Proportionality and the application of the World Anti-Doping Code / Herman Ram. – (International Sports Law Journal (2012) 3-4 : p. 8-11)

Content:
1.) Introduction
2.) The Athlete’s Position
2.1.) Legal Counsel
2.2.) Confidents and Activists
2.3.) Disciplinary Panels
3.) The NADO’s Position
3.1.) The Position of NADO’s in the Code
3.2.) The Position of the Dutch NADO
4.) The Approach of the Dutch Doping Authority
4.1.) Pre-Hearing Information
4.2.) Legal Opinions
4.3.) Right to Appeal
4.4.) Impartial Advice
5.) Conclusions and Discussion

the present World Anti-Doping Code (the Code) offers relevant possibilities for individual assessment of doping cases. This is not always recognized by the general public and, more importantly, it is not always understood by legal counsel, which acts on behalf of the athlete in doping cases. In other words, there is limited but relevant room for flexibility and proportionality proportionality within the Code, but this room is not always used as it could and should be.

In this article, the Author will try to shed some light on the positions of athletes (paragraph 2) and Anti-Doping Organizations (paragraph 3), in relation to the proportionality issue introduced above. In the fourth paragraph, he will describe the approach of the Dutch Doping Authority, and the fifth and last paragraph provides some conclusions and input for further discussion.

A Critical Analysis of Article 4.3 of the World Anti Doping Code / Steve Cornelius. – (International Sports Law Journal (2012) 3-4 : p. 3-7)

Content:
1.) Introduction
2.) Prohibited List
3.) Can the Prohibited List be Challenged?
4.) The Way Forward
5.) Conclusion: Proposed Amendments

This article provides a critical analysis of article 4.3 of the Code and questions whether the Prohibited List can be challenged on the grounds that one or more of the substances or methods have been inappropriately classified in terms of article 4.3 and should therefore not be included on the Prohibited List. This article does not address issues relating to the prudence or desirability to include or not to include any particular substance or method on the Prohibited List. It merely highlights flaws in the drafting of article 4.3, warns of a potential basis on which WADA and the Prohibited List can be challenged and proposes ways to deal with this risk.

The Battle over the Osaka Ruling / Daniel Gandert. – (International Sports Law Journal (2012) 1-2 : p. 111-122)

Content:
1.) Introduction
2.) Background Relating to the Osaka Rule
3.) The Need for Strict, Uniform Anti-Doping Rules
4.) The Prescribed Penalties for Doping Under the World Anti-Doping Code
5.) CAS and the Principle of Proportionality
5.1.) The History of Proportionality
5.2.) The Legal Requirement for Proportionality
6.) Cases under the Osaka Rule
6.1.) Jessica Hardy’s Case
6.2.) LaShawn Merritt’s Case
6.3.) CAS Reaches Decision Regarding the Osaka Rule
6.4.) The Effect of the CAS Decision on the Osaka Rule
7.) Conclusion

The IOC’s Osaka Rule prohibited any athlete with a doping suspension of greater than six months from competing in the next Olympic Games, even for cases where the athlete’s suspension has already been completed. In October of 2011, the Court of Arbitration for Sport (CAS) invalidated the Osaka Rule which prevented athletes who committed a doping offence inadvertently from receiving disproportionately harsh consequences relative to their violation.
The first part of this article will describe the background relating to the Osaka Rule. The second part article will describe the system in place to prevent doping. The third part will discuss the principle of proportionality.
First, the history of the principle in CAS jurisprudence will be discussed through a description of important cases. Second, the importance of proportionality will be explained. The fourth part will
describe the three cases dealing with the Osaka rule as well as the impact of these cases on the Olympic World.

Criminalization of trade and trafficking in doping substances in the European Union / Magdelana Kedzior. – (International Sports Law Journal (2012) 1-2 : p. 20-26)

Content:
- Reasons for the EU interference
- Position of the EU Commission on trade and trafficking in doping substances
- The problem of trade and trafficking in doping in national legislation
- The application of Lisbon Treaty provisions on trade and trafficking in doping substances
- Conclusion

