

31

(I)

Strict Liability

Offences under the Code are decided on the basis of a strict liability

principle, that is, an athlete is legally liable if a prohibited substance is detected in

their system. The duty on athletes to be solely responsible for what substances

enter their body is thrust upon them contractually and ethically by their

participation in sport1. Athletes are disqualified from competition for the mere

presence of a prohibited substance without the chance to provide any exculpatory

explanation. Disqualification is not contingent upon intent or levels of fault or

negligence. There is an important distinction between disqualification from a

particular competition and the prospect of further sanction. Fault or negligence is

relevant purely to the determination of the sanction itself where the athlete’s

degree of punishment will be assessed based on their moral guilt. Here, the burden

of proof in reducing or eliminating a suspension is on the athlete who must

demonstrate the degree to which fault or negligence was existent or non-existent.

In other words, strict liability applies in the liability phase of the analysis, and not in

the penalty phase2.

A) Justification for Strict Liability Rules

The strict liability standard is regarded as an integral part of WADA’s doping

control system. The rudimentary legal definition of the strict liability standard

requires the prosecution to prove the objective elements of the offense, or actus

reus, and not the subjective or mental elements of the offense, or mens rea. It is

opined that the fight against doping would be acutely undermined were the sport’s

governing bodies required to prove the intentionality of a doping offense, as it

1 Ryan Connolly, Balancing the Justice in Anti-Doping Law: The Need to Ensure Fair Athletic Competition through Effective Anti-Doping Programs vs. the Protection of Rights of Accused Athletes, Virginia Sports & Entertainment Law Journal, Vol. 5, No. 2, at 184. 2006. 2 Antonio Rigozzi, Gabrielle Kaufmann-Kohler and Giorgio Malinverni, Doping and Fundamental Rights of Athletes: Comments in the Wake of the Adoption of the World Anti-Doping Code, International Sports Law Review, Vol. 3, No. 3, at 51. 2003. See also Michael Straubel, Doping Due Process: A Critique of the Doping Control Process in International Sport, Dickinson Law Review, Vol. 106, No. 3, at 543. 2002.

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would be extremely difficult, if not impossible, to prove such intent. The comments

to Article 2.1.1 of the Code elucidate that the strict liability rule “provides a

reasonable balance between effective anti-doping enforcement for the benefit of all

"clean" Athletes… [and that the] principle…has been consistently upheld in the

decisions of [the Court of Arbitration for Sport]” 3. The basis for the inclusion of the

strict liability standard in Article 2.1.1 of the 2015 Code and its purported necessity

in the fight against doping is rooted in the Quigley4 case, which involved a skeet

shooter who, after falling ill at an event in Cairo, was prescribed a cough syrup

which contained the prohibited substance ephedrine. The panel in Quigley

articulated the following rationale for the strict liability standard:

A strict liability test is likely in some sense to be unfair in an individual case,

such as that of Q, where the athlete may have taken medication as the result

of mislabelling or faulty advice for which he or she is not responsible. But it is

also in some sense “unfair” for an athlete to get food poisoning on the eve of

an important competition. Yet in neither case will the rules of the

competition be altered to undo the unfairness…the vicissitudes of

competition, like those of life generally, may create many types of

unfairness, whether by accident or the negligence of unaccountable persons,

which the law cannot repair. Furthermore, it seems a laudable policy

objective not to repair an accidental unfairness to an individual by creating

an intentional unfairness to the whole body of other competitors… [And] it is

certain that a requirement of intent…may well cripple federations –

particularly those run on modest budgets – in their fight against doping5.

The overall thrust of the Quigley rationale essentially excuses potential

injustices once the overall equity of competition is preserved. Proponents of the

3 WADA Code 2015, comments to Article 2.1.1. See also Michael Straubel, Enhancing the Performance of the Doping Court: How the Court of Arbitration for Sport Can Do Its Job Better, Loyola University Chicago Law Journal, Vol. 36, at 1260. 2005. See also See C. v. FINA, CAS 1995/141 (asserting lack of strict liability would make the "fight against doping ... practically impossible"); and H. v. FIM, CAS 2000/A/281 (finding that the "high objectives and practical necessities of the fight against doping amply justify the application of a strict liability standard") 4 USA Shooting & Quigley v UIT, CAS 94/129. 5 ibid. See also N v FEI, CAS 94/126, at 141 where the panel stated that “in order to preserve equality between competitors, the disqualification should stand even if the rider is innocent”.

33

strict liability standard advocate for its rigid and uncompromising application as

premising doping laws on a standard other than strict liability would increase the

probability that cheating athletes would be able to slip past anti-doping regulations

and thus, the integrity of sporting competitions would be vulnerable to increased

questioning6. Moreover, within the sports community a doping offence is

considered a very serious transgression; the sanctions by which a doping offence

can be punished are of such a nature as to confirm this view7. The consequences of

a doping offence are extremely serious as it is viewed as undermining sports and

from this perspective, it has been opined that doping offences can be punished

without the need to take the element of guilt into consideration8.

B) Criticisms

The Quigley rationale has been criticised for its misguided tone given that it

is WADA itself that has institutionalised this particular form of unfairness to the

athletes and that describing the policy as laudable belittles the years of preparation

that an innocent athletes undertakes9. Acknowledging that such an approach may

also catch morally innocent athletes is, in this author’s opinion, tantamount to

admitting that the current system is indicative of a failed policy initiative. As Aaron

Wise states, “to catch the majority of the “guilty” parties while sacrificing a few

“innocent” ones [is] a concept incompatible with the basic tenets of civilized

societies.”10 The case of Andrea Raducan11 illustrates just how cruel the application

of a strict liability standard in doping cases can be, with Connolly opining that “few

[other] cases have elicited more heartfelt questioning of…the strict liability

doctrine”12. Raducan, a sixteen year-old gymnast from Romania, was disqualified

6 See Connolly, [N1], at 184. 7 Janwillem Soek, The Strict Liability Principles and the Human Rights of the Athletes in Doping Cases, (TMC Asser Press), at 189. 2006. 8 ibid. 9 Jessica Foschi, A Constant Battle: The Evolving Changes in the International Fight against Doping in Sport, Duke Journal of Comparative and International Law, Vol. 16, at 476. 2006. 10 Aaron Wise, Strict Liability Rules of Sports Governing Bodies, New Law Journal, Vol. 146, at 1161. 1996. 11 Raducan v IOC, CAS OG 2000/0111. 12 See Connolly, [N1], at 180.

34

and had her gold medal revoked after testing positive for the prohibited substance

pseudoephedrine (which was subsequently removed from WADA’s prohibited

substances list before being re-added in January, 2010). Raducan was given Nurofen

Cold and Flu tablets on the eve of the Gymnastic Women’s Individual All-Around

Event at the 2000 Olympic Games in Sydney, after complaining to her team doctor

about feeing unwell. This over-the-counter decongestant contained the banned

substance pseudoephedrine and the IOC, in applying the Olympic Movement Anti-

Doping Code’s strict liability definition, immediately disqualified her after the medal

ceremony. Raducan, in her appeal to the CAS, maintained that the substance had

no performance enhancing effect - an assertion substantiated by expert witness

testimony which confirmed that the substance in question would have actually

impaired her performance - and that consequently, her “disqualification violated

principles of fairness and equality”13. The evidence was rejected and her gold medal

was awarded to her teammate who, to compound matters, had taken the same

OTC medication but due to her size and weight differential did not test positive as

she had “a reduced and legal concentration of the substance”14.

The performance enhancing effect of the substance is irrelevant and is not a

determinate at either the initial disqualification stage, as demonstrated by the

Raducan case, nor is it relevant to any subsequent sanction. What can thus manifest

is a situation where the athlete has not demonstrated intent to enhance his or her

performance nor has he or she benefited from the inadvertent ingestion of a

substance in a performance enhancing way15. A number of scholars have contended

that it is necessary to immediately disqualify athletes as they have “probably, or at

least potentially, a competitive advantage over his or her opponents16”. This is an

unsettling proposition which stems from the fact that a substance need not be

considered “performance enhancing” to warrant inclusion on WADA’s prohibited

13 Andrew Goldstone, Obstruction of Justice: The Arbitration Process for Anti-Doping Violations during the Olympic Games, Cardozo Journal of Conflict Resolution, Vol. 7, at 372. 2006; quoting Raducan, [N11], at 7. 14 ibid, at 373. 15 WADA Code 2015, at Article 2.2.2, which states that the “success or failure of the use or attempted use of a prohibited substance or prohibited method is not material”. 16 See Rigozzi et al, [N2], at 53. See also Michael J. Beloff, Drugs, Laws and Versapaks, in John O’Leary, Drugs and Doping in Sport: Socio-Legal Perspectives, (Cavendish, London-Sydney), at 45. 2001: “the fact remains that the advantage has been gained – and, in objective terms, unfairly.”

35

list and that an athlete can have such a miniscule concentration in his or her system

that enhancement to his or her performance is simply not a realistic possibility. A

substance (or method) will be considered for the prohibited list if it meets two of

the following three criteria: It has the potential to enhance or enhances sport

performance; it represents an actual or potential health risk to the athlete; or it

violates the spirit of sport17. This means that the inadvertent ingestion of a

substance with no ergogenic effect can result in disqualification despite it having

little or no relevance to the outcome of the relevant sporting competition.

C) Suggested Reform

There is a strong argument to be proffered for removing the strict liability

standard from the Code, thus ushering in a meritocratic approach to anti-doping

rule violations where the individual circumstances of each case are considered in

tandem with the witness testimony of experts in pharmacology. This would clarify

any intent to enhance performance premised on qualitative medical reasoning.

However, any reform to the doping control system which favours strict liability as its

legal standard would require a re-categorisation of the legal relationship between

the athlete and sports governing bodies. The current approach is that doping

proceedings are issues of private law which do not need to be considered in light of

notions proper to criminal law, such as the presumption of innocence and the

principle of in dubio pro reo and the corresponding guarantees which feature in the

European Convention on Human Rights18. The nature of doping laws is roundly

classified as one of private contract law upon the reasoning that athlete’s

voluntarily submit to the rules of the association. This is an unconvincing

proposition as athletes have scant input into the promulgation of the rules of the

association and have no alternative association to join. It is essentially a contract of

duress. Moreover, many of the sanctions imposed for breaking the association’s

rules are punitively akin to a criminal sanction. It would therefore be more

17 2015 WADA Code, Article 4.3. 18 Matthew Hand, Caught in the Net: Athlete’s Rights and the World Anti-Doping Agency, Southern California Interdisciplinary Law Journal, Vol. 19, at 555. 2010

36

appropriate to consider the application of liability in its criminal meaning rather

than its private meaning19. This is an issue which will be fully considered in the next

chapter but, for now, it can be said that if the legal nature of doping disciplinary law

was re-classified to be of a pseudo-criminal nature, the protections afforded to the

athlete would be markedly, and appropriately, increased. As Soek elucidates,

“acceptance of anti-doping laws as a condition of participation in a sport should not

imply that such persons could be punished when they are completely innocent. It

touches upon the most fundamental objection against liability without guilt”20.

Ultimately, the principle has completely outweighed any purported benefits

of deterrence – which statistically speaking is a dubious proposition in itself - and

making sports clean of performance enhancing drugs21. Proponents of the strict

liability principle argue that a system which for pragmatic reasons starts from a

presumption of liability is not necessarily unfair. This contention may be true but

only in the event that the accused is given the opportunity to submit evidence by

which he or she can show that he or she cannot be held liable22. It is on this note

that we will move to the issue of culpability as a determinate in an athlete’s

suspension.

(II)

Culpability in Determining Suspensions

The strict liability standard, which is the root construct for an initial doping

offense, is softened when it comes to determining the period of suspension for an

athlete. While the CAS maintains that an athlete is responsible for any substance

which they ingest, they will have the opportunity to argue for the reduction or

19 See Soek, [N7], at 187. 20 ibid, at 190. 21 Zachary Blumenthal, The Punishment of all Athletes: The Need for a New World Anti-Doping Code in Sports, The Journal of International Business and Law, Vol. 201, No. 9, at 228. 2010 22 See Soek, [N7], at 192. See also Hayden Opie, Drugs in Sports and the Law - Moral Authority, Diversity and the Pursuit of Excellence, Marquette Sports Law Review, Vol. 14, No. 2, at 276. 2004, who states that “Unqualified, this rule offends universal notions of fairness, justice, and personal responsibility”.

37

elimination of their sanction based on their culpability. It must be stated that simply

because an athlete did not intend to ingest a prohibited substance does not mean

that he or she does not possess some level of culpability or blame for the ingestion

of the substance23. Although the doping offense still occurs where the athlete does

not intend to ingest a banned substance, the athlete will have the opportunity to

have his or her sanction reduced or potentially even eliminated by showing that he

or she bears no fault or liability or no significant fault or liability under articles 10.4

or 10.5.1 of the 2015 Code, respectively. The 2015 Code has altered these

provisions whereby article 10.5.1 – which has been divided into two distinct

provisions, article 10.5.1.1 and article 10.5.1.224 - specifically deals with the

reduction of sanctions for specified substances and contaminated products. This

adjustment to the culpability provisos is purportedly an attempt to extricate the

real cheaters and offer a renewed level of flexibility for those athletes who have

invoked an anti-doping rule violation for specified substances – which are described

in the comment to article 4.2.2 of the 2015 Code as substances more likely to have

been ingested for purposes other than the enhancement of sports performance25 -

and for contaminated products which typically fall into the category of inadvertent

doping. However, despite it being opined during the consultative drafting process

for the prospective Code that these provisions were less restrictive and more

flexible, the burden is still on athletes under these redrafted fault provisions to

establish how the substance entered his or her body which, historically, has been a

significant hurdle in cases involving specified substances and inadvertent doping in

general26. Moreover, traditionally the interpretation of these provisions has been

23 See Connolly, [N1], at 188. 24 WADA Code 2015, Article 10.5.1.1 states: “Where the anti-doping rule violation involves a specified substance, and the athlete or other Person can establish no significant fault or negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of ineligibility, and at a maximum, two years of ineligibility, depending on the athlete’s or other person’s degree of fault”. WADA Code 2015, Article 10.5.1.2 states: “In cases where the athlete or other person can establish no significant fault or negligence and that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years Ineligibility, depending on the athlete’s or other Person’s degree of fault”. 25 WADA Code 2015, comment to Article 4.2.2. 26 Antonio Rigozzi, Marjolaine Viret & Emily Wisnosky, Does the World Anti-Doping Code Revision Live up to its Promises?, Jusletter, No. 11, at 25. 2013.

38

narrowly and inconsistently applied - as this study will shortly explore - and it is

debateable whether the changes made to the 2015 Code will have any real impact.

While the fault and negligence provisions appear to theoretically safeguard

the rights of an athlete who may not have exhibited any moral culpability, the

interpretation of these provisions is construed so narrowly that it rarely has the

desired effect of sufficiently reducing or eliminating an athlete’s suspension. Jessica

Foschi claims that articles 10.5.1 and 10.5.2 are “included in the Code as empty

language” while colourfully deadpanning that athletes must “test every bottle of

every supplement that he or she uses, must guard these bottles against any kind of

sabotage from a competitor or close relation and might even want to get their food

and drink tested as well”27. When analysing case law, this section will refer to the

culpability provisions as they were inscribed at the time. i.e. Articles 10.5.1 and

10.5.2.

