Doping and Corruption in Sport

Question 1

Why is the integrity of sport important?

Answer 1

Despite growing commercialisation of sport, there is still a strong socio-cultural aspect of sport

Question 2

What are some of the aspects affecting the integrity of sport?

Answer 2

• Doping
• Sport agents
• Match fixing
• Corruption
• Protection of minors-protection from injury, post sport support if they fail to make it

Question 3

When was WADA established? and what was a major trigger of its creation

Answer 3

• 1999 as an international independent agency

* Creation after Festina case 1997

Question 4

What are the key activities of WADA?

Answer 4

• scientific research e..g develop list of banned substances and update
• education-culture change may now be seen as more powerful than punishment
• , development of anti-doping capacities (at national level
• monitoring of theWorld Anti Doping Code (Code)
• WADA develops rules of conduct and procedural rules for decision-making
• At a national level, the responsibility falls on anti-doping agencies

Question 5

How does the doping framework link with the sports governance framework?

Answer 5

• International level (ISFs)-WADA
• Confderate/NGB level- National anti-doping agencies e.g. UKAD
• Player, club, athletes level- CAS

Question 6

How do NGBs adhere to anti-doping programmes?

Answer 6

• NGBs state they are signatories to the code and will adopt and implement rules and regulations impsoed

Question 7

What is the history of the WADA code?

Answer 7

First adopted in 2003 and effective from 1 January 2004. Revised in 2009 and
the current revised Code effective from 1st January 2015

Question 8

What is the code drafted on?

Answer 8

Drafted on the basis of strict liability. This means that a doping violation can be committed without fault or knowledge (intention not needed)

Question 9

What is the aim of the code?

Answer 9

• A set of model regulations that aims to ensure consistency in the application of anti-doping regulation
• Applies to nearly all sports (around 97% exc e.g. boxing) and its adoption is a prerequisite for Olympic competition

Question 10

What is the relationship of the code with CAS?

Answer 10

Under the code you have the right to appeal to CAS

Question 11

What are the code’s international standards?

Answer 11

Supplementary documents to the code which are revised annually to prevent revsions of the entire code

Question 12

What are some of the international standards of the code?

Answer 12

• The Prohibited List e.g. Sharapova case (meldonium drug added)
• International Standards for Testing and Investigations e.g. Russia state tampering with drugs
• International Standards for Laboratories
• International Standards for Therapeutic Use Exemptions- e..g Bradley Wiggins
• International Standards for the Protection of Privacy and Personal Information e.g. whereabouts data

Question 13

What legal principles are the anti-doping regulations predicated on?

Answer 13

• Contractual relationship between sportspeople and NGBs
• Anti-doping regulation, as represented by the World Anti-Doping Code, is considered by the law to be a proportional response to doping in sport.

Question 14

Explain the legal principle of the contractual relationship underpinning the WADA regulations?

Answer 14

• Relationship includes the terms of which include the doping regulations of that particular sport
• Brought in as players argued it wasn’t formally part of their contract

Question 15

Explain the legal principle of the WADA regulations being a proportional repsonse to doping in sport

Answer 15

Came after legal cases such as Meca-medina and Majcen 2006 where the regulations and bans were stated as being anti-competitive but the ECJ found that the anti-doping regulations were needed to fulfil the legitimate sporting objectives of FINA and the IOC

Question 16

What is in article 1 of the WADA code?

Answer 16

Article 1 of the WADA Code defines doping as one or more occurrences of the anti-doping rule
violations set out Article 2

Question 17

What are some of the key aspects in article 2 of of the WADA code?

Answer 17

• Most bans increased from 2 to 4 years
• Shortest ban is 2 years for violating out-of-competition regulations
• Most sever bans of (4 yrs-lifetime) for trafficking or adminstration to an athlete

but
without intent, you may get certain reductions

Question 18

Explain strict liability?

