SPORTS SCIENCE (Quality Work, No Plagarism, A++)

Biography

Dr Jonathan Morgan is currently Fellow and Tutor in Law at St Catherine’s College, Oxford. From October 2012 he will be University Lecturer in Tort Law, University of Cambridge. He has written widely on tort, contract and

human rights. His book entitled, Great Debates: Contract Law is being published by Palgrave Macmillan (forthcoming, 2012).

Legal Information Management, 12 (2012), pp. 109–120 © The Author(s) 2012. Published by British and Irish Association of Law Librarians doi:10.1017/S1472669612000321

Drugs in Sport

Abstract: In this article Peter Charlish addresses the controversial issue of the use of performance enhancing drugs in sport. He looks at the legal basis for regulation via the

World Anti-Doping Code and the nature of a sports participant’s relationship with their governing body and the anti-doping organisations. He explains in the context of

proportionality, the measures designed to combat doping in sport; the importance to the

Code of the central principle of strict liability. Also, he highlights the use of non-analytical

positives as a further method of detection of doping violations, whilst taking

consideration of the impact of these measures on the human rights of participants.

Keywords: sports law; drug abuse

INTRODUCTION

The Olympic Games in London in

2012 will be the 30 th of the modern

era. One of the major and on-going

news stories surrounding the Games

will undoubtedly be that of the use

of performance enhancing drugs.

These, we are told, will be the most

tested Olympic Games ever, for this

has been the story of the Olympic

Games through time – a progress- ively increasing number of tests at

each successive summer and winter

Olympic Games, the most recent numbers being a total

of 4770 tests at Beijing in 2008, (with 20 failures, includ-

ing six horses), and 2149 tests at Vancouver in 2010,

with three positives reported (although these figures do

not include figures relating to the biological passport).1

The use of performance enhancing drugs is nothing

new. Evidence suggests that the Ancient Greeks used

crude combinations of different potions

in an attempt to fortify themselves.2

Abuse of substances gathered pace in the

modern era, with the first reported case

occurring as far back as 1904, with the

American Thomas Hicks using a combi-

nation of substances including strychnine

and brandy to help him to victory in the

marathon.3 In the 1920s and 1930s,

international sports governing bodies

began to recognise the threats posed by

performance enhancing drugs and began

to ban particular substances, although,

without any form of tests, these restric-

tions remained ineffective.4 A wake up call occurred at

the 1960 Olympic Games in Rome, when Danish cyclist

Knud Jensen crashed and died. A subsequent autopsy

revealed traces of amphetamines in his system.5

Progress in the fight against doping in sport began to

gather pace with the Union Cycliste Internationale (UCI)

and Federation Internationale de Football Association,

Peter Charlish

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Drugs in Sport

(FIFA) both introducing tests in their respective World

Championships in 1966.6 The death of former world

champion cyclist, Tommy Simpson, near the summit of

Mount Ventoux in the 1967 Tour de France provided

impetus for further developments.7 These developments

came in the shape of compulsory tests for amphetamines

at the 1968 Winter and Summer Olympics at Grenoble

and Mexico City respectively.8

The 1970s and 1980s saw the emergence of evidence

of widespread and often systematic doping, even going as

far as a national conspiracy with state plan 14–25, which was enacted in the former East Germany in the 1970s

with the intention of achieving Olympic sporting success

through a large scale doping programme of young, usually

female, athletes and swimmers, in particular.9 The land-

mark moment in 1988, when Ben Johnson, the Canadian

sprinter, was stripped of his Olympic 100m title in Seoul,

provided some evidence of success in the fight against

the use of anabolic steroids. However, the dopers were

finding other, perhaps more sophisticated ways of cheat-

ing, as emphasis switched to manipulation of haematolo-

gical parameters through blood doping and the ingestion

of substances such as EPO. The tipping point in this

phase of the fight came in 1998 with the Festina scandal

in the Tour de France.10 Festina were the world’s leading cycling team and due to the scandal, were expelled from

the Tour de France. What this scandal highlighted was

the need for a global approach to the problem of drugs

in sport and, as WADA explain:

The IOC11 took the initiative and convened the

First World Conference on Doping in Sport in

Lausanne in February 1999. Following the propo-

sal of the Conference, the World Anti-Doping

Agency (WADA) was established on November

10, 1999.12

With WADA ultimately came the World Anti-Doping

Code (WADC), the first edition of which arrived in

2003. This was the first attempt to harmonise the

approach to combatting doping in sport across different

sports and nations. By the Athens Summer Olympics in

2004, all International Federations had adopted the

Code,13 with funding being provided for the organisation

by a mixture of IOC and matched governmental

funding.14 In 2005, the International Convention Against

Doping in Sport was unanimously adopted by UNESCO’s general conference. This is now the third most ratified of

all UNESCO conventions and covers 168 states and 96%

of the world’s population.15 2005 also saw the launch of the Anti-Doping Administration and Management System

(ADAMS), which aids, amongst other things the manage-

ment of the athlete’s whereabouts system.16 2008 brought the signing of a memorandum of understanding

with Interpol, and then in 2009 the revised Code and

International Standards came into force. Consultation is

on-going over the next edition of the Code and this is

due to take effect in January 2015.

This paper will move on to look at the relationship

between an athlete17 and their governing body, examining

the legal basis for doping control and specifically the role

of WADA and the WADC in the regulation of anti-

doping policy.18 The fundamental principle upon which

the Code is built, that of strict liability, will be examined in particular in relation to the question of the proportional-

ity of the sanctioning and monitoring measures contained

within the Code, and also the compatibility of that funda-

mental principle with the human rights of the athletes it

affects. The paper will conclude with a brief overview of

some issues currently testing the application of the Code.

THE LEGAL BASIS OF REGULATION

An athlete’s relationship with their governing body is a contractual one. This has very clear implications for the

provision of regulations, the sanctioning, and any reme-

dies that an athlete may either be subject to, or have the

opportunity to pursue. The nature of this relationship

has been examined in several cases, most notably

perhaps in Korda v ITF Ltd,19 where Petr Korda, the Czech tennis player, was seeking to challenge the right of

his governing body to appeal an anti-doping sanction

imposed upon him in the Court of Arbitration for Sport

(CAS). The basis of his challenge was that there was no

contractual relationship between them and therefore

they had no right to appeal the sanctioning decision to

the CAS. As is common with many situations involving

sports participants, there was no formal written contract

between the parties. However, the Court was happy to

infer the existence of a contract due to issues such as

Korda’s previous acquiescence with the initial appeal hearing and the anti-doping procedures of the

International Tennis Federation.20 Lightman J., concluded:

I have no doubt that such a contractual relation-

ship has been established. There is no written

agreement signed by the parties and there is no

oral agreement either. Such an agreement is

however plainly to be inferred.21

It is therefore clear from Korda that the relationship between a sports participant and their governing body is

a contractual one and that, further, enforcement of anti-

doping control from the WADA, to the International

Governing Bodies (IGBs), the National Anti-Doping

Organisations, (NADOs), and the National Governing

Bodies (NGBs), is based on this contractual relationship.

One of the most important aspects of worldwide

anti-doping policy is its predication upon the principle of

strict liability. The WADC explains:

Under the strict liability principle an athlete is

responsible and an anti-doping rule violation

occurs, whenever a Prohibited Substance is found

in an Athlete’s Sample. The violation occurs whether or not the Athlete intentionally or

110

Peter Charlish

unintentionally used a Prohibited Substance or

was negligent or otherwise at fault.22

The application of the principle of strict liability is a contentious feature of the Code. However, it has found

favour in the English High Court, where it was examined

in Gasser v Stinson,23 1988. In this particular case, Swiss athlete, Sandra Gasser, failed a drugs test and alleged that

the application of strict liability meant that she was unable to prove her innocence. She challenged the International

Amateur Athletic Federation (IAAF) anti-doping rules as

being an unreasonable restraint of trade. In affirming the

legality of the IGB rules, the High Court drew attention

to the public policy reasons central to the fight against

doping in sport and further emphasised that the reason-

ableness or otherwise of the provisions must be

measured in the context of maintaining a drug free

sport.24 Similarly, the CAS has also recognised the clarity

and utility of the principle, commenting;