The case of Professional Tennis player Mariano Puerta demonstrates the

high standard of caution athletes are required to exhibit in order to have their

period of suspension reduced or eliminated under the Code. Puerta failed a doping

test after inadvertently ingesting the banned stimulant etilefrine after drinking out

of his wife’s glass of water. The CAS ruled that Puerta did not satisfy the

requirements for the no fault or negligence standard under Article 10.5.1 to

eliminate his suspension, claiming that:

In the panel’s view, it would not have been too much to expect of him to ask

his brother-in-law upon returning to the table whether the glass…was “his

glass” or whether anyone “had used the glass” during his absence. Mr

Puerta…suffered a momentary lapse of attention and exhibited a momentary

lack of care when he used a glass over which he lost visual control28.

The panel, in reducing his suspension under Article 10.5.2, further stated that “Mr

Puerta is not a cheat… [This] breach of anti-doping regulations is more the result of

27 See Foschi, [N9], at 479. 28 Puerta v ITF, CAS 2006/A/1025, at 26.

39

bad luck than of any fault or negligence on his part”29. The case law concerning the

application of the test under Article 10.5.1, as exhibited in the aforementioned

Puerta case, shows that the athlete will be held to a high level of caution in order to

discharge his positive duty30. One must question whether this duty of care threshold

entrusted on athletes is fair. In instances where the CAS deems that an athlete

does not meet the seemingly insurmountable burden of eliminating a suspension

based on Article 10.4 of the 2015 Code, but does meet the requirements of Article

10.5.1 of the prospective Code in reducing a suspension, as the Puerta case has

demonstrated, may, in this author’s opinion, offer little by way of consolation. The

suspension itself may be mitigated but the damage to the athlete’s reputation,

which can effect endorsements and earning potential, still remains.

The strict interpretation of these provisions is further demonstrated in

WADA v Jessica Hardy & USADA31. This case is indicative of the lengths that WADA

will go to in ensuring that reduced suspensions for athletes are as difficult as

possible to obtain. Following Hardy’s initial positive test for the prohibited

substance clenbuterol, the American Athletics Association (AAA) held that the

ingestion had been accidental and she demonstrated sufficient prudence to warrant

a reduced suspension of one year. WADA appealed the decision, indicating that

deviating from the fixed 2 year ban could only be done under exceptional

circumstances. During the arbitral proceeding, Hardy divulged numerous details

which clearly depicted a self-aware athlete who did her utmost to ensure that she

maintained a high level of vigilance and caution to ensure the product was safe to

use. Hardy contacted the manufacturer of the supplement prior to consumption

where she was offered assurances the product was safe to consume. She consulted

her swimming team physician, the USOC sports physician and her personal coach

and following similar assurances, proceeded to purchase the product directly from

the manufacturer where she inspected it to ensure it had not been labelled

29 Ibid, at 11.7.2. 30 Anne Amos, Inadvertent Doping and the WADA Code: Can Athletes Breathe Easy? Bond Law Review, Vol. 19, No.1, at 13. 2007. 31 CAS 2009/A/1870.

40

“steroidal”32. WADA opined that the lengths Hardy went to did not equate to “truly

exceptional” circumstances; she did not evidence enough vigilance and chose to

blatantly trust a sponsor that commercialised nutritional supplements while also

neglecting to undertake internet research on the supplement33. The CAS Panel

disagreed with WADA’s assertion that the circumstances were not “truly

exceptional” and ruled in favour of Hardy, whose one year suspension was upheld.

In essence, WADA sought a period of ineligibility that was not even supported by

their own rules in the Code, evidenced by the CAS articulating that such a sanction

“does not find sufficient basis in the rules”34.

If one contrasts this with the case of Serge Despres, it becomes evident that

WADA’s interpretation of what constitutes “exceptional circumstances” under

Articles 10.5.1 and 10.5.2 is not applied with any semblance of consistency. Serge

Despres35 was a professional Canadian bobsledder, who tested positive for

nandrolone in 2007. He was recommended a supplement by a sports nutritionist

contracted by Bobsleigh Canada following surgery on his hip, which he took for

purely medical reasons in order to expedite the recovery process. Despres

conducted research into the product while also assuming that the expertise offered

by a sport nutritionist contracted by Bobsleigh Canada was reliable, yet he was still

suspended for two years. Despres lodged an appeal to the Sport Dispute Resolution

Centre of Canada (SDRCC) and his suspension was subsequently reduced by four

months as he was adjudged to have taken the necessary precautions and thus his

circumstances fell within the remit of Article 10.5.2 of the 2003 Code. Despres was

not content with the ruling and appealed to the CAS, opining that he should have

been completely exonerated under Article 10.5.1 of the 2003 Code. With WADA’s

intervention, the CAS claimed that Despres should have been more vigilant,

32 Ryan Reszel, Guilty until Proven Innocent, and then, Still Guilty: What the World Anti-Doping Agency can learn from the National Football League about First-Time Anti-Doping Violation, Wisconsin International Law Journal, Vol. 29, No. 4, at 820. 2011. See also Paul A. Czarnota, The World Anti-Doping Code, the Athlete’s Duty of “Utmost Caution”, and the Elimination of Cheating, Marquette Sports Law Review, Vol. 23, No. 1, at 60. 2012. 33 See WADA v Jessica Hardy & USADA, [N31], at 14-15. 34 Ibid, at 33. 35 WADA v Despres, CAS 2008/A/1489.

41

conducted more research, contacted the manufacturer and followed up with the

nutritionist36.

This conclusion illustrates the inconsistencies in WADA’s approach,

particularly when you consider the Despres case in light of Jessica Hardy’s. In

Hardy’s case, she did contact the manufacturer and enquire as to the legality of the

supplement with both the USOC physician and the swimming team physician.

WADA in Hardy’s case, albeit to the disagreement of the CAS panel, argued that she

did not demonstrate a suitable degree of vigilance. The very precautions Hardy took

are the precautions that WADA and the CAS were advocating Despres needed to

take in order to justify the elimination or further reduction of his sanction under

Article 10.5.1 or Article 10.5.2, respectively. This demonstrates the inconsistent

interpretation when it comes to reducing or eliminating an athlete’s sanction and

neatly summates the blurring of the lines between the innocence and purported

guilt of the athletes in doping disputes and the inconsistency of WADA’s approach,

which is predicated more on the symbolism attached to catching “cheats” – which

to WADA is demonstrative of a fully functional and effective system of doping

control - rather than a meritocratic-centred approach based on the circumstances

of an individual case.

(III)

Proportionality & Severity of Sanctions

The impact of drug use on the outcome of sporting results/fixtures is

empirically uncertain, with the exception of professional cycling and competitive

weightlifting. There’s a relatively strong argument to be made that sport does not

need to justify the reasons for its anti-doping laws as they represent sporting rules

and there are many arbitrary sporting rules which are not questioned such as the

offside rule, the number of holes on a golf course, the number of points designated

for a conversion in rugby union et cetera. The fundamental difference between

36 ibid, at 8.

42

doping laws and other arbitrary sports rules is the extent to which the severity of

doping sanctions can potentially affect a sportsperson’s right to a livelihood. Doping

sanctions are so much more detrimental to an athlete’s livelihood than those

consequences which emanate from breaking any other arbitrary sports rule. The

negation of the principle of proportionality for doping sanctions can ultimately

inflict a chain reaction whereby other consequences such as “loss of income,

cancelled sponsorship contracts, loss of fame and loss of professions37” can emerge.

It is for this reason that there must be a convincing justification for the restrictions

on an athlete’s right to a livelihood brought about by WADA’s sanctioning regime

which, in this author’s opinion, is difficult to affirm.

In IAAF v OLV & Elmar Lichtenegger38, the CAS panel articulated that the

principle of proportionality is incorporated into the Code and that Article 10.5 is the

only way an athlete can have their sanction reduced. This sentiment was echoed by

the panel in Knauss v International Ski Federation39: “The purpose of introducing the

WADC was to harmonise at the time a plethora of doping sanctions…and to un-

couple them from both the athlete’s personal circumstances…[and] the specific

type of sport”40. Many commentators feel that tailoring sanctions based on the

vagaries of each individual case would be at odds with anti-doping values, would

undermine the primary purpose of the Code and would lead to a regression where

discordance amongst federations would re-emerge. Rigozzi et al re-iterate this

contention deeming that flexibility in the setting of sanctions will not always lead to

equal treatment and is no panacea41. This approach is tautological and it appears to

imply that such a flexible approach towards sanctioning must provide equal

treatment and fair remedies in order to be considered a justifiable alternative to the

current approach, which as this study has demonstrated, has dealt many harsh 37 Jannica Houben, Proportionality in the World Anti-Doping Code: Is there enough Room for Flexibility? International Sports Law Journal, No. 1-2, at 15. 2007. See also Robyn R. Goldstein, An American in Paris: The Legal Framework of International Sport and the Implications of the World Anti-Doping Code on Accused Athletes, Virginia Sports and Entertainment Law Journal, Vol. 7, No. 1, at 166. 2007. 38 CAS 2004/A/624 39 CAS 2005/A/857 40 ibid, at 7.5.2. See also Paul David, A Guide to the World Anti-Doping Code: A Fight for the Spirit of Sport, (Cambridge University Press), at 168. 2008. “The intention of the Code was to provide fully for proportionality and leave no further discretion to CAS panels and tribunals as regards sanctions” 41 See Rigozzi et al, [N2], at 66.

43

injustices to many innocent athletes. Taking into account the peculiarities of

individual cases is more likely to provide a more appropriate and fair sanction than

the “one size fits all” approach WADA currently adheres to. In Puerta, the panel

obviated from the assertion in Knauss & Lichtenegger, holding that “in those very

rare cases in which Article(s) 10.5.1 and 10.5.2 of the WADC do not provide a just

and proportionate sanction…that gap or lacuna must be filled by the panel42”. This

was re-iterated in Squizzato v FINA43, where the panel elucidated that regulations of

sports federations are still “regulations of an association which cannot (directly or

indirectly) replace fundamental and general legal principles like the doctrine of

proportionality a priori for every thinkable case”. This was the reasoning used in

reducing Mariano Puerta’s eight year ban with many citing this as proof that the

principle of proportionality can still apply where there is a lacuna in the Code, but it

begs the question; is a two year ban in a case like that of Mariano Puerta still just?

Rigozzi et al opined that the two-year suspension under the 2003 Code, could

represent a restriction on an athlete’s freedom of movement and their right to work

and in the context of the European Union, the imposition of such a suspension may

also amount to an encroachment on Article 39 and 43 of the EC Treaty, concerning

a person’s freedom of movement and freedom of establishment, respectively44.

42 See Puerta, [N28], at 11.7.23. 43 CAS 2005/A/830, at 10.24-10.26 44 See Rigozzi et al, [N2], at 61. EC Treaty, Article 39 states: “Freedom of movement for workers shall be secured within the Community. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. EC Treaty, Article 43 states: “Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital.”

44

There is significant concern that the aims of the Code are unfairly trumping

an athlete’s right to a proportionate sanction based on the circumstances of his/her

individual case. While the policy imperatives of WADA and sports governing bodies

are indeed relevant in determining whether a sanction is proportionate, these

entities cannot be insulated from scrutiny into matters which are not purely

sporting in nature but which also have an economic dimension in how they can

affect an athlete’s right to a livelihood. There is particular concern regarding the

fixed sanctions enshrined in Article 10.2 of the 2015 Code which have extended the

period of ineligibility to four years where the violation does not involve a specified

substance, unless the athlete can establish the violation was not intentional or

where the violation involves a specified substance, and the ADO can establish that it

was intentional. A four year suspension certainly has a direct impact on the

personal freedom of an athlete. The case of Katrin Krabbe illustrates the effect

national courts can have on disputes involving doping sanctions and it may well be a

harbinger for future challenges which WADA, owing to the four year fixed sanction

articulated in Article 10.2 of the prospective Code, will have to endure. Moreover, it

acted as a reminder to sports governing bodies that they are bound by the law of

the land and that they must respect that fact45. The Krabbe case is the primary

reason WADA opted for a two year period of ineligibility for a first time offence in

the 2003 and 2009 Codes, as they felt this sentence was likely to withstand scrutiny

from both the CAS panels and domestic courts. In Krabbe, both the German sports

internal tribunal and the Munich courts held that any suspension exceeding two

years was disproportionate46. The Regional court opined that a two year suspension

for a first time offense “represents the highest threshold admissible under

fundamental rights and democratic principles”47, while the decision reached by the

Munich Regional Appeal Court in 1995 declared Katrin Krabbe’s suspension for a

three year period “excessive in respect of its objective… [And] as a sanction for a

45 Neville Cox and Alex Schuster, Sport and the Law, (Dublin: First Law Limited), at 141. 2004. See also Barry Houlihan, Dying to Win, (2nd Edition Council of Europe), at 214. 2002. 46 See Rigozzi et al, [N2], at 63. 47 [1995] Krabbe v IAAF, Decision of the LG Munich.

45

first sports offence is inappropriate and disproportionate”48. This forced the IAAF to

retreat from imposing a four year ban on an athlete for a first time offence.

From the perspective of the European Union, the Walrave-Dona-Bosman49

continuum has given affirmation to the fact that sporting practices are subject to EC

community law and that deference to the rules of sports governing bodies must be

tempered by the substantial freedoms the European community affords individuals.

In other words, “if sport is to receive the benefits of professionalization, it must also

accept that it is a business and is subject to the controls of what may loosely be

termed ‘business law’50. So, why is it that certain sporting rules escape censure

despite the fact that they may have discernible economic characteristics which can

adversely affect the athletes? This is what Weatherill dubs “conditional

autonomy51” which reflects an admission that certain economic outcomes are an

inherently necessary consequence of the legitimate aims pursued by sports

governing bodies in defining the very essence and character of their sport. Therein

lies the rub. Are anti-doping laws and their manifestation truly necessary in

achieving their legitimate objective, and thus sheltered from the control of EU law

despite their economic connotations?

On July 18, 2006, the European Court of Justice in Meca-Medina and Majcen

v Commission52 obviated from a previous decision of the Court of First Instance (CFI)

in a case which has had profound repercussions for athletes seeking to challenge

doping sanctions under competition law. The case involved two professional

swimmers, David Meca-Medina and Igor Majcen, who were initially banned for a

period of four years by Fina’s doping panel after testing positive for the anabolic

steroid, Nandrolone. The period of ineligibility was reduced to two years following a

successful appeal to the CAS, in light of new scientific evidence emerging. Meca-

Medina and Majcen were not content with the ruling of the CAS and filed a

48 [1996] Krabbe v IAAF, Decision of the OLG Munich. 49 [1974] Walrave and Koch v UCI, Case 36/74, E.C.R. 1405; [1976] Dona v Mantero, Case 13/76, E.C.R. 1333; and [1995] Union Royale Belge des Societes de Football Association ASBL v Jean Marc Bosman, Case C-415/93, E.C.R. I-4921. 50 See Cox & Schuster, [N45], at 377. 51 Stephen Weatherill, Anti-Doping Revisited – the Damage of the Rule of ‘Purely Sporting Interest?’ European Competition Law Review, Vol. 27, No. 12, at 647. 2006. 52 [2006] Case C-519/04P.

