Abstract
This Chapter explains how the analysis will concentrate on international doping cases before the Court of Arbitration for Sport (“Court of Arbitration for Sport” or “CAS”) (Sect. 2.1) and uses as a starting point the evidentiary regime enshrined in the revised 2015 WADC and related documents (Sect. 2.2). The focus on the interplay between science and law—beyond highlighting the need for confronting different perspectives on anti-doping—naturally brought the spotlight onto “analytical” cases, i.e. cases in which all or part of the evidence relied upon is derived from a laboratory analysis, with the ultimate goal of providing an insight both into traditional and novel approaches to scientific evidence in Doping Control (Sect. 2.3).
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Notes
- 1.
Dvorak et al. 2014a, p. 2 et seq.
- 2.
With respect to genetic polymorphism in steroid profiling, Kuuranne et al. 2014, p. 1; see also the determination of the decision limits for the recombinant human Growth Hormone test, described in CAS 2011/A/2566, Veerpalu v. FIS, para 83 et seq.; for anabolic steroids and the difference of T/E ratio in different populations, see Minutes WADA ExCo Meeting 11 September 2013, p. 34.
- 3.
WADA Report on the Lack of Effectiveness of Testing Programs, Appendix A, p. 4 et seq., addresses founding of NADOs and varying readiness to effectively target doping.
- 4.
CAS 2005/C/976 & 986, FIFA & WADA, para 12; Adolphsen 2010, p. 62 (“eine Art Modellgesetz für nationale Regelungen”).
- 5.
The Olympic Movement Anti-Doping Code (“OMAC”, applicable to Olympic Games and Olympic sports in general) can be seen as the ancestor of the WADC, so that many CAS award rendered in the pre-WADC era can still provide guidance for general principles (see e.g. David 2013, p. 14/15).
- 6.
See, for a brief history of anti-doping, the WADA website: https://www.wada-ama.org/en/who-we-are/a-brief-history-of-anti-doping (accessed 22.04.15); on the legal status of WADA, see Oswald et al. 2010, p. 273.
- 7.
David 2013, pp. 2–5.
- 8.
Though not a defined term under the WADC regime, “International Federation” is a capitalised term in the WADC, and will thus be equally capitalised throughout this book.
- 9.
For a survey of the key changes and the WADC review process, see Rigozzi et al. 2013b.
- 10.
Introduction & Article 23.2.2 of the WADC.
- 11.
ADOs further include the International Olympic Committee (“IOC”), the International Paralympic Committee (“IPC”) and other Major Event Organisations that conduct Testing at their Events (see “Anti-Doping Organisation”, Appendix 1 (Definitions) of the WADC).
- 12.
The Definition of National Anti-Doping Organisation, Appendix 1 (Definitions) of the WADC, provides that if no designation of a competent body has been done by “the competent public authority(ies), the entity shall be the country’s National Olympic Committee or its designee”.
- 13.
See Sect. 2.1.1.3 below.
- 14.
Furthermore, national federations may suffer financial consequences in countries in which governments have implemented Article 11 of the UNESCO Anti-Doping Convention (see Nagel 2009, p. 30 et seq.).
- 15.
For example, in the sports of cycling, the Union cycliste internationale (“UCI”) until the 2015 WADC review would delegate disciplinary proceedings to the national federations under the UCI Anti-Doping Rules (version revised Feb. 2012).
- 16.
Foster 2003, p. 14; Rigozzi 2005, n° 69; Siekmann and Soek 2010, p. 102, use the expression “sandwiched”; from a German perspective, see Berninger 2012, p. 34/35, whereby the NADA Code provides an explicit rule of conflict that the rules of the International Federation shall prevail insofar as these are consistent with the WADC and compliant with German law.
- 17.
For a description of the idea, see Siekmann 2011a, p. 91; Adolphsen 2010, p. 63.
- 18.
Latty 2011, p. 36, while admitting that “formally at least, the standards which it [WADA] produces are acts of private law”, continues that “it is not out of the question to consider that the agency’s mixed composition in a way reflects upon the law which it produces—transnational law in the hybrid sense of the term”; Adolphsen 2010, p. 64, acknowledges that the WADC is not integral part of the UNESCO Anti-Doping Convention, but adds: “Im Ergebnis werden weite Bereiche des WADA-Code in den völkerrechtlichen Vertrag des UNESCO-Uebereinkommen integriert, so dass sich der WADA-Code hierdurch von privat gesetzten Regeln zu völkerrechtlich verbindlichem Vertragsrecht wandelt” [In effect, large parts of the WADA Code are integrated into the international public law agreement of the UNESCO Convention, so that the WADA Code hereby transforms from rules set through private means into binding contractual rules of international public law (author’s translation)].
- 19.
Berninger 2012, p. 18.
- 20.
CAS 2011/O/2422, USOC v. IOC, para 45; for France, see inter alia Decision Conseil d’Etat (18 July 2011, n° 338390), para 4 & Decision Conseil d’Etat (28 October 2009, n° 327306), which clearly held that the WADC cannot be invoked by individuals in France, in the absence of an incorporation into the French Code du sport; Berninger 2012, p. 16, highlights that the relevant criterion is that WADA is a private entity of Swiss law. In fact, as a Swiss “foundation”, as opposed to an “association”, WADA does not have “members”, so that it does not even have the authority to adopt regulations which would be automatically binding even upon a restricted circle of addressees (for a similar reasoning for the German NADA, see Berninger 2012, p. 34).
- 21.
Marriot-Lloyd Paul, International Convention against Doping in Sport, http://unesdoc.unesco.org/images/0018/001884/188405e.pdf (accessed 23.04.15), p. 3; David 2013, p. 3; see also, in France, the Projet de Loi presenté au Sénat session juillet 2014, Exposé des motifs, p. 3/4, which even considers that the UNESCO Anti-Doping Convention only refers to the principles of the 2003 version of the WADC, but insists that France nevertheless strives to stay in compliance with current rules.
- 22.
Adolphsen 2010, p. 63; Berninger 2012, p. 16.
- 23.
