Implementation of the WADA Code in the European Union / Robert C.R Siekman, Janwillem Soek. – (International Sports Law Journal (2011) 1-2 : 73-74)

A.) Relationship between the national rules and regulations and the WADA Code

• Implementation UNESCO Anti-Doping Convention
• Differences anti-doping rules and regulations form the WADA Code
• Differences prevention of doping envisaged in the Code
• Rules and regulations WADA compatible with the present WADA Code, 2009 version
• Use of the ADAMS database
• Therapeutic Use Exemption Committee established

B.) Specific points of attention

• Exchanging information beween anti-doping organisations
• Doping sanctions imposed by other anti-doping organisations recognized and fulfilled
• Reciprocity of doping sanctions between the 27 EU Member States
• Doping controls at the request of another Member State of NADO
• Rules en regulations concerning trade and distribution of doping products
• NADO statutes
• National registered testing pool for doping tests
  o Relationship between sports federation, the public authorities and the NADO
• Application of the WADA’s Athlete Biological Passport programme

Anti-Doping Law in Sport : The Hybrid Character of WADA and the Human Rights of Athletes in Doping Cases (Proportionality Principle) / Robert C.R. Siekmann. – (International Sports Law Journal (2011) 1-2 : p. 89-96)

Content:
1.) Introduction
2.) WADA: a public-private body
3.) The Dutch billiard social drugs case and the principle of proportionality
3.1.) First instance: Instituut Sportrechtspraak: Royal Dutch Billiards Federation (KNBB) (complainant) v N. Zuijkerbuijk (defendant)
3.1.1.) Comment
3.2.) Appeal: Court of Arbitration for Sport (CAS)
3.2.1.) Comment
4.) Summary and conclusion

Content:
The special characteristic of “anti-doping law” from an institutional, organizational perspective is the fact that national governments and intergovernmental organisations (IGOs) directly participate in WADA and the close linkage between the UNESCO Convention and the WADA Code. This issue will be discussed in detail in the first part of this article. The hot issue of the legal aspects of the fight against doping in sport is the relationship between “anti-doping law” and the human rights of athletes in doping cases, that is the applicability of general public human rights law to doping in sport. In the second part of the article a case of this type in which in 2009 this author was personally involved as a member of the appeals committee of the Instituut Sportrechtspraak [Netherlands Institute for Sport Adjudication] will be presented. The Appeals Board’s decision was finally submitted to the CAS which was and still is the first time in history with regard to a Dutch case.

Maltese Doping Cases / Claude Ramoni. – (International Sports Law Journal (2010) 3-4 : p. 178-181)

Content:
- Background facts
- Admissibility of the appeal
- Applicable Rules on the merit – FIFA or MFA regulations?
• Was the FIFA Disciplinary Code directly applicable?
• Did article 60 par. 2 of the FIFA Statutes compel the panel to apply FIFA regulations?
• Was the FIFA Disciplinary Code applicable by reference?
• Comment
- Sanctions
- Conclusion

At the end of 2007 and the beginning of 2008, three Maltese football players, Mattocks, Martin and Grech tested positive for prohibited substances and were suspended for 4 months (Mattocks), 9 months (Martin) and 12 months (Grech) by the Malta Football Association (MFA).
Both WADA and FIFA appealed all three decisions rendered by MFA. It seemed quite obvious to FIFA and WADA that the sanctions imposed by the MFA were not in line with the provisions of the then applicable FIFA Disciplinary Code (the 2007 FDC) or of the World Anti-Doping Code (WADC). FIFA and WADA therefore were of the opinion that all three sanctions imposed by MFA were too lenient.

The effect of the appeals lodged by FIFA and WADA in the cases of the Maltese players was to allow the CAS to review decisions rendered in application of national Maltese rules, which do not provide for a right of appeal by FIFA or WADA... The panel partially upheld two out of the three appeals, imposing however, sanctions which are not in line with the FDC or the WADC. This (practical) result does not seem in line with the purpose of the appeal by FIFA and WADA in doping matters as provided for under the FIFA Statutes.

