In this article Peter Charlish addresses the controversial issue of the use of performance enhancing drugs in sport. He looks at the legal basis for regulation via the World Anti-Doping Code and the nature of a sports participant's relationship with their governing body and the anti-doping organisations. He explains in the context of proportionality, the measures designed to combat doping in sport; the importance to the Code of the central principle of strict liability. Also, he highlights the use of non-analytical positives as a further method of detection of doping violations, whilst taking consideration of the impact of these measures on the human rights of participants.
1 http://sportsanddrugs.procon.org/view.resource.php?resourceID=004420 – last accessed 22nd January 2012
2 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/ – last accessed 22nd January 2012
3 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/ – last accessed 22nd January 2012
11 International Olympic Committee
14 Matched funding stood at only 16% in 2003 but had risen to 100% by 2008 see http://www.wada-ama.org/en/About-WADA/History/WADA-History/
15 Fahey J. President of WADA at http://www.wada-ama.org/Documents/News_Center/Speeches_Presentations/2012/2012-02-07-WADA-Media-Symposium-President-Speech.pdf; Lausanne, Feb 7th 2012
16 The system which requires athletes to submit their location for one hour each day up to three months in advance.
17 The term athlete will be used throughout this paper to refer to a sports participant.
18 Their role is aided by the fact that it is a condition of inclusion in the Olympic Games that any sport is compliant with the Code.
19 Korda v ITF Ltd (t/a the International Tennis Federation) The Times 4 February 1999
20 Korda v ITF Ltd (t/a the International Tennis Federation) The Times 4 February 1999 at p8 of unrecorded transcript
21 Korda v ITF Ltd (t/a the International Tennis Federation) The Times 4 February 1999 at p7 of unrecorded transcript
22 The World Anti-Doping Code (2009), The World Anti-Doping Agency, Montreal, Canada, Comment to article 2.1.1
23 Gasser v Stinson (1988), QBD, Unreported
24 Gasser v Stinson (1988), QBD, Unreported. Citing with approval arguments put forward by Holt, (then IAAF General Secretary) at p26 unreported transcript
25 This may of course be a laudable policy where the substance is indeed a performance enhancing one but the reasoning is more questionable where the substance ingested inadvertently is not one which will enhance performance, (see Amos A., & Fridman S., (2009): “Drugs in sport: the legal issues”, Sport in Society: Cultures, Commerce, Media, Politics, 12:3, 356–374 p362
26 Arbitration CAS 94/129 USA Shooting & Q./Union Internationale de Tir (UIT), award of 23 May 1995. At paras 15–16
27 Now Lord Coe
28 Coe S., “We cannot move from strict liability rule”, Daily Telegraph, 25 February 2004
29 For example, Scottish skier, Alain Baxter lost his Olympic bronze medal following a positive test for a banned stimulant at the 2002 Winter Olympics despite the CAS acknowledging that he had made no attempt to cheat whatsoever and that the positive test was the result of inadvertent consumption of the banned substance in a Vicks nasal spray taken to relieve congestion. See http://www.ukad.org.uk/resources/video/alain-baxter; http://tinyurl.com/7mjdclk; last accessed 18th March 2012.
30 The World Anti-Doping Code (2009), The World Anti-Doping Agency, Montreal, Canada article 3.2.1
31 Discussed in more detail later
32 Article 10.5.1 WADC 2009
33 Article 10.5.2 WADC 2009
34 Kicker Vencill v USADA CAS 2003/A/484
35 CAS 2006/A/1067 IRB v Keyter
36 No fault or negligence
37 No significant fault or negligence
38 http://www.wada-ama.org/en/Science-Medicine/Prohibited-List/QA-on-2012-Prohibited-List/# (last accessed 18th March 2012)
39 Article 10.4 WADC 2009
40 These may be where an athlete has interfered with or manipulated their sample but technically have not failed a test or where an athlete has tested with no apparent failure. (See McLaren R., An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports, 16 Marq. Sports. L. Rev. 193 (2006)
41 This consisted of an attempt to create the world's fastest human being through the provision of a new artificial steroid, (THG). This presented a particular problem as there existed no test to detect this newly created drug and with no test, could come no failure.
42 U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION ASS'N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10, 2004).
43 The International Amateur Athletic Federation, (IAAF)
44 IAAF 2004 rules 33.2, 38.9 cited in U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION ASS'N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10, 2004). At para 3.3
45 WADC article 3.1
46 U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION ASS'N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10, 2004). At para 3.4.
47 World Anti-Doping Agency, WADC 2009 article 3.1
48 The CAS is based in Lausanne in Switzerland and is therefore subject to Swiss Law. The SFT acts as the final Court of Appeal for decisions of the CAS.
49 See Tribunal fédéral [TF] [Federal Tribunal] Feb. 10, 2010, 4A_612/2009 (Switz.), 6.3.2.
50 http://www.utexas.edu/cola/progs/plan2/_files/pdf/worthington/dawer08.pdf (last accessed 25th March 2012)
51 http://www.utexas.edu/cola/progs/plan2/_files/pdf/worthington/dawer08.pdf. At p2, (last accessed 25th March 2012)
52 Straubel M. “Doping Due Process: A Critique of the Doping Control Process in International Sport”, 106 Dick. L. Rev. 523*569
53 Straubel M. “Doping Due Process: A Critique of the Doping Control Process in International Sport”, 106 Dick. L. Rev. 523*569–570
54 See WADA & Interpol cooperation as per http://www.interpol.int/News-and-media/News-media-releases/2009/PR006 (last accessed 29th March 2012) and the memorandum of understanding concerning information gathering signed by United Kingdom Anti-Doping, (UKAD) and The Serious Organised Crime Agency as per http://www.legislation.gov.uk/uksi/2010/1955/pdfs/uksiem_20101955_en.pdf (last accessed 29th March 2012)
55 That of comfortable satisfaction
56 World Anti-Doping Agency, WADC 2009 article 7.5
57 An A sample and a B sample are always taken from an athlete, the urine sample is divided into two different sealed containers, (A & B). An athlete has the right to have both theoretically identical samples tested before a conclusive finding of guilt can be established.