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complaint with the commission challenging the compatibility of anti-doping laws

with community competition laws, a challenge which was ultimately fruitless. They

subsequently brought their case before the Court of First Instance (CFI) who

dismissed their holding, declaring that “purely sporting legislation may have nothing

to do with economic activity, with the result, according to the Court, that it does not

fall within the scope of Articles 39 and 49 EC, mean[ing] also that it has nothing to

do with the economic relationships of competition, with the result that it also does

not fall within the scope of Articles 81 and 82 EC53”. The subsequent appeal to the

full court of the ECJ against the judgement cast in the CFI was ultimately

unsuccessful but the general principle and obiter of the decision rendered doping

rules justiciable under EU competition law. The ECJ articulated that community

provisions on freedom of movement for persons and freedom to provide services

do not solely apply to public authorities and that when a sporting activity takes the

form of gainful employment for remuneration, it falls within the scope of the

Treaty54.

Practically speaking it can be difficult to differentiate between the economic

and sporting aspects of a particular sport, but this does not designate sporting rules

which are imposed to effectuate sporting objectives to be explicitly free of a

justiciable economic dimension and thus, outside the purview of the EC Treaty. The

court elucidated, in what is perhaps the most enduring passage to emerge from the

judgement, that “the mere fact that a rule is sporting in nature does not have the

effect of removing from the scope of the treaty the person engaging in the activity

governed by that rule or the body which has laid down”55. However, this does not

establish any general rule of indemnity as it is widely acknowledged that sports

federations must possess a certain degree of autonomy in considering what is

necessary to provide for appropriate sporting conduct and that there are matters

53 [2004] Case T-313/02, at paragraph 44. See also paragraph 41: “Such regulations, which relate to the particular nature and context of sporting events, are inherent in the organisation and proper conduct of sporting competition and cannot be regarded as constituting a restriction on the Community rules on the freedom of movement of workers and the freedom to provide services. Purely sporting rules… therefore, by their nature, fall outside the scope of Articles 39 EC and 49 EC” 54 See Meca-Medina and Majcen v Commission, [N52], at paragraphs 23-24. *Note that articles 81 and 82 of the EC Treaty are now articles 101 and 102 of the Treaty on the Functioning of the European Union. 55 ibid, at paragraph 27.

47

which the court does not have the empirical qualification to pontificate on. Meca-

Medina decreed that there is a requirement for a case-by-case approach in order to

determine what sporting practices can justifiably restrict the relevant fundamental

freedoms contained in the EC Treaty. In essence, “a two-year ban (likewise, a four-

year ban) will have a different impact depending on whether you are a short

distance runner or an archer. Harmonisation can only be truly achieved when the

sanction is related to the length of the period of the athlete’s life when he/she is

actually able to participate in his/her sport professionally”56

Conclusion

There is a fundamental dichotomy between what people consider doping to

entail and what WADA prescribes as doping. “In reality our idea of doping is

inextricably linked with the mindset of the athlete… [this] can be demonstrated in

the language used to decry doping… [which indicates that] doping is still

fundamentally about cheating, however the concept may be legally defined”57. Even

the Code’s own references to “ethics”, “spirit”, “character” and “integrity” in the

preamble screams morality and illustrates that doping is about a guilty mind-set and

people who do not share the “correct” values. Strict liability renders a guilty mind

an irrelevance. It is highly possible that an athlete who is the very embodiment of

the nebulous ‘spirit of sport’ ideal will be guilty of “contravening a provision which

is intended to punish those who exhibit a state of mind contrary to the ‘spirit of

sport’”58. It seems preposterous that the inadvertent ingestion of a substance,

particularly one intended to alleviate something as innocent as a common cold,

could result in an athlete being branded a “doper” and subjected to a lengthy

period of ineligibility; it is not what we intuitively think of as “doping” and it should

not be written off as a mere idiosyncrasy of doping law59. It is implicit in the human

psyche that doping involves intent, yet athletes such as Puerta, Despres and Hardy

56 See Soek, [N7], at 216. 57 See Amos, [N30], at 19-20. 58 Anne Amos, Anti-Doping Policy: Rationale or Rationalisation? The Development of Anti-Doping Policy since the 1920s, (LAP Lambert Academic Publishing), at 49. 2009. 59 ibid, at 23, 49.

48

amongst many, many other have had their livelihoods adversely affected due to a

mistake(s) which they had little or no control over. They have been the victims of an

institutionalised witch-hunt in an industry where the competitors are expected to

show such deference to the sport’s governing bodies as they purportedly possess

the expertise to run the monopolistic rule over what constitutes an effective system

of doping control.

The current approach toward doping control is fundamentally flawed. The

one-size fits all policy singularises instances of doping and is representative of a

failed policy directive which neglects to distinguish between those particularly

heinous forms of drug-use in sports which need to be explicitly targeted - such as

that of Lance Armstrong - and those cases where an athlete inadvertently ingests a

prohibited substance with no intent to enhance performance and where no

performance enhancement thusly manifests – evident in the cases of Raducan,

Quigley, Baxter et al. The argument for imposing strict mandatory penalties for

violations, many of which, as this dissertation has shown, the athlete has little or no

control over, is that they provide a deterrent purpose for would-be dopers.

However, there is no statistical proof that such severe punishments actually fulfil

this objective, and given the significant increase in positive test results both in and

out of the Olympics, there seems to be no tangible evidence of its deterrent effect

either60. Mark Cuban, owner of the NBA’s Dallas Mavericks, states that “steroids

could have a legal and useful place in sport as long as they are… [Administered] to

help athlete’s recover from injury…to me, it’s just common sense”61. The decisive

term in Cuban’s statement being, “common sense”. The Court of Arbitration for

Sport in the case of Torri Edwards62 opined that she had conducted herself with

“honesty”, “integrity” and “character” – terms which incidentally are enumerated in

the preamble of the Code and cited as being the fundamental rationale for the Code

– yet still imposed a two-year period of ineligibility as the rules mandated. Similarly,

in the case of Mariano Puerta, the panel stated that “Mr Puerta is not a cheat…

60 See Goldstone, [N13], at 385. 61 ESPN, Cuban Sees 'Common Sense' Steroid Use, ESPN, October 22nd, 2009. Found at http://sports.espn.go.com/dallas/nba/news/story?id-4581839, accessed on 13/05/2014 at 14:12. 62 Edwards v IAAF and USATF, CAS OG 04/003.

49

[This] breach of anti-doping regulations is more the result of bad luck”63. While the

panel did reduce his suspension under Article 10.5.2 of the Code, he still received a

two years suspension for a breach of the rules which he had little or no control

over.

If WADA continues to pursue a system which singularises all doping

violations while making it exceedingly difficult for innocent athletes to have a

sanction eliminated or reduced under articles 10.5.1 or 10.5.2 of the prospective

Code, it runs the real risk of losing credibility and the support of those it governs

and purportedly seeks to protect64. These aforementioned articles were included in

the original Code following the recommendation of a legal opinion piece which

claimed that the bifurcated nature of the Code and the presence of a fault-based

provision in providing for any further suspension, rendered the strict liability

standard consistent with internationally recognised human rights and general

principles of law65. However, these articles have not been effectuated in a manner

consistent with the nature and rationale of the Code which seeks to level the

playing field and protect innocent athletes from those who seek to illegally gain an

unfair advantage. Instead, these provisions have been effectively made redundant

by the supremacy of Article 2.1.1 of the 2015 Code66 and until athletes are

presented with a real and credible opportunity to prove their innocence, the

current system will continue to punish morally innocent athletes and thus, fail in its

objective to preserve what is intrinsically valuable about sport. It is on this note that

we will proceed to the fourth chapter which will critically analyse the due process

protections afforded to athletes in doping disputes.

63 See Puerta, [N28]. 64 Michael Straubel, Doping Due Process: A Critique of the Doping Control Process in International Sport, Dickson Law Review, Vol. 106, No.3, at 569. 2002. 65 Gabrielle Kaufmann-Kohler, Antonio Rigozzi & Giorgio Malinverni, Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law, February 26th, 2003, at 2. Found at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-Legal_Library/Advisory_and_Legal_Opinions/prof_kaufmann_kohler.pdf, accessed on 02/06/2014, at 16:04. 66 “It is each Athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes are responsible for any prohibited substance or its metabolites or markers found to be present in their samples. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s party be demonstrated in order to establish an anti-doping rule violation under Article 2.1”.

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Chapter 4

Right to a Fair Hearing under the 2015 Code

Introduction

This chapter will proceed by critically examining the nature of the

relationship between elite athletes and sports governing bodies and whether the

prevailing classification, that is, one of private contract law, affords the athletes the

requisite due process protections in disciplinary proceedings involving doping

charges. The applicability of international human rights instruments, such as article

6 of the European Convention on Human Rights, to doping disciplinary law will then

be presided over. The second segment will scrutinise the current procedural rules

under the 2015 World Anti-Doping Code, particularly the provisional suspension of

an athlete prior to a hearing; the public disclosure of a positive finding prior to a

hearing; the right of an athlete to be represented or assisted; and the requirement

that the reporting and adjudicatory bodies be distinct; all of which invoke varying

levels of controversy regarding their procedural fairness. The final part of this

chapter will then turn to WADA’s accredited laboratories and how the lack of

oversight allows WADA to establish their own accreditation and regulatory

standards which has subsequently led to the manifestation of detection methods

which have been the subject of criticism from a myriad of medical and scientific

experts. This lack of transparency in WADA’s laboratories is compounded by the

difficulty athletes experience in attempting to demonstrate laboratory non-

compliance with the International Standards for Laboratories.

The right to a fair hearing and access to an analogous remedy is one of the

cornerstones of civilised society. In the context of this dissertation, ascertaining

whether the 2015 Code amply protects the due process rights of the athlete is

crucial to answering the central question put forth by this study, that is, whether

the World Anti-Doping Code protects the fundamental rights of the athlete.

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(I)

Due Process Protection in Disciplinary Hearings

The legal nature of doping charges is fundamental to determining the

quantity and quality of procedural protections afforded defendants1.

Athletes who commit an anti-doping rule violation are not afforded the

same due process rights as a person facing a criminal charge would be. Article 6 of

the European Convention on Human Rights2 and Article 14 of the International

Covenant on Civil and Political Rights3 articulate the due process safeguards

1 Michael Straubel, Lessons from USADA v Jenkins: You can’t win when you beat a Monopoly, Pepperdine Dispute Resolution, Vol. 10, No. 1, at 148. 2 European Convention on Human Rights, Article 6: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. - Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. - Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 3 The International Covenant on Civil and Political Rights, Article 14: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. - In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

52

afforded to an individual when facing a criminal charge. The legal relationship

between sports governing bodies and athletes is routinely characterised as that of a

voluntary association, governed by contract law, which falls outside of the

protective purview of Articles 6 and 14 of the ECHR and the ICCPR, respectively. CAS

panels have consistently maintained that the legal nature of doping laws is

governed by private contract law, although the CAS, in applying the doctrines of

association independence and non-interference when reviewing doping sanctions,

are enforcing a code of ethics and are not reviewing the rules which they are

enforcing4. However, in this author’s opinion, this legal relationship has been

mischaracterised and is inherently flawed.

It is commonly held that athletes voluntarily submit to participate in

competitive sport and thus consent to being bound by the rules and laws of the

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. - In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. - Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. - When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. - No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country” 4 See Straubel, [N1], at 147, 152. See also Rebagliati v IOC, NAG OG/98/002 in Matthew Reeb, Digest of CAS Awards 1986-1998, (Berne: Staempfli Editions SA), at 470. 1998. The Panel in NAG OG 98/002 stated that, “CAS is not… a criminal court and can neither promulgate nor apply penal laws. We must decide within the context of the law of sports”. See also Courtney Lofti, Doping, Athletes, and Arbitration: A Case Study on the Need for Transparency in the System, University of Denver Sports & Entertainment Law Journal, Vol. 2, No. 1, at 8. 2006. See also Erin. E. Floyd, The Modern Athlete: Natural Athletic Ability or Technology at its Best, Villanova Sports and Entertainment Law Journal, Vol. 9, at 155. 2002.

53

respective association. However one must ponder as to how voluntary this

commitment actually is. Soek claims that disciplinary law is positioned at the

intersection between administrative law, private law and criminal law and that in

order to categorise the nature of certain rules, the criterion of voluntariness needs

to be examined5. If the contractual basis of this association is truly voluntary, one

would imagine that the athlete should be capable of questioning how the rules are

made, who makes the rules and to potentially have an input into the promulgation

of such rules. However, this is not the case. Athletes are powerless to question the

rules which are inscribed in the Code, yet they are bound by them. This fact makes

“infringement by consent” a dubious proposition6. There is no alterative association

to join and the rule-making process, being devoid of any athlete input as previously

mentioned, would suggest that the term “voluntary association” is a guise; it is

mere legal fiction7. Due to the monopolistic position sports governing bodies

occupy in regulating an athlete’s livelihood, it is impossible to claim that the

association between the two is genuinely voluntary; it amounts to a quasi-

legislative code and hence the legal relationship should be considered to be of a

“pseudo-criminal law” nature8. Prevailing punishments for committing a doping

offense, as mandated by the Code, can include a suspension from two years to life,

disqualification of results, obligation to rescind prize money, loss of sponsorship and

fame, public condemnation and irreparable reputational damage, which amount to

much more than the mere suspension or expulsion from a voluntary association9. As

such, criminal law principles should have a perceptible effect on doping disciplinary

law10. The application of such principles and the corresponding due process

protections would only render doping disciplinary law more transparent and would

grant greater legal certainty and protection for the parties involved.

5 Janwillem Soek, The Strict Liability Principle and the Human Rights of the Athlete in Doping Cases, (Asser International Sports Law Series), at 270. 2006. 6 Matthew Hand, Caught in the Net: Athlete’s Rights and the World Anti-Doping Agency, Southern California Interdisciplinary Law Journal, Vol. 19, at 555. 2010 7 Maureen Weston, Doping Control, Mandatory Arbitration and Process Dangers for Accused Athletes in International Sports, Pepperdine Dispute Resolution Law Journal, Vol. 10, No. 1, at 48. See also Straubel, [N1], at 147. 8 Neville Cox and Alex Schuster, Sport and the Law, (Dublin: First Law Limited), at 130. 2004. See also Straubel, [N1], at 147. 9 See Straubel, [N1], at 147. 10 See Soek, [N5], at 327.

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The protections afforded by Article 6 of the ECHR are considered to be

inapplicable to doping disputes as these rights are intended to protect the citizen

against the state and do not possess horizontal or third-party effect11. Moreover,

the European Anti-Doping Convention clearly indicates that the rights enshrined in

the ECHR do not automatically apply in the context of doping disciplinary law12.

