The World Anti-Doping Code and CAS Jurisprudence

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The World Anti-Doping Code and CAS Jurisprudence

• Dennis Koolaard Dennis_at_mirbar.co.il

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Content

1. General introduction on Doping
2. General introduction on the WADC
3. System of the WADC

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A. General introduction on Doping

• IAAF enacted an anti-doping provision (1928)
• Knud Enemark Jensen (1960)
• Tommy Simpson (1967)
• IOC established list of Prohibited Substances
  (1968)
• Ben Johnson (1988)
• Tour de France (1998)
• Creation of the World Anti-Doping Agency (1999)
• First version of WADC was enacted (2003)
• Recognition of WADC by UNESCO Convention (2005)
• Revised WADC enacted (2009)

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B. General Introduction on the WADC

• I. Purpose of the WADC
• II. Differences between sports
• III. Differences between countries

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B. General Introduction on the WADC I. Purpose
of the WADC

• The purpose of the World Anti-Doping Code and the
  World Anti-Doping Programme which supports it
  are
• To protect the Athletes fundamental right to
  participate in doping-free sport and thus promote
  health, fairness and equality for Athletes
  worldwide, and
• To ensure harmonised, coordinated and effective
  anti-doping programs at the international and
  national level with regard to detection,
  deterrence and prevention of doping.

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B. General Introduction on the WADC I. Purpose
of the WADC

• Signatories of the WADC
• The IOC
• International Paralympic Committee
• All National Olympic Committees
• All Olympic International Federations
• Almost all International sports-governing bodies
• Governments are not signatories
• In 2005 UNESCO enacted the International
  Convention Against Doping in Sport. 139 countries
  ratified, entered and/or accepted this
  Convention, whereby the Governments expressed
  their support of the Code.

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B. General Introduction on the WADC II.
Differences between sports

• Why would International Federations implement the
  WADC?
• Pressure and responsibility because of being the
  global governing body of a sport.
• Art. 43 Olympic Charter The World Anti-Doping
  Code is mandatory for the whole Olympic
  Movement.

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B. General Introduction on the WADC II.
Differences between sports

• The WADC sets forth specific anti-doping rules
  and principles that are to be followed by
  Anti-Doping Organizations
• Some provisions are mandatory
• Other provisions only establish mandatory guiding
  principles
• Consequence
• Not the WADC, but the Anti-Doping Regulations of
  the National/ International Federation are
  directly applicable as a lex specialis.
• Differences between sports
• Examples
• Differences in testing pools
• Different appeals procedures

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B. General Introduction on the WADC II.
Differences between sports
International Federation FIFA FIBA FINA IAAF
Doping test conducted by National Federation Relevant Tribunal of National Federation Relevant Tribunal of National Federation Relevant Tribunal of National Federation Relevant Tribunal of National Federation
Doping test conducted by International Federation FIFA Disciplinary Committee FIBA Disciplinary Panel FINA Doping Panel Relevant Tribunal of National Federation
Internal Appeal FIFA Appeals Committee Appeals Tribunal of FIBA.
External Appeal International-level athletes CAS. Others national appeals procedure and possibly CAS. International-level athletes CAS. Others national appeals procedure and possibly CAS. International-level athletes CAS. Others national appeals procedure and possibly CAS. International-level athletes CAS. Others national appeals procedure and possibly CAS.
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B. General Introduction on the WADC III.
Differences between countries

• Compliance of national laws with the WADC
• Examples
• Art. 14.3 WADC
• () Athletes in a Registered Testing Pool shall
  provide accurate, current location information
  (art. 11.3.d IST including temporary lodgings,
  hotels, etc.)
• Art. 45.1.c. (Spanish Law)
• Although Athletes must provide information
  regarding their whereabouts, this information
  only includes the habitual residence and the
  training place of the athlete.

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C. System of the WADC

• I. Burden and Standards of Proof
• II. Burden of Proof
• III. Standard of Proof
• IV. Anti-Doping Rule Violations

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C. System of the WADC I. Burden and Standards
of Proof

• Art. 3.1 WADA Code
• The Anti-Doping Organization shall have the
  burden of establishing that an anti-doping rule
  violation has occurred. The standard of proof
  shall be whether the Anti-Doping Organization has
  established an anti- doping rule violation to the
  comfortable satisfaction of the hearing panel
  bearing in mind the seriousness of the allegation
  which is made. This standard of proof in all
  cases is greater than a mere balance of
  probability but less than proof beyond a
  reasonable doubt. Where the Code places the
  burden of proof upon the Athlete or other Person
  alleged to have committed an anti-doping rule
  violation to rebut a presumption or establish
  specified facts or circumstances, the standard of
  proof shall be by a balance of probability,
  except as provided in Articles 10.4 and 10.6
  where the Athlete must satisfy a higher burden of
  proof.

