Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes / G. Kaufmann-Hohler, A. Rigozzi. - World Anti-Doping Agency (WADA), 2007

Contents:

I. PRELIMINARY COMMENTS
1. Qualifications of the Authors of this Opinion
2. Independence and Disclaimer
3. The Question Posed, the Document(s) Reviewed, and the Issues Addressed
II. THE INTERACTION BETWEEN ANTI-DOPING RULES AND THE FUNDAMENTAL RIGHTS OF ATHLETES
1. The World Anti-Doping Agency (WADA) and the World Anti-Doping Code (WADA Code)
1.2 The Structure and the Mission of WADA
1.3 The Adoption and the Implementation of the WADA Code.
1.4 The Rationale of the WADA Code.
1.5 The Main Features of the WADA Code
2. Fundamental Rights of Athletes: Concept, Sources
2.2 Human Rights
2.3 General Principles of Criminal Procedure
2.4 Private Law Protection of Fundamental Rights, in particular Personality Rights
2.5 EC Competition Law
III. IS ARTICLE 10.6 OF THE CODE COMPATIBLE WITH THE FUNDAMENTAL RIGHTS OF ATHLETES?
1. Are “Aggravating Circumstances” Defined with Sufficient Precision?
1.2 No Crime nor Punishment without (clear) Law
1.3 Should “Aggravating Circumstances” be Indicated in Article 10.6 itself?
1.4 Is an Open List of “Aggravating Circumstances” Admissible?
1.5 Does the (Open) List of “Aggravating Circumstances” Ensure Foreseeability?
2. Is the Role of Admission Compatible with the Privilege against Self-Incrimination and the Right to Remain Silent?
2.2 Threat of an Autonomous Sanction
2.3 Plea Bargain
3. Is an Ineligibility Period of More Than Two Years Compatible with the Fundamental Rights of Athletes?
3.2 The Unproblematic Condition: Legitimate Aim
3.3 The Real Issue: The Proportionality Test
aa) Capacity
bb) Necessity
cc) Proportionality stricto sensu
IV. GENERAL CONCLUSION AND ANSWER TO THE QUESTION POSED

Legal Opinion on whether Article 10.2 of the World Anti-Doping Code is compatible with the Fundamental Principles of Swiss Domestic Law / Claude Rouiller. - World Anti-Doping Agency (WADA), 2005

Contents:

I. THE EXPERT
II. THE FRAMEWORK OF THE MANDATE
1. The mandate
2. The documents provided
3. Customary disclaimer
III. THE OVERALL LEGAL CONTEXT OF THE CONSULTATION
1. Preamble
2. The European Convention of November 16, 1989
3. The World Anti-Doping Agency and the World Anti-Doping Code
(a) The World Anti-Doping Agency
(b) The World Anti-Doping Code
4. The UNESCO Convention of October 19, 2005
(a) The adoption of the Convention and its preamble
(b) The Convention and the World Anti-Doping Code
IV. DISCUSSION
1. Preamble
(a) The rules under discussion
(b) The status quaestionis
2. The interpretation of Article 10.2 of the Code and the legal nature of the sanctions it provides for
(a) The interpretation of Article 10.2 of the Code
(b) The legal nature of the sanctions provided for
3. The content of the fundamental rights and general principles of autonomous Swiss law that could be applied by arbitrators reviewing the application of Article 10.2 of the Code and that could come into play in the context of a limited review by the Federal Tribunal
(a) Introductory note
(b) Personal liberty
(c) Economic liberty
(d) Brief outline of fundamental rights practice
(e) The relative practical similarities between the modalities of application of Article 36 Cst. and the modalities of application of Article 27 SCC
(f) Informal examination of the compatibility of Article 10.2 of the Code with fundamental rights and the concrete standard of Article 27, paragraph 2 Cst.
4. The scope of the means of defence available to persons seeking to allege that a sanction based on Article 10.2 of the Code and its confirmation by arbitrators is injurious to their interests legally
protected by these rights and principles of autonomous Swiss law, and the definition in Swiss law of the concepts of arbitrariness and public policy
(a) The right of appeal to an arbitral tribunal
(aa) The ordinary appeal to the Court of Arbitration for Sport (CAS)
(bb) Appeals to arbitral tribunals established on an ad hoc basis pursuant to Article 13.2.2 of the Code or to the CAS acting as a domestic arbitrator
(b) The subsequent recourse to the Swiss Federal Tribunal to quash an arbitral award (recourse available under public law)
(aa) Introductory note concerning the recourse available under public law in an arbitration matter
(bb) Appeal from an award rendered by a domestic arbitrator
(cc) Appeal from an “international” arbitral award
(dd) The capacity to challenge an award before the Federal Tribunal
(ee) The concept of arbitrariness under Article 36, letter f of the Intercantonal Concordat on Arbitration
(ff) The concept of public policy under Article 190, paragraph 2, letter e PILS
(c) The consequence of the limits of the Swiss Federal Tribunal’s power of substantive review of arbitral awards for the question at hand
V. THE ANSWER

Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law / Gabrielle Kaufmann-Hohler, Antonio Rigozzi, Giorgio Malinverni. - World Anti-Doping Agency (WADA), 2003

Contents:

I. PRELIMINARY COMMENTS
1. Professional Qualifications of the Authors of this Opinion
2. The Questions Addressed in this Opinion and Documents Reviewed
3. Human Rights: Concept and Sources
II. THE POLICY AND IMPLEMENTATION OF ANTI-DOPING REGULATION
1. The Policy Rationale for Anti-Doping Regulation
2. The Implementation of Anti-Doping Regulation
Ill. THE ROLE OF HUMAN RIGHTS AND GENERAL PRINCIPLES OF LAW IN DOPING DISPUTES
1. The Human Rights and General Principles of Law at Issue in Doping Disputes
2. Applicability of Human Rights and General Principles of Law in Doping Disputes
3. Admissibility of human rights restrictions
4. Conclusion: the paramount role of proportionality
IV. ARTICLE 2.1: CONFORMITY OF STRICT LIABILITY DOPING OFFENCES WITH HUMAN RIGHTS AND GENERAL LEGAL PRINCIPLES
1. Nullum crinem sine lege certa: The Need for Certainty
2. The Presumption of Innocence
3. Conclusion
V. ARTICLES 9 AND 10.1: CONFORMITY OF DISQUALIFICATION WITH HUMAN RIGHTS AND GENERAL LEGAL PRINCIPLES
1. The Expression of a General Consensus
2. Some Issues of Concern
3. Disqualification of All Results obtained during a Multi-Competition Event
VI. ARTICLE 10.2: CONFORMITY OF DOPING SUSPENSIONS WITH HUMAN RIGHTS AND GENERAL LEGAL PRINCIPLES
1. The Principle of nu/la poena sine culpa
a. The applicability of the principle of nulla poena sine culpa to doping disputes
b. Does the Code comply with the principle nu Ila poena sine culpa?
2. Presumption of Fault versus Presumption of Innocence
3. Compatibility of the Length of the Suspension with Athletes' Fundamental Rights
4. Compatibility of Fixed Mandatory Sanctions with Athletes' Fundamental Rights
5. Conclusion
VII. OTHER PROVISIONS
1. Article 8: The Right to an Interpreter
2. Athlete's Consent to Binding Effect

Legal Opinion on the Conformity of the Exclusion of « Team Athletes » from Organized Training during their Period of Ineligibility with Swiss Law, including the General Principles of Proportionality and Equal Treatment / Rigozzi, Antonio. - World Anti-Doping Agency (WADA), 2008

Contents:

