The WADA World Anti-Doping Code: The Road to Harmonisation

1 Apr 2003

The WADA World Anti-Doping Code: The Road to Harmonisation / Janwillem Soek. - (International Sports Law Journal (2003) 2 : p. 2-11)

Content:
1.) Introduction
2.) Description of the doping offence (violation of the anti-doping rule)
2.1.) The definition of doping
2.2.) Description of the doping offence
3.) Out-of-competition testing
4.) Procedure after testing positive
5.) Provisional suspension
6.) Sanctions
6.1.) Sport sanctions
6.2.) Disciplinary sanctions for individuals
6.3.) Disciplinary sanctions for teams
6.4.) Remission of sentence
6.4.1.) Exceptional circumstances
6.4.2.) Cooperation in the investigation
6.5.) Reinstatement
7.) Right of the defence
8.) Proof of doping
9.) Appeals
10.) Athlete support personnel
11.) The role of the ADOs and NADOs
12.) Summary

The description of the doping offence has been laid down somewhat oddly in the WADC. No longer is the starting point the undesirable human act which is punished; instead it is the violation of anti-doping
rules. These rules describe the outcome of a human act. The way in which these matters are regulated by the WADC is neither elegant, nor transparent. The WADC provisions not only concern the athletes, but also persons from their entourage. The system providing for strict liability after a sample has tested positive in a laboratory may lead to the punishment of innocent people. The author argues in favour of the simple reversal of the burden of proof whereby the athlete is presumed guilty but is at least given the opportunity to prove his/her innocence.

The Legal Nature of Doping Law

1 Jul 2012

The Legal Nature of Doping Law / Janwillem Soek. – (International Sports Law Journal (2002) 2 : p. 2-7)

Content:
- Doping as a social phenomenon
- The legal instruments
- Conclusion

In the disciplinary law concerning doping, use has to be made of the principles and doctrines which have reached maturity in the sanctioning systems of the states, i.e. criminal law, and which are universally recognized, in order to attain a just and fair balance between the interests of the prosecuting sport organization and the prosecuted athlete who is suspected of having used doping.

AFLD 2011 FFR vs Respondent M97

27 Oct 2011

Facts
The French Rugby Federation (Fédération Française de Rugby, FFR) charges respondent M97 of a violation of the Anti-Doping Rules. During a match on January 9, 2011, a sample was taken for doping test purposes. The sample tested positive on a metabolite of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list and is regarded as a specified substance.

History
The respondent had used cannabis two days before the doping test during an festivity in the evening. There was no intention to enhance sport performance.

Decision
1. The sanction is a period of ineligibility of six months, in which the respondent can't take part in competition or sports manifestations organized or authorized by the FFR.
2. The period of ineligibility will be reduced by the period already served by the decision of March 25, 2011, by the disciplinary committee of the FFR.
3. The decision of March 25, 2011, by the disciplinary committee of the FFR should be modified.
4. The decision will start on the date of notification.
5. The decision will be published and sent to the parties involved.

The Shepherd's Courage : The Olympic Movement Anti-Doping Code

1 Apr 2012

The Shepherd's Courage : The Olympic Movement Anti-Doping Code / Janwillem Soek, Emile Vrijman. – (International Sports Law Journal (2002) 1 : p. 6-13)

Content:
1.) Introduction
2.) A comparison
2.1.) The description of the doping offence
2.1.1) The definition of doping
2.1.2) Doping as a petty offence
2.1.3) Intentional doping
3.) Liability
3.1.) Strict liability
3.2.) Culpable liability
3.3.) Liability in case of intentional doping
4.) Sanctions
4.1.) Sanctions in case of a regular or "non-aggravated" doping offence
4.2.) Sanctions in case of an aggravated doping offence
4.3.) Competitors and athletes
4.4.) Sports sanctions
4.5.) No possibility of reinstatement
5.) Conducting doping trials
5.1.) The rights of the accused
5.2.) The position of IOC accredited laboratories in doping tials
5.3.) The relationship between the IOC and the CAS
6.) Conclusion

With the appearance in 1995 of the Medical Code the International Olympic Committee (IOC) for the first time united its hitherto fragmented doping regulations in one comprehensive document. In addition to banning the use of prohibited (classes of ) substances and providing directions and guidelines for carrying out doping controls, the IOC Medical Code further strictly banned the trafficking of prohibited (classes of ) substances, provided further instructions with respect to the accreditation and practices of the so-called “IOC accredited doping control laboratories” and, in case of violation of its provisions, established sanctions for both athletes and their entourage.
Because of its’ comprehensive character, the IOC Medical Code has been the focal point over the past years in the debate within the international sports community concerning the harmonisation of anti-doping rules and regulations. Not surprisingly and not widely publicized, one of the first tangible results of the “World Conference on Doping in Sport” which took place in early 1999, turned out to be a revised Medical Code, the so-called “Olympic Movement Anti-Doping Code”.

The IOC motto “Citius, altius, fortius” does not readily apply to the ADC. On the contrary, compared to the MC and from a legal point of view, it is fair to say that matters have deteriorated rather than
improved, especially where the definition of doping is concerned. It seems as if the IOC wishes to depart from the well established and clear principle of strict liability in doping cases in exchange for a more variable system of incurring liability. It is clear that this does not aid the transparency of the subject matter and will probably cause unnecessary confusion.
Finally, one may wonder if and to what extent the IOC and the international sports governing bodies, in their continuing efforts to protect the positive social values of sports by continuing “strengthening” of their anti-doping rules and regulations, are not in effect violating more general fundamental human rights and principles themselves. This can never be the goal of creating effective antidoping rules and regulations. Nevertheless, it now appears as if every sense of direction and proportion is being lost.