David 2013, p. 59, mentions as an advantage of this system the fact that this makes it easier for ADOs to rely on their autonomy to counter arguments derived from the protection of the Athlete’s rights, and, as the other side of the coin, the fact that an authority over Athletes or other Persons can only be established insofar as the relevant individual has submitted to it.
- 24.
See, inter alia, CAS 2011/A/2612, Liao Hui v. IWF, para 98 et seq.; CAS 2008/A/1572, Gusmao v. FINA, para 4.58; CAS 2008/A/1718 IAAF v. All Russia Athletic Federation & Yegorova et al., para 61.
- 25.
Schmidt 2012, n° 6; CAS 2009/A/1817 & 1844, WADA & FIFA v. CFA, Marques, Eranosian et al., para 130. This is self-speaking for the WADC sections that leave a large discretion to the Signatories to develop and adopt their own rules (e.g. the results management or disciplinary process), but it is equally true for those provisions of the WADC which must be mandatorily implemented without substantive changes.
- 26.
Berninger 2012, p. 17, rightly distinguishes the circle of ADO as “Signatories” contractually bound by the WADC on the one hand, and the “addressees” (Athletes and other Persons), who must be subjected to the relevant rules through other means.
- 27.
Article 23.5 of the WADC. For example, the WADA Foundation Board declared the British Olympic Association’s selection policy for the Olympic Team GB (providing for a lifetime Ineligibility of Athletes sanctioned for doping) non-compliant with the WADC, a decision which was upheld in CAS 2011/A/2658, BOA v. WADA. The Olympic Charter recognises only organisations which have implemented the WADC (see Article 25 of the Olympic Charter for International Federations, and Article 27 of the Olympic Charter for National Olympic Committees).
- 28.
CAS 2005/A/830, G. Squizzato v. FINA, para 49.
- 29.
See Part One, Doping Control, Section Introduction of the WADC, as well as Article 20 of the WADC on roles and responsibilities of the ADOs.
- 30.
In doping disputes, this often supposes a preliminary decision as to whether there is an agreement making a specific set of rules binding on a specific Athlete (see e.g. CAS 2010/A/2268, I. v. FIA, para 67 et seq.); see also David 2013, p. 57 et seq., on the “agreement-based system”.
- 31.
See e.g. CAS 2005/A/831, IAAF v. Eddy Hellebuyck, para 7.3.4.3; confirmed in CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova et al., para 228.
- 32.
CAS 2009/A/1817 & 1844, WADA & FIFA v. CFA, Marques, Eranosian et al., para 131.
- 33.
See in particular, CAS 2011/A/2612, Liao Hui v. IWF, para 98 et seq., and CAS 2009/A/1752 & 1753, Devyatovksiy & Tsikhan v. IOC, para 4.11 et seq.
- 34.
The Model Rules are set of standard rules that are drafted by WADA based on each new version of the WADC for the different categories of Signatories, in order to facilitate the implementation of the WADC by those Signatories. They are not mandatory, but represent WADA’s suggestions in terms of “best practices”.
- 35.
- 36.
See e.g. ambiguously referring to the appeal being “governed by the provisions of the Programme [of the ITF] and the WADC”, in CAS 2012/A/2804, Kutrovsky v. ITF, para 7.2.
- 37.
As correctly highlighted in CAS 2009/A/1879, Valverde v. CONI, para 19.
- 38.
For the restrictions imposed by EU competition law on anti-doping regulations implementing the WADC, see the famous decision of the Court of Justice of the European Union, C-519/04, Meca-Medina & Majcen v. Commission, 18 July 2006.
- 39.
For a detailed analysis of both conventions, see Schmidt 2012, p. 22 et seq.; other international instruments include the “Lausanne Declaration” of 4 February 1999 adopted during the First World Conference on Doping in Sport at which the creation of WADA was decided, and the “Copenhagen Declaration” adopted in March 2003 during the Second World Conference on Doping in Sport, through which governments announced their intent to recognise the WADC. These, however, are not international conventions and have no binding effect on their signatories.
- 40.
Effective in Switzerland as of 1st January 1993.
- 41.
Effective in Switzerland as of 1st December 2008.
- 42.
The Council of Europe Anti-Doping Convention pre-dates the WADC; on the UNESCO Anti-Doping Convention that does not incorporate the WADC, see Adolphsen 2010, p. 64.
- 43.
This dual system carries the potential of conflicting solutions being reached at international and national level, for example if a measure imposed by the relevant International Federation is not enforceable at national level in the Athlete’s country (David 2013, p. 67).
- 44.
Adolphsen 2010, p. 58. The freedom of association is enshrined, in particular, in Article 20 of the Declaration of Human Rights and in Article 11 of the ECHR.
- 45.
Lewis and Taylor 2014, A2.13, for the example of UK sports.
- 46.
See, for Switzerland, the official comment accompanying the executing act to the revised Swiss Sports Act, p. 25 (Commentaire de l’ordonnance sur l’encouragement du sport et de l’activité physique), http://www.admin.ch/ch/f/gg/pc/documents/1924/Rapport_expl_fr.pdf (accessed 24.04.15): “Les normes édictées par différents acteurs du monde du sport—principalement les associations et les fondations selon le Code civil suisse—constituent les bases de la lutte contre le dopage en Suisse, en droit privé. Elles tirent leur force contraignante de leur ancrage dans les contrats ou les statuts. C’est notamment le cas du Code mondial antidopage et des standards internationaux de l’AMA relatifs au travail de laboratoire ou du Statut de Swiss Olympic concernant le dopage qui met en œuvre le programme de l’AMA”. [The norms adopted by the various actors of the world of sport—primarily associations and foundations under Swiss law—represent the basis of the fight again doping in Switzerland, under private law. They draw their binding effect from their anchor in contracts or statutes. This applies, in particular, to the World Anti-Doping Code and the WADA International Standards related to laboratory work, or the Swiss Olympic Statutes regarding doping that implement WADA’s program (author’s translation)].
- 47.
