The interaction of criminal and disciplinary law in doping-related cases

Abstract

In this article doping-related offenses entrenched in Art. 2.6, 2.7, 2.8 of current World Anti-Doping Code are investigated within the terms of standards and methods of proving as well as the comprehensive system of sanctioning. The subtleties as well as innovations of such research are inter alia related to the application of the certain principles of human rights/due process of law/natural justice. The methods of proving said violations and the sanctions entrenched for them are close to the methods and sanctions those of criminal justice. Consequently, it is stated that the more serious allegation is made, the stricter sanction is entrenched, the stricter proving standard is to be applied. From the theoretical point of view it is conveyed that disciplinary sanctions undoubtedly inflict suffering and are both deterrent as well as retributive. CAS jurisprudence stipulates that harsh penalties within the World Anti-Doping Code could be consistent with human rights/due process of law/natural justice as long as there are clauses dealing with the problem of fault/intent and allowing for the elimination or reduction of the ineligibility periods. Such clauses pave the way for judicial discretion and, therefore, it is still an open question whether the anti-doping policy will turn itself into punitive one or, vice versa, to the policy which carefully takes into consideration each separate case with its own peculiarities.

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Notes

  1. 1.

    The catalog of anti-doping rule violations has been amended with addition of Articles 2.9 and 2.10 in the newly adopted 2015 version of WADC at the World Anti-Doping Agency (further – WADA) Foundation Board Meeting in Johannesburg, South Africa, 12–15 November 2013. The revised Code comes in force on January, 1, 2015.

  2. 2.

    CAS 95/150 Volker v. FINA, Sec. 13, 20 (1996).

  3. 3.

    Soek 2006, p. 216.

  4. 4.

    World Anti-Doping Code 2009 Comment to Articles 2.1.1 and 2.2.2; World Anti-Doping Code 2003 Comment to Article 10.5.1.

  5. 5.

    Soek 2006, p. 220.

  6. 6.

    International Convention Against Doping in Sport 2005.

  7. 7.

    Tarasti 2007, pp. 3–4, 15–18.

  8. 8.

    CAS 2011/A/2426 Amos Adamu v. FIFA, Sec. 63.

  9. 9.

    World Anti-Doping Code 2009, p. 18.

  10. 10.

    Soek 2002, p. 2.

  11. 11.

    Court of Arbitration for Sport 2008/A/1583 Sport Lisboa e Benfica Futebol SAD v. UEFA & FC Porto Futebol SAD, Court of Arbitration for Sport 2008/A/1584 Vitória Sport Clube de Guimarães v. UEFA & FC Porto Futebol SAD, Sec. 42.

  12. 12.

    This principle means that in case of doubt the person is to be acquitted.

  13. 13.

    Ibid.

  14. 14.

    Lukomski 2012, p. 63.

  15. 15.

    More on models of criminal procedure: Roach 2003, pp. 778–783.

  16. 16.

    Final draft of 2015 WADC.

  17. 17.

    “A question remains as to how French came into possession of the 13 eGH phials. Counsel for French paints a scenario that since the cyclists live in a college style dorm with doors open, anything can happen, with other people having the opportunity to deposit the eGH phials in French's room. There is evidence before this Panel that Dajka frequented French's room while French was absent. There is evidence from Eadie that it is possible that he accessed French's room during the week of 25 November 2003 to 2 December 2003 when French was not there. There is also the evidence of the labels of eGH phials ripped off. Such an act is consistent with a clandestine user of eGH and supports the assertion that it is possible that French may not have known that he possessed eGH. In any event, from the evidence before us and that was not present before the first instance Arbitrator, there is a possibility that the eGH phials could have been put in the bucket unbeknownst to French.”, CAS 2004/A/651 French v. Australian Sports Commission and Cycling Australia, Sec. 89.

  18. 18.

    Grano and Abramson 2004, p. 9.

  19. 19.

    USADA v. Lance Armstrong, Reasoned decision of the United States Anti-doping Agency on disqualification and ineligibility, 2014, pp. 83–84.

  20. 20.

    Tennis Anticorruption Program. Part F Investigations, 2014.

  21. 21.

    On the “minimum requirements” of a fair hearing (which include inter alia a timely hearing, the right to be represented by counsel at the person’s own expense, the right to present evidence, etc.), see Soek 2006, p. 361.

  22. 22.

    Ibid., p. 335

  23. 23.

    CAS 2011/A/2426 Amos Adamu v. FIFA, Sec. 62, 74.

  24. 24.

    USADA v. Lance Armstrong, Reasoned decision of the United States Anti-doping Agency on disqualification and ineligibility, p. 93.

  25. 25.

    Ibid., p. 91.

  26. 26.

    The specificity of the case lies in the fact that the Appellant was filmed and recorded by hidden cameras and recorders, while meeting twice with undercover Sunday Times journalists. CAS 2011/A/2426 Amos Adamu v. FIFA, Sec. 2.

  27. 27.

    CAS 2011/A/2426 Amos Adamu v. FIFA, Sec. 68.

  28. 28.

    Teixeira de Castro v. Portugal, application number 44/1997/828/1034, Sec. 38, 39.

  29. 29.

    CAS 2011/A/2426 Amos Adamu v/FIFA, Sec. 11.

  30. 30.

    The essence of such approach is parallel method by which sports governing bodies together with law enforcement agencies investigate match-fixing by using their respective powers and resources in the most effective and efficient way possible: Van Rompuy 2013, pp. 68–72.

  31. 31.

    Houben 2007, p. 11; Ioannidis 2010, p. 17.

  32. 32.

    Ioannidis 2010, p. 17.

  33. 33.

    Soek 2002, p. 5.

  34. 34.

    Soek 2006, pp. 319–320.