Answer 18

A positive test is sufficient in itself to establish liability. It is not necessary to
show that the athlete (or another person) transmitted the banned substance
into the athlete’s body with the aim of achieving an increase in performance,
nor that the substance did actually increase performance

Question 19

What does operating on strict liability allow?

Answer 19

• Strict liability allows a SGB to ban an athlete without showing that the athlete intended to take the substance
• The rule offers clarity and simplicity, but may appear to be draconian in its consequences-plays with athletes lives e.g. loss of sponsorship
• Both CAS and the High Court have held that strict liability is lawful

Question 20

What is article 2.4 of the WADA code?

Answer 20

Violation of requirements regarding availability for
out-of-competition testing
• Includes whereabouts data required from elete athletes to give location information at regular intervals for authorities to test at random times

Question 21

What is a case study example of a violation of article 2.4? and explain

Answer 21

• Christine Ohuruogu v BOA [2008]:
•Missed three out-of-competition tests and was suspended for 12 months.
• At an appeal, it was held that it was irrelevant
that Ohuruogu had no intention to engage in doping activities or that no notice was given of the test.

Question 22

What are the issues surrounding out-of-competition testing?

Answer 22

Significant issues remain around the validity of a draconian out-of competition testing regime, not least the right to privacy and family life

Question 23

What is reduction of ineligibility?

Answer 23

The balance to the strict liability over the finding of a Prohibited Substance rule is provided through the possibility of modified sanctions
• Introduced in 2015 as a way of addressing issues of no natural justice

Question 24

What articles of the code correspond to a reduction of ineligibility?

Answer 24

• Article 10.4 of the Code allows an athlete to avoid or reduce the sanction in certain circumstances where they can demonstrate that they did not intend to enhance their sport performance e.g. Sharapova use of drug fro previous 10 years
• Article 10.5 allows an athlete to avoid or reduce the sanction if they are able to demonstrate they were not at fault, or not at significant fault
• Article 10.5.3 effectively allows a 75% discount on any period of ineligibility for “substantial assistance in discovering or establishing anti-doping rule violations”

Question 25

What case study shows a reduction in ineligibility and explain

Answer 25

• ITF v Gasquet and WADA v Gasquet [2009]
• Gasquet tested positive for cocaine and banned for 2 years
• Gasquet claimed cocaine entered his system from kissing a girl in a nightclub
• CAS overturned decision stating minute trace of cocaine suggests unintentional ingestion

Question 26

What is article 4.4?

Answer 26

Therapeutic Use Exemptions (TUEs) allow banned substances to be taken.

Question 27

What are the criteria for TUEs?

Answer 27

• The athlete would experience significant impairment to health if the medication containing a banned substance were withheld. e.g. Insulin for athletes with diabetes
• Medication will not enhance performance merely return athlete to normal health

• No reasonable alternative medication available
Got to in place before testing positive not after e.g. Sharapova

Question 28

What does article 3 of the code state?

Answer 28

Article 3 of the Code sets out the burden and standards of proof

Question 29

Explain the standard/burden of proof written in the code

Answer 29

• The anti-doping organization will have the burden of establishing that an anti-doping violation has occurred
• The standard of proof is that of ‘comfortable satisfaction’ e.g. above 50%
• This standard is greater than a mere ‘balance of probabilities’, but less proof than ‘beyond reasonable doubt e.g. criminal law standard ’
• There is also a rebuttable presumption that the accredited laboratory carried out the analysis correctly e.g. Sun Yang case

Question 30

What is article 8 of the code?

Answer 30

Article 8 of the Code deals with the right to a fair hearing

Question 31

Explain the right to a fair hearing in the code

Answer 31

• The hearing process shall address whether an anti-doping rule violation was committed and, if so, the appropriate consequences. It should adhere to the
following principles:

A timely hearing
A fair and impartial panel
The right to be represented
The right to be told in good time of the asserted anti-doping violation
The right to respond
The right of each party to present evidence
The right to an interpreter at the hearing
A timely, written, reasoned decision