Anti-Doping Association

Critically review the issues of harmonisation and the strict liability rule in relation to doping rules in international sport, with reference to natural justice, relevant cases and the formation of the World Anti-Doping Association Code.

Introduction

Part A of this piece will present a critical overview of harmonisation in comparison to other harmonised areas of international law. Part B will provide a description of the latest development for harmonisation in the form of the World Anti-Doping Agency Code (WADA Code) by introducing its founding organisation, the place of the Code in the scheme of WADA's plans and a brief overview of the main contents of the Code. Part C will introduce the integral of this code, namely the strict liability rule and provide a critique of this doctrine as an application of Anti-Doping rules. Part D will compare the needs of harmonising rules in relation to anti-doping and provide a critique as to whether these needs are adhered to under the WADA Code. Finally part E will provide an analysis of harmonisation and in relation to the concept of natural justice and, once again determine whether the WADA Code is a satisfactory measure.

A. Harmonisation in general

Before fully examining the prospect of harmonising anti-doping rules on the international scene, it is important to fully understand the concept of harmonisation. This is essentially the method of creating one single rule of law for a particular activity or industry. A prime example is the harmonising effect of the 1980 Vienna Convention for Contracts on the International Sale of Goods, which is a clear and voluntary mechanism of Private International Law. The purpose of this convention is to create a clear set of rules for all applicable contracts and, while there is some debate over such issues as fundamental breach and the fact that there is no provision for the passing of property, this cannot escape for the overall aim of creating an international law applicable to all such contracts. Harmonisation is therefore seen as the ultimate way of helping to prevent and settle disputes amicably as all parties to a contract would be familiar with the provisions and this increases equality.

The key reason for harmonisation is that of clarity with regard to where parties stand in a given international situation such as a legal contract or multi-lateral or bi-lateral agreement on an international standard such as, the Kyoto Protocol for sustainable development, the General Agreement on Trade in Services (GATS) or the General Agreement on Tariffs in Trade (GATT).

These examples reveal three clear facts that are indicative of the need for harmonisation, which are, firstly, that there must be a group to whom the harmonisation would apply, secondly, that there must be clear subject matter and thirdly, there has to be an advantage to the harmonisation that outweighs and is worth the sacrifice of the individual sovereignty of states. These will be discussed in part D below.

B. Current Harmonisation Practices - Establishment of the World Anti-Doping Agency Code

1. Establishment of the World Anti-Doping Agency (WADA)

The World Anti-Doping Agency was conceived in February 1999 in Lausaunne, Switzerland at the International Olympic Commission (IOC) sponsored World Conference on Anti-Doping in Sport. The idea behind this was for the various groups that are a party to international sport, namely the medical profession, the United Nations, governments, anti-doping agencies and other international federations to collaborate to harmonise the relating to anti-doping.

The Agency was firmly established on November 10 1999. Their mission is to:

promote and co-ordinate at international level the fight against doping in sport in all its forms

Further to this, fuller detail is provided in the World Anti Doping Agency Mission statement which is to tackle the practice of out of competition testing programs as well as strive towards harmonisation in the realm of sample collection and testing. The statement is also clear on the harmonisation of anti-doping legislation and the consequent collaboration with governments to achieve this goal. In addition to this the aim of WADA is the active reduction in the availability of prohibited substances and the sanctioning of doctors who would promote these drugs.

2. The legislative element of their mission - formation of the World

Anti-Doping Agency Code.

It is clear from the brief description of WADA that they have a number of 'missions' to their name. For current purposes, the most relevant of these is the harmonisation of anti-doping rules via establishment of the World Anti-Doping Agency Code.

The World Anti-Doping Code was seen as a vital step forward in the World Anti-Doping Program at the Copenhagen World Conference on Doping in Sport on March 5, 2003. The following month the code was approved and adopted in time for the Olympic games in Athens. The code is a joint effort of such major sports organisations as the IOC and international anti-doping initiatives such as the International Anti-Doping Arrangement (IADA) and Anti-Doping International (ADI). It is stated by the Canadian Centre for Ethics in Sport (CCES) that this code is:

a package of universal, mandatory anti-doping rules and procedures which will be phased in for all countries and Olympic, Para-Olympic and some other sports over the coming years

Further detail on this code is provided by the CCES and states that the purpose of the WADA code is to create and promote harmonisation through a level international playing field.

