An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports / Richard H. McLaren.- (Marquette Sports Law Review 16 (2006) 2 (Spring)
As new technologies for detecting drug violations in sport struggle to keep up with the creation of new doping substances and methods, non-analytical positive cases have become a more prominent tool in the fight against doping. Although doping offenses are most commonly established by direct evidence, where a positive analytical result from an accredited laboratory directly shows that an athlete had a prohibited substance in his or her body, situations will arise where only circumstantial evidence points to the commission of a doping offense. The challenge in such cases will be to prove the use of prohibited substances or techniques without direct evidence.
A circumstantial evidence case can be troublesome because the benefit from the concept of strict liability is eliminated. Strict liability has evolved in the jurisprudence of the Court of Arbitration for Sport (CAS) and has been adopted in the World Anti-Doping Agency Code (WADA Code). Strict liability means that a doping violation occurs when a banned substance is found in an athlete's body. The conclusion that an infraction occurred is not based upon intent or lack thereof.
Contents:
I. Introduction
II. Types of Non-Analytical Positive Cases
III. Pre WADA Code
A.) Summary of Burden and Standard of Proof Before WADA
B .) Summary of Cases
i. Michelle Smith de Bruin
ii. Mark French
iii. Michelle Collins
C.) Conclusions Regarding Pre-WADA Code Cases
IV. Post-WADA Code Implementation
A.) Summary of Burden and Standard of Proof After WADA Code
Introduction
B.) Post-WADA Non-Analytical Cases
i. Galabin Boevski
ii. Tim Montgomery and Chryste Gaines
C.) Conclusions Regarding Post-WADA Cases
V .Conclusions