On the contractual nature of the relationship, see Adolphsen 2007, p. 124 et seq; Oswald et al. 2010, p. 210 et seq.
- 48.
Even though international sports governing bodies have long claimed such special status, arguing that sports activities are “special” so that they ought to be exempted from ordinary legal rules; McArdle 2015, p. 19, refers to a “recurrent theme” in international sports law.
- 49.
Rigozzi 2005, n° 68; Buy et al. 2009, n° 105.
- 50.
Many aspects of the legal instruments designed to remedy the absence of direct membership are controversial. The Swiss Supreme Court historically introduced the doctrine of “indirect membership” to enable athletes to challenge decisions that directly affect them, in spite of the fact that Athletes are not immediate members of the association that made the decision (see e.g. BGE/ATF 119 II 271, para 3b.; Haas and Köppel 2012, n° 12); for an in-depth analysis of the submission to disciplinary sanctions, which includes submission to underlying regulations as a prerequisite, see Steiner 2010, p. 123 et seq. For Germany, see the analysis by Adolphsen 2007, p. 62, as well as Vieweg 1995, p. 98 and BGH Urteil Bundesgerichtshof, 28 November 1994 (“Reiter-Urteil”), reproduced in SpuRt 1-2/95, p. 43 et seq., para II.3 a.).
- 51.
Baddeley 1998, p. 312; Reimann 2002, p. 42 et seq.
- 52.
Haas and Martens, 2011, p. 68.
- 53.
Honsell et al. 2014 (Anton Heini/Urs Scherrer), ad Article 70, n° 19, deny the possibility of implied consent; Zen-Ruffinen 1997, n° 164; for an analysis of the different forms of agreement and their legal nature, see Reimann 2002, p. 43 et seq.
- 54.
For the organisation of football in Germany, see Schmidt 2012, n° 12.
- 55.
Vieweg 1995, p. 99.
- 56.
David 2013, p. 59; see e.g. CAS 2011/A/2398, WADA v. WTC & Marr, para 5.2: “Marr participated in the Event. In participating in the Event, Marr agree to be bound by the WTC ADR”; for some other examples of the CAS panels’ or other courts’ tolerant approach, see Maisonneuve 2011, n° 659 et seq.; Grätz, p. 307.
- 57.
Zen-Ruffinen 1997, n° 361.
- 58.
Adolphsen 2010, p. 58; for a list of the countries to place into either category in the European Union, see: Siekmann and Soek 2010, p. 102; Haas and Martens 2011, p. 43; Kern 2007, 30 et seq., in particular 43/44.
- 59.
See Sect. 2.1.1.2.1 above.
- 60.
Thill 2012, p. 624; for the German NADA, see Berninger 2012, p. 21 et seq.
- 61.
Beloff Michael, The specificity of sport—rhetoric or reality?, 4th Edward Grayson Memorial Lecture, British Association for Sport and Law, p. 5: “Sport, like the professions, law or medicine, is now part private, part servant of public policy”.
- 62.
Viret 2014, p. 101.
- 63.
See Sect. 3.2 below.
- 64.
See Sect. 2.1.3 below.
- 65.
Maisonneuve 2011, n° 17, considers that an international dispute is one that arises from the application of the regulations of an international sports organisation, while a national dispute arises from the application of the regulations of a national sports organisation. By contrast, when a doping case is brought before CAS, the Swiss Private International Law Act (“SPILA”) distinguishes international and national (domestic) arbitration by relying on the Swiss versus foreign residence of the parties to the dispute. On the fragmentation that these different delimitations may cause, see idem, ibidem, n° 850.
- 66.
The criterion for defining an “International Event” under the WADC is the international character of the ruling body for the Event (International Federation, IOC etc.). “National Event” is defined by default, with a contrario reference to International Events.
- 67.
Note that the NADO may also provide that the appeal be heard by a CAS panel instead (Comment ad Article 13.2.2 of the WADC).
- 68.
The idea being that the International Federation should involve all Athletes who regularly compete at international level, according to criteria such as ranking, participation in certain Events or equivalent; see the definition of International-Level Athlete in Appendix 1 (Definitions) of the WADC and Article 4.3.2 lit. a of the ISTI, as well as Introduction of the 2015 WADA Model Rules for International Federations.
- 69.
See the definition of National-Level Athlete in Appendix 1 (Definitions) of the WADC and Article 4.3.2 lit. b of the ISTI.
- 70.
The revised Article 4.3.2 lit. b of the 2015 ISTI provides in this respect that the NADO “should include those nationals of its country who generally or often compete at international level and/or in International Events of Competitions (rather than at national level) but who are not classified as International-Level Athletes by their International Federation”.
- 71.
The concept of case-law for CAS awards is a disputed one, since in theory CAS panels form autonomous arbitral tribunals that are not bound by precedents.
- 72.
See Sect. 2.1.2.1 above.
- 73.
Subject still to the Swiss lex arbitrii, see Sect. 2.1.3.1 below.
- 74.
- 75.
See Sect. 2.1.1.3 above.
- 76.
Unless otherwise specified, the CAS Code is referred to in its version effective as of 1st March 2013.
- 77.
With respect specifically to the burden of proof before CAS, see Rigozzi and Quinn 2012, p. 15; more generally, see David 2013, p. 125.
- 78.
For a critical discussion of this solution, see Rigozzi 2005, n° 1215; see also Maisonneuve 2011, n° 869 et seq.
- 79.
Zen-Ruffinen 1997, n° 118 & 152.
- 80.
See the scope of application as defined in Article 176 para 1 of the SPILA; Rigozzi and Quinn 2012, p. 2; for an example of domestic arbitration in a doping dispute, see CAS 2010/A/2083, UCI v. Jan Ullrich & Swiss Olympic.
- 81.
With respect to the SPILA, see Rigozzi and Quinn 2012, p. 2/3.
- 82.
See Sect. 3.1 below.
- 83.
See Sect. 1.2.1 above.
- 84.
On this topic, see Rigozzi 2005, n° 1226 et seq.; Adolphsen 2004, p. 174 et seq.; Haas 2007, p. 271 et seq.