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C. System of the WADC II. Burden of Proof

• The Burden of Proof
• As a general principle of law, the party claiming
  a right on the basis of an alleged fact shall
  carry the burden of proof.
• The Anti-Doping Organization shall have the
  burden of establishing ()
• ? The Anti-Doping Organisation, except where
• () the Code places the burden upon the Athlete
  ()
• Art. 3.2.1 Departure from the International
  Standard for Laboratories
• Art. 10.5.1 If the Athlete establishes in an
  individual case that he or she bears No Fault or
  Negligence
• Art. 10.5.2 If the Athlete establishes in an
  individual case that he or she bears No
  Significant Fault or Negligence
• ? The Athlete

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C. System of the WADC III. Standard of Proof

• Beyond any reasonably doubt
• The highest standard of proof used as a burden of
  proof and typically only applies in criminal
  proceedings.
• Balance of probabilities
• Common standard in Civil proceedings. For the
  Panel to be satisfied that a fact is demonstrated
  on a balance of probability simply means, in
  percentage terms, that it is satisfied that there
  is a 51 chance of it having occurred.
• Comfortable satisfaction
• () in all cases is greater than a mere balance
  of probability but less than proof beyond a
  reasonable doubt.

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C. System of the WADC III. Standard of Proof

• Anti-Doping Organization
• ? Comfortable Satisfaction
• Athlete
• ? Balance of probability

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C. System of the WADC IV. Anti-Doping Rule
Violations

• Violations
• Presence of a Prohibited Substance or its
  Metabolites or Markers in an Athletes Sample
• Use or Attempted Use of a Prohibited Substance or
  a Prohibited Method
• Refusing to submit to Sample collection
• Violation of Out-of-Competition Testing
• Tampering of Doping Control
• Possession of Prohibited Substances or Prohibited
  Methods
• Trafficking or Attempted trafficking of any
  Prohibited Substance or Prohibited Method
• Administration, assisting, encouraging, aiding,
  abetting, covering up or any other type of
  complicity

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C. System of the WADC IV. Anti-Doping Rule
Violations

• Presence of a Prohibited Substance or its
  Metabolites or Markers in an Athletes Sample
• Strict liability principle
• () Athletes are responsible for any Prohibited
  Substance () found to be present in their
  Samples. Accordingly, it is not necessary that
  intent, fault, negligence or knowing Use on the
  Athletes part be demonstrated in order to
  establish an anti-doping rule violation under
  Article 2.1.
• Sufficient proof of an anti-doping rule
  violation under Article 2.1 is established by
  either of the following presence of a Prohibited
  Substance () in the Athletes A Sample where the
  Athelete waives analysis of the B Sample and the
  B Sample is not analyzed or, where the Athletes
  B Sample is analyzed and the analysis of the B
  Sample confirms the presence of the Prohibited
  Substance () found in the Athletes A Sample.

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C. System of the WADC IV. Elimination or
reduction of sanction

• Prohibited Specified substances
• There is a greater likelihood that Specified
  Substances, as opposed to other Prohibited
  Substances, could be susceptible to a credible,
  non-doping explanation.
• All Prohibited Substances shall be considered as
  Specified Substances except Substances in
  classes S1, S2.1 to S2.5, S.4.4 and S6.a, and
  Prohibited Methods M1, M2 and M3.
• Examples
• Testosterone Prohibited substance
• Furosemide Specified substance
• Ephedrine Specified substance, only if threshold
  is reached
• Cocaine, Cannabis Prohibited substance, only
  prohibited in competition
• Alcohol Prohibited substance, only in particular
  sports and if threshold is reached

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C. System of the WADC IV. Elimination or
reduction of sanction

• Specified substance
• 1. Establish how the substance entered the body
• 2. Establish that it was not intended to enhance
  sporting performance
• Established? ? Sanction
• Minimum Reprimand
• Maximum Two year period of Ineligibility
• Prohibited substance
• No Fault or Negligence
• 1. Establish how the substance entered the body
• 2. Establish that the Athlete bears No Fault or
  Negligence
• Established? ? Sanction eliminated
• No Significant Fault or Negligence
• 1. Establish how the substance entered the body
• 2. Establish that the Athlete bears No
  Significant Fault or Negligence
• Established? ?Sanction
• Minimum 1 year period of ineligibility
• Maximum 2 year period of ineligibility