In essence, the development of this code is also the first part of a three level program that was developed by WADA in 2000. The other two levels are the implementation of international standards such as compulsory operational standards, a list of prohibited substances and international standards for laboratory accreditation. Finally level three in the WADA program is the creation of models of best practice that are voluntary and will create templates for solutions to current problems with anti-doping.

3. The content of the World Code

The code consists of several elements, including a justification for its existence as part of the World Anti-Doping Program, a definition of doping and violations, the roles and responsibilities of participants in the program as well as information, education and the infrastructure for the control of doping. The Code is lengthy but the most relevant aspects are dealt with below in relation to; the strict liability rule, the fulfilment of natural justice, the relevant group to whom the code applies, clear subject matter for the code and the advantage of the code over sovereignty.

C. The strict liability rule of Anti-Doping

1. Locations of the rule

Before the advent of the WADA Code, it was always common practice for doping to be a strict liability offence, meaning, that if the sample provided by the athlete proved to contain traces of a banned substance, the athlete would be strictly in breach of anti-doping rules regardless of the circumstances of ingestion. An example of this is found in the IAAF Handbook of 1996-1997 which states that:

Rule 55 - (1) Doping I strictly forbidden and is an offence under IAAF Rules...(2) The offence of doping takes place when either: (a) prohibited substance is found to be present within an athlete's body tissue or fluids

As a result of strict liability, many athletes such as Sandra Gasser loose out significantly in terms of short term revenue and bans on future competition participation.

Similar rules are found in the far more recent WADA Code under Article 2, which covers anti-doping rule violations. The code categorically acknowledges retention of strict liability policy and states that:

The violation occurs whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault

It may seem that strict liability is overly aggressive and does not fit in with the doctrine of natural justice but it will be shown below that there is a perfectly reasonable rationale for the maintaining of the strict liability rule in anti-doping regulations.

2. Rationale for the rule

In terms of natural justice this method is the ideal way of preventing corruption in the field of sport since, regardless of the circumstances of ingestion, all athletes are treated equally. The notion that the rule is unfair in cases of accidental ingestion was refuted by the Court of Arbitration for Sport in Quigley v UIT where it was stated that food poisoning on the night prior to a sporting event is also unfair but unpreventable.

Further to this, there is also the opportunity for athletes to demonstrate, in accordance with Article 10.5 of the WADA Code that they were not at fault or significant fault. This effectively means that the strict liability offence creates a fair, rebuttable presumption of guilt and it is the owness of the athlete to establish any extenuating circumstances. This fits in with the natural justice concept of due process given that human beings must be responsible for the presence of substances in their bodies and any suggestion that they need not justify such a presence is ludicrous.

D. Harmonisation of Anti-doping rules, comparison to the harmonisation of laws in general

In the sports world doping rules on international sport is rife with considerations that are unlike any other area of legal regulation such as international trade, services, human rights, competition and the environment. The reasons for this are related to the three requirements for a need for harmonisation.

1. The identifiable group in the argument of anti-doping in international sport.

In the first place, for most harmonising rules the matter of an identifiable group is a simple case of finding the group of states that have, either by virtue of membership of an international institution or as a result of individual ratification, signed up to the agreement. Anti-doping rules add a further tier to the identification of a group by applying the concept of the actual international sporting event. The group is therefore that of international athletes representing their sovereign states.

In relation to the identification of this group, it then has to be ascertained whether there ought to be harmonisation in terms of the status of the players and the event and the sport being played.

(a) Differences Between professional and amateur events

Firstly, the key issue that is of primary concern in the Sports industry is whether there ought to be harmonisation of anti-doping rules between both the professional and amateur sporting associations. It is felt by the professionals on the one hand that they ought to be given more leeway in the types of drugs useable for the reason that the increased strain that they exert on their muscles and physique is tantamount to a heightened frequency of injury and, hence pain killer use. On the other hand, the amateur associations are of the opinion that standards as high as that of the International Olympic Commission (IOC) ought not to be introduced to amateur competitions. A prime illustration of this is the notion of the amateur having a much shorter sporting career in which a two year ban would be far more inhibitive to the amateur than for the professional.

Two key issues are actively brought to light here. The first is that there appears to be little debate over the fact that differences in anti-doping standards between various sporting associations of various athletic levels exists. In fact, it is highly logical for this set-up to exist, especially given the variation in expectation and commitment.

(b) Differences Between various sports

A further point is that the argument relating to likelihood of injuries means that there may well also be scope for differing standards depending on the sport in question, that would relate to issues of muscles and skills used as well as the extent of physical exertion that creates a tangent between sports such as curling and marathon running.