The definition of doping and the proof of a doping offence

1 Apr 2002

The definition of doping and the proof of a doping offence / Klaus Vieweg, Christian Paul. – (International Sports Law Journal (2002) 1 : p. 2-6)

Content:
1.) Introduction
2.) The Definition of Doping
3.) The Proof of a Doping Offence
3.1.) Strict Liability?
3.2.) Prima-facie Proof of Doping
3.3.) Contamination with Forbidden Substances and the Question of Cut-off Limits
3.4.) "Undetectable" Doping and Medical Monitoring
4.) Conclusions

Disputes in athletics, and in sport generally, were still relatively rare a few decades ago, especially disputes involving the athletes themselves. However, the control of doping as well as commercialisation and professionalization have altered the situation. The earnings of professional athletes have become so considerable that in each case the sanction for a doping offence can have a major impact on the athlete’s career and profession, with his economic losses amounting to a very substantial sum of money. This was recently demonstrated by the judgement of the Landgericht Munich I in which more than 600,000 Euro was awarded. Moreover sanctions in doping cases may make commercial contracts void and therefore extend its impact beyond the world of sport. This illustrates the need for a legally acceptable definition of doping and the importance of questions of proof, for in many cases the career of an athlete depends on these findings.

There is no common legal definition of the term doping. Doping can either be defined in an abstract manner or in a pragmatic way, the latter predominant. According to this pragmatic definition, the mere presence of a forbidden substance in an athlete’s body constitutes a doping offence and can lead to the disqualification of the athlete. On the other hand, in relation to sanctions, in particular bans, proof of culpability is necessary. The burden of proof of the offence lies with the accusing party, i.e. the sports organisation, which is made easier due to the principle of “primafacie” proof. Nevertheless the athlete can defend himself by providing evidence that the finding of the substance was due to a reason other than the application of the substance. This is relevant with regard to substances which are produced naturally by the human body. For these substances, cut-off limits have to be established to separate the permitted natural state of the body from the forbidden manipulation. In relation to sanctions, the athlete has to rebut the presumption that the finding of the substance in the body was due to intention or negligence on the part of the athlete. However it is very difficult to present credible facts to negate negligence and for this reason the rebuttal of the presumption has seldom succeeded.

KNBSB 2011 KNBSB Decision Appeal Committee 2011026 B

21 Dec 2011

On 6 July 2011 the Koninklijke Nederlandse Baseball en Softball Bond (KNBSB), the Royal Dutch Baseball and Softball Federation, decided to impose a 9 month period of ineligibility on the Athlete after his sample tested positive for the prohibited substance cannabis.

Hereafter the Athlete appealed the KNBSB decision of 6 July 2011.
The Athlete did not dispute the positive test or the anti-doping rule violation. The Athlete invoked the principle of proportionality due to the imposed sanction is too severe. In Addition the Dopingautoriteit, Anti-Doping Authority the Netherlands, provided information to the KNBSB to determine the sanction related to cannabis anti-doping rule violations in the Netherlands.

The Appeal Committee concludes that the imposed sanction was disproportional. Therefore the KNBSB Appeal Commission decides to set aside the decision of the KNBSB Disciplinary Committee of 6 July 2011 and to impose a reprimand on the Athlete.

KNBSB 2011 KNBSB Decision Disciplinary Committee 2011026 T

29 Jun 2011

The Koninklijke Nederlandse Baseball en Softball Bond (KNBSB), the Royal Dutch Baseball and Softball Federation, has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance cannabis.

At the hearing the Athlete admitted the use of cannabis. Without intention to enhance sport performance the KNBSB Disciplinary Committee decides to impose a 9 month period of ineligibility, starting on 1 July 2011.

Nevobo 2012 Nevobo Decision Disciplinary Committee 2012024 T

14 Jul 2012

In June 2012 the Nederlandse Volleyball Bond (Nevobo), the Netherlands Volleyball Association, has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance cannabis. After notification the Athlete filed a statement in his defence and waived his right to be heard for the Nevobo Disciplinary Committee.

The Athlete admitted the use of the substance and stated he wasn’t aware of the consequences of smoking cannabis.
Considering the circumstances the NeVoBo Disciplinary Committee decides only to reprimand the Athlete on 14 July 2012.

KNHB 2012 KNHB Decision Disciplinary Committee 2012052 T

28 Nov 2012

In October 2012 the Koninklijke Nederlandse Hockey Bond (KNHB), the Royal Netherlands Hockey Federation, has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substances methylenedioxymethamphetamine (MDMA) and cocaine.

After notification a provisional suspension was ordered and the Athlete was heard for the KNHB Disciplinary Committee.
The Athlete admitted he had used MDMA and cocaine at a party one week before the doping test. He expressed his regret for the violation and stated that he had no intention to enhance his sport performance.

Considering the circumstances and with no significant fault or negligence, the KNHB Disciplinary Committee decides to impose a 1 year period of ineligibility on the Athlete, starting on the date of provisional suspension, i.e. on 11 October 2012.

ISR 2013 KNKF Decision Disciplinary Committee 2013018 T

18 Jul 2013

In May 2013 the Koninklijke Nederlandse Krachtsport en Fitnessfederatie (KNKF), the Royal Netherlands Power Sport and Fitness Federation, has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substances 2α-methyl-5α-androstan-3α.-ol-17-one (metabolite of drostanolone) and 19-norandrosterone (metabolite of nandrolone).

After notification a provisional suspension was ordered.
The Athlete failed to submit a statement in his defence nor did he attend the hearing of the KNKF Disciplinary Committee.
Without the Athlete’s statement the KNFF Disciplinary Committee decides on 18 July 2013 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 6 May 2013.
Fees and expenses for this committee shall be borne by the Athlete.

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