On the European Council summit in Athens in May 2009 the Commission once again called member states (which have not done it so far) to criminalize trade and trafficking in doping substances. What is more, the Commission urged member states to criminalize the possession of doping substances with the intention to spread them on the market. Such intention raises crucial questions about EU competence in the field of harmonization and criminalization of trade and trafficking in doping as well as regards the possible legal grounds for common action of the European Union in this field.
These abstract attempts to deliver answers to the question whether the process of criminalization of trade and trafficking in doping substances on the EU level is legally feasible and if so, to what extent. It depicts reasons for the EU involvement in the area of trade and trafficking in doping and analyses the position of the EU Commission on the problem of trade and trafficking in doping substances. Moreover, it shows the outline of legal situation in the different member states of the EU. Finally respective Treaty provisions will be shortly analyzed in order to find possible legal grounds for criminalization of trade and trafficking in doping on the EU level. It is argued that such a common approach is currently possible only in certain aspects of the aforementioned problem.

Practice Makes Perfect: An analysis of the World Anti-Doping Code 2009 / John O’Leary. – (International Sports Law Journal (2012) 1-2 : p. 12-20)

Content:
- The changing legal and political landscape
- The need for anti-doping regulation
- Out of Competition Testing
- Strict Liability
- Proof of Doping
- Banned substance
• Enhancing Sport Performance
• Health Risk
- Sanctions
- The Future of Anti-Doping

The 2009 WADA Code contains some important amendments to the 2003 code. The objects of this chapter are twofold: to evaluate the importance of the World Anti- Doping Code (the Code) in the light of a changing legal and political landscape and to evaluate whether the 2009 Code improves on the 2003 model by satisfactorily balancing between the right of individual athletes to complete with the desire on the part of sports governing bodies to regulate effectively against those who seek to avoid anti-doping restrictions.
In this context it is necessary to consider both the legal and the sport regulatory framework because, whether it is considered conceptually as a process of juridification or as an example of legal pluralism, the interaction between law and regulation has become so interwoven that the significance to the athlete of this distinction is practically irrelevant.
Equally, as lawyers are actively involved in both the process of law and regulation, such a distinction might be considered more accurately as the difference between hard and soft law.

Mrs. Olga Pyleva is a Russian Athlete competing in the Women’s 15 km Individual Biathlon at the Torino 2006 Winter Olympic Games.

On 15 February 2006 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her sample tested positive for the prohibited substance carphedon.
After notification the Athlete was provisional suspended and heard for the IOC Disciplinary Commission.

The Athlete stated that she suffered from a foot injury one month earlier and therefore used the prescribed medication phenotropile.

The doctor of the Russian Olympic Committee, informed the Disciplinary Commission that the Russian Olympic Committee knew that the substance Carphedon was contained in the medicine phenotropile. The Russian Olympic Committee requested on several occasions the manufacturer to indicate the presence of Carphedon in the medicine, which was not done. In addition, the Russian Olympic Committee published several articles warning the athletes and other concerned persons of the presence of Carphedon in this medicine.

The Disciplinary Commission unanimously concluded that the Athlete had committed a doping offence pursuant to Article 2.1 of the Rules in that there was the presence of the prohibited substance Carphedon in her body.

Therefore on 16 February 2006 the IOC Disciplinary Commission decides that the athlete Mrs Olga Pyleva:
1.) is disqualified from the Biathlon, Women’s 15 km Individual, where she had placed second;
2.) is excluded from the XX Olympic Winter Games in Torino in 2006;
3.) shall have her Olympic identity and accreditation card be immediately withdrawn.
4.) The International Biathlon Union is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The Russian Olympic Committee is ordered to return to the IOC, as soon as possible, the Medal and the Diploma awarded to the Athlete in relation to the above-noted event.
6.) This decision shall enter into force immediately.

Doping and Olympic Games in Italy : A comparative analysis between sports regulations and Italian criminal law in the light of the events of Torino 2006 / Lucio Colantuoni, Elisa Brigandi, Edoardo Revello. – (International Sports Law Journal (2012) 1-2 : p. 41-42)