- 85.
Lew et al., 2003, n° 22–22; for commercial arbitration, see Article 28 para 1 of the UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006, and n° 39 of the Explanatory Note: “by referring to the choice of ‘rules of law’ instead of ‘law’, the Model Law broadens the range of options available to the parties as regards the designation of the law applicable to the substance of the dispute. For example, parties may agree on rules of law that have been elaborated by an international forum but have not yet been incorporated into any national legal system. Parties could also choose directly an instrument such as the United Nations Convention on Contracts for the International Sale of Goods as the body of substantive law governing the arbitration, without having to refer to the national law of any State party to that Convention”. The UNCITRAL Model Law, however, still limits the arbitrators themselves to the choice of the national law resulting from the conflict-of-law rules, in the absence of a party agreement.
- 86.
Berger and Kellerhals 2015, n° 1383; Adolphsen 2007, p. 633; Adolphsen 2004, p. 174; Haas 2007, p. 271.
- 87.
In Switzerland, this choice is accepted both for international arbitration and for domestic arbitration under the unified Swiss Civil Code of Procedure (Message du Conseil fédéral du 28 juin 2006, FF 2006 p. 6841 et seq., p. 7008); more generally, see Berger and Kellerhals 2015, n° 1382 et seq.; Rigozzi 2005, n° 1177; for CAS awards, see e.g. CAS 2009/A/1817 & 1844, WADA & FIFA v. CFA, Eranosian et al., para 125; CAS 2005/A/983 & 984, Penarol v. Bueno, Rodriguez & PSG, para 22 et seq.
- 88.
Latty 2011, p. 35; CAS 2005/A/983 & 984, Penarol v. Bueno, Rodriguez & PSG, para 22.
- 89.
CAS 2011/A/2612, Hui v. IWF, para 55; Haas 2007, p. 271; Maisonneuve 2011, n° 926 et seq.
- 90.
Latty 2009a, in his “La lex sportiva: recherche sur le droit transnational”, has devoted a whole study to the topic.
- 91.
For a recent survey of the opinions, see Vaitiekunas 2014, p. 45 et seq.; the terminology used varies: “lex sportiva”, “global sports law”, “lex ludica”, “public international sports law” (for an overview, see Siekmann 2011b, p. 3 et seq.) Generally speaking, the existence, scope, contents of such a transnational system of law is one of the most controversial legal issues related to sport.
- 92.
Adolphsen 2007, p. 619, suggests two possible “unofficial” explanations for this practice: the concern of the CAS to develop a uniform case law, or a panel in which none of the members is familiar with the law applicable on the merits.
- 93.
Adolphsen 2007, p. 624 et seq., concedes that national courts usually have only limited means to sanction such practice.
- 94.
McArdle 2015, p. 27, describes contractual freedom on part of Athletes when it comes to arbitration clauses as a “mythical creature”.
- 95.
Foster 2003, p. 15, marks the fundamental difference between the justification for lex mercatoria as an autonomous global law, which rests on contract law, and lex sportiva, which rests on a “fictitious contract”; see, for a similar view, Maisonneuve 2011, n° 807 et seq.; also denying the possibility of an exclusive choice of law in favour of a lex sportiva, Fritzweiler et al. 2014, p. 610 et seq.
- 96.
This point is debated in literature. According to Rigozzi 2005, n° 1231, the legitimate goal of such “non-national choice of law” should make it also worthy of protection in the eyes of national courts, justifying the validity of the clause despite an Athlete’s “forced” or “uninformed” consent, similar to the one that is accepted for the arbitration clause; for a similar view, see Adolphsen, 2007, p. 640; contra: Maisonneuve 2011, n° 811, considers that the sole application of sports regulation ensures equal treatment among all Athletes, but does not constitute a proportionate instrument; on the restrictions to consent to anti-doping regulations in general, see Sect. 3.2.3 below.
- 97.
Vieweg and Staschik, 2013, p. 228, point out that the autonomy of organised sport is granted by national states and oppose the view in literature that international sport can set is own autonomous legal order.
- 98.
Vieweg and Staschik 2013, p. 228; in Swiss law, the legal source of this duty is debated, but is generally considered a parallel to the equivalent duty of the national judge that is explicitly stated in Article 19 of the SPILA (see Rigozzi 2005, n° 1187; Berger and Kellerhals 2015, n° 1425).
- 99.
See Vieweg and Staschik 2013, p. 227, whereby commentators and CAS panels are still insecure about both the contents of lex sportiva and its mere existence.
- 100.
We will use the term “CAS case-law” or “CAS practice” occasionally to refer to series of CAS awards on a same topic, since it has become common practice to reference precedents in CAS awards, even though there is no binding rule of precedent in international arbitration (for some critical remarks on CAS practice, see McArdle 2015, p. 33/34).
- 101.
Adolphsen 2007, p. 648, notes that such general principles of law which could serve as control standards for sports regulations would yet have to be defined by the arbitral tribunal; even for a mere contractual incorporation (as opposed to an actual choice-of-law). Schleiter 2009, p. 213, considers that submitting a dispute to a lex sportiva would, as matters stand, come close to attributing to the arbitral tribunal the right to decide ex aequo et bono; Maisonneuve 2011, n° 937, reaches a similar conclusion; Fritzweiler et al. 2014, p. 611, claims that the question of whether CAS will be able to develop an adequate system of protection must remain undecided as matters stand.
- 102.
- 103.
Both on appeal (Swiss Supreme Court, 4A_612/2009), and on revision (4A_144/2010).
- 104.
Urteil Landgericht München, Pechstein v. DESG & ISU, 26 February 2014, 37 O 28331/12, reproduced in CausaSport 2/2014, pp. 154–177; Urteil Oberlandgericht München, 15 January 2015, U1110/14, Teil-Urteil. The Oberlandgericht on 15 January 2015, refused altogether the recognition of the CAS award for breach of public policy.
- 105.
Duval Antoine, The Pechstein Ruling of the OLG München (English Translation), 6 February 2015, ASSER Sport Law Blog, free access under http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297 (accessed 15.02.15), p. 1, refers to the decision as “ground-breaking”, “earth-shaking”, “revolutionary”.