I. PRELIMINARY COMMENTS
1. Qualifications of the Author of this Opinion
2. Independence and Disclaimer
3. The Question Posed, the Document(s) Reviewed, and the Issues Addressed
II. THE INTERACTION BETWEEN ANTI-DOPING RULES AND THE RELEVANT PROVISIONS OF SWISS LAW
1. The World Anti-Doping Agency (WADA) and the World Anti-Doping Code (WADA Code)
1.2 The Adoption and the Implementation of the WADA Code
1.3 The Rationale of the WADA Code
1.4 The Main Features of the WADA Code
1.5 Status During Ineligibility
a. Under the 2003 WADA Code
b. Under the 2009 WADA Code
2. Protection of Personality Rights
2.1 Protection from excessive commitments (Article 27(2) CC)
a. Excessive Duration?
b. Excessive Object or Scope?
c. Conclusion
2.2 Protection against infringements of personality rights by third parties (Article 28 CC)
a. Legal or Statutory Provision
b. Consent
c. Overriding Private or Public Interest
d. Conclusion
2.3 Due process
a. Compliance with the principle of legality
b. Fair Trial
2.4 Fundamental Principles of Law
a. Proportionality
b. (Un)equal Treatment..
3. The Argument of Public Policy
Ill. GENERAL CONCLUSION AND ANSWER TO THE QUESTION POSED

WADA commissioned Judge J-P Costas, former President of the European Court of Human Rights, to provide an independent legal opinion on a number of aspects of the draft 2015 World Anti-Doping Code:

Judge Costas, fromer judge at the European Court of Human Rights, was asked to opine on eight specific matters:

1. The compatibility of the new provisions pertaining to sanctions, in particular the provisions in draft Article 10.2 of the Code, with the aforementioned principles.

2. The applicability of Article 6 § 1 of the European Convention for the Protection of Human Rights to draft Article 8.1 of the Code on disciplinary anti-doping procedures.

3. The compatibility of the principle of prohibited association in draft Article 2.10 of the Code with the aforementioned principles.

4. The compatibility of draft Article 10.12 of the Code (payment of cost awards as a condition for eligibility) with the aforementioned principles, in the light of the decision of the Swiss Federal Court in the Matuzalem case.

5. The compatibility of the publication of sanctions, in particular of draft Article 14.3.4 of the Code with the aforementioned principles.

6. The compatibility of the statute of limitations under draft Article 17 of the Code with the aforementioned principles.

7. Is it compatible or incompatible with human rights and the aforementioned principles to render an athlete or any other person ineligible for life for a second or third violation?

8. In view of the international standards regarding human rights, may anti-doping controls be performed on athletes anywhere, including at the athlete’s «residence», for example in a hotel room, and at any time including at night between 9 p.m. and 9 a.m.?

Judge Costas took the view that the only truly problematic matter was Article 10.12 concerning repayment of cost awards. See question 4, above, opinion pp. 15 – 18. According to the Code Drafting Team, as a result this Article will be removed from the current draft 2015 Code to be sent to the WADA ExCo for consideration.

The First Instance Decision:
The Fédération Française de pétanque et jeu provençal (FFPJP) decided on 27 August to acquit the Athlete M74 after he tested positive for the prohibited substance Cocaine. Hereafter the French Anti-Doping Agency (AFLD) appealed the FFPJP First Instance Decision.

The Athlete:
M74 disputed the validity of the proceedings since the FFPJP case against him was ceased because of procedural failures. He denied the use of the substance and could not explain how it entered his system.

The AFDL:
The French Anti-Doping Agency dismissed the Athlete’s objections and contended that a high concentration of Cocaine was found in the Athlete’s sample as evidence of recent use befor the Doping Test.

The Decision:
The AFLD decides on 16 December 2015 to annul the FFPJP decision and to impose a 2 year period of ineligibility on the Athlete M74 starting on the date of the Notification.

