Proportionality in the World Anti-Doping Code: Is There Enough Room for Flexibility? / Jannica Houben. – (International Sports Law Journal (2007) 1-2 : p. 10-18)
Content:
1.) Stict Liability
2.) Proof and Sanctions
2.1.) Proof of an Anti-Doping Violation
2.2.) Sanctions
2.3.) The limited impact of the question of guilt
3.) Proportionality
3.1.) The principle of proportionality
3.2.) Proportionality cases
3.2.1.) Pre WADC cases
3.2.2.) Post WADC cases
4.) Conclusion
The biggest advantage of the introduction of the World Anti-Doping Code in 2004 is the harmonization, but a disadvantage is that there are still some unclear matters left. The drafters of the WADC opted for a system of strict liability with mandatory (tough) penalties and a possibility of sanction reduction in the case of exceptional circumstances.
The question of fault or negligence only plays a role in the determination of the sanction. In this article, the Author will evaluate this system and the rulings by the CAS. Are the sanctions imposed proportionate to the offenses? Does the Code leave room for the use of the principle of proportionality? If yes, does the CAS use the flexibility in the Code?
In this contribution it is argued that the CAS does not interpret the Code in a correct way. Although the Code can be seen as well drafted, the CAS does not use the flexibility that is incorporated therein.
But there is hope: recently a CAS Panel held in the Puerta case that “in those very rare cases in which Articles 10.5.1 and 10.5.2 of the WADC do not provide a just and proportionate sanction, i.e., when there is a gap or lacuna in the WADC, that gap or lacuna must be filled by the Panel.”
