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