It appears to be a laudable policy objective not to

repair an accidental unfairness to an individual by

creating an intentional unfairness to the whole

body of other competitors. This is what would

happen if banned performance-enhancing sub-

stances were tolerated when absorbed inadver-

tently.25 Moreover, it is likely that even intentional

abuse would in many cases escape sanction for

lack of proof of guilty intent. And it is certain that

a requirement of intent would invite costly litiga-

tion that may well cripple federations – particu- larly those run on modest budgets – in their fight against doping.…For these reasons, the Panel would as a matter of principle be prepared to

apply a strict liability test. The Panel is aware that

arguments have been raised that a strict liability

standard is unreasonable, and indeed contrary to

natural justice, because it does not permit the

accused to establish moral innocence. It has even

been argued that it is an excessive restraint of

trade. The Panel is unconvinced by such objec-

tions and considers that in principle the high

objectives and practical necessities of the fight

against doping amply justify the application of a

strict liability standard.26

Alongside legal approval, there has also been a moral

dimension underlying support of the provision, reinfor-

cing the public policy reasons cited approvingly by the

High Court and the CAS, with double Olympic gold

medallist Sebastian Coe27 commenting:

“…The rule of strict liability — under which ath- letes have to be solely and legally responsible for

what they consume — must remain supreme, … we cannot, without binding reason and cause,

move one millimetre from strict liability — if we do, the battle to save sport is lost”.28

Whilst strict liability is a test that evidently provides clarity, certainty, and perhaps above all else, a cost

economy, over conventional burdens of proof, it is also

the case that there are very clear ethical concerns over

the exceptionally harsh effects it can sometimes have,

where participants may face very harsh sanctions despite

exhibiting no fault or no attempt to improve perform-

ance in their positive test.29 It is without doubt a prin-

ciple which means that an athlete confronted with a

doping charge following a positive test is facing an uphill

task in any attempt to prove their innocence.

The conduct of the procedure of testing contains

assumptions which further stack the deck against individ-

ual athletes. The WADC makes clear:

WADA-accredited laboratories are presumed to

have conducted sample analysis and custodial pro-

cedures in accordance with the International

Standard for Laboratories.30

With such a harsh potential impact, it is therefore

entirely in keeping with the principles of proportionality31

that the effects may be mitigated by provisions in the

Code relating to exceptional circumstances. Under Article 10.5 of the Code, an athlete may reduce the length of

their sanction, or even eliminate it, for testing positive

for a prohibited substance if they can demonstrate either that they bore no fault or negligence,32 or no significant

fault or negligence33 for the positive test. Understandably,

the requirements for athletes to overcome these burdens

are high and it has been made clear that exceptional cir- cumstances should only succeed where the circumstances are truly exceptional.34 In the first instance, the athlete

must demonstrate on the balance of probabilities how the substance entered their system. If they cannot demon-

strate this at that stage, then the case is lost.35 If the

athlete, however, is able to overcome this initial hurdle,

then they must go on to demonstrate to the comfortable satisfaction of the Panel qualification under articles 10.5.1,36 or 10.5.2,37 if they are to gain a reduction or

elimination in sanction for their positive test.

In addition to the provisions relating to Prohibited Substances, the WADC also contains similar measures aimed at alleviating the harsh effects which strict liability may bring with regards to Specified Substances. These sub- stances are ones which may be more readily associated

with non-doping explanations and hence the test required

to reduce a sanction, is perhaps a more forgiving one.

The WADA comment:

A specified substance is a substance which allows,

under defined conditions, for a greater reduction of

a two-year sanction when an athlete tests positive

for that particular substance. The purpose is to

recognize that it is possible for a substance to enter

an athlete’s body inadvertently, and therefore allow a tribunal more flexibility when making a sanction-

ing decision. Specified substances are not necessarily

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Drugs in Sport

less serious agents for the purpose of doping than

other prohibited substances, and nor do they

relieve athletes of the strict liability rule that makes

them responsible for all substances that enter his or

her body. However, there is a greater likelihood

that these substances could be susceptible to a

credible non-doping explanation, as outlined in

section 10.4 of the World Anti-Doping Code. This

greater likelihood is simply not credible for certain

substances – such as steroids and human growth hormone – and this is why these are not classified as specified.38

To recognise the difficulties which may be associated

with such specified substances, the WADC therefore allows for particular provision where a positive test

results from these substances. Article 10.4 of the

Code,39 makes clear that, where an athlete can demon-

strate how the substance got into their system, and

further that there was no attempt to improve perform-

ance (or mask the use of other substances), to the com- fortable satisfaction of the hearing panel, then the period of ineligibility imposed following the failure may be

reduced or even eliminated.