For both arguments pertaining to amateur and professional athletes, as well as differences between the sports, the WADA code has chosen to ignore arguments for non-harmonisation on these grounds and reasons for this are actually found within the explanatory text in the WADA code.

With regard to the differences between amateurs and professionals, the impact of the two year penalty for a first offence and a life ban for a second was seen as secondary to the injustice of application of double standards for athletes from the same country who participates in different levels of sport and in different sports.

2. Clear Subject Matter

In relation to the concept of the subject matter, it is essential that the criterion of 'what' is to be harmonised is ascertained. In terms of the international trade of goods this is clearly an issue of the obligations relating to the quality of the goods, the ascertaining of the goods and also the criteria for breach of contract. In the world of anti-doping regulations, this is going to cover such issues as the list of banned substances, definitions of doping, penalties and measures for the practice of drugs testing. As stated by Houlihan harmonisation is to be regarded as a spectrum upon which one end consists of broad principles and the other, of detailed uniformity. He states:

it is appropriate to ask how far along the spectrum towards detailed uniformity the sought-for harmonisation lies

The WADA Code, provide harmonisation that can only be described as far up the detail spectrum, with strict rules in relation to all of the above mentioned factors of the list of banned substances, definitions, testing and harmonised penalties.

3. The issue of an advantage that would justify the removal of

sovereignty.

The wording of the WADA code means that the advantage that justifies the removal of sovereignty is very straightforward. In actual fact, acceptance and implementation of the World Anti-Doping Program is compulsory for sports and countries in order to participate in such international competition as the Olympics, the Para-Olympic Games, the Commonwealth Games and all manner of world championships.

It is however true to say that many states are delighted to be forced into such harmonisation and were themselves at the forefront of the development of the WADA Code. For example, Canada, as a forerunner in the international sporting world, regards compliance with the World Code as not just an obligation but a privilege. They were avid campaigners for the instigation of a harmonised set of rules since the 1990 Dubin Report. This does not however mean that Canada is not making sovereign sacrifices as they will be forced to make a number of changes in relation to Canadian policy on Doping in Sport and their Control Regulations so that their domestic program will be in keeping with the international provisions of the WADA Code.

E. Harmonisation and natural justice

It is arguable that one barrier to the concept of harmonisation would be that of the use of the criminal law in certain instances of doping activity. Arguably the need to prosecute with criminal law of the land in which the offence took place would be the prime reason why harmonisation would be almost impossible. The reason for this is that overly penal laws of certain lands would have the result of barring that sovereign state from hosting international competitions.

1. The harmonisation of the criminal law - practices and implications

One way around this is certainly to harmonise the laws pertaining to criminal prosecutions for doping offences for all sovereign states and they would certainly engage in this practice on account of the vast revenue available for hosting sporting events. However this raises the fundamental issue of natural justice in that all those who commit the same crime shall be guilty of the same offence and subject to the same criminal sanctions. It is therefore clear that there cannot be double standards within one jurisdiction.

Natural justice is however perceived in a rather different light that is both intriguing and forward thinking. The truth of the matter is that the practice of sporting associations and the governments of hosting events are not in the practice of prosecuting for offences relating to doping. Instead, natural justice is served through the public humiliation and effective suspension or even ending of the athlete's sporting career. The result of this is that harmonisation issues relating to criminal prosecution simply do not arise and the question of a detailed harmonisation is back in play for the reason that doping is handled by the disciplinary discretion of, in the case of the WADA Code, by WADA itself and not the government of the host country.

Should this sound like an affront to the operation of natural justice, it must be remembered that the suspension or ending of a sporting career has serious connotations to the livelihood capabilities of the athletes. This was acknowledged in the case of Quirke v Bord Luthcheas na hEireann where Barr J stated that

There can be no doubt that an international athlete who is suspended by way of punishment from all major competition for a long as eighteen months, which includes a particular Olympic Games, has had a substantial penalty imposed on him. Furthermore, even after the period of suspension expires, the moral implications of its imposition remain

2. The need for sporting authorities to operate on a basis of fairness -

due process

McCutcheon argued in 2001 that, as a result of the implications for discipline in accordance with the sporting authorities, it is clear that their method of disciplinary hearing ought to be identical to that of any criminal proceedings. In the case of Flanagan v University College Dublin Barron J was of the opinion that there would be no difficulty in the instigation of procedural protection in the name of natural justice. He argued that athletes have a fundamental right to written details of charges laid against them, legal representation, clear indication of rights and the right to hear and challenge evidence against them.