The Need for WADA to Address Confidentiality Leaks in Drug Testing in Olympic Sports – The Ian Thorpe Situation / John T. Wendt. – (International Sports Law Journal (2010) 3-4 : p. 47-54)

Content:
- Introduction
- Thorpe’s Accomplishments
- Thorpe as an Anti-Doping Crusader
- Ressiot and l’Equipe
- Reactions to the Leak and Accusation
- WADA and Confidentiality
- Thorpe and Ressiot
- FINA, ASADA and Thorpe
- Thorpe Sues Ressiot and L’Equipe
- Reforms and Need for Confidentiality
- Changes to the World Anti-Doping Code
- Conclusion
- References

Ian Thorpe is an Australian successful elite level swimmers.
Thorpe has also been one of the leading opponents of doping.
He was a founding athlete-member of the World Anti-Doping
Association’s (WADA) “Athlete’s Passport” Program and was one of the first to provide blood samples to be frozen for future testing in accordance with WADA’s new testing procedures (World Anti-
Doping Code Annual Report, 2002). But, that reputation was tarnished when someone leaked confidential information to Damien Ressiot, a journalist for the French newspaper, L’Equipe, who accused Thorpe of committing a doping offense. For Ian Thorpe, there were two volatile issues − first, the truth of the allegations, and second the breach of confidentiality of his personal records.

Confidentiality is at the heart of any drug testing program. Names should not be revealed, unless it is firmly and legally established that a doping offense has been committed. A breach of confidentiality and media leaks undermine the entire system. It is essential that there is confidentiality throughout the whole process until there is a finding that an individual has in fact committed a doping offense. This comment looks at the breach of confidentiality of Ian Thorpe’s records, and the need for WADA to act to remedy the problem.

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.

Sanctions for Anti-Doping Rule Violations in the Revised Version of the World Anti-Doping Code / Alessandro L. Celli, Lucien W. Valloni, Dmitry A. Pentsov. – (International Sports Law Journal (2008) 3-4 : p. 36-42)

Content:
1.) Introduction
2.) The definition of “Doping” and the principle of strict liability for anti-doping rule violations
3.) Innovations concerning sanctions on individials
3.1.) New definition of “specified substances” and its impact on the existing system of sanctions
3.2.) Broadening the possibilities of elimination or reduction of period of ineligibility based on no fault or nog significant fault or negligence
3.3.) Strengthening of incentives to come forward
3.4.) Greater flexibility of sanctions in case of multiple violations
3.5.) Introduction of aggravating circumstance which may increase the period of ineligibility
4.) Innovations concerning consequences of anti-doping rule violations to teams
5.) Lessons for the future

On November 17, 2007, the World Anti-Doping Foundation Board has approved a revised World Anti-Doping Code, which will enter into force on January 1, 2009 (the “WADC-2009“).
The revised version of the Code contains a number of major innovations, notably as concerns sanctions for anti-doping rule violations. These innovations reflect two general themes which emerged during the Code’s review - firmness and fairness - both targeted at strengthening the fight against doping in sport.
Correspondingly, the purpose of this Article is to analyze the most important innovations concerning sanctions focusing on their practical consequences for athletes and teams.

Anti-Doping in and beyond the European Commission’s White Paper on Sport / Jacob Kornbeck. – (International Sports Law Journal (2008) 3-4 : p. 30-35)

Content:
1.) Introduction
2.) Discussion of anti-doping and the EU in legal literature
3.) The White Paper on Sport: nature, structure and rationale
4.) Proposals regarding the fight against doping
5.) Beyond the White Paper
6.) Conclusion

The White Paper on Sport has allowed the EU to make an entry on the anti-doping scene. This move has been generally well received by stakeholders. Although the White Paper does not propose legislative
action at EU level, it may have an informal impact on legislation nationally, and it certainly confirms the impression that a stronger role for governments is increasingly becoming acceptable. In the field of sport, this is more epochal than it might seem at first glance.
Although the EU does not have the ambition to step in and become a regulator of sport, the White Paper may later prove to have been part of a wider trend, and its doping section may have proven the point with particular clarity.

Ms. Nan Aye Khine is a Myanmar Athlete competing in weightlifting at the Athens 2004 Olympic Games.

On 15 August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her sample tested positive for a prohibited anabolic steroid.
The Athlete admitted she used a herbal remedy on regular basis without research of the ingredients before using.

The IOC Disciplinary Commission unanimously concludes that the Athlete had committed an anti-doping rule violation. Therefore on 16 August 2004 the IOC Executive Board decides, as recommended by the IOC Disciplinary Commission, that the Athlete Ms Nan Aye:
1.) is disqualified from the women’s 48 kg weightlifting event, where she had placed fourth;
2.) is excluded from the Games of the XXVIII Olympiad in Athens in 2004; and
3.) shall have her Olympic identity and accreditation card be immediately withdrawn.
4.) The International Weightlifting Federation is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of Myanmar is ordered to return to the IOC, as soon as possible, the diploma awarded to the Athlete in relation to the above-noted event.
6.) This decision shall enter into force immediately.

Related case:
CAS OG_2004_04 David Munyasia vs IOC
August 15, 2004

Mr David Munyasia is a Kenyan Athlete competing in the boxing event at the Athens 2004 Olympic Games.