- 106.
The WADC contains a mixture of precise rules that are to be implemented without substantive changes and basic principles that leave a large discretion to the ADOs. Certain aspects of the Doping Control process may vary considerably from one sport to another or from one country to another.
- 107.
See Sect. 2.1.2.2 above.
- 108.
For the definition of “Athlete“ in Appendix 1 (Definitions), the 2015 WADC adds more precision regarding the concept of National-Level and International-Level Athletes and specifies that NADOs may choose to adopt anti-doping rules for recreational level competitors or even for individuals engaging in fitness activities without taking part in Competitions. The definition further attempts to circumscribe to what extent provisions of the WADC must be mandatorily implemented for these Athletes also.
- 109.
Tamburrini and Tännsjö 2011, p. 275; Paul 2004a, p. 29; Adolphsen 2007, p. 26.
- 110.
Berninger 2012, p. 14.
- 111.
For a more general reflection of the different possibilities to frame a definition for “doping” and related difficulties, see, among others, Soek 2006, p. 27 et seq.; Kern 2007, p. 342; Glocker 2009, p. 31 et seq.
- 112.
For a detailed overview of this evolution, see Soek 2006, p. 29 et seq.
- 113.
See e.g., for early definition attempts, Adolphsen 2007, p. 27.
- 114.
For a critical analysis of this discrepancy between our “intuitive” perception of doping and the current legal definition, see Amos A, Inadvertent Doping and the WADA Code, Bond Law Review, vol. 19 1/2007, Article 1, available at: http://epublications.bond.edu.au/blr/vol19/iss1/1 (accessed 16.02.15), p. 18 et seq.
- 115.
Soek 2006, p. 137 et seq.: “By such a rule, the human act which had been the focal point of previous rules was replaced by a factual circumstance. Liability for any human acts preceding this circumstance was thereby subsumed under the finding of Prohibited Substances. A positive test result thus precluded almost all excuses which an Athlete could possibly formulate”; idem, ibidem, p. 139: “In the new approach doping was thus not considered to be the description of an undesirable act, but rather the description of an undesirable state of affairs”.
- 116.
Some panels even started using the expression “anti-doping rule violation” even where the applicable rules were still pre-WADC and still used the term “offence” (see CAS 2005/A/831, IAAF v. Hellebuyck, para 7.1).
- 117.
To clarify the definition, some federations added explanatory sentences emphasising the strict liability the federation was applying. See e.g. the ITF Anti-Doping Program 1998, quoted in CAS 99/A/223, ITF v. K., para 6: “Doping is forbidden. Under this Programme the following shall be regarded as doping offences: a.) A Prohibited Substance is found to be present within a player’s body”.
- 118.
On the contours of traditional Doping Control, see Sect. 2.3.3.2 below.
- 119.
Tamburrini and Tännsjö 2011, p. 275: “In practice, doping is everything […] that is included in the doping lists”.
- 120.
On this “concrete-enumerative”, rather than “abstract” definition, Paul 2004a, p. 30.
- 121.
Lewis and Taylor 2014, B1.42.
- 122.
David 2013, p. 97.
- 123.
On this evolution, see Sect. 2.3.2.3 below.
- 124.
See the newly introduced defined term “Strict Liability” in Appendix 1 (Definitions) of the 2015 WADC.
- 125.
See Sect. 7.3.2 below.
- 126.
See Sect. 7.2.2 below.
- 127.
See Sect. 2.2.1.3 below.
- 128.
CAS 2005/C/976 & 986, FIFA & WADA, para 37, whereby the WADC rule “reflects the general principles which will be applied by CAS panels whether or not such formula is explicitly contained in the applicable anti-doping regulations”.
- 129.
Berninger 2012, p. 172; even before the adoption of the WADC, CAS panels would place the initial burden of proving the existence of a violation on the ADO (see e.g. CAS 2000/A/274, S. v. FINA, 19 October 2000, para 14); the same burden applied to all anti-doping rule violation, regardless of whether these involved a positive finding (for an example of Use of a Prohibited Method by physical manipulation of the Sample, see CAS 2004/A/607, Boevski v. IWF, para 34).
- 130.
Rigozzi and Quinn 2012, p. 16, whereby the provision “goes on to note that certain other provisions of the WADC impose a burden on the athlete to ‘rebut a presumption’ or ‘establish specified facts or circumstances’”, with examples in which the WADC imposes a burden of proof on the Athlete; more nuanced, David 2013, p. 202: “This generally will be where the Code imposes a burden of proof on the athlete or other person to rebut a presumption or to prove specified facts to support a reduction or elimination of the applicable period of ineligibility”.
- 131.
Lewis and Taylor 2014, C 2.62, footnote 1, whereby, if there is room for argument as to exactly what is required to be proved, “any ambiguity in the rules will likely be interpreted against the Anti-Doping Organization and in favour of the athlete”.
- 132.
Lewis and Taylor 2014, C 2.24, as well as Sect. 3.2.3.3 below.
- 133.
See, in particular, Sect. 7.3.3.2.2.2 below.
- 134.
- 135.
Soek 2006, p. 105, by contrast, favors a three-step approach inspired from criminal law: “An act of doping only becomes an offence when it falls within the scope of the description of the doping offence, when it is illegal and when the offender can be held liable for the act”.
- 136.
See e.g. CAS 2004/O/679, USADA v. Bergman, para 5.1.1.2. The Athlete tested positive to rhEPO before the new UCI 2004 Anti-Doping Rules became effective. The panel stated from the outset that the finding of a doping offence depended solely on the presence of the substance in the Athlete’s body and that this finding was subject only to the Athlete’s argument relating to the interpretation of the test results, i.e. whether the test results were reliable in showing the presence of exogenous EPO in the Athlete’s Sample; For another example of a case rendered under IAAF rules 2002 edition, but after adoption of the WADC, see CAS 2005/A/831, IAAF v. Hellebuyck, para 7.1, where the panel divided the analysis into issues pertaining to anti-doping rule violation and those pertaining to Ineligibility; see also CAS 2006/A/1057, UCI v. Forde & Barbados Cycling Union, 11 September 2006.