As a consequence for the prospect of harmonisation, it is therefore clear that a fair system such as this is to be an integral part of the disciplinary proceedings or else, as a matter of moral conjecture, the proposed harmonising regulations would be highly unpopular and never take off.

Indeed, McCutcheon writes that a number of international associations have adopted adequate procedures that mirror criminal trials. In particular, attention has been drawn to the use of vague offences such as 'bringing the game into disrepute,' and 'misconduct' which have sparked off a great deal of debate. In addition he argues that fair procedure should also entail full publication of trial proceedings in such journals as the Sport Law and Journal and the Digest of the Court of Arbitration for Sport. All moves such as this can only strengthen the case for harmonisation.

Indeed, since the writing of this Article, the WADA Code has of course come into being and harbours many provisions that are in keeping for the demand for due process. This is seen, for example, under Article 3.1 of the WADA Code in which it states that the owness of the standard of proof lies with the Anti-Doping association and this is clearly a direct reflection of the evidential burden bourn by the prosecution in a criminal trial. In addition to this, Article 3.2 states the methods for establishing facts and presumptions are equal to that of criminal procedures and lastly, the greatest evidence of adherence to the natural justice concept is explicit provision of the right to a fair hearing under Article 8 of the WADA report.

Conclusion

With regard to strict liability, the justification for this rule is strong in that it is the only real way of ensuring against corruption in sport and it is equally logical that athletes are responsible for all that they ingest. In any case, possible unfairness is balanced by the opportunity to rebut the presumption of guilt that arises from the strict liability rule.

The boundaries of harmonisation or, in the words of Houlihan, the 'spectrum' for harmonisation is given clear definition in WADA and it is not merely in terms of the list of drugs banned and the types of penalties that can ensue. The truth is that the above critique reveals that there was a need to identify the groups to which the harmonisation of rules applies. While the WADA does give reasons for ignoring the glaring differences between amateur and professional athletes, as well as the demands of different sports, there is no real substantial justification for the broad group identified under WADA as being subject to the harmonising effects of its Code. The difference in standards gives rise to a need for a system that separate both amateur and professional groups. In terms of the separation of sports, varied laws are justifiable but only when under the umbrella of the harmonising regulations.

In terms of subject matter, the uniqueness of sport has created clear insight into a justification for abandonment of criminal proceedings in light of the penalties at stake, but in addition there is equally the need for an equally fair due process of natural justice and this is excellently provided for under the WADA Code. Finally, with regard to justifications for the removal of sovereignty, WADA has made this a very clear. In other words, if the state does not adhere, they cannot have representation in the most important of international competitions.

Bibliography

Legislation

The World Anti-Doping Agency Code (Version 3, 20 February 2003)

The IAAF Handbook 1996-1997

For comparative purposes:

The 1980 Vienna Convention for Contracts on the International Sale of Goods

The General Agreement for Tariffs in Trade (GATT)

The General Agreement for Trade in Services (GATS)

Case Law

Quirke v Bord Luthcheas na hEireann [1988] IR 83

Wright v The Jockey Club QBD, unreported, 15 May 1995

Cowley v Heatley, The Times, 24 July 1986

McInnes v Onslow-Fane [1978] 3 All ER 211

Flanagan v University College Dublin [1988] IR 724

Quigley v UIT Court of Arbitration for Sport (1998) WADA Code Version 3

Articles

Bitel, 'Disciplinary Procedures from the Point of View of the Individual,' 3 Sport and the Law Journal (1995), no 3, 7 and 8

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Beloff, M. Kerr, T. & Demetriou, M, Sports Law, (Oxford, Hart Publishing (1999).

Gardiner, S, Sports Law, (London, Cavendish Publishing, 2001)

Grayson, E, Sport and the law, (3rd Edition, London, Butterworths, 2001)

Greenfield, S. & Osborne, G, Law and Sport in contemporary society, (London, Frank Cass (2000)

Houlihan, B, Dying to win, (Strasbourg, Council of Europe, 2000)

Howe, P.D. Sport, Professionalism and Pain, (London, Routledge, Taylor and

Francis, 2004)

Lewis, A. & Taylor, J, Sport: Law and Practice, (London, Butterworth, Lexis Nexis, 2003)

McArdle, D. Football, Society and the Law, (London Cavendish, 2002)

O'Leary, J.Drugs and Doping in Sport: Socio Legal Perspectives,(London, Cavendish 2001)