Related case:
AFLD 2015 FFC vs Respondent M40
September 10, 2015

The Violation:
In July 2015 the French Anti-Doping Agency (AFLD) has reported an anti-doping rule violation against the Athlete M73 after he tested positive for the prohibited substances Hydrochlorothiazide, Prednisolone and Prednisone. The AFLD opened proceedings against the Athlete since the Athlete had not a licence issued by the French Triathlon Federation (FFTri).

The Athlete:
After notification the Athlete admitted the violation and denied the intentional use of these substances. He explained that he had used Prednison as a treatment for an allergic reaction and used the Hydrochlorothiazide, prescribed for his wife, to lose weight while he was unaware that these products contained prohibited substances.

The AFLD:
The French Anti-Doping Agency contended that the Athlete used these products for self treatment without a prescription and acted negligently because he failed to research these products before using.
The Agency holds that previously also an anti-doping rule violation had been reported against the Athlete and that already a two year period of ineligibility had been imposed on the Athlete on 10 September 2015 for testing positive for the substances Prednisolone and Prednisone.

The Decision:
The AFLD decides on 16 December 2015 to impose a 2 year period of ineligibility on the Athlete M73 and considers the time already served by the Athlete as a result of the sanction imposed on 10 September 2015.

The First Instance Decision:
The French Federation of Weightlifting, Fitness, Powerlifting and Bodybuilding (FFHMFAC) decided on 14 April 2015 and on 26 May 2015 to impose a 1 year period of ineligibility on the Athlete M71 after his samples, collected in January 2015 and in March 2015, tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine). Hereafter the French Anti-Doping Agency (AFLD) appealed the FFHMFAC First Instance Decision.

The Athlete:
M71 denied the intentional use of the substance, asserted that the supplement Jack 3D Micro he used was the source of the positive tests.

The AFDL:
The French Anti-Doping Agency contended that the Athlete had a duty to reseach his supplements before using, that he failed to produce evidence in support of his assertion while it was noted that the substance was not mentioned on the label of the product.

The Decision:
The AFLD decides on 16 December 2015 to reform the two FFHMFAC decisions and to impose a 2 year period of ineligibility on the Athlete M71 starting on the date of the Notification.

The First Instance Decision:
The French Ski Federation (FFS) decided on 25 August 2015 to impose a 5 month period of ineligibility on the Athlete M70 for her 3 whereabouts filing failures in a 12 month period. Hereafter the French Anti-Doping Agency (AFLD) appealed the FFS First Instance Decision.

The Athlete:
M70 admitted the violation, denied that her failures were intentional and explained the circumstances. She acknowledged that she acted negligently, that she was unaware of the consequences of her whereabout failures despite she had received warnings from the FFS.

The AFDL:
The French Anti-Doping Agency contended as a result of her 3 whereabouts filing failures the Athlete committed an anti-doping rule violation. The Agency deemed that the Athlete acted negligently but also considered the circumstances as explained by the Athlete.

The Decision:
The AFLD decides on 2 December 2015 to reform the FFS decision of 25 August 2015 and to impose a 1 year period of ineligibility on the Athlete M70 starting on the date of the notification.

The Violation:
The French Anti-Doping Agency (AFLD) has reported an anti-doping rule violation against the Athlete M69 after he tested positive for the prohibited substances 19-norandrosterone, 19-noretiocholanolone, (Nandrolone), Boldenone, Drostanolone, Oxymetholone, Stanozolol and Trenbolone.
The AFLD openened proceedings against the Athlete since the Athlete had not a licence issued by the French Federation of Weightlifting, Fitness, Powerlifting and Bodybuilding (FFHMFAC).

The Athlete:
After notification the Athlete denied the intentional use of these substances, accepted the sanction and explained that was engaged in bodybuilding for 20 years only for his passion and as a hobby.

The AFLD:
The French Anti-Doping Agency contended that the multiple prohibited substances used by the Athlete and found in his sample justifies the imposition of a 4 year period of ineligibility.

The Decision:
The AFLD decides on 2 December 2015 to impose a 4 year period of ineligibility on the Athlete M69.