NON-ANALYTICAL POSITIVES

The reach of the Code and anti-doping measures extend

beyond the apparent simplicity offered by a failed test.

The provision of what are termed non-analytical positives40

have performed an important role in breaking some of

what may be viewed as perhaps more high-tech attempts

to cheat through the provision, of performance enhan-

cing drugs. A non-analytical positive occurs where an athlete is found guilty of doping despite not failing a test.

This measure proved highly significant in helping to

unravel the Bay Area Laboratory Cooperative (BALCO)41

conspiracy. At the heart of the battle to break BALCO

lay the question of the appropriate burden of proof to

apply in attempting to prove the doping violation. Key in

the analysis of the applicable burden of proof was the

case involving sprinter Michelle Collins.42 With no failed

test evident, it would therefore be down to the United

States Anti-Doping Agency (USADA), to demonstrate

that Collins had indeed been abusing performance enhan-

cing drugs. Prior to March 1 st 2004 the relevant rules of

the International Governing Body,43 required proof

beyond reasonable doubt. The change, however altered this to the, “comfortable satisfaction of the relevant hearing body bearing in mind the seriousness of the allegation

which is made”.44 The justification for the change in the IAAF rules was essentially two-fold as explained;

The comfortable satisfaction standard was adopted

by the WADA Code in 200345 before the IAAF

adopted it in 2004. This standard had previously

been used by various CAS panels. It derives

from court decisions in Australia and other

Commonwealth countries that created a standard

for cases involving personal reputation more strin-

gent than balance of the probabilities but less bur-

densome than beyond a reasonable doubt.46

The WADC explains;

…The standard of proof shall be whether the Anti-Doping Organization has established an anti-

doping rule violation to the comfortable satisfac-

tion of the hearing panel bearing in mind the ser-

iousness 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 …47

That this approach has been approved by the Swiss

Federal Tribunal (SFT),48 has some significance, as

explained;

The view of the Arbitral Tribunal that the [r]

espondent must prove a doping [offense] “to the comfortable satisfaction of the hearing panel” does not violate public policy but refers to the

allocation of the burden of proof and the standard

of evidence which, in the area of application of

private law — even where disciplinary measures of private sporting [organizations] are under review — cannot be determined from the perspective of

criminal law concepts such as the presumption of

innocence or the principles of “in dubio pro reo” or on the basis of the guarantees which result

from the ECHR. Even with respect to her

[defense] that the standard of evidence on which

the decision was based leads to disregard of the

principle of proportionality, the [a]ppellant does

not point out a violation of public policy.49

A key issue must be as to the appropriateness of

applying this particular standard in assessing issues which

may have a grave effect on the future wellbeing of ath-

letes. It is unsurprising, therefore, that the adoption of

this comfortable satisfaction standard has not been without criticism.50 Dawer argues vehemently that such a stan-

dard is inherently unfair to the athletes and that a more

appropriate approach would be an application of the

criminal burden of proof, asserting that;

The ambiguity of this evidentiary standard threa-

tens athletes’ due process rights. In an ordinary criminal proceeding, the defendant receives

specific due process protections, including a fair

and full trial and discovery. Chief among these

protections is the establishment of a clear eviden-

tiary burden for the prosecutor: guilt must be

proven beyond a reasonable doubt in order to

convict.51

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Peter Charlish

In drawing attention to the similarities between the

anti-doping control system and elements of the criminal

justice system, Straubel highlights the concerns and

dangers in denying athletes basic due process rights,52

concluding persuasively;