However, there is a counter-argument to this position. “Case law of the Swiss

Federal Tribunal shows that there are examples in favour of and against the

application of the ECHR in arbitration matters. So the question of whether and to

what extent Article 6(1) of the ECHR applies to arbitration can—at least from a

Swiss perspective—be described as being an ‘open’ issue”13. Moreover,

jurisprudence from the European Court of Human Rights necessitates that certain

guarantees articulated in Article 6 of the ECHR be followed in disciplinary

proceedings “when the seriousness of the punishment and deterrence imposed

equals criminal proceedings”14. There is a strong argument to be made that the

punitive measures imposed by doping sanctions which can result in a lifetime ban

(in the case of recidivism) and where the objective is to punish rather than to re-

establish a prior situation15, are in their nature and consequence akin to a criminal

sanction and therefore fall within the protective remit of the freedoms enshrined in

Article 6 of the ECHR. It is contestable whether Article 6 is applicable to doping

disputes and the predominant position is that the fundamental rights instruments

such as the ECHR and ICCPR are inapposite to disciplinary proceedings which

enforce procedural rules and a code of ethics promulgated by a private legal entity;

WADA16. However, even if one accepts that these instruments do not have any

direct applicability to doping law, it does not render the principles contained within

these instruments superfluous. Haas states that even if the ECHR has no direct

11 ibid, at 277. 12 ibid, at 278. 13 Dr. Ulrich Haas, Role and Application of Article 6 of the European Convention on Human Rights in CAS Procedures, International Sports Law Review, Vol. 43, at 1. 2012. 14 See Straubel, [N1], at 149. See also Mario Chiavario, Principles of Criminal Procedure and their application in Disciplinary Proceedings, International Review of Penal Law, Vol. 72, No. 3, at 722-723. 2001. 15 See Soek, [N5], at 269. 16 Antonio Rigozzi, Gabrielle Kaufmann-Kohler and Giorgio Malinverni, Doping and Fundamental Rights of Athletes: Comments in the Wake of the Adoption of the World Anti-Doping Code, International Sports Law Review, Vol. 3, No. 3, at 47. 2003.

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third-party effect in legal relations between private individuals, this does not reduce

the ECHR to a position of irrelevance in arbitral proceedings before the CAS, as in

proceedings relating to arbitration, the state courts remain addressees of the ECHR

and, thus, bound by its provisions17. WADA should effectuate the relevant

fundamental rights enshrined in these human rights instruments otherwise, as

Rigozzi et al opine, they are actually acting with “the same unfairness they pretend

to combat”18. Article 8 of the 2015 Code purports that the principles it establishes

derive from Article 6.1 of the ECHR and principles generally accepted in

international law19. However, as we shall see in the following section, these due

process protections are insufficient in protecting the fundamental rights of an

athlete to a fair hearing.

(II)

Hearing Rights under WADA Rules

What has evolved to protect competitive purity…is a closed quasi-judicial

system…[where] anti-doping authorities act as prosecutors, judge and jury,

enforcing rules that they have written, punishing violations based on

sometimes questionable scientific tests that they develop and certify

themselves, while barring virtually all outside appeals or challenges20.

Article 8 of the 2015 Code outlines the due process protections afforded to

athletes in disciplinary proceedings pertaining to doping sanctions. The minimum

protections mandated by Article 8 were implemented for two reasons: to establish

trust among competitors in the system while also, and more importantly, making

the arbitration procedure and its decisions less susceptible to legal challenges21.

17 See Haas, [N13], at 17. 18 See Rigozzi et al, [N16], at 47-48. 19 WADA Code 2015, comment to Article 8.1. 20 Michael A.Hiltzik, Athlete’s Unbeatable Foe, L.A. Times, 10th December 2006. Found at http://www.latimes.com/news/la-sp-doping10dec10-story.html#page=1, accessed on 06/06/2014, at 15:49. 21 Andrew Goldstone, Obstruction of Justice: The Arbitration Process for Anti-Doping Violations during the Olympic Games, Cardozo Journal of Conflict Resolution, Vol. 7, at 370. 2006.

56

These appear to be contradictory sentiments. A system which insulates itself from

appeals while also designing the rules to make it as easy as possible to convict an

athlete runs the real risk of losing credibility and inciting disillusionment among the

very people it’s purporting to protect; the athletes. An increase in positive test

numbers, from WADA’s perspective, demonstrates an effective doping control

system which allows them to, in the words of Professor Charles Yesalis, “puff out its

chest and say look how well we’re doing”22. Moreover, an accused athlete’s only

recourse in the face of a doping charge is commercial arbitration, under rules of

evidence dictated by WADA - which owing to the application of the doctrines of

non-interference and association independence are not subject to review - and

which are designated to give the authority the benefit of all doubt23.

There are four areas of controversy pertaining to the disciplinary process for

an athlete who commits an anti-doping rule violation. They concern the provisional

suspension of an athlete prior to a hearing; the public disclosure of a positive

finding prior to a hearing; the right of an athlete to be represented or assisted; and

the requirement that the reporting and adjudicatory bodies be distinct.

There are question marks surrounding the legitimacy of provisionally

suspending an athlete on the back of an anti-doping rule violation – mandated by

Article 7.9.1 of the 2015 Code24 - prior to a hearing or appeal on the matter25. Due

to the strict liability nature of doping laws, when an athlete tests positive for a

prohibited substance he or she faces an arduous and often times futile battle in

rebutting this presumption of guilt. This presumption of guilt coupled with the

suspension prior to a hearing proviso means that athletes do not have a chance to

provide exculpatory evidence to prove their innocence. It is of particular relevance

when the suspension precludes the athlete from participating in a competitive

event. There are a couple of ways of looking at this scenario. In Modahl v British

22 See Hiltzik, [N20]. 23 ibid. 24 Article 7.9.1 of the 2015 Code has included a stipulation that a mandatory provisional suspension may be eliminated if the athlete or person demonstrates to the hearing panel that the violation is likely to have involved a contaminated product. 25 See Cox and Schuster, [N8], at 136. See also Andy Gray, Doping Control: The National Governing Body Perspective, in John O’Leary, Drugs and Doping in Sport: Socio-Legal Perspectives, (Cavendish, London-Sydney), at 21. 2001.

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Athletic Federation26, instantly suspending an athlete prior to the initial hearing was

considered to be necessary in the wider interests of sport and from the perspective

of not disadvantaging other competing athletes. It has been set forth that

provisional suspensions are not contrary to notions of procedural fairness as courts

will often make temporary orders without hearing the affected party, in the interest

of preventing damage or preserving the status quo before a full inquiry can be

conducted27. However, on the other hand, in Doug Walker v UK Athletics and

IAAF28, a provisional suspension was lifted until a full inquiry could be conducted as

the loss to the athlete would have been significant.

The public disclosure of an anti-doping rule violation by an anti-doping

organisation – mandated by Article 14.3 of the 2015 Code - compounds the

unfairness of the provisional suspension requirement. In granting an athlete the

fundamental right to a fair hearing, WADA and the relevant sports organisation

create a legitimate expectation that the athlete will not be subject to adverse

publicity prior to the hearing29. In Re Pergamon Press30, the Court of Appeal held

that an individual must be given the opportunity to respond prior to the authority

expressing public criticism. The Code, by subjecting an athlete to the public

announcement of a positive finding at the preliminary stage of an offence, institutes

a form of procedural unfairness for the athlete in denying them their right to

contest their innocence. This presumption of guilt has been described as “the single

most harmful policy characterising current doping control”31. Taken in toto, the

provisional suspension and public disclosure specifications are objectionable as they

interfere with the right of an athlete to a fair hearing and have the potential to

poison the public perception of the accused athlete32 who stands to have their

26 [1999], House of Lords, 22th July, unreported. 27 Fiona Blair, Procedural Fairness in Doping Disputes, The University of New South Wales Law Journal, Vol. 22, No. 3, at 887. 1999. 28 [2000] HC, 25th July, unreported, in Gregory Ioannidis, Sports Law Bulletin, Vol. 3, No. 5, at 3. 2000. 29 See Blair, [N27], at 888. 30 [1970] ECWA Civ J0713-2. 31 David L. Black, Doping Control Testing Policies and Procedures: A Critique, in Wayne Wilson and Edwards Derse, Doping in Elite Sport: The Politics of Drugs in the Olympic Movement, (Human Kinetics Publishers Inc.), at 34-35. 2001. 32 See Goldstone, [N21], at 370. See also Alec van Vaerenbergh, Regulatory Features and Administrative Law Dimensions of the Olympic Movement’s Anti-Doping Regime, IILJ Working Paper, No. 2005/11, at 34. 2005.

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sponsorship contracts terminated and their reputation irreparably damaged which

can concurrently adversely affect their ability to earn. The case of LaTasha Jenkins33

exemplifies the hardship inflicted on the reputation and financial well-being of an

athlete by the WADA hearing process, this in spite of the fact that she managed to

successfully clear her name and become the first athlete to emerge victorious

against USADA in a doping disciplinary proceeding. According to Straubel, Jenkins

had been dragged through the mud, suffering lasting reputational damage, and her

career had ultimately been ended34. She was subjected to an appeal process which

spanned 20 months, during which period she could not compete. Her endorsement

contract was suspended and never reviewed and prize money she was due was

withheld and never paid35.

The comment to Article 8.1 of the 2015 Code states that each anti-doping

organisation should provide a hearing process consistent with the principles found

in the ECHR while the European Anti-Doping Convention necessitates member

states to encourage the sports organisations to incorporate internationally agreed

principles of natural justice into disciplinary proceedings to ensure the fundamental

rights of suspected sportsmen and sportswomen are respected36. These include,

inter alia, the requirement that the reporting and disciplinary bodies be distinct

from one another and the right of a sportsperson to be assisted or represented in a

disciplinary proceeding37.

It is opined that the process set forth by the WADA Code compromises the

athlete’s right to a fair and impartial hearing as the suing authority; the instruction

authority and the judgement authority are not distinct entities38. Jan Paulsson

summated the blurred distinction between the reporting and disciplinary bodies,

claiming that “the procedures devised by most sports federations seem to be so

33 USADA v. Jenkins, AAA No. 30 190 00199 07, at 1. 2008. 34 See Straubel, [N1], at 119. 35 ibid, at 135. 36 Anti-Doping Convention, Article 7.2(D). See also Neville Cox, Legalisation of Drug Use in Sport, International Sports Law Review, Vol. 2, No. 4, at 79-80. 2002, who states further that “in both Ireland (with its twin constitutional guarantees of a right to earn a livelihood and a right to fair procedure) and England, it has long been judicially recognised that sporting bodies, whether or not they are subject to judicial review are required to act in accordance with rules of fair procedures”. 37 ibid. 38 See Hiltzik, [N20]. See also Weston, [N7], at 46.

59

connected to the organisation that no outsider has the remotest chance of standing

on an equal footing with his adversary – which is of course the federation itself”39. A

policy change was effected in January 2010 which now requires arbitrators to be

independent from the parties and to disclose information which may affect their

independence40. In spite of this positive alteration, some scholars still consider

there to be independence issues given that in actuality, the arbitral pool is quite

small and many of the arbitrators are largely homogenous in age, nationality and

gender41. The Swiss Federal Tribunal in Alejandro Valverde Belmonte v. Comitato

Olimpico Nazionale Italiano42 acknowledged this assertion, alluding to the fact that

absolute independence by all arbitrators is an ideal which will rarely correspond to

reality and that an arbitrator may not be challenged merely because he was

previously chosen by one of the parties to the dispute43. Ultimately, the Swiss

Federal Tribunal contended that the independence rules are not immutable and

require a case by case determination. This demonstrates that there are still bias

concerns among arbitrators and as Floyd Landis’ attorney expressed, “[b]ecause

arbitrators have a free rein to decide the law as well as the facts, and because their

decisions are accorded a high degree of deference, the impartiality of those

arbitrators must be scrupulously safeguarded”44.

The final controversial aspect of the hearing process pertains to the fact that

an accused athlete should have the right to legal representation or assistance.

Practically speaking however, for in-competition violations, an athlete will rarely be

equipped to attain competent legal counsel to defend a doping charge.

Furthermore, the de novo appeal standard allows any party to completely repeat

the arguments from an initial hearing without any requirement to show errors or

39 Jan Paulsson, Arbitration of Sports Law Disputes, Arbitrator International, Vol. 9, No. 4, at 359-361. 1993. 40 Court of Arbitration for Sport Code, at Rule 33. Found at, http://www.tas-cas.org/rules, accessed on 08/06/2014 at 18:56. See also Hayden Opie and Matthew J. Mitten, "Sports Law": Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution, Tulane Law Review, Vol. 85, No. 2, at 286. 2010. 41 Michael Straubel, Enhancing the Performance of the Doping Court: How the Court of Arbitration for Sport Can Do Its Job Better, Loyola University Chicago Law Journal, Vol. 36, at 1206, 1212. 2001. See also Weston, [N7], at 20. 42 [2010] 1st Civ. Ct. 4A_234. 43 ibid, at 13. 44 Landis v USADA, No. CV-08-06330, at 26. 2008.

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irregularities in what is essentially “the proverbial second bite of the apple”45. This

can greatly increase the cost incurred by the athlete. The cost factor alone acts as a

huge deterrent for athletes who wish to challenge an anti-doping rule violation.

Floyd Landis legal battle was estimated to have cost upwards of 2 million dollars.

Additionally, Rachel Burke, a swimmer at the University of Virginia, whose urine

sample turned up in May 2004 with a trace of boldione, an obscure steroid, possibly

from a contaminated nutritional drink, chose not contest the doping charge as she

envisaged it costing her tens of thousands of dollars in legal fees in a system where

the rules are stacked against the athlete46. With the substantial funding, expertise

and resources the anti-doping organisations have at their disposal, the athlete is in

a disadvantageous position especially when considered in light of the probable legal

fees and the inability of the CAS to award costs47. Although the last point regarding

legal fees is not strictly accurate – insofar as if the athlete is the prevailing party, the

CAS panel resolving the dispute has the discretion to order the IF to pay a

contribution towards his legal fees and other expenses48 - this situation rarely

materialises.

(III)

Concerns about WADA Science

WADA laboratories operate largely as a “hermetically sealed scientific

community with minimal public oversight”49. The contractual obligation between

athletes and the authorities forces athletes to place their careers on the line

through a blind faith belief that the testing conducted at WADA-accredited

45 See Straubel, [N1], at 141. 46 See Hiltzik, [N20]. 47 ibid. See also Weston, [N7], at 46. See also John Doyle, Geraldine’s Ban or Bust Nightmare: She’ll Sacrifice Winnings for Appeal, The Mirror, March 5th 2003. Found at http://www.highbeam.com/doc/1G1-98362941.html, accessed on 16/06/2014, at 15:52. The article states that former Irish 1500m athlete Geraldine Hendricken chose not to lodge an appeal to the IAAF following her anti-doping rule violation for the banned substance Nandrolone as it was estimated that the appeal process would have cost her up to 30,000 US dollars. 48 Matthew J. Mitten, the Court of Arbitration for Sport and its Global Jurisprudence: International Legal Pluralism in a World without National Boundaries, at 25. 2014. Found at, http://works.bepress.com/matt_mitten/2/, accessed on 08/06/2014, at 19:09. 49 See Hiltzik, [N20].

