The definition of doping and the proof of a doping offence / Klaus Vieweg, Christian Paul. – (International Sports Law Journal (2002) 1 : p. 2-6)
Content:
1.) Introduction
2.) The Definition of Doping
3.) The Proof of a Doping Offence
3.1.) Strict Liability?
3.2.) Prima-facie Proof of Doping
3.3.) Contamination with Forbidden Substances and the Question of Cut-off Limits
3.4.) "Undetectable" Doping and Medical Monitoring
4.) Conclusions
Disputes in athletics, and in sport generally, were still relatively rare a few decades ago, especially disputes involving the athletes themselves. However, the control of doping as well as commercialisation and professionalization have altered the situation. The earnings of professional athletes have become so considerable that in each case the sanction for a doping offence can have a major impact on the athlete’s career and profession, with his economic losses amounting to a very substantial sum of money. This was recently demonstrated by the judgement of the Landgericht Munich I in which more than 600,000 Euro was awarded. Moreover sanctions in doping cases may make commercial contracts void and therefore extend its impact beyond the world of sport. This illustrates the need for a legally acceptable definition of doping and the importance of questions of proof, for in many cases the career of an athlete depends on these findings.
There is no common legal definition of the term doping. Doping can either be defined in an abstract manner or in a pragmatic way, the latter predominant. According to this pragmatic definition, the mere presence of a forbidden substance in an athlete’s body constitutes a doping offence and can lead to the disqualification of the athlete. On the other hand, in relation to sanctions, in particular bans, proof of culpability is necessary. The burden of proof of the offence lies with the accusing party, i.e. the sports organisation, which is made easier due to the principle of “primafacie” proof. Nevertheless the athlete can defend himself by providing evidence that the finding of the substance was due to a reason other than the application of the substance. This is relevant with regard to substances which are produced naturally by the human body. For these substances, cut-off limits have to be established to separate the permitted natural state of the body from the forbidden manipulation. In relation to sanctions, the athlete has to rebut the presumption that the finding of the substance in the body was due to intention or negligence on the part of the athlete. However it is very difficult to present credible facts to negate negligence and for this reason the rebuttal of the presumption has seldom succeeded.