As a criminal system, an athlete should be afforded

the protections of the criminal process. The

burden of proof should always rest with the

sports governing body. The athlete should be

given a full and fair hearing, including full discovery,

before being punished. And the punishment

should fit the crime. If athletes are not afforded

the protections of the criminal system, the stab-

ility, legitimacy, and effectiveness of the doping

control process will always be in jeopardy. If the

system wrongfully punishes or harshly treats ath-

letes it will lose the support of those it governs,

perhaps lose the support of the ticket buying

public. …The best way to eliminate drugs is to build a thorough testing system that is fair and

operates with a high level of integrity.53

The recent developments in the realms of

cooperation between anti-doping organisations and law

enforcement agencies54 have perhaps pushed the issue of

the appropriate burden of proof and release of infor-

mation further up the agenda, as action to investigate

anti-doping violations moves further away from a purely

sporting endeavour and the margins of a criminal investi-

gation, as opposed to a purely sporting one, become

further blurred. One has to ask whether it remains

defensible to maintain a position whereby the standard of

proof utilised55 to demonstrate guilt is acknowledged to

be more appropriate for matters of professional repu-

tation, when the resources utilised to pursue athletes

suspected of committing doping violations now engage

with organisations at the very heart of serious inter-

national criminal investigations.

In addition to facing the near impossible task of

proving their innocence in the face of a positive test for a

prohibited substance, an athlete also faces the prospect

of suspension from all competition in advance of any

hearing designed to prove or disprove their guilt. Article

7.5 of the WADC details “Principles Applicable to Provisional Suspensions”,56 with article 7.5.1 specifying;

… when an A Sample57 Adverse Analytical Finding is received for a Prohibited Substance,

other than a Specified Substance, a Provisional

Suspension shall be imposed promptly after the

review and notification described in Articles 7.1

and 7.2..58

The implications of this of course means that an

athlete may be deprived of their chance to earn their

living in advance of a full hearing designed to establish

guilt or innocence (in a procedure which is further

slanted in favour of the anti-doping organisation).

Furthermore, at this stage, once interested parties have

been informed of the adverse analytical finding, under

article 14.2 relating to Public Disclosure;

The identity of any Athlete or other Person who

is asserted by an Anti-Doping Organization to

have committed an anti-doping rule violation, may

be publicly disclosed by the Anti-Doping

Organization with results management responsibil-

ity only after notice has been provided to the

Athlete or other Person in accordance with

Articles 7.2, 7.3 or 7.4, and to the applicable Anti-

Doping Organizations in accordance with Article

14.1.2..59

What we may then left be with is an athlete who has

not been conclusively found guilty but who may be either provisionally suspended from earning their living, and/or

publically named, (and shamed?). Left with the prospect

of public disclosure, or perhaps worse, a possible leaking

of their details, an athlete may feel they have little option

other than to try and take a modicum of control of the

situation and reveal their own name as someone who has

failed a test.60

Perhaps in an effort to soothe the concerns that

many may have of imposing a standard seemingly ill at ease with the overtly criminal nature of the anti-doping

investigative and prosecution process, it has been

suggested that an approach utilising the standard of com- fortable satisfaction does enough to at worst pay lip service to traditional burdens of proof in criminal

matters, and at best is sufficiently closely related to the

standard of beyond reasonable doubt as to render con- cerns redundant. In United States Anti-Doping Agency, (USADA), v Gaines,61 the CAS addressed concerns about the appropriate burden of proof, stressing;

As often becomes evident when the question of

standard of proof is debated, the debate looms

larger in theory than practice. …In all cases the degree of probability must be commensurate with

and proportionate to those allegations; the more

serious the allegation the higher the degree of

probability, or “comfort”, required. That is because, in general, the more serious the alle-

gation the less likely it is that the alleged event

occurred and, hence, the stronger the evidence

required before the occurrence of the event is

demonstrated to be more probable than not.62

Quite obviously, as acknowledged by the Panel, a guilty

verdict in an anti-doping hearing can have extremely serious

consequences, for an athlete, and with these very serious

circumstances would therefore come the necessity to

demonstrate a very clear notion of guilt before any Panel

would be comfortably satisfied. Therefore, the reality was, that on many occasions, there would be little practical

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Drugs in Sport

difference between the application of the two seemingly

competing standards, the panel concluding;

From this perspective, and in view of the nature

and gravity of the allegations at issue in these pro-

ceedings, there is no practical distinction between

the standards of proof advocated by USADA and

the Respondents. It makes little, if indeed any,

difference whether a “beyond reasonable doubt” or “comfortable satisfaction” standard is applied to determine the claims against the Respondents.63

One, of course may ask the question that, if it is tan-

tamount to beyond reasonable doubt, then why not name it as such, and leave the question unanswered about

those violations that are perhaps considered less serious

and therefore the circumstances that are necessarily

applied are less akin to a standard of beyond reasonable doubt.