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laboratories, which is devoid of scrutiny or transparency, will be proper and the

samples will be handled with the utmost caution50. The procedures pertaining to

the employment of testing methods by WADA-accredited laboratories have been

the subject of much criticism - particularly the testosterone, human growth

hormone and erythropoietin testing methods - and it is questionable whether they

are satisfactory given the professional and financial damage which can originate

from a positive finding. The validity of the testing methods are all the more

pronounced when one considers the difficulties athletes face in attempting to

challenge lab departure from the International Standard for Laboratories (ISL). The

athlete bears a dual burden in this situation of not only proving non-compliance

with the ISL, but also showing that the departure could reasonably have caused the

adverse analytical finding51. This burden is compounded by the lack of discovery

rights afforded to the athlete and the enshrined presumption of laboratory

compliance with the ISL.

Donald Berry, Head of the Division of Quantitative Sciences at the University

of Texas, argues that the tests conducted by WADA are statistically unreliable and

their analytical process suffers from a phenomenon known as “the prosecutor’s

fallacy”52. This fallacy refers to the laboratories joining the dots, or taking inferential

steps based on a probable conclusion which has already been reached. Berry

articulates that, in its simplest form, the process concludes guilt on the basis of an

observation that would be extremely rare if the person was starting from a position

of innocence53. The testing methods are operated on the basis of an abnormal value

or result, which will subsequently prompt an anti-doping rule violation. According to

Berry, this standard is evidence of the prosecutor’s fallacy at work as there is a

critical informational deficiency in evaluating the statistical validity of their tests,

50 Robyn J. Rosen, Breaking the Cycle: Balancing the Eradication of Doping from International Sport while upholding the rights of the Accused Athlete, Entertainment & Sports Lawyer, Vol. 25, No. 1, at 7. 2007. See also Michele Verroken, A Time for Re-evaluation: The Challenge to an Athlete’s Reputation, in John O’Leary, Drugs and Doping in Sport: Socio-Legal Perspectives, (Cavendish Publishing), at 35. 2001. 51 See Straubel, [N1], at 144. 52 Christopher Groleau, Weird Science: A Look at the World Anti-Doping Agency’s Questionable Testing Methods and the Need for Change to Protect International Athletes, Quinnipiac Health Law, Vol. 13, at 93. 2009. 53 Donald Berry, The Science of Doping, Nature, Vol. 455, at 692. 2008.

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namely the sensitivity and specificity of the tests, which brings the validity of an

interpretation of an athlete’s blood or urine sample into question54. Former IOC

Medical Director Patrick Schamasch rebuked criticisms levelled at WADA labs’

scientific integrity, asserting that the level of precision in the analysis and

interpretation of their tests is akin to legal standards governing assessments of

medical data55. Donald Berry quashed this claim, stating that conventional doping

testing methods would be routinely rejected by medical regulatory agencies as

“baseline studies which are commonly used to determine the instances of false

positives and false negatives, which are completely neglected for many WADA tests,

are required for diagnostic test approval” in such regulatory agencies56. This point

was re-iterated by Dr. V.K. Gadi, Blood Specialist and Oncologist at the Fred

Hutchinson Research Centre in Seattle, who opined that WADA’s standards were

appallingly low and would never be implemented in any other medical regulatory

setting57. The lack of transparency and oversight of WADA’s labs allows them to

establish their own regulatory and accreditation standards for new testing methods.

For example, prior to the 2008 Olympic Games in Beijing, WADA unveiled a new test

for identifying the presence of human growth hormones in an athlete’s sample. The

test was considered validated after a few months of collaboration with an unnamed

company that produced the testing kits which, according to Groleau, would not

have passed muster under prevailing medical standards58.

Two particular tests conducted by WADA-accredited labs have courted

controversy over their purported scientific integrity. They are the tests for

erythropoietin and testosterone. EPO is a glycoprotein hormone which increases

the production of red blood cells in the body, with athletes who participate in

endurance sports such as cycling favouring the substance, as it can significantly

54 ibid. 55 See Groleau, [N52], at 96. 56 See Berry, [N53], at 693. 57 Michael A. Hiltzik, Cyclist Blames 'Flawed' Test, L.A. Times, December 10th, 2006, found at http://www.latimes.com/news/local/la-sp-dopingsidel0decl 0,0,1625853.story, accessed on 06/06/2014, at 14:55. See also Rosen, [N50]. 58 See Groleau, [N52], at 97.

63

enhance their performance59. The test for EPO, despite undergoing several

refinements since its creation in 2000, is said to be unreliable as the testing process

seeks to measure metabolites of the drug, which can occur naturally at varying

levels, rather than measuring levels of the substance itself60. Premising the test on

how the substance metabolises, increases the likelihood of false positives as

synthetic EPO and naturally occurring EPO – which can be increased by training at

altitude and exposure to hypoxic chambers – are nearly identical and even two

highly skilled technicians could have differing interpretations of such test results61.

Additionally, the EPO test is a complicated one to conduct and can take up to 36

hours, involves scores of laboratory steps, familiarity with sophisticated machinery

and necessitates a high level of technical proficiency62. In late 2005, a number of

high profile athletes who tested positive for EPO were exonerated on the basis of

inconsistent laboratory results. Kenyan distance runner Bernard Lagat was one such

athlete who had his sanction dismissed following wild inconsistencies between his

‘A’ and ‘B’ samples. The dismissal of Belgian triathlete Rutger Beke’s EPO sanction

illustrates the similarities which can exists between naturally and synthetically

occurring EPO. Scientists from a Belgian university were able to demonstrate that

Beke’s kidneys, following periods of intense exercise, did not block proteins from

being expelled into his urine and as a result, this naturally occurring EPO was

contained in his urine sample, which explained the positive finding63. This study was

imperative in exonerating Beke and invalidating his sanction. His case demonstrates

that statistically unreliable detection methods coupled with the prosecutor’s fallacy

can lead to false positives which severely undermine the integrity of WADA’s

laboratories. The EPO test was dealt a further blow when renowned doping expert

Don Catlin of the UCLA laboratory stated that it was implemented prematurely and

59 Alexi R. Koudinov, WADC, IOC Testing for Erythropoietin is Faked, The Doping Journal, Vol. 3, No. 1. 2006. 60 See Berry, [N53], at 693. 61 See Hiltzik, [N20]. 62 ibid. 63 Jay Prasuhn, Back in the Saddle again: A Triathlete exclusive interview with Rutger Beke, Triathlete, September 7th, 2005. Found in Groleau, [N52], at 100.

64

that considering the flawed nature of the test, he would not be reapplying for

funding to carry out further research on developing it64.

The case of Floyd Landis demonstrates the questionable validity of the

testing methods in identifying excessive levels of testosterone and is a case which

“embodies many of the criticisms against the WADA testing procedures and the

protocols in WADA labs”65. Landis was suspected of testosterone doping following

the 2006 Tour de France. The tests that were conducted on his samples were

dogged by errors and produced massively inconsistent results66. The AAA

considered the results of the sample to be sufficient in supporting the doping

sanction and stripped Landis of his Tour de France victory, despite the majority

opinion asserting that “the lab in training its employees appears to lack the vigour

the panel would expect in the circumstances given the enormous consequences to

athletes of an AAF (adverse analytical finding)”67. Berry articulated that the

procedure in analysing samples for excessive levels of testosterone requires the

utmost care in handling the sample, advanced technician training for those

conducting the test and precise calibration for the sophisticated machinery which is

used in the evaluation process68. The testing method was declared by Swiss

researchers as "woefully off the mark" and "all but useless" because the tests fail to

account for key genetic variation that hugely affects levels of testosterone found in

samples69. This was re-iterated by a study conducted by a Swedish laboratory in

2008 which showed how the presence or absence of a single gene – known as

UGT2B17 - can dramatically increase or decrease the risk of false positives when

testing athletes for testosterone doping70. The potential for individual variances in

testosterone levels means that even if longitudinal studies conducted on an

athlete’s urine sample gives good quality information which suggests potential

steroid profile manipulation; this does not amount to conclusive evidence for the

64 Brian Alexander, the Awful Truth about Drugs in Sport, Outside Magazine, July 1st, 2005. Found at http://www.outsideonline.com/fitness/nutrition/The-Awful-Truth-About-Drugs-in-Sports.html, accessed on 01/06/2014, at 12:03. 65 See Groleau, [N52], at 105. 66 See Hiltzik, [N20]. See also Groleau, [N52], at 104. 67 USADA v Floyd Landis, AAA 30 190 000847 06, at 311. 2007. 68 See Berry, [N53], at 693. 69 Doping: Time to Scrap Steroid Test, Times of India, March 12th, 2009, found in Hand, [N6], at 540. 70 See Groleau, [N52], at 100.

65

exogenous application of natural steroids71. Studies such as those conducted by the

Swedish laboratory in 2008 help establish baselines for a given test which allow for

accurate statistical adjustment which concomitantly increases the validity of the

test itself. Ultimately, Landis was branded a “doper” and stripped of his Tour de

France medal despite studies showing that the test can produce varying results if

the rate of error and statistical validity of the test are not substantiated by

standards common to diagnostic testing; that the testing process can be extremely

volatile and must be conducted with precision – which, by the AAA’s own admission

was not the case – and that failure to establish baselines can result in the increased

likelihood of false positives72.

Ultimately, as these cases have shown, WADA-accredited laboratories are

shown great levels of deference in regulating and substantiating their testing

methods with little oversight or scrutiny. There has been significant criticism from

members of the medical and scientific community that the testing methods

employed by WADA labs are flawed, inaccurate and not reconcilable with standards

established by medical regulatory agencies. WADA’s laboratories need to be held

accountable to the same standards that WADA and sports governing bodies hold

athletes to; there is currently a double standard. “A doping allegation has incredibly

serious effects on an athlete’s career, therefore, it is unconscionable to allow labs to

deviate from important procedures that can ultimately influence the results of such

life-altering tests”73.This is particularly disconcerting when one considers the

difficulties athletes face in challenging the validity of WADA lab findings.

A) Difficulty in challenging WADA-accredited labs

An athlete faces an almost insurmountable burden in attempting to

demonstrate that WADA-accredited labs have deviated from the International

71 C. Saudan, N. Baume, N. Robinson, L. Avois, P. Mangin and M. Saugy, Testosterone and Doping Control, British Journal of Sports Medicine, Vol. 40, No. 1, at 23. 2006. See also generally Rodrigo Aguilera, Caroline K. Hatton, and Don H. Catlin, Detection of Epitestosterone Doping by Isotope Ratio Mass Spectrometry, Clinical Chemistry, Vol. 48, No. 4. 2002. 72 See Hiltzik, [N20]. 73 See Groleau, [N52], at 115, 116.

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Standards for Laboratories. Although Article 3.2.1 of the 2015 Code gives the

impression that WADA are safeguarding the rights of the athlete by enshrining a

legal capability to challenge the results of anti-doping violations on the basis of

procedural errors, in actuality, it is extremely difficult to rebut the presumptive

scientific validity of WADA’s laboratories. The athlete must firstly demonstrate that

the laboratory has diverted from the ISL while also proving that the departure could

reasonably have caused the positive finding. The strict liability nature of a doping

offense means that once the anti-doping organisation establishes the initial positive

finding, the burden of proof then transfers to the athlete to rebut the presumption.

While the respective ADO must establish an anti-doping rule violation to “the

comfortable satisfaction of the hearing panel bearing in mind the seriousness of the

offense”74, the athlete, in rebutting the finding, must do so to the lower “balance of

probabilities” standard75. While the burdens and standards of proof articulated

within the Code are an important requirement of fairness in safeguarding the rights

of the athlete, and tend to operate as such, in the context of challenging laboratory

compliance with the ISL, the lower standard of proof is irrelevant as the athlete is

not afforded the necessary discovery rights to mount a legal challenge76. As

Weston summates, if an athlete is contesting lab compliance with the ISLs, then

presumably he or she needs access to “detailed scientific and technical information

about the laboratory's testing process, sequencing, instrumentation and methods

used, the reliability and accuracy of test results, internal protocols, chains of

custody, and competency of lab personnel”77, yet these discovery rights are not

granted to an athlete, which effectively insulates the accredited labs from full

scrutiny while all the critical evidence needed to mount such a challenge rests solely

with the prosecution team.

The sheer difficulty in obtaining laboratory documents can be seen in both

the Jenkins and Landis cases. During Jenkins’ hearing process, USADA maintained

that there was no obligation on them to provide additional documentation and any

74 WADA Code 2015, Article 3.2.1. 75 WADA Code 2015, Article 3.1. 76 See Weston, [N7], at 11. 77 ibid, at 34.

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additional documents that were ultimately granted had to be paid for by the

athlete78. In the case of Floyd Landis, USADA again resisted a number of discovery

requests and a battle waged over turnover obligations, culminating in retaliatory

motions, including a "Motion to Return the Urine"79. This has a domino effect of

extending the duration of the hearing process while also increasing the cost

incurred by an athlete. It ultimately must be questioned as to whether a system

which severely limits access to discovery rights while conjointly showing such

deference to WADA-accredited laboratories in disciplinary proceedings80 is really

safeguarding an athlete’s right to a fair hearing or is merely tailoring the rules to

make it as easy as possible to convict an athlete.

Conclusion

The due process protections afforded to an athlete in disciplinary

proceedings are severely lacking. These due process protections stem from the

initial mischaracterisation of the legal relationship between athletes and sports

governing bodies as one of voluntary association, despite sports governing bodies

occupying a monopolistic position in promulgating the rules of its association, free

from any athlete input. There is no alternative association to join and the

repercussions for breaching the rules of such associations are much more severe

when compared to other voluntary associations. The voluntariness of professional

athletes is “a legal and dogmatic presumption which does not accord with reality”81.

The legal relationship should therefore be recognised as pseudo-criminal in nature

and the due process protections afforded to athletes should reflect this.

By choosing to operate under private law procedure, WADA and the IOC are

denying the athlete a position of equality in disciplinary proceedings. The

commercial arbitration model and its traditions of limiting discovery and requiring

78 See Straubel, [N1], at 136. 79 See Weston, [N7], at 35. 80 Bradley J. Schmalzer, a Vicious Cycle: The Biological Passport Dilemma, University of Pittsburgh Law Review, Vol. 70, at 689. 2009. See also Nicholas Hailey, A False Start in the Race against Doping in Sport: Concerns with Cycling’s Biological Passport, Duke Law Journal, Vol. 61, at 404. 2011. 81 See Soek, [N5], at 270.

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each party to pay expenses assumes equal access to information and resources

which is not the case in sports disciplinary disputes where the dominant party

dictates to the subordinate party82. The provisions which permit arbitral panels to

impose costs on athletes should be aborted, as it is deterring due process. Limited

funding would be a likely rebuke to such a reform but if sports governing bodies

cannot afford to fund such an effort, then they should not impose such punitive

measures without offering concomitant assurances. In other words, if governing

bodies are to punish in quasi-judicial fashion, then they should be expected to act

judicially83. A more pragmatic alternative would be to establish a fund or assistance

programme through the coordinated effort of WADA, the IOC and the respective

International Federations in order to ease the financial burden which accused

athletes face during the hearing process84.