- 137.
Berninger 2012, p. 179; Lewis and Taylor 2014, C 2.62.
- 138.
See Sect. 2.2.1.1.3 above.
- 139.
See e.g. Article 2.5 (Tampering), some elements of Article 2.3 (Evading, Refusing or Failing to Submit to Sample Collection), or all violations that punish an Attempt (see Comment ad Article 2.2 of the WADC).
- 140.
See, Lewis and Taylor 2014, C 2.62: “The rules should make the requisite elements of the violation clear, so that there is no doubt as to what the Anti-Doping Organization must plead and prove”.
- 141.
See Sect. 5.2.2.2 below on the extent of the initial duty to produce evidence.
- 142.
CAS 98/222, B. v. ITU, para 21/22; for a detailed description of the reasoning of the panel, see Soek 2006, p. 184 et seq.
- 143.
See Sect. 2.3.1 below.
- 144.
Article 3.2.1, which has been newly introduced in the 2015 WADC, addresses situations in which the scientific validity of an analytical method or decision limit is challenged as such, as opposed to an assertion of a procedural departure in the particular matter.
- 145.
This includes the Technical Documents in effect at the time the Sample is received, which are mandatory and, once promulgated, form integral part of the ISL, pursuant to the Sect. 1.0 “Introduction” of the ISL and the definition of “International Standard” in Appendix 1 (Definitions) of the WADC.
- 146.
See Sect. 5.2.3 below.
- 147.
Under the WADC, a “Competition” is defined as a “single race, match, game or singular sport contest” (e.g. the Olympic 100 m final), whereas an “Event” is “a series of individual Competitions conducted together under one ruling body” (e.g. the Olympic Games).
- 148.
See the definition of Fault newly introduced into Appendix 1 (Definitions) of the 2015 WADC; for an extensive analysis of Fault-related issues in the revised WADC, Rigozzi et al. 2015.
- 149.
See the definitions of these concepts in Appendix 1 (Definitions) of the WADC.
- 150.
See more in detail, Sect. 3.3.2 below.
- 151.
See Sect. 5.1.2.1 below.
- 152.
Former “International Standard for Testing” (“IST”) under the 2009 WADC. The addendum “and Investigations” during the 2015 revision of the WADC reflects the emphasis that the stakeholders of anti-doping wish to place on intelligence-gathering and investigations.
- 153.
According to the definition of Athlete in Appendix 1 (Definitions) of the WADC, NADOs may choose to extend certain requirements to Athletes below international or national level, including to fitness activities for individuals who do not compete at all.
- 154.
Formally, the ISTI requires inclusion into a RTP for Athletes on whom the ADO “plans to collect three or more Samples per year”, unless it is clearly in a position to obtain sufficient information through different means (Article 4.8.4 of the ISTI).
- 155.
See 5.1.1.1.3 below.
- 156.
The steroidal module has been formally introduced as of 1st January 2014 as part of the WADA ABP Guidelines.
- 157.
- 158.
See Sect. 3.2.2.2.2 below.
- 159.
Section 4.0 of the ISL.
- 160.
See in more details Sect. 5.1.1.2 below.
- 161.
See Sect. 6.3.3.3 below.
- 162.
Articles 5.2 (urine) & 6.2 (blood) of the ISL.
- 163.
For the practice, see Sect. 6.3.3.1 below.
- 164.
Articles 5.2.4.2 (urine) & 6.2.4.1 (blood) of the ISL.
- 165.
Articles 5.2.4.3 (urine) & 5.2.4.2.1 (blood) of the ISL.
- 166.
Articles 5.2.4.3.1 (urine) & 6.2.4.2.1 (blood) of the ISL; confirmation on the same aliquot is a departure from the ISL, but has not been considered material if the screening is sufficiently clear, no confusion among Samples is invoked and the B Sample confirms the results (see CAS 2007/A/1444 & 1465, UCI v. Mayo & RFEC, para 117 et seq.).
- 167.
The latest available version is the 2015 Prohibited List.
- 168.
Currently, all substances are “Specified Substances” by default, unless they fall into the classes of anabolic agents (S1), hormones (peptide hormones, growth factors and related substances, S2), agents modifying myostatin functions and metabolic modulators (S4.4 and 4.5), or those stimulants listed as non-specified (S6a).
- 169.
See Sect. 6.2.2 below.
- 170.
See Sect. 6.2.3.1.3 below.
- 171.
The 2015 WADC newly provides for the possibility to split the B Sample in order to carry out the A and B analyses in case of reanalysis of a Sample, without prejudicing the prosecution of a case as Presence of a Prohibited Substance (Article 2.1 in fine of the WADC).
- 172.
See Sect. 11.1.3 below.
- 173.
Swiss law e.g. distinguishes “causalité naturelle”, which is an issue of fact, and “causalité adéquate”, which is an issue of law (see Werro 2005, n° 175 & 214).
- 174.
See Sottas 2010, p. 115: “The abuse of a doping substance, the cause, modifies the biology of the athlete, the effect”.
- 175.
In a broader context taking into account the extended goals of modern anti-doping programs, it could also be a conduct detrimental to the Athlete’s health or contrary to the spirit of sport (see Sect. 7.1.1.3 below).
- 176.
See 6.2.1.2 below for more precise description. The use of a method will usually deploy physiological effects in the organism, but there is no pharmacokinetic process stricto sensu, insofar as no substance passes through the body.
- 177.
Saugy 2012, p. 649, referring to urine as the primary “elimination bin” (“poubelle d’élimination”) for drugs and medications in the body.
- 178.
Saugy 2012, p. 662, whereby observable modifications that could be of potential use to the fight against doping can be found at different “levels of the biological cascade” (“niveaux de la cascade biologique”).
- 179.
Farther-reaching consequences on the Athlete’s private or professional life are not taken into account here.
- 180.
Sottas 2010, p. 115.
