The Application of Criminal Law on Doping Infractions and the ‘Whereabouts Information’ Rule: State Regulation v Self-Regulation / Gregory Ioannidis. – (International Sports Law Journal (2010) 1-2 : p. 14-25)
Content:
- Introduction
- The historical framework
- The theoretical framework
- The consequences for failing to submit ‘Whereabouts Information’ and/of missing tests
- The burden of proof in doping trials
- The application of criminal law on doping infractions: can a coercive response be justified?
- Main justification
- The Public Interest Theory
- The nature of anti-doping regulatory mechanisms
- The application of criminal law on doping infractions – a jurisprudential justification
- The Public Interest Theory and the Legal Enforcement of Morality
- Conclusion
The “Whereabouts Information” (WIR) is part of the “non-analytical finding” cases, which do not require a finding of a positive result of an anti-doping test for the application of sanctions on anti-doping rules violations. Instead, they require that the athlete fail to submit whereabouts information and/or fail to be present, for an anti-doping test, during the chosen time and place of his/her whereabouts information. The WIR, therefore, is a prerequisite for a “missed test”; before the sanction of an anti-doping violation could be applied on an athlete and during the analysis the reader must always keep the two together.
The consequences, for an athlete, of failing to adopt, apply and follow the WIR are immense. When an athlete fails to submit up to dated whereabouts information or is not where his information states he should be and an officer attempts to test the athlete unsuccessfully, the athlete, according to the World Anti-Doping Code, is deemed to have missed the test and he would be the subject of an evaluation of a missed test. Three missed tests in a consecutive period of eighteen months constitute an anti-doping violation, which carries a sanction of ineligibility from all competitions.
It is becoming increasing clear that there is dissatisfaction amongst many commentators and athletes, that the way anti-doping is organized and regulated today, is unfair and unjust and it lacks transparency and efficiency. It is also evident from decided doping cases, that not always the athletes’ rights are observed. This argument serves as a catalyst for the introduction of criminal law on doping infractions.
Before a State invokes such powerful machinery, however, a framework of co-operation and education must first be established.