58 World Anti-Doping Agency, WADC 2009 article 7.5.1
59 World Anti-Doping Agency, WADC 2009 article 14.2.1
60 http://www.guardian.co.uk/sport/2012/feb/06/alberto-contador-case-chronology; (last accessed 29th March 2012)
61 United States Anti Doping Agency v Gaines CAS 2004/O/649
62 United States Anti Doping Agency v Gaines CAS 2004/O/649 at p13
63 United States Anti Doping Agency v Gaines CAS 2004/O/649 at p15
64 It is beyond the remit of this note to go into detail on the compatibility of anti-doping measures with the HRA. It will therefore only address the principle of strict liability, the foundation of the WADC in this context. For a wide ranging analysis of the compatibility of the WADC with Human Rights see Kaufmann-Kohler G., Rigozzi A., and Malinverni G., “Doping and fundamental rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67.
65 World Anti-Doping Agency “Fundamental Rationale For The World Anti-Doping Code”, World Anti-Doping Code, 2009, Montreal, Canada.
66 Article 18 specifically refers to Education
67 World Anti-Doping Agency, articles 18.1 & 18.2, World Anti-Doping Code, 2009, Montreal, Canada
68 Arbitration CAS 2005/A/847 Hans Knauss v. FIS, award of 20 July 2005, at para 32
69 CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick Zuijkerbuijk at para 77
70 The doctrine of restraint of trade is based on principles of proportionality
71 CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick Zuijkerbuijk at para 78
73 Krabbe v IAAF et al, Decision of the LG Munich 17th May 1995, SpuRt, 1995, p161, p167
74 Krabbe v IAAF et al, Decision of the OLG Munich 28th March 1996, SpuRt, 1996, p133, p138
75 Two years for a first offence
76 Kaufmann-Kohler G., Rigozzi A., and Malinverni G., “Doping and fundamental rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67 *61
77 Quite clearly here sanctions imposed as a result of doping violations do restrict fundamental rights.
78 Claude Rouiller, “Legal Opinion – WADA Code”, October 2005 at p30, located at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-Legal_Library/Advisory_and_Legal_Opinions/Article_10_2_WADC_Swiss_Law.pdf
79 Arbitration CAS 2005/A/847 Hans Knauss v. FIS, award of 20 July 2005, paras 29–30
80 CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick Zuijkerbuijk at para 77
81 British shot-putter Carl Fletcher was recently banned for a period of 4 years in addition to receiving a prison sentence for trafficking drugs. See http://tinyurl.com/czhz68r last accessed 31st March 2012
82 Kaufmann-Kohler G., Rigozzi A., and Malinverni G., “Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law”, 26 February 2003
83 S6(1) Human Rights Act 1998
84 S6(3) Human Rights Act 1998
85 Then the Governing Body of Horseracing in the United Kingdom
86 See House of Commons Hansard Debates, May 20, 1998, http://tinyurl.com/6wapjzs, at col. 1020
87 R v Disciplinary Committee of the Jockey Club ex parte Aga Khan  1 WLR 90
88 http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf (last accessed 2nd April 2012)
89 Oliver D., “Human Rights and the Private Sphere”, UCL Human Rights Review, vol. 1, no. 1, 2008 pp. 8–16
90 International Olympic Committee, “Olympic Charter”, 2011, p10, para 4, Lausanne, Switzerland.
91 Kaufmann-Kohler G., Rigozzi A., and Malinverni G., “Doping and fundamental rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67*49
92 Article 6(2), ECHR, Right to a fair trial, and specifically the presumption of innocence, which is incorporated into UK law by virtue of section 1 of the HRA 1998
93 Gasser v Stinson (1988), QBD, Unreported
94 For example s5, Road Traffic Act 1998, (in relation to driving with excess alcohol) and s92(5) Trademarks Act 1994, (in relation to possession of counterfeit goods) both create offences of strict liability.
95 Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division)) Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)  U.K.H.L. 43,  1 A.C. 264
96 Salabiaku v France (1988) 13 EHRR 379
97 Salabiaku v France (1988) 13 EHRR 379 at para 27
98 Salabiaku v France (1988) 13 EHRR 379 at para 28
99 Article 10.4 Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances; Article 10.5 Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances;
100 Strict liability
101 Article 8 Right to Respect for Private and Family Life ECHR
103 http://news.bbc.co.uk/sport1/hi/front_page/7844918.stm (last accessed 2nd April 2012)
104 The BOA are responsible for selecting the British Olympic Team
105 The rule stated that any athlete who had been banned for a period of more than six months for a doping violation was automatically prohibited from the next Olympic Games
106 http://tinyurl.com/6d4hf8o (last accessed 2nd April 2012)
107 On April 30th 2012 the CAS ruled that the BOA By Law was not in compliance with the WADC, stating clearly that the By Law was a doping sanction and not an eligibility criteria: http://www.tas-cas.org/d2wfiles/document/5878/5048/0/Media20Release20BOA20WADA20final.pdf
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