From the perspectives of WADA-accredited labs, presumptions of

compliance with the international standards should be discarded and they should

be subject to full scrutiny. The current presumption of laboratory compliance with

the ISL - which involves demonstrating both a departure from the international

standards and showing that such a departure had a causal effect on the positive

finding - married with the strict liability standard, places the athlete in an untenable

position when it comes to challenging an adverse analytical finding. Pre-hearing

discovery should be open to the accused athlete, gratis, and not just the

prosecuting party.

Incorporating certain criminal procedural rules into the arbitration system

would be the most appropriate means of reform given the repercussions of a

decision against an athlete are substantial and often career-ending, yet it would

never materialise as such procedural safeguards would increase the duration and

cost of conducting a hearing and more relevantly, would make the prosecution of

anti-doping violations much more difficult and less successful85.

82 See Straubel, [N1], at 142, 152. 83 See Cox and Schuster, [N8], at 130. 84 See Weston, [N7], at 48. 85 See Goldstone, [N21], at 388-389.

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The following and final chapter will critique the nature and purported ethical

justifications for the anti-doping rules within the 2015 Code, particularly the

protection of the spirit of sport, the health of the athlete, the notion of a level

playing field for all competitors, the protection of the “clean” athlete and the

protection of youths.

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Chapter 5

Are Anti-Doping Laws Justifiable?

Introduction

The problematic aspects of the Code concerning the fundamental rights of

the athlete have been consistently justified by the necessity of anti-doping rules.

However, it must be queried as to whether the fundamental rationales which

underpin these anti-doping rules sufficiently justify the rights violations exhibited in

the previous chapters or whether the system is in fact devoid of a compelling and

rational justification and is predicated on symbolism and public moral consensus.

There is a contention among a number of scholars1 that aspects of the Code are not

consistent with some of the characteristics and purposes of sports rules and that

the Code’s primary rules are “internally inconsistent and therefore more subject to

abuse”2. Amos asserts that there is no rational or satisfactory justification for anti-

doping policy and that moreover, a logical strand of reasoning will never be found3.

This chapter will critique the nature and purported ethical justifications for the anti-

doping rules within the Code, particularly the protection of the spirit of sport, the

health of the athlete, the notion of a level playing field for all competitors,

protection of the clean athlete and the protection of youths.

There are many stated justifications for a unitary set of doping laws.

Anderson contends that the doping issue in sport is a “multi-layered mosaic” and

that a full range of legal, criminological, medical and ethical discourses must be

drawn upon in order to accurately depict the phenomenon, rather than moral and

punitive panic4. The multitude of justifications provided for these laws suggest

confusion and discordance. Often, multiple purported rationales can be indicative

1 See Desmond Manderson, the Semiotics of the Title: A Comparative Analysis of Drug Legislation, Law, Text, Culture, Vol. 2, No. 1, at 160, 173. 1995. Manderson claims that it is futile “to try and elaborate reasons for the maintenance of current policy, or, for that matter, to use logic to criticize it. For it is not reason which is operative here”. 2 Stephen J. Mulhall, A Critique of the World Anti-Doping Code, The Advocate, Vol. 64, No.1, at 29. 2006. 3 Anne Amos, Anti-Doping Policy: Rationale or Rationalisation? The Development of Anti-Doping Policy since the 1920s, (LAP Lambert Academic Publishers), at 79. 2009. 4 Jack Anderson, Doping, Sport and the Law: Time for Repeal of Prohibition?, International Journal of Law in Context, Vol. 9, at 135-136. 2013.

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of a lack of compelling, logical reasoning. Amos argues that this is the case

regarding doping laws, where the likelihood is that “these rationales represent post-

hoc rationalisation rather than logical policy development”5. The current approach

to anti-doping would certainly seem preferable to any radically libertarian view

seeking to promote the unregulated use of performance enhancing substances.

Nevertheless, the current policy is not without its flaws. This section will primarily

be analysing the five most commonly purported rationales, namely; the spirit of

sport – which in itself contains many of the other doping rationales -, the notion of

a ‘level playing field’, protecting the health of the athlete, protecting the clean

athlete and protecting youths.

(I)

Anti-Doping Rationales

A) Spirit of Sport

The World Anti-Doping Code declares that “Doping is fundamentally

contrary to the spirit of sport”. The ‘Spirit of Sport’ had been – and arguably still is -

a nebulous and amorphous concept, but the Code attempts to ascribe some

meaning to it by attributing a set of values to the term, inter alia, honesty, fair play,

ethics, equality and heath. The Spirit of Sport is a concept which closely correlates

to ethics and fairness in elite sport. This is the most widely cited rationale for the

prohibition of performance enhancing substances. The notion of cheating as the

primary vindication for banning the use of drugs in sport appears strong.

Superficially it is difficult to denounce. However, once one gets past the convincing

rhetoric of the spirit of sport argument, it is clear that the justification lacks

substance and the reasoning attached to it is tautological and akin to self-fulfilling

prophecy. Why is drug use so roundly condemned while other seemingly unnatural

methods pertaining to training techniques and tailored diets enjoy broad approval6?

5 See Amos, [N3]. 6 Gina Kolata, The Impropriety of Taking Performance-Enhancing Drugs is Debatable, in William Dudley, Drugs and Sports, (Greenhaven Press), at 42. 2001.

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The ethic this rationale is trying to protect lacks clarity. Athletes who have the

financial and technological capabilities will consistently and lawfully make use of

advancements which could not be considered natural, per se. For instance, the drug

Erythropoietin, which became particularly prevalent in cycling during the 1990s,

raises red blood cell counts, thus allowing more oxygen to be transferred to the

muscles. There are a number of “legal” methods athletes can employ which

produce the same effects as EPO in raising the levels of PCV to an octane more

commensurate with elite sporting success, namely through the use of hypoxic air

chambers (which simulates high altitude conditions)7. Moreover, elite athletes will

widely utilise other chemical and technological aids such as oxidisation cylinders

and a myriad of nutritional supplements which perform similar or identical

functions to a number of prohibited substances8. “We tolerate increasingly

sophisticated running spikes, graphite tennis rackets that makes games shorter, and

fiber-glass pole vaults to reach new heights. We also tolerate a degree of

enhancement to our bodies, such as laser eye surgery [and] medleys of

concentrated and engineered vitamins”9. This ethical line between the legal and

prohibitive methods is now so blurred that it is “difficult to see how the distinction

can be credibly justified”10. The distinction currently drawn appears to be based on

largely unsubstantiated assumptions about fairness11 and is reflective of arbitrary

public conjecture of what performance enhancing substances should be deemed

prohibitive and/or permissible.

7 Julian Savulescu, Bennett Foddy & M. Clayton, Why we Should Allow Performance Enhancing Drugs in Sport, British Journal of Sports Medicine, Vol. 38, at 667. 2004. See also M Spriggs, T Tannsjo, C Tamburinni & P Fricker, Hypoxic Air Machines: Performance Enhancement through Effective Training – Or Cheating? Journal of Medical Ethics, Vol. 31, at 112-115. 2005. 8 Neville Cox and Alex Schuster, Sport and the Law, (Dublin: First Law Limited), at 105. 2004 9 Matthew Hand, Caught in the Net: Athlete’s Rights and the World Anti-Doping Agency, Southern California Interdisciplinary Law Journal, Vol. Vol. 19, at 546. 2010. Hand further alludes to the fact that the stakes of high-performance sport has led to instrumentally rational, systematic, scientifically and technologically assisted enhancement of athletic performance which push an athlete’s body to the outer limits of human potential 10 See Anderson, [N4], at 143. See also Sigmund Loland, The Ethics of Performance-Enhancing Technology in Sport, Journal of the Philosophy of Sport, Vol. 36, at 152–61. 2009; See also William Morgan, Athletic Perfection, Performance Enhancing Drugs and the Treatment- Enhancement Distinction, Journal of the Philosophy of Sport, Vol. 36 at 162–81. 2009; and see also Angela Schneider & Jim Rupert, Constructing Winners: The Science and Ethics of Genetically Manipulating Athletes, Journal of the Philosophy of Sport, Vol. 36, at 182–206. 2009. 11 Alexandre Mauron, Bengt Kayser & Andy Miah, Current Anti-Doping Policy: A Critical Appraisal, BMC Medical Ethics, Vol. 8, No. 2, at 1. 2007.

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Proponents of the spirit of sport justification will often contend that the

issue is more nuanced and less cut-and-dry than opponents of the rationale will

adduce. Thomas Murray, Chair of the Ethical Issues Review Panel for WADA, argues

that “drawing lines is not only permissible; it is essential for preserving the meaning

of each sport”12. Murray appears to base his arguments on a broad moral consensus

relating to the unethical nature of doping, while failing to give a reasoned rationale.

Houlihan reasons that sport and the athlete are merely “a social construct” and that

there is no prior obligation on the individual to refrain from doping13.

There is a clear disconnect between the perceptions and applications of drug

consumption in various sports. In 1998, many lauded the St. Louis Cardinals baseball

player Mark McGwire, who openly admitted to using androstenedione, for breaking

the record for the number of home runs hit in a single season while simultaneously

vilifying Michelle de Bruin for tampering with a sample in order to mask the same

prohibited substance14. This is a critical point which demonstrates the strong

likelihood that the stigma and perceptions of drug use in sport derive from the

presence of such laws and not vice versa. That is, that the rules do not have a basis

independent of the exercise of regulation itself15. Moreover, sports rules clearly do

not conform to any unitary notion of morality. For instance, the legitimacy and

legality of boxing as an elite sport; the role of the “enforcer” within National Hockey

League franchises to gain a physical and psychological edge over their opponents

and, to a lesser extent, the pervasiveness of “cynical fouls” in football and other

sports could all be deemed ethically and morally repugnant depending on a

person’s particular viewpoint. “The spirit of sport [argument] can be made to apply

in almost any circumstance. It essentially says it is potentially a specific offence

under the anti-doping rules to commit any offence under any rule”16. There is an

12 Thomas Murray, In Search of the Spirit of Sport, The Hastings Centre. Issue No. 3, at 1. 2007. Found at http://www.wada-ama.org/rtecontent/document/PlayTrue_Issue3_2007_Murray_En.pdf, accessed on 26/02/2014, at 16:43. 13 Barry Houlihan. Dying to Win, (2nd Edition Council of Europe), at 122. 2002. See also generally Alasdair Macintyre, After Virtue: A Study in Moral Theory, (University of Notre Dame Press). 1984. 14 See Cox & Schuster, [N8], at 102. 15 Ken Kirkwood, Considering Harm Reduction as the Future of Doping Control Policy in International Sport, Quest, Vol. 61, No. 2, at 182. 2012. 16 See Mulhall, [N2], at 35.

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argument of a convincing ilk that the spirit of sport should be removed from the list

of defining criteria which directly regulates substance prohibition.

B) Heath of the Athlete

The health rationale can be traced back to the death of Knud Jensen & Tom

Simpson at the Tour de France during the 1960s. This period bore witness to an

escalation in the number of deaths associated with performance enhancing

substances. Banning substances on the grounds of safety relating to an athlete’s

health isn’t logical in the context of the realities of professional sport17. The health

argument suffers from a number of fallacies. The lack of scientific evidence

regarding the danger of performance enhancing substances constitutes one of the

primary objections against this rationale. It is the very prohibition of these

substances which prevents any evidence based assessments of the products and

thus, the risks of controlled use18. The nature of unregulated products leads to a

significant dissipation in product safety and an increase in risk to the health of the

athlete. This is of particular danger when the product in question is in high demand,

as the black market, with little concern for quality or safety control, becomes the

primary distributor of the product. Comparisons can be drawn between current

anti-doping regulation and Walter Lippmann’s “circle of impotence” assertion.

Lippmann contended that the prohibition era in the United States summoned:

A circle of impotence in which…we find ourselves accepting in their lawless forms

the very things which in lawful forms we repudiate, having in the end to

deal…with the additional dangers which arise from having turned over their

exploitation to the underworld19.

Would open regulation of substances increase product safety and lend itself

to a policy position more congruent to the realities of elite sport in the 21st

17 One Tour de France rider opined that “most riders reckon that a good Tour takes one year off your life, and when you finish in a bad state, they reckon three years."' 18 See Mauron, Kayser & Miah, [N11], at 5. 19 Walter Lippmann, the Underworld as Servant, in Gus Tyler, Organised Crime in America: A Book of Readings, (Ann Arbor, MI: University of Michigan Press), at 63-64. 1967.

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century20? From the restricted perspective of the health of the athlete rationale

alone, this is a strong argument. As it stands, unregulated products coupled with

elite sportspersons having “near unlimited funds and the goal of near unlimited

performance, [creates] a framework that results in the use of extremely unsafe

doses”21.

Furthermore, the health rationale is not applied with any semblance of

consistency. It is common place to see athlete’s test positive for a prohibited

substance due to the presence – though often not listed - of steroid pre-cursors in

non-prohibited nutritional supplements. The criterion for placing many substances

on the prohibited substances list, such as caffeine and cannabinoids22 which are not

performance enhancing, per se, appear arbitrary and paternalistic, while substances

such as creatine are still permitted. “In as much as those involved in the fight

against doping cite the health of the athlete as a key reason to ban drugs, it is surely

inconsistent not to target…the food supplement industry”23. A study conducted by

Dr Willhelm Schanzer in 2001 lends credence to this assertion. Dr Schanzer analysed

634 nutritional supplements from 13 different countries and established that 94 of

these supplements – or 14.8% - contained prohormones24.

Moreover, the inconsistencies in the paternalistic nature of the health

rationale can be seen through the continuing legality of sports such as boxing and

mixed martial arts – where the risks associated with merely competing outweigh

20 Ellis Cashmore, It’s Time to Allow Doping in Sport, CNN, October 24th, 2012. Found at http://edition.cnn.com/2012/10/23/opinion/cashmore-time-to-allow-doping-in-sport/, accessed on 27/02/2014 at 15:40. 21 See Savulescu, Foddy & Clayton, [N7], at 669. 22 An amendment has been made to the treatment of cannabinoids under the 2015 Code. An athlete can establish no significant fault or negligence for the presence of cannabinoids in that the context of the use is not related to performance enhancement. This amendment presumably creates an easier route to the finding of no significant fault or negligence for these types of drugs although the consistently narrow application of the culpability provisions by the CAS makes such a proposition uncertain. 23 See Michelle Verroken & David R. Mottram, Doping Control in Sport, in David R. Mottram, Drugs in Sport, (Routledge, New York & London: 3rd Edition), at 350-351. 2003. See also Cox & Schuster, [N8], at 150. 24 Dr Willhelm Schanzer, Analysis of Non-Hormonal Nutritional Supplements for Anabolic-Androgenic Steroids – An International Study, 2001. Found at http://www.olympic.org/Documents/Reports/EN/en_report_324.pdf, accessed on 26/02/2014 at 16:52.

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the dangers posed by prohibited substances25. These sports afford the individuals

involved a level of autonomy and personal liberty to choose whether to subject

themselves to such harm and risk of injury. Mulhall claims there is no qualitative

difference between, for instance, a ski racer wearing a suit with low friction

characteristics in order to maximise speed and thus increase their chances of

victory, and the ingestion of performance enhancing substances; both are self-

inflicted and directly related to performance, while the potential for injuries due to

the increase in speed could arguably be as dangerous as the substances

themselves26, although it is difficult to accurately qualify this comparative risk.

