Abstract
The special characteristic of “anti-doping law” from an institutional, organisational perspective is the fact that national governments and intergovernmental organisations (IGOs) directly participate in WADA and the close linkage between the UNESCO Convention and the WADA Code. This issue will be discussed in detail in the first part of this article. The hot issue of the legal aspects of the fight against doping in sport is the relationship between “anti-doping law” and the human rights of athletes in doping cases, that is the applicability of general public human rights law to doping in sport. In the second part of the article a case of this type in which in 2009 this author was personally involved as a member of the appeals committee of the Instituut Sportrechtspraak [Netherlands Institute for Sport Adjudication] will be presented. The Appeals Board’s decision was finally submitted to the CAS which was and still is the first time in history with regard to a Dutch case.
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Notes
- 1.
Pound 2002, pp. 53–55.
- 2.
The five European members of the WADA Foundation Board are designated half by the Council of Europe and half by the EU.
- 3.
Currently, the WADA President is John Fahey (Australia) and the Vice President is Prof. Arne Ljungqvist (Sweden), IOC Member and President of the IOC Medical Commission.
- 4.
See again, Pound 2002, p. 57.
- 5.
A second version of the Code was unanimously adopted by WADA’s Foundation Board and endorsed at the Third World Conference on Doping in Sport, in Madrid, on 17 November 2007; the new Code entered into force on 1 January 2009.
- 6.
- 7.
See, for example, Soek 2006, p. 381 et seq.
- 8.
Cf., David 2008, p. 168 et seq.
- 9.
CAS Advisory Opinions, in Blackshaw et al. 2006, pp. 180–181.
- 10.
The Instituut Sportrechtspraak is here referring to the Yuri van Gelder case decided by the Disciplinary Commission of the Royal Dutch Gymnastics Union on 22 October 2009. Yuri van Gelder won the European and world champion’s titles (rings) in 2005, 2008 and 2009 and 2005, 2006 and 2007 respectively.
- 11.
Paragraph 43 of Meca-Medina reads in full: “As regards the overall context in which the rules at issue were adopted, the Commission could rightly take the view that the general objective of the rules was, as none of the parties disputes, to combat doping in order for competitive sport to be conducted fairly and that it included the need to safeguard equal chances for athletes, athletes’ health, the integrity and objectivity of competitive sport and ethical values in sport.” In the preamble of the UNESCO Anti-Doping Convention (and previously in similar terms, in the preamble of the Council of Europe Anti-Doping Convention) it reads: “Conscious that sport should play an important role in the protection of health, in moral, cultural and physical education and in promoting international understanding and peace,” “Concerned by the use of doping by athletes in sport and the consequences thereof for their health, the principles of fair play, the elimination of cheating and the future of sport,” “Mindful that doping puts at risk the ethical principles and educational values embodied in the International Charter of Physical Education and Sport of UNESCO and in the Olympic Charter” and “Mindful also of the influence that elite athletes have on youth.”.
- 12.
Dick Jaspers is a Dutch professional billiards player, who was world champion (three-cushions) in 2000, 2004 and 2011.
- 13.
Cf., on the international plane, “the general principles of law recognized by civilised nations” as a source of public international law in Article 38(1)(c) of the Statute of the International Court of Justice.
- 14.
- 15.
See, in particular Soek 2008, pp. 3–13.
- 16.
Aanhangsel Handelingen Tweede Kamer [Annex to Parliamentary Proceedings] 2009–2010 No. 1999.
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Siekmann, R.C.R. (2012). Anti-Doping Law in Sport: the Hybrid Character of WADA and the Human Rights of Athletes in Doping Cases (Proportionality Principle). In: Introduction to International and European Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-852-1_9
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