Content:
Part I – Doping and Italian Regulations
1.) The Regulatory Frameword On Doping
1.1.) Introduction: the global evolution of the fight against doping
1.2.) The regulatory framework in Italy and the enactment of Law n. 376/2000
2.) A Comparative Analysis Amongst Sports Regulations and Criminal Law
2.1.) The mutual autonomy of the Italian criminal proceeding and the anti-doping sporting proceeding
2.2.) A critical, comparative analysis of the two systems: rules and sanctions
2.3.) The classification of the doping substance: requirements for the application of Law n.376/2000 and the disciplinary provisions
2.4.) The subjective and objective aspects on doping under the criminal law and the disciplinary regulations
2.5.) The disciplinary relevance of the refusal to submit to doping controls and the absence of contradictory
Part II – Doping and Olympic Games in Italy: the cases during Torino 2006:
3.) The Suspension Request of Law N.376/2000 in Occasion of Torino 2006: The Position of the Italian Government and the so called “Storace” Decree
4.) The Anti Doping Controls During Torino 2006
5.) The Judicial and Disciplinary Cases on Doping During Torino 2006
5.1.) The facts
5.2.) The disciplinary proceedings: current status
5.2.1.) The case of Olga Pyleva
5.2.2.) The case of the Austrian Cross Country and Biathlon National Team
Conclusions

There is a general shared opinion that a severe fight against doping should be conducted with increasingly rigid measures not only from a sporting point of view but also with the intervention of the criminal law. In fact, doping represents a plague which pollutes and oppresses those values at the bottom of the Olympic spirit itself. And some countries, like Italy, have enacted a specific anti doping criminal law.
Accordingly, this article has the aim of focusing and confronting the sporting regulations and the Italian criminal law on doping, by means also of the study of the disciplinary and judiciary cases on the matter during the XX edition of the Winter Olympic Games, held in Turin in 2006. Therefore, the present study shall analyze the peculiarities of the Italian fight against doping, which caused many concerns before the Games, due to the fact that the government had qualified doping as a criminal offence. As a matter of fact, it could have created some critical issues towards the sports legal order, as well as deterrent effects in choosing Italy as the host country of the Games.

Strict Liability and Sports Doping – What Constitutes a Doping Violations and What Is the Effect Thereof on the Team? / Niel du Toit. – (International Sports Law Journal (2011) 3-4 : p. 163-164)

Content:
- Introduction
- The IOC
- Violations
- Arguments in favour of Strict Liability
- Consequences of doping violations on team sports

Implementation of the WADA Code in the European Union / Robert C.R Siekman, Janwillem Soek. – The Hague : T.M.C. Asser Intitute, 2010. – 48 p. : fig. – Report commissioned by Philippe Muyters, Flemish minister for Finance, Budget, Work, Spatial Planning and Sport, responsible for sport in view of the Belgian Presidency of the European Union in the second half of 2010

Content
A.) Relationship between the national rules and regulations and the WADA Code
A.l In what way has the UNESCO Anti Doping Convention been implemented in your country?
A.2 On which points do the anti-doping rules and regulations in your country differ from the WADA Code?
A.3 On which points does your country’s practice differ from the prevention of doping envisaged in the Code
A.4 Have your rules and regulations been declared WADA compatible with the present WADA Code, 2009 version?
A.5 Does your country make use of the Anti-Doping Administration and Management System (the ADAMS database), which the WADA makes available to all stakeholders?
A.6 Has a TUEC or Therapeutic Use Exemption Committee been established in your country?
A.7 Are all five International Standards of the WADA and the 2009 Code fully applicable in your country?
B.) Specific points of attention
B.1 With which anti-doping organisations (ADOs) – both national and international – are you currently exchanging information?
B.2 Are the doping sanctions imposed by other ADOs recognized and carried out in your country?
B.3 What is your opinion concerning a mechanism for reciprocity (mutual recognition) of doping sanctions between the 27 EU Member States?
B.4 Do you ever carry out doping controls at the request of another Member State or NADO?
B.5 Which rules and regulations apply in your country concerning trade and distribution of doping products?
B.6 What are your NADO’s statutes?
B.7 How has your national registered testing pool for doping tests been defined and what does it consist of, and what is the number of sportsmen included in the registered pool on 1 February 2010?
B.8 What is the relationship between the sport federations, the public authorities and the NADO in your country?
B.9 Does your NADO already apply the WADA’s Athlete Biological Passport programme in the fight against doping?
Conclusions
International and national legislation and regulations

In this report, the T.M.C. Asser Instituut presents the results of its study. Its inventory was undertaken on the basis of the attached questionnaire which was distributed amongst the relevant government departments and/or agencies with primary authority in the area of sport in each Member State and amongst the National Anti-Doping Organisations (NADOs) in the European Union.

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