- 181.
See Sect. 2.3.3 below.
- 182.
On the importance of having in place means of detection, as a prerequisite indirectly conditioning the scope of the prohibition; Tamburrini and Tännsjö 2011, p. 288: “a ban that is not appropriately controlled is a poor warrant of fairness in competition”; see also Koh Ben, The Rules of Law and the World Anti-Doping Code, http://www.ruleoflaw.org.au/the-rule-of-law-and-the-world-anti-doping-authority-code/ (accessed 26.04.15).
- 183.
Saugy 2012, p. 662.
- 184.
Paul 2004a, p. 175, refers to “detective work”.
- 185.
Sottas 2010, in particular p. 107, clearly considers anti-doping as a forensic area, though one with its particularities.
- 186.
Marclay et al. 2013, p. 133; Sottas et al. 2008b, p. 166.
- 187.
Vuille et al. 2013, p. 1095, describe forensic sciences as the application of so-called “hard” sciences to judicial matters (“l’application des sciences dites ‘dures’ aux questions judiciaires”).
- 188.
For some distinctive features that need to be taken into account when evaluating evidence in Doping Control, see Sottas 2010, p. 107.
- 189.
See e.g. Sottas et al. 2008a; Giraud et al. 2008.
- 190.
See the doctoral thesis in 2014 by François Marclay, “Perspectives for forensic intelligence in anti-doping and the emergence of smokeless tobacco consumption in sport”.
- 191.
For proposals on these broader approaches, see Marclay et al. 2013, The present book only addresses the level of the judicial process in a particular doping matter, described as “tactical intelligence” in the proposals.
- 192.
With respect to the Athlete Biological Passport evaluation, see Schumacher and d’Onofrio 2012, p. 979.
- 193.
In short, a “hypothesis” or “proposition” in the judicial process describes the position of a party with respect to the origin of a piece of evidence, typically in a judicial process with criminal proceedings traits, the position of the “prosecution” and the position of the “defence” (Vuille, 2011, p. 172); for transposing these concepts to the evaluation of evidence in anti-doping, see Sottas 2010, p. 111.
- 194.
Forensic sciences typically distinguish three levels of hierarchy of propositions: source, activity and offence. The parties’ respective hypotheses can conflict at any of these levels (Vuille 2011, p. 173 et seq.). A frequent cause of imprecision when dealing with forensic evidence is the “breach of the hierarchy” of propositions, i.e. confusion surrounding the value of the evidence for the respective levels of proposition or failure to appropriately distinguish the different levels.
- 195.
For more details on these requirements, see Aitken/Taroni 2004, p. 214 et seq.
- 196.
Biedermann et al. 2008, p. 120 et seq.
- 197.
Saugy 2012, p. 662; explored in the scientific anti-doping community as “-omic” approaches; see e.g. Reichel, p. 21, for a chart showing the different stages that could be targeted.
- 198.
Sottas 2010, p. 107, makes a parallel with population-based health management as the forensic science field closest to anti-doping programs; see also Saugy et al. 2011, p. 2.
- 199.
See Sects. 10.3.2.2.3 and 10.3.2.3 below.
- 200.
On the concept of “scientific” in the context of anti-doping, see Sect. 4.1.2 below.
- 201.
McLaren 2006c, p. 194: “Because non-analytical positive charges do not involve results from a positive analytical laboratory- doping test, they must be proven without the benefit of the presumption embodied in the strict liability principle”.
- 202.
The somewhat paradoxical expression of “non-analytical positive” is also encountered in literature and case law (see e.g. McLaren 2006c, p. 194; Hailey 2011, p. 405; David 2013, p. 132, with references to the wording of the CAS panel in the USADA v. Montgomery matter; CAS 2005/A/884 Hamilton v. USADA & UCI, para 48, quoting the Collins v. USADA matter). This terminology should in our view be avoided since it only creates unnecessary confusion.
- 203.
The expression “other analytical information” is used, in particular, in the Comment ad Article 2.2 of the WADC; “analytical data” in Comment ad Article 3.2 of the WADC and “analytical evidence” in Article 5.1.2 of the WADC, while Comment ad Article 6.1 of the WADC explicitly states: “Violations of other Articles may be established using analytical results from other laboratories so long as the results are reliable”.
- 204.
As a historical remnant thereof, the heading of Article 7 of the 2015 WADC, which addresses the pre-hearing process, still reads “Results management”, even though the process is by far no longer limited to analytical cases and the reviews described therein cover also cases that involve no “results” altogether.
- 205.
Note that, in any event, Adverse Analytical Findings for a Prohibited Method can only be prosecuted under Article 2.2 of the WADC.
- 206.
CAS 2005/A/884, Hamilton v. USADA & UCI, para 52.
- 207.
Two cases in weightlifting: CAS A3/2007, ASADA v. Van Tienen; CAS 2007/A/1283, WADA v. ASADA & Australian Weightlifting Federation & Karapetyn.
- 208.
CAS 2004/A/651, French v. Australian Sports Commission & Cycling Australia (DNA analysis performed on material retrieved in the Athlete’s possession).
- 209.
See the recent possibility to detect one type of Sample manipulation through an analysis, CAS 2009/A/1873, WADA v. FPC & Cabreira; for the use of blood Samples collected for screening purposes for no-start rules in certain sports, CAS 2009/A/1912, Pechstein v. ISU.
- 210.
e.g. Samples collected as part of the Athlete Biological Passport, CAS 2010/A/2178, Caucchioli v. CONI & UCI; CAS 2010/A/2308, Pellizotti v. CONI & UCI.
- 211.
CAS 2007/A/1396 & 1402, WADA & UCI v. Valverde & RFEC.
- 212.
Roberts 2007, p. 3, on non-analytical cases: “cases relying not on an analytical result from a laboratory but on other forms of circumstantial evidence of doping, including admissions, witness statement, e-mails and other documents”.
- 213.
Lewis and Taylor 2014, C2.121, make the same distinction, whereby a “non-analytical case” is “one where the evidence is something other than analytical data from a laboratory relating to a sample”.