On 8 August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance cathine.
The Athlete denied taking any medical substance, other than an antibiotic and offered no explanation on how the prohibited substance came into his body.

The IOC Disciplinary Commission unanimously concludes that the Athlete had committed an anti-doping rule violation. Therefore on 10 August 2004 the IOC Executive Board decides, as recommended by the IOC Disciplinary Commission, that the Athlete David Munyasia:
1.) is excluded from the Games of the XXVIII Olympiad in Athens in 2004; and
2.) shall have his Olympic identity and accreditation card be immediately withdrawn.
3.) The International Boxing Association (AIBA) is requested to consider any further action within its own competence.
4.) This decision shall enter into force immediately.

AAA No. 77190 00225 12 USADA vs Johan Bruyneel
AAA No. 77190 00226 12 USADA vs Pedro Celaya
AAA No. 77190 00227 12 USADA vs José Martí Martí

Related cases:
CAS 2013_A_3285 Johan Bruyneel vs USADA
May 13, 2014
Swiss Federal Court 4A_222_2015 Johan Bruyneel vs USADA & WADA
January 28, 2016
CAS 2014_A_3598 Johan Bruyneel & Jose Martí vs USADA | WADA vs Johan Bruyneel, Pedro Celaya Lezama, Jose Martí Martí & USADA - Partial Award
October 24, 2018

- Mr. Bruyneel served as a team director for the U.S. Postal Service team between 1999 and 2004 and the Discovery Channel team between 2005 and 2007.
- Dr. Celaya served a team physician for the U.S. Postal Service team in 1997, 1998, and 2004 and the Discovery Channel team between 2005 and 2007.
- Mr. José Martí served as a team trainer for the U.S. Postal Service team between 1999 and 2004 and the Discovery Channel team between 2005 and 2007.

On June 2012 USADA informed Respondents, Mr. Lance Armstrong and others that a formal action was opened based on evidence that each party had engaged in anti-doping violations under the UCI Rules from 1998 to 2012, the World Anti-Doping Code (WADC) from inception to 2012 and the USADA Protocol for Olympic and Paralympic Movement Testing from inception to 2012.

All three Respondents are charged of possession, trafficking, administration and to have assisted, encouraged, and facilitated the use of prohibited doping agents to the professional cyclists on these U.S.-based teams. The banned doping agents and methods alleged to have been administered in this case: erythropoietin, hGH, blood transfusions, cortisone, testosterone and/or saline, plasma or glycerol infusions.

After given notice by USADA, the Respondents filed several objections and evidence in their defence and were heard for the Panel of the North American Court of Arbitration for Sport (NACAS).
The Panel was asked by USADA here to consider applying equitable doctrines to extend the applicable statute of limitations period beyond the express period set forth in Article 17 of the WADC.
The Panel allowed USADA to present all of its evidence, including acts undertaken before the limitations period. The Panel did not consider that evidence in making this Award, even for corroborating the evidence of acts within the limitations period.

Against the Respondents, USADA submitted in this case several affidavits and sworn testimonies of cyclists and riders for the U.S Postal Service and Discovery Channel teams:
- Michael Barry
- Tom Danielson
- Tyler Hamilton
- George Hincapie
- Floyd Landis
- Levi Leipheimer
- Christian Vande Velde
- David Zabriskie

The Panel of the North American Court of Arbitration for Sport (NACAS) concludes that USADA had presented sufficient evidence of acts in violation of the UCI ADR taken within the limitations period to support the charges against each Respondent. On the basis of the facts, legal analysis, and conclusions of fact, this Panel renders the following decision:

(A) USADA has sustained its burden of proof as to all Respondents. As a result, Respondents have each committed their first doping violations under Article 2.1 of the 2009 version of the WADA Code, with the presence of aggravating circumstances. Therefore, the Panel imposes a period of ineligibility for each Respondent as follows:

(1) Mr. Johann Bruyneel: 10 years, starting from June 12, 2012 and continuing through and including June 11, 2022;
(2) Dr. Pedro Celaya: 8 years, starting from June 12, 2012 and continuing through and including June 11, 2020; and
(3) Mr. José Martí Martí: 8 years, starting from June 12, 2012 and continuing through and including June 11, 2020.

(B) The parties shall bear their own attorney’s fees and costs associated with this arbitration;
(C) The administrative fees and expenses of the American Arbitration Association, and the compensation and expenses of the arbitrators and the Panel, shall be borne entirely by USADA and the United States Olympic Committee;
(D) This Award shall be in full and final resolution of all claims and counterclaims submitted to this Arbitration. The Panel has considered all of the arguments made by the parties, whether or not they are specifically referenced in this Award. All claims not expressly granted herein are hereby denied; and
(E) This Award may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute together one and the same instrument.