Enforcing a system whereby athletes are prohibited from taking performance

enhancing substances with the goal of protecting them from themselves, does not

comport to otherwise liberal notions of individual freedom27. Furthermore, It

follows that restricting substances in the name of "protecting health" may have the

deleterious effect of preventing athletes from taking substances that address the

occupational hazards of high performance sport such as trauma and stress

injuries28. This is evidenced by the difficulties athletes face in obtaining Therapeutic

Use Exemptions which are only granted in exceptional circumstances or where the

use of a substance is highly unlikely to produce any additional enhancement of

performance beyond what might be anticipated by a return to the Athlete’s

“normal” state of health29. This draconian approach does not allow for athletes to

benefit from modern medicine which demonstrates that WADA does not care about

the laudatory uses of substances, only that the world of sports is completely

eradicated of their usage30.

25 Chris Smith, Why It’s Time to Legalise Steroids in Professional Sports, Forbes, 24th August 2012. Found at http://www.forbes.com/sites/chrissmith/2012/08/24/why-its-time-to-legalize-steroids-in-professional-sports/, accessed on 26/02/2014 at 18:07. See also Neville Cox, Legalisation of Drug Use in Sport, International Sports Law Review, Vol. 2, No. 4, at 81. 2002, who states that “competing in boxing, rugby, American football, ice hockey, mountaineering, grand prix racing and especially horse riding is statistically more likely to cause harm to an athlete than is drug use, yet it is legal”. See also Eoin Carolan, The New WADA Code and the Search for a Policy Justification for Anti-Doping Rules, Seton Hall Journal of Sports and Entertainment Law, Vol. 16, No.1, at 23. 2006. 26 See Mulhall, [N2], at 31. 27 Simon Gardiner et al, Sports Law, (London Cavendish: 3rd Edition), at 290. 2006. 28 See Hand, [N9], at 549. 29 International Standard for Therapeutic Use Exemptions 2015, Article 4.1. 30 Zachary Blumenthal, The Punishment of all Athletes: The Need for a New World Anti-Doping Code in Sports, The Journal of International Business and Law, Vol. 201, No. 9, at 219. 2010.

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There are a plethora of ethicists, philosophers and legal scholars who believe

that alternative approaches must be considered. Some argue for no regulation at all

claiming that free access would detach the stigma which the anti-doping laws

themselves create and would result in more accurate scientific studies relating to

the dangers of drugs as well as the likelihood that administration would be

conducted under qualified medical supervision31. Other proposals are primarily

predicated on competent scientific research relating solely to the health of the

athlete, such as a medical check system, akin to those conducted during an

employment screening process, which would discount the amorphous notion of the

spirit of sport and the metaphorical level playing field and design a multi-faceted

system which would establish parameters based on dangers to the athletes health.

For example, were it established that a 0.5 PVC level constituted a danger to the

health of a cyclist, they would not be allowed to compete, regardless of whether

those levels manifested due to the ingestion of EPO, natural genetic dispositions,

exposure to a hypoxic chamber or by training at altitude32. Furthermore, according

to Savulescu et al, this system would have the added benefit of negating the need

for the doctrine of strict liability, as the question of irresponsibility and liability

would be irrelevant; it would be based exclusively on health levels33. WADA’s anti-

doping testing figures for 201234 indicate that positive test results amassed to a

total of 1.76%, yet according to an adjusted analysis of self-reported drug use by

German athletes, the rate was in actuality estimated to be in the region of 10-

35%35; a figure which David Howman – WADA’s director general – appeared to

concur with36. These figures raise serious doubts over the efficacy of WADA’s

current zero-tolerance approach.

31 See Amos, [N3], at 305. 32 See Savulescu, Foddy & Clayton, [N7], at 669. 33 ibid. 34 2012 Anti-Doping Testing Figures Report, found at http://www.wada-ama.org/Documents/Resources/Testing-Figures/WADA-2012-Anti-Doping-Testing-Figures-Report-EN.pdf, accessed on 04/03/2014, at 14:45. 35 Werner Pitsch and Eike Emrich, The Frequency of Doping in Elite Sport: Results of A Replication Study, International Review for the Sociology of Sport, Vol. 47, No. 5, at 571. 2011. 36 Howman is on record as stating that the “the number of people doping are in the double digits”. See Jacquelin Magnay, WADA: One in 10 Are Drug Cheats, The Daily Telegraph, 19th August, 2011. Found at http://www.telegraph.co.uk/sport/olympics/london-2012/8710041/London-2012-

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There are numerous empirical studies which show that drug use -

particularly harm drugs such as anabolic steroids - have a deleterious effect to the

health of the athlete37. However, the current approach towards doping control

indicates three things: That performance enhancing drugs pose the greatest

potential harm to the user, harm which is exacerbated by the prohibitionist

approach, while all the while having little deterrent effect38. WADA’s paternalistic

approach to protecting the health of the athlete is at best inconsistent, and at worst

completely ineffective.

C) Level Playing Field

This justification relates to the notion of a level playing field, i.e. that all

athletes are provided an equal opportunity to compete “fairly”. This illusory, albeit

laudable concept is based on largely unsubstantiated assumptions regarding the

concept of fairness in sport. The rationale is anathema to the ultra-competitive

nature of elite sport in the 21st century where the playing field is intrinsically

uneven. Athletes are consistently attempting to gain an advantage over their rivals

and prevalent facets of elite sport such as financial sponsorship, technological and

scientific advancements and tangible advantages by way of residency and genetic

dispositions, all exacerbate the playing field. If this rationale was anything but

aspirational then surely WADA would target other elements pertaining to

performance enhancement in sport such as the legality of low friction suits,

nutritional supplements, nitrogen huts et cetera which, by definition, must equally

Olympics-one-in-10-athletes-are-drugs-cheats-says-anti-doping-chief-executive.html, accessed on 12/04/2014, at 18:12. 37 C. Aitken, C. Delalande, & K. Stanton, Pumping Iron, Risking Infection? Exposure to Hepatitis C, Hepatitis B and HIV among Anabolic-Androgenic Steroid Injectors in Victoria, Australia, Drug and Alcohol Dependence, Vol. 65, at 303-308. 2002. See also A.S. Clark and L. Henderson, Behavioural and Physiological Responses to Anabolic-Androgenic Steroids, Neuroscience and Biobehavioral Reviews, Vol. 27, at 413–436. 2003; B.T. Ekblom, Blood Boosting and Sport, Bailliere’s Clinical Endocrinology and Metabolism, Vol. 14, No.1 , at 89–98. 2000; N. Evans, Current concepts in Anabolic-Androgenic Steroids, American Journal of Sports Medicine, Vol. 32, No. 2, at 534–542. 2004; R. Hausmann, S. Hammer and P. Betz, Performance Enhancing Drugs (Doping Agents) and Sudden Death: A Case Report and Review of the Literature, International Journal of Law and Medicine, Vol. 111, at 261–264. 1998; B. Maron, Sudden Death in Young Athletes, the New England Journal of Medicine, Vol. 349, No. 11, at 1064–1075. 2003. 38 See Kirkwood, [N15], at 186.

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disturb the level playing field as not all athletes would have access to such

technological, medicinal or scientific advancements. The level playing field

argument is a useful rhetorical tool for anti-doping authorities, but it does not

account for the realities of professional sport39.

With regards to equality, unregulated use of performance enhancing

substances would represent the most effective way of levelling the playing field.

The prohibition on doping has made the level playing field less even and is arguably

disadvantaging the rule-abiding athlete. The rules themselves are providing “more

scope [for those willing to breach the rules] to enhance their performance beyond

that of the general cohort40. The CAS in Quigley v UIT41, contended, inter alia, that

through the vicissitudes of life and competition, individuals may enjoy an unfair

advantage which cannot be compensated for and that WADA’s policy objective not

to repair such accidental unfairness is laudable42. Digressing that such inequalities

are present throws into question the reasoning for the level playing field rationale

in the first place and furthermore, lauding such a policy objective is misguided as “it

is WADA itself that is creating this particular unfairness to the athletes”43.

The widespread acceptance that detection methods are behind the science

of doping points to an already failed policy - evidenced by WADA’s director general

stating that the number of athletes doping is into double figures despite WADA’s

official reports placing the percentile at just under 2%. The two obvious ways of

addressing the issues pertaining to the dichotomy between the science and

pharmacology of doping and the sophistication (or lack thereof) of detection

methods are hindered by the fact that even the most advanced and sensitive

detection methods are unlikely to ever stay ahead of the advancements in

pharmacology, particularly with the potential for the advent of gene therapy44 and

39 See Hand, [N9], at 547. 40 See Amos, [N3], at 91. 41 Quigley V UIT, CAS 94/129. 42 ibid, at 193. 43 Jessica K. Foschi, A Constant Battle: The Evolving Challenges in the International Fight Against Doping in Sport, Duke Journal of Comparative & International Law, Vol. 16, at 476. 2006. 44 A muscle growth enhancer known as ‘MGF’ is reported to have been sold on the black market during the Sochi Winter Olympics. See Lauren F Friedman, A Powerful and Undetectable New Kind of Doping May be happening at the Olympics, Business Insider, February 19th, 2014. Found at

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that genuine deterrent penalties would have to be of such a draconian nature as to

make it unlikely that they would survive a legal challenge45. Ultimately, prohibiting

doping on the grounds of a failed policy initiative which cites the level playing field

argument as a rationale for such prohibition is hard to logically maintain. Cox and

Schuster argue that professionalism often requires a person to engage in activities

which may be deemed unpalatable and ethically suspect in order to advance and

“be the best at all costs” and that ultimately, like in any career, this is the prevalent

and dominant ethic46.

D) Protection of the Clean Athlete

This argument opines that doping has a coercive effect on sport,

transforming a clean athlete who finds the concept of doping repugnant, into a

reluctant doper who, by virtue of sheer necessity, dopes to compete and thus

becomes an exemplar of the old adage, “if you can’t beat ‘em, join ‘em”47. This

strand of thinking has been re-iterated by Thomas Murray, Chair of the Ethical

Issues Review Panel for WADA, who argues that paternalism pertaining to doping

laws is justified on concrete moral and ethical grounds in order to “protect athletes

from the coercive power of drugs in sport”48. Yet, this argument suffers from a

failure to recognise that elite sport is already a highly coercive and professional

environment. Athletes who engage in more intensive training regimes, expose

themselves to hypoxic chambers and tailor their dietary habits for conduciveness

sake can potentially coerce their opponents into doing likewise. There is also the

equally valid counterargument that athletes who train harder do not necessarily

coerce fellow competitors into doing likewise. However, many people will draw

http://www.businessinsider.com/gene-doping-at-the-olympics-2014-2, accessed on 06/03/2014, at 15:20. See also Andrew Alderson, Gene Doping Looms as the Next Big Cheat, The New Zealand Herald, February 8th, 2014. Found at http://www.nzherald.co.nz/sport/news/article.cfm?c_id=4&objectid=11198629, accessed on 06/03/2014, at 15:21; see also Tim Franks, Gene Doping: Sport’s Biggest Battle? BBC News, January 12th, 2014. Found at http://www.bbc.com/news/magazine-25687002, accessed on 06/03/2014, at 15:22. 45 See Anderson, [N4], at 142. 46 See Cox & Schuster, [N8], at 104-105. 47 See Kirkwood, [N15], at 184. 48 See Murray, [N12].

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sharp distinctions between the differing forms of coercion in elite sport, predicated

primarily on symbolism, where those involving performance enhancing substances

are seen as more enduring, and potentially more dangerous than those of relating

to an athlete overworking himself and risking their health in what are more familiar

and expected ways49.

It can be argued that the use of performance enhancing substances may be

a consequence of professionalisation, more than the legality of doping and that the

situation for an athlete who prioritises winning above competition would not

radically change if drugs were legalised50.

E) Protection of Youths

This argument pertains to the position of elite athletes in society as role

models and the impressionability of children and the unequivocal need to protect

them. The role model argument is slightly contentious as it would appear to

mandate sports authorities to ensure that elite athletes conform to concepts of

morality which are unrelated to sport51. This would, and does to a certain degree,

extend to the use of harmful social drugs and not just harmful substances as they

relate to the enhancement of sporting performance. It is a dubious legal and ethical

proposition that a sports governing bodies’ jurisdiction could extend to an athlete’s

extra-curricular activities which are strictly outside the purview of sport and would

not appear to constitute a legitimate sporting concern, despite the fact that the

regulation of certain substances such as caffeine pills and marijuana have a clear

socialised dimension52. Furthermore, it is inconsistent to cite the role model

rationale while ignoring the drug habits of musicians, models and movie stars who

are equally idolised by young people53.

49 Colin Latiner, Steroids and Drug Enhancements in Sport: The Real Problem and the Real Solution, DePaul Journal of Sports Law and Contemporary Problems, Vol. 3, No.2, at 209-210. 2006. 50 See Cox, [N25], at 84. 51 See Carolan, [N25], at 28-29. 52 ibid, at 29. 53 See Amos, [N3], at 92. See also Houlihan, [N13], at 135.

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However, there is a logical validity to this rationale and it does warrant

consideration. In a strictly sporting sense, the role model rationale can be

substantiated. To dismiss such an assertion would be to misunderstand the highly

competitive environment of underage sport. Research in the US - which lends

credence to this claim - indicates that adolescents are taking performance

enhancing drugs in ever-increasing numbers54. A paternalistic approach towards

adult athletes is open to criticism, as this chapter has demonstrated, but there is a

clear and incontrovertible societal interest in protecting the health of teenage

sporting participants, who are often too young and are ill-equipped to make

informed health related decisions at a critical stage of their physiological

development and who face a concoction of pressures from parents and coaches, a

media fixated with sporting success and physical perfection and a culture which

already embraces dietary supplements and vitamin pills55. Protecting the future

health of young athletes is imperative and is a strong justification for the presence

of anti-doping laws in sport. However, the inconsistencies of the health rationale

still pervade. Adolescents participating in sport are still prone to the consumption of

lawful nutritional supplements such as creatine which are empirically proven to be

dangerous to a person’s health. Furthermore, given the potential danger to

adolescent bodies associated with participation in sport, it could even be argued

that young people should not be encouraged to participate in competitive underage

sports at all56. Ultimately, while this is the strongest justification, in this author’s

opinion, for the presence of anti-doping laws, many of the inconsistencies

concerning paternalism and the health rationale argument still prevail.

54 Donald Greydanus and Dilip Patel, Sports Doping in the Adolescent: The Faustian Conundrum of Hors de Combat, Paediatric Clinics of North America, Vol. 57. 2010 55 See Carolan, [N25], at 30-31. See also Sarah Teetzel and Marcus Mazzucco, Minor Problems: the Recognition of Young Athletes in the Development of International Anti-Doping Policies, The International Journal of the History of Sport, Vol. 31, No. 8, at 926. 2014. See also Jack Anderson, Doping, Sport and the Law: Time for a Repeal of Prohibition? International Journal of Law in Context, Vol. 9, No. 2, at 139. 2013. See also generally Mike McNamee, Beyond Consent? Paternalism and Paediatric Doping, Journal of the Philosophy of Sport, Vol. 36, No.2. 2009. 56 See Amos, [N3], at 92.