- 214.
“Ancillary violations” can be described as violations that do not automatically involve the presence, Use or Possession of a Prohibited Substance or method (see Soek 2006, p. 61).
- 215.
At operational level, a sign of this orientation is the renaming of the “International Standard for Testing” into “International Standard for Testing and Investigations” and the inclusion in the revised 2015 version of an entire section (Part 3) dedicated to intelligence-gathering and investigations.
- 216.
For an overview of the main amendments designed to implement this new trend, see Rigozzi et al. 2013a, n° 6 et seq.
- 217.
Under the heading “The 2015 Code amendments support the increasing importance of investigations and use of intelligence in the fight against doping”, see the WADA Overview of Key Changes, p. 3.
- 218.
WADA Report on the Lack of Effectiveness of Testing Programs, p. 3: “While recognizing that Testing is only part of a successful fight against doping, it is nevertheless an important element in that fight and should be as effective as possible”; Minutes WADA ExCo Meeting 11 May 2013, p. 51.
- 219.
Significant legal issues—e.g. in terms of privacy and data protection—that may arise along with the increased use of intelligence and investigation in anti-doping could well form the subject of a separate book.
- 220.
David 2013, p. 142.
- 221.
As an aside, none of the examples cited here were purely non-analytical.
- 222.
Comment ad Article 11.1.1 of the ISTI: “While Testing will always remain an integral part of the anti-doping effort, Testing alone is not always sufficient to detect and establish to the requisite standard all of the anti-doping rule violations identified in the Code”.
- 223.
See Rigozzi et al. 2013b, n° 12 et seq.
- 224.
For an overview of the amendments to the substantial assistance provision, see Rigozzi et al. 2013a, n° 29 et seq.
- 225.
A list of the accredited laboratories is published on the WADA website: https://www.wada-ama.org/en/what-we-do/science-medical/laboratories/accredited-laboratories (accessed 28.01.15).
- 226.
Currently 3,000 a year (Article 4.4.9 of the ISL). Business opportunities may arise with the option for laboratories to seek WADA approval to conduct blood analysis in support of the Athlete Biological Passport, without the need for full accreditation.
- 227.
See the WADA 2013 Anti-Doping Testing Figures: https://wada-main-prod.s3.amazonaws.com/resources/files/WADA-2013-Anti-Doping-Testing-Figures-LABORATORY-REPORT.pdf (accessed 11.08.14).
- 228.
Article 4.4.5 of the ISL.
- 229.
For an analysis of the evolving challenges that anti-doping laboratories face, see Giraud et al. 2008, p. 331 et seq.
- 230.
See the editorial about the goals of analytical anti-doping science by WADA-accredited laboratory director Kuuranne 2013, p. 809.
- 231.
See for a comparative chart between the challenges posed by the first amphetamines in the mid 1960 s versus use of recombinant biosimilar proteins in 2014, Botrè et al. 2014, p. 2.
- 232.
With use of stimulants, e.g. amphetamines, as a prime illustration (see Saugy 2012, p. 649 and 655; Botrè et al. 2014, p. 2); for more illustrations, Thevis et al. 2010, p. 13 et seq.
- 233.
Botrè et al. 2014, p. 2; Saugy 2012, p. 649.
- 234.
Sottas 2010, p. 104/105; on the use of chromatographic methods in Doping Control, Cooper, p. 246/247, especially the need to have a reference standard.
- 235.
Botrè et al. 2014, p. 2; for more examples, see Dvorak et al. 2014a, p. 3; Savulescu and Foddy, p. 305; Cooper, p. 249.
- 236.
On the development of Out-of-Competition Testing as a first change of paradigm, see Saugy 2012, p. 650.
- 237.
Saugy 2012, p. 651/652, on the development of the use of blood as a matrix with the rise of rhEPO and recombinant human Growth Hormone abuse; Sottas 2010, p. 114.
- 238.
Marclay, 2014, p. 6.
- 239.
On the rise of new detection methods, such as the “-omics”-based solutions, see Dvorak et al. 2014a, p. 4; Pitsiladis et al. 2014.
- 240.
See the diagrams in Fig. 1 and 2 in Botrè et al. 2014, p. 3; already in 2004, Paul 2004a, p. 96/97, on the difficulties going ahead with peptide hormone detection.
- 241.
Marclay et al. 2013, p. 135.
- 242.
Marclay 2014, p. 5; Marclay et al. 2013, p. 133.
- 243.
Sottas 2010, p. 104/105.
- 244.
This gap is perceivable in publications by scientists in the anti-doping field, see e.g. Schamasch and Rabin 2012, p. 1693: “Another major challenge in anti-doping analysis is to objectively interpret the detection of a prohibited substance or method in a biological specimen at a given time in order to correctly infer that such a result is the direct consequence of doping in contrast to involuntary exposure”.
- 245.
- 246.
CAS 2007/A/1396 & 1402, WADA and UCI v. Valverde & RFEC, para 11 et seq.
- 247.
CAS 2010/A/2083, UCI v. Ullrich & Swiss Olympic, para 66 et seq.
- 248.
CAS 2011/A/2384 & 2386, UCI & WADA v. Contador & RFEC.
- 249.
See, on these processes, Sect. 6.2.1.2 below.
- 250.
Chapter 11 below.
- 251.
Currently, only blood manipulation, including Use of erythropoiesis-stimulating agents (ESAs), can be detected with the haematological module, while the steroidal module targets endogenous anabolic androgenic steroids or other anabolic agents categorised under class S1 of the WADA Prohibited List (WADA ABP Guidelines, Sect. 2).
- 252.
For example, the Technical Document for Sport Specific Analysis (TD2014SSA) only recommends sports for which the minimum analysis levels ESAs is 10 % or greater to “consider the benefits of implementing the ABP haematological module”.
- 253.
See e.g. the Technical Document on ABP Results Management Requirements (TD2015RMR), Sect. 3.
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Viret, M. (2016). Focus of the Analysis. In: Evidence in Anti-Doping at the Intersection of Science & Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-084-8_2
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