PROPORTIONALITY AND HUMAN RIGHTS64

What is clear, is that any sanctions to be applied to ath-

letes who fall foul of the anti-doping system, must be a

proportionate response to the perceived threat. One must therefore question two aspects of this dichotomy. First,

the nature of the threat perceived by doping, and second,

what has been the sanction applied and could any other

less stringent measure have achieved the same effect?

The threat perceived by doping is the compromising

of ethical and moral considerations central to notions of

fair play within sport. These issues have been addressed

directly by the WADC and explicitly defined as encom-

passing what has been termed, “the spirit of sport”. The fundamental rationale of the Code is described thus;

Anti-doping programs seek to preserve what is

intrinsically valuable about sport. This intrinsic

value is often referred to as “the spirit of sport”, it is the essence of Olympism; it is how we play

true. The spirit of sport is the celebration of the

human spirit, body and mind, and is characterized

by the following values: ethics, fair play and

honesty; health; excellence in performance; char-

acter and education; fun and joy; teamwork; dedi-

cation and commitment; respect for rules and

laws; respect for self and other Participants;

courage; community and solidarity.65

The WADA promote educational programmes and

reference to the philosophy and rationale behind these is

contained within Article 18 of the Code;66

The basic principle for information and education

programs for doping-free sport is to preserve the spirit

of sport, as described in the Introduction to the Code,

from being undermined by doping. …The programs

should promote the spirit of sport in order to establish

an environment that is strongly conducive to doping-free

sport and will have a positive and long-term influence on

the choices made by Athletes and other Persons.67

This, then, is the threat posed by the exploitation of

drugs in sport, and in order to address this threat, the

world’s IGBs have signed up to the harmonisation of rules designed to combat those who may be tempted to

the shortcuts promised by prohibited substances. That

this global harmonisation is a central aim of the

anti-doping system suggests therefore that the degree of

flexibility or room to manoeuvre so as to permit the

specific circumstances of the individual case to be taken

into account, should be limited and therefore it will be

extremely difficult to discern a disproportionate response

where the sanctions imposed are stated clearly within

the Code. Opinion from the SFT has suggested that it is

perfectly within keeping with the principle of proportion-

ality, that anti-doping rules may severely restrict the

breadth of circumstances which may be taken into

consideration when assessing the severity of sanctions

which might be imposed upon any given individual.68

As long as the restriction on the rights of individual is

not excessive, then they will not be deemed to be

unlawful;

The mechanism of fixed sanctions according to

the WADC is incorporated into the ISR Doping

Regulations, At least in the opinion of the Swiss

Federal Tribunal, sports bodies can limit in their

rules the circumstances to be taken into account

when fixing sanctions and thereby also restrict the

application of the doctrine of proportionality.

However, in the opinion of the Swiss Federal

Tribunal, the sport associations exceed their

autonomy if these rules constitute an attack on

personal rights, the nature and scope of which is

extremely serious and totally disproportionate to

the behaviour penalised. In the Sole Arbitrator’s opinion, this threshold has not been exceeded in

the present case. The Sole Arbitrator holds that a

two years period of ineligibility is not out of pro-

portion, excessive or disproportional.69

The acceptance of the generic harmonised approach

to anti-doping sanctions has been identified beyond tra-

ditional sports dispute resolution mechanisms. The

English High Court in Gasser v Stinson emphasised that a two year ban for a doping violation was not an unlawful

restraint of trade,70 and such an approach has also been

approved within the context of the Netherlands Civil

Code;

This opinion is not contrary to the standard as set

out in section 2:8 of the Netherlands Civil Code.

This provision implies that a judging body is not

allowed to apply a rule when the result of the

application of that rule will be unacceptable. As

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Peter Charlish

said above, the application of the mandatory rule

of a two years suspension is not unacceptable

according to standards of reasonableness and fair-

ness in the given circumstances.71

The wide-scale adoption of a two year ban for a first

doping offence can be traced back to a case which came

before a German District Court in Munich. In this

particular case, the sprinter Katrin Krabbe submitted a

urine sample that contained traces of chlenbuterol, a per-

formance enhancing substance.72 Krabbe was initially sus-

pended for one year by the German Athletic Federation

(the substance was not at the time on any banned list).