83

Conclusion

There is an argument regularly put forth that sport does not need to justify

its anti-doping rules - just as it does not need to justify its sporting rules. This

rationalisation does not hold up to scrutiny as it fails to acknowledge that we are

living in a time when sport is akin to any other money-proffering business and

therefore, sporting rules are tantamount to a code of conduct promulgated by a

functioning business and thus, there is a much greater need for these rules to be

rationally underpinned especially when one considers that a breach of such rules

can culminate in sanctions which adversely affect an athlete’s livelihood and

reputation57. Current doping policies appear to be devoid of logic and rationality -

or they at least do not play a key role in the formation or acceptance of such

policies. Doping policies appear to be driven by strong public feelings associated

with symbolism and “democratic community condemnation and pervasive

disapproval”58. This would appear to explain why the authorities have persisted

with anti-doping laws in their current form despite them being widely regarded as

ineffective. On a side note, the application of a strict liability standard appears to be

inconsistent with two of the dominant rationales for doping laws, namely the

concept of fairness and the health of the athlete. Were WADA genuinely concerned

with fairness in sport they would err away from the strict liability standard and re-

classify the nature of anti-doping laws and offer more concomitant and appropriate

protections for the athlete. Moreover, if the health of the athlete was a truly

fundamental rationale for the Code, the strict liability standard would be replaced

with criterion which was premised on levels of substance abuse which represent a

scientifically verifiable danger to the athlete’s health.

An alternative system which operates on the basis of competent scientific

research into the ergogenic effects of substances is preferable and more reasoned

than the current approach. For instance, the testing method for the banned

substance nandrolone encapsulates WADA’s problematic approach toward

performance enhancing drugs. Renowned anti-doping expert Don Catlin indicated in

57 ibid, at 79. 58 See Houlihan, [N13], at 128.

84

an interview with the L.A Times that it is not difficult to distinguish between

nandrolone taken to intentionally improve an athlete’s performance and one which

is simply the result of a contaminated product and which is of no performance

enhancing benefit. A cheating athlete would regularly show levels higher than one

hundred thousand parts per billion of urine, yet WADA’s current nandrolone

threshold is two parts per billion for males and five parts per billion for females59.

Breaching this threshold will result in an anti-doping rule violation. This differential

is quite significant and would reason one to suggest that there is a different

rationale in play. Establishing genuine ergogenic-centric parameters in conjunction

with the scientific and medical community would have the benefit of distinguishing

the inadvertent cases - whose levels can have no effect on performance

enhancement - from the intentional cases who categorically seek to gain an unfair

advantage and by virtue of the sheer concentration levels they ingest,

predominantly do.

Ultimately, the justifications professed for prohibiting performance

enhancing substances are simply insufficient to underpin the incredibly draconian

anti-doping rules that currently exist in sport60. The rationales are not compelling

and often appear circular and unconvincing whereby the contention that is

intended to be proven is used as evidence to support that very contention61. This

tautology occurs due to the implicit assumption that performance enhancing

substances are egregious. In other words, the rationale appears to be self-fulfilling

prophecy. Therefore, this dissertation can affirm that the WADA Code does not

offer a compelling rationale to sufficiently justify the rights violations which it

induces.

59 Michael A.Hiltzik, Athlete’s Unbeatable Foe, L.A. Times, 10th December 2006. Found at http://www.latimes.com/news/la-sp-doping10dec10-story.html#page=1, accessed on 14/06/2014, at 12:49. 60 See Cox, [N25], at 77. 61 See Amos, [N3], at 101.

85

Conclusion

We need to make sure that the reality of modem sport, the nature of

performance enhancement, and the true impact of sanctions are not lost on

those who make the rules, and support them in law1.

This dissertation has chartered the evolution of anti-doping laws and

critically engaged the issue of whether the World Anti-Doping Code sufficiently

protects the rights of the elite athlete in modern day sport. From the interventionist

approach taken by the Council of Europe in the early 1960s to the forthcoming

adoption of the 2015 World Anti-Doping Code in January, 2015; Doping has had a

long and turbulent relationship with competitive sport. Many of the critical

regulatory junctures in doping disciplinary law have emerged from watershed

moments in sport, where scandals have acted as a catalyst for change. This was

evident with the death of Knud Jensen and Tom Simpson in the 1960s - which

triggered the interest of the Council of Europe and accounted for specific legislative

action in countries such as France and Belgium – as well as Ben Johnson’s tainted

feat of human accomplishment at the Seoul Olympics in 1988 – which instituted the

Dubin Inquiry that subsequently led to the adoption of the Anti-Doping Convention

in 1989 – and can be tracked right up to the Festina Affaire at the Tour de France in

1998 – where large quantities of erythropoietin were seized by French customs in a

development so seismic that it resulted in the formation of an independent agency,

WADA, to deal with the phenomenon of doping in sport.

The principal changes made to the 2015 Code, as relevant to this study,

relate to the increase in sanction to a period of four years for a first time doping

violation – a change which is likely to induce legal challenges in domestic and

European courts on the basis of a violation of the principle of proportionality and

unlawfully restricting an athlete’s right to a livelihood, as was dealt with in Chapter

3 - ; the purported increase in flexibility for athletes who inadvertently ingest a

1 Matthew Hand, Caught in the Net: Athlete’s Rights and the World Anti-Doping Agency, Southern California Interdisciplinary Law Journal, Vol. 19, at 561. 2010

86

prohibited substance and the specific reference in Article 8 of the prospective Code

to the fair trial rights enshrined in Article 6 of the European Convention on Human

Rights.

WADA’s sanctioning regime consists of two separate liability phases, that is;

the strict liability phase for in-competition violations which renders an athlete

legally liable for the presence of a prohibited substance without a chance to provide

any specious evidence and results in immediate disqualification from the respective

competition; and the culpability phase where fault and negligence provisions are

applied to adduce an athlete’s level of moral guilt in determining the appropriate

sanction. The strict liability phase has been justified on the basis of monetary

constraints and the difficult in establishing intent, that is, if federations were

required to prove intent in doping offenses it would financially cripple them and

thus, stifle the fight against doping. As was demonstrated in chapter 3 of this

dissertation, the main criticisms against the strict liability standard are twofold.

Firstly, the strict liability principle is legally regarded as a just proposition in the fight

against doping due to the misclassification of the legal relationship between the

athlete and the sporting authorities as one of private, contract law where the

criminal principles of in dubio pro reo and an explicit presumption of innocence are

not of direct relevance. Secondly, a legal opinion piece in 20032 declared that the

strict liability standard is compatible with international law and human rights

standards as the athlete is able to present exculpatory information after the initial

liability phase to demonstrate that the doping offense was not as a result of his or

her negligence.

On the first proposition, as this study comprehensively dealt with in Chapter

4, the current legal relationship between athletes and sporting authorities is

designated as one governed by private, contract law when, in this author’s opinion,

it is more akin to pseudo-criminal law. This is down to two factors. Firstly, the

2 Gabrielle Kaufmann-Kohler, Antonio Rigozzi & Giorgio Malinverni, Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law, February 26th, 2003, at 2. Found at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-Legal_Library/Advisory_and_Legal_Opinions/prof_kaufmann_kohler.pdf, accessed on 15/06/2014, at 16:04.

87

association between athletes and the respective organisation is not voluntary, as is

often professed. Sports governing bodies occupy a monopolistic position in creating

and enforcing their rules, which athletes are contractually bound by without having

any discernible say, which makes the notion of voluntariness untenable and renders

“infringement by consent” a dubious proposition3. Secondly, the punitive measures

imposed for the breach of doping rules are in their nature and consequence akin to

a criminal offense and thus, criminal principles should have a palpable effect on

anti-doping laws. Were this the case, principles such as the presumption of

innocence and in dubio pro reo would have a less muted impact on proceedings and

the strict liability standard would be subject to heightened legal scrutiny. Moreover,

re-characterising the legal relationship between athletes and the authorities would

afford the athlete more concomitant due process protections doping disputes, an

issue we will shortly come to.

The second proposition concerns the culpability provisions articulated in

Articles 10.4 and 10.5.1 of the 2015 Code in eliminating or reducing a sanction

based on moral guilt. These provisions have been altered to specifically provide for

offenses involving contaminated products and specified substances, in a professed

attempt to add renewed flexibility for inadvertent dopers and to extricate the “real”

cheats. As outlined in Chapter 3, these provisions are notoriously difficult to

activate and it’s debateable whether the amendments made to the 2015 Code will

make any difference as CAS panels have consistently maintained that an athlete is

responsible for what he or she ingests and moreover, the burden is still on athletes

to establish how the substance entered his or her body which has historically been a

significant hurdle in having a suspension successfully reduced or eliminated. The

presence of these culpability provisions appears to offer the athlete a theoretical

safeguard, but in practice, due to their narrow application and inconsistent

interpretations, it does not materialise as such.

This dissertation has shown how the due process protections afforded to

athletes in doping disputes is negligent and that the provisional suspension of an

athlete prior to a hearing; the public disclosure of a positive finding prior to a

3 See Hand, [N1], at 555.

88

hearing and the requirement that the reporting and adjudicatory bodies be distinct,

are areas of particular concern. This, as has already been touched upon, derives

from the fact that such disputes are considered to be of a private nature and thus,

athletes are not afforded the protections which the nature and consequence of the

potential sanctions should warrant. Furthermore, there is considerable controversy

about the legitimacy and accuracy of WADA’s scientific testing methods which have

courted considerable criticism from the scientific and medical community, as they

are not open to scrutiny and are the product of insulated self-accreditation and self-

regulation which would not hold up under prevailing medical regulatory standards.

This is compounded by the restrictions in situ when an athlete attempts to

challenge the validity of WADA accredited laboratories, where compliance with the

international standards is explicitly presumed, and where the athlete thusly bears

the dual burden of not only proving non-compliance with the ISL, but also showing

that the departure could reasonably have caused the adverse analytical finding. An

athlete is denied the requisite discovery rights and access to critical material in

order to mount a legal challenge against the validity of WADA-accredited labs,

material which rests solely with the prosecuting team.

Finally, this dissertation examined the fundamental rationales as articulated

in the preamble of the World Anti-Doping Code – namely, the spirit of sport, the

health rationale, the level playing field argument, the protection of the clean

athlete and the protection of youths - which underpin current anti-doping laws and

whether they are compelling enough to sufficiently justify the rights violations

which the current draconian anti-doping laws preside over. This study argues that

the sheer number of purported rationales suggest confusion and that even the

strong justifications, like the unquestionable need to protect youths from the harms

of many of the prohibited substances, suffer from the same inconsistencies which

befall many of the rationales, that is; that the situation would not markedly change

were doping legal. However, this study does not advocate for the unregulated use

of performance enhancing substances. It does suggest the following however:

First, the nature of doping offenses and the affiliation between the athlete

and the respective association should be amended to accurately reflect the realities

89

of doping disciplinary law and thusly afford more concurrent protections to the

athlete. Second, scientifically verifiable levels of performance enhancement should

be established and then applied whereby an athlete who breaches the threshold is

disqualified in competition. As it stands, an athlete can unintentionally ingest a

prohibited substance which may not be performance enhancing or where the

amount consumed could not have an effect on the outcome of the sporting fixture.

This ties in with the proposal to amend the criterion for the prohibited substances

list, articulated in point number eight. Third, the culpability provisions should be

applied consistently to accurately reflect the negligence and/or fault of the athlete

and the requirement that athletes establish how the substance entered his or her

body should be removed. Fourth, the public disclosure of an anti-doping rule

violation prior to hearing should be disposed of as in granting an athlete the

fundamental right to a fair hearing, WADA and the relevant sports organisation

create a legitimate expectation that the athlete will not be subject to adverse

publicity prior to the hearing4. Fifth, the provisions permitting panels to impose

costs on an athlete deters due process and should be jettisoned. Sixth,

presumptions of laboratory compliance should be removed and athletes should be

afforded full discovery rights, free of charge, when attempting to challenge non-

compliance with the ISL. Seventh, WADA’s testing methods should be substantiated

by standards akin to those which regulate diagnostic tests in medical agencies,

particularly in light of the financial and reputational damage which can result from

doping sanctions. Eight, the specified criteria for the prohibited substances list

should be amended to reflect the potential for performance enhancement only.

Substances that have no ergogenic effect should not be on the list while equally,

substances which are deemed unhealthy but that do not enhance performance,

such as marijuana, should also be excluded from the list. The paternalistic nature of

the health rationale is inconsistent – in that many of the dangers of the sports

themselves outweigh the dangers of the prohibited substances – and it doesn’t

comport with the liberal thrust of modern society which is centred on notions of

self-determination.

4 Fiona Blair, Procedural Fairness in Doping Disputes, The University of New South Wales Law Journal, Vol. 22, No. 3, at 888. 1999.

90

Finally, on an innate level, there needs to be a change in mentality where

catching athletes is perceived as evidence of a fully functional and effective system

of doping control. It is imperative that the policies of WADA and sports governing

bodies are held to the standards which they hold athletes too. From a credibility

perspective, it makes good policy sense in terms of the long-term future of anti-

doping policy to ensure that the rules are treated with the seriousness that they

deserve, and the rights of the athlete are protected as such5. Ultimately, this

dissertation cannot affirm that the fundamental rights of the elite athlete in modern

day sport are sufficiently protected by the World Anti-Doping Code.

5 Neville Cox, B v FINA CAS 98/211, in Jack Anderson, Leading Cases in Sports Law, (Asser International Sports Law Series), at 188. 2013.

91

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Hiltzik M.A., (2006) “Presumed Guilty: Athlete’s Unbeatable Foe”, Los Angeles Times, December 10th, available at http://www.latimes.com/news/la-sp-doping10dec10,0,5150673.story?page=2#axzz2xZOPrbVN. Magnay J., (2011) “WADA: One in 10 Are Drug Cheats”, The Daily Telegraph, August 19th, available at http://www.telegraph.co.uk/sport/olympics/london-2012/8710041/London-2012-Olympics-one-in-10-athletes-are-drugs-cheats-says-anti-doping-chief-executive.html. Prasuhn J., (2005) “Back in the Saddle again: A Triathlete exclusive interview with Rutger Beke”, Triathlete, September 7th. Schanzer W., (2001) “Analysis of Non-Hormonal Nutritional Supplements for Anabolic-Androgenic Steroids – An International Study”, available at http://www.olympic.org/Documents/Reports/EN/en_report_324.pdf. Smith W., (2013) “Drugs inquiry 'amateur hour' - former senator John Black slams ACC investigation”, The Australian, February 15th, available at http://www.theaustralian.com.au/sport/drugs-inquiry-amateur-hour-former-senator-john-black-slams-acc-investigation/story-e6frg7mf-1226578247263. Smith C., (2012) “Why It’s Time to Legalise Steroids in Professional Sports”, Forbes, August 24th, available at http://www.forbes.com/sites/chrissmith/2012/08/24/why-its-time-to-legalize-steroids-in-professional-sports/. Times of India, (2009) “Doping: Time to Scrap Steroid Test”, Times of India, March 12th.