  35. 35.

    For more on theories on punishment see: Dressler 2006, pp. 14–24.

  36. 36.

    Dressler 2006, p. 15; Soek 2002, p. 5.

  37. 37.

    Soek 2002, p. 5.

  38. 38.

    World Anti-Doping Code 2009, Introduction, p. 11, 14.

  39. 39.

    Soek 2002, p. 6.

  40. 40.

    World Anti-Doping Code 2009, Introduction, p. 16; Article 23, p. 116.

  41. 41.

    For definition of Athlete Support Personell see: World Anti-Doping Code 2009, Appendix 1: Definitions, p. 128.

  42. 42.

    WADA Code review interview with David Howman, 2014.

  43. 43.

    USADA v. Lance Armstrong, Reasoned decision of the United States Anti-doping Agency on disqualification and ineligibility, pp. 7–8, 164.

  44. 44.

    World Anti-Doping Code 2009, Comment to Article 10.3.2; also WADC 2015, Final Draft, Comment to Article 10.3.3.

  45. 45.

    For definition of Specified Substance see: World Anti-Doping Code 2009, Article 4.2.2, p. 31.

  46. 46.

    For definition of Prohibited Substance or Prohibited Method see: World Anti-Doping Code 2009, Appendix 1: Definitions, p. 133.

  47. 47.

    For definition of trafficking see: WADC 2015, Final Draft, Appendix 1, p. 87.

  48. 48.

    From the societal point of view, it might be considered that zero-tolerance policy in sports is incompatible with early-intervention principles and can also be counterproductive by prompting the use of high-risk masking drugs. Even from legal point of view it is said that “zero tolerance” policy potentially lacks legal certainty and makes difficult to build trust in anti-doping mechanisms as well as to comply with them. See Smith, Stewart and Smith 2008, pp. 278–298 and Senkel 2011, pp. 178–179.

  49. 49.

    WADC 2015, Comments to Article 10.3, p. 36.

  50. 50.

    The theory of criminalization, to certain extent, explains the idea of putting doping-related offences in the criminal law realm with, so called, foreground or simplified criminalization. In this situation certain human acts are being criminalized in order to deter the other, that are much more harmful or due to proving difficulties. Thus, the prevention of the doping use among athletes is supported by elimination of the predating acts that are performed especially by persons of the athlete’s surrounding. However, it should be emphasized, that this kind of criminalization premise only supports the need of preventing the main problem. Moreover, there is enough scientific data that tell the opposite: i.e. that doping use is not more harmful comparing to doping-related offences; vice-versa: drug dealers/suppliers might be connected with serious (organized, which in turn is not only related to doping, but to drugs as well) crime, not the athletes themselves. For more on the theory of criminalization see Gardocki 1990, pp. 66–68.

  51. 51.

    Houlihan and Garcia 2012, pp. 10–17; Murphy 2013.

  52. 52.

    Here, for instance, doping use is considered as Fraud. Yet (both within the context criminal law theory and from the standpoint of proving) it is debatable whether the opponent(s) from the competition can be considered as victim(s) of the deception or is/are deceived in the sense of corpus delicti of Fraud which in turn “requires” certain material damage to occur. See Momsen 2011, p. 199.

  53. 53.

    Houlihan and Garcia 2012, pp. 10–17; Murphy 2013.

  54. 54.

    Murphy 2013.

  55. 55.

    Van Bockel 2009, p. 1.

  56. 56.

    Court of Arbitration for Sport 2008/A/1583 Sport Lisboa e Benfica Futebol SAD v. UEFA & FC Porto Futebol SAD, Court of Arbitration for Sport 2008/A/1584 Vitória Sport Clube de Guimarães v. UEFA & FC Porto Futebol SAD, Sec. 42.

  57. 57.

    Taking into consideration the aim this article the problem of “overlapping competences” (regarding anti-doping measures imposed by WADA and the international sports federations) is not investigated here.

  58. 58.

    About the relevance of ECHR to the anti-doping disciplinary laws see more: Costa 2013, p. 3.

  59. 59.

    CAS 2011/O/2422 USOC v. IOC, Sec. 8.36.

  60. 60.

    Tarasti 2007, p. 17.

  61. 61.

    Zolotukhin v. Russia, application 14939/03, Sec. 79 (2009).

  62. 62.

    CAS 2011/O/2422 USOC v. IOC, Sec. 8.36.

  63. 63.

    Zolotukhin v. Russia, application 14939/03, Sec. 83.

  64. 64.

    Costa 2013, pp. 5–6.

  65. 65.

    Kaufman-Kohler and Malinverni 2003; Soek 2002, p. 6.

  66. 66.

    Costa 2013, pp. 8–9.

  67. 67.

    Pfister 2008, pp. 93–97. Quoted from Senkel 2011, p. 178.

  68. 68.

    Costa 2013, pp. 5–6.

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Acknowledgment

Salomeja Zaksaite's Postdoctoral fellowship is being funded by European Union Structural Funds project “Postdoctoral Fellowship Implementation in Lithuania”. Postdoctoral research concerns the issues on cheating in sports. Hubert Radke's doctoral thesis concerns the problem of fighting sport abuses with the use of criminal law means.

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Correspondence to Salomeja Zaksaite.

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The collaboration to write this article formed out of Asser Summer Programme in International Sports Law. Both authors contribution towards the article is considered to be equal.

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Zaksaite, S., Radke, H. The interaction of criminal and disciplinary law in doping-related cases. Int Sports Law J 14, 115–127 (2014). https://doi.org/10.1007/s40318-014-0045-5

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Keywords

  • Non-use anti-doping infractions
  • Methods and standards of proving
  • Retributive sanctions
  • Interaction of disciplinary and criminal law