This ban was subsequently extended to three years by

the IAAF Council, despite Krabbe not having the oppor-

tunity to be heard before the sanction was imposed.

Krabbe then sued before the District Court of Munich.

The most significant issue from this case was the confir-

mation that a suspension of three years for a first doping

offence would be unlikely to withstand scrutiny by

national courts. Therefore, we saw the emergence of the

two year sanction, with the Court in Krabbe holding that a two year ban, “represents the highest threshold admis- sible under the fundamental rights and democratic prin-

ciples”,73 and that a three year ban for a first doping offence was both inappropriate and disproportionate.74

The implications of this decision reverberated around the

sporting world and resulted in the default imposition of a

two year ban for a first doping offence. Rigozzi et al

conclude;

The reason for choosing this period of ineligibil-

ity75 can be traced back to the Krabbe case, in which the Munich courts held that a suspension

exceeding two years must be considered to be

disproportionate. Following this decision, almost

every sports governing body reduced the length of

its suspension for a first offence to two years. This

sanction for a first offence subsequently withstood

scrutiny by several national courts and CAS

Panels.76

The restriction imposed upon athletes (that of a ban

from all competition), has been seen to be a proportion-

ate and reasonable response to the threat to sport posed

by the spread of doping practices. Rouiller explains;

a measure that restricts fundamental rights77 is

admissible only if it is suited to the achievement of

the public interest objective sought (suitability or

appropriateness), if no less intrusive measure is

capable of achieving such a result (necessity) and

if, in practical terms, the measure does not go

beyond what is required for this purpose (propor-

tionality as such).78

The key issue when fixing sanctions is that they do

not unfairly restrict these fundamental rights in a

disproportionate manner. Fixed sanctions are a necessary

part of the push to harmonise the global approach to the

legal regulation of doping in sport, and this being the

case, it makes the imposition of these fixed punishments

both more palatable and justifiable. Whilst acknowledging

that doping sanctions must comply with the principle of

proportionality, the CAS acknowledge that due to the

threats posed by doping and the aims behind global sanc-

tions, it is reasonable to restrict the application of the

principle. The CAS comment;

As a general rule when determining the period of

ineligibility the Respondent must observe the prin-

ciple of proportionality. However, it is open to

question which facts, if any, must be taken into

consideration. …The WADC and the FIS-Rules, which follow it considerably restrict the appli-

cation of the principle proportionality. …The ath- lete’s age, the question of whether taking the prohibited substance had a performance-enhan-

cing effect or the peculiarities of the particular

type of sport are not – according to the WADC – matters to be weighed when determining the

period of ineligibility. To be sure, the purpose of

introducing the WADC was to harmonise at the

time a plethora of doping sanctions to the greatest

extent possible and to un-couple them from both

the athlete’s personal circumstances (amateur or professional, old or young athlete, etc.) as well as

from circumstances relating to the specific type of

sport (individual sport or team sport, etc.).79

The CAS has made clear that a two year ban for a

first offence is an appropriate response, declaring;

in the opinion of the Swiss Federal Tribunal,

sports bodies can limit in their rules the circum-

stances to be taken into account when fixing sanc-

tions and thereby also restrict the application of

the doctrine of proportionality. However, in the

opinion of the Swiss Federal Tribunal, the sport

associations exceed their autonomy if these rules

constitute an attack on personal rights, the nature

and scope of which is extremely serious and

totally disproportionate to the behaviour pena-

lised. In the Sole Arbitrator’s opinion, this threshold has not been exceeded in the present

case. The Sole Arbitrator holds that a two years

period of ineligibility is not out of proportion,

excessive or disproportional.80

There are now provisions contained within the latest

incarnation of the WADC which allow for a ban of more

than two years for a first offence. These are contained in

a new article 10.6, which relates to aggravating circum- stances. The Code lays out the conditions under which it may be appropriate to apply an ineligibility period greater

than two years. Such conditions may include issues such

115

Drugs in Sport

as involvement in a larger doping scheme, impeding an

anti-doping investigation, or evidence of the use of illegal

substances on multiple occasions. The case involving Carl

Fletcher is an example of the kind of cooperation now

possible between UKAD and law enforcement agencies

following the signing of the memorandum of understand-

ing between UKAD and the Serious Organised Crime

Agency (SOCA) signed in 2011. At the time of Fletcher’s conviction, Andy Parkinson, the Chief Executive of

UKAD commented;

This case proves the invaluable role that law enfor-

cement agencies have in the fight against doping in

sport and demonstrates that our intelligence

system is working effectively. … I would like to thank the Merseyside Police and SOCA for their

vital assistance in helping our intelligence team

with this case. By attacking the supply chain and

those that supply performance-enhancing sub-

stances, we stand a better chance of protecting

the right of the clean athletes to compete in

doping-free sport.81

As cooperation between organs of the State and

those private organisations seeking to eradicate doping in

sport grows and increases in complexity, questions and

concerns over the compatibility of anti-doping processes

and basic human rights will continue to grow. It has been

suggested that the element of strictly enforced common

sanctions promoted by the WADC is compatible with

the human rights of individuals. Kaufmann-Kohler et al

explain;

the rigid system of fixed sanctions in the WADC

considerably restricts the doctrine of proportion-

ality, but is nevertheless compatible with human

rights and general legal principles. These experts

justify this characteristic by citing the legitimate

aim of harmonising doping penalties.82

This though perhaps does not deal fully with the

whole story, and this short section will provide a brief

overview which considers whether the ambit of the anti-

doping machine has now grown to such an extent that it

does indeed violate one or more of an athlete’s basic human rights.

Based on classic interpretation of human rights law,

the contractual relationship between an athlete and their

governing body, and hence anti-doping provision, has

meant that remedies via the Human Rights Act (HRA) 1998, would remain unavailable to participants fighting an

anti-doping charge. Human rights retain vertical applica-

bility,83 meaning that all public authorities84 must comply

with the legislation. However, the traditional view of

sports governing bodies is that they are private entities

and therefore not subject to the HRA. Whilst this may be the traditional view, it is not one that can be accepted

without some qualification. There remains a degree of

uncertainty, as was highlighted by the then Home

Secretary Jack Straw, when during the passage of the Bill

to introduce the HRA through Parliament, referred to the Jockey Club,85 and by implication other sports governing

bodies as performing public functions and therefore by

definition within the ambit of section 6 of the HRA,86

meaning that their decisions may require compatibility

with the legislation. Note, however the decision in R v Disciplinary Committee of the Jockey Club ex parte Aga Khan,87 a pre-HRA judicial review case, in which the relationship between the jockey club and its members

was held to be private in character.88 The requirement,

pursuant to section 3(1) of the HRA 1988, all domestic

legislation in England and Wales must, so far as is possible

to do so, be interpreted and given effect in a manner

which is compatible with the European Convention on

Human Rights (ECHR), opens the door to indirect hori-

zontal applicability. The position of sports governing

bodies becomes even more intriguing when viewed in the

context of the approach that some countries take to the

applicability of human rights measures. Oliver, D.,

reports;

So what are the arguments around extending hori-

zontal effect to human rights generally? Professor

Joerg Fedtke of the UCL Faculty of Laws and I

have recently completed a comparative study of

the extent, if any, to which fourteen countries

(and the European Court of Human Rights) give

effect to civil and political rights “in the private sphere”.89

Each of those fourteen countries to a greater or

lesser extent provide either direct horizontal effect (both

India and Spain have this requirement within their

constitutions), or some degree of indirect horizontal

effect. The point is made more compelling by the pos-

ition adopted by the IOC outlined in the Olympic

Charter;

The practice of sport is a human right. Every indi-

vidual must have the possibility of practising sport,

without discrimination of any kind and in the

Olympic spirit, which requires mutual understand-

ing with a spirit of friendship, solidarity and fair

play90

That compliance with the WADC is a requirement

for any sport to be featured in the Olympic Games raises

some interesting issues about the comment above from

the IOC perspective and any reluctance that may exist to

hold anti-doping measures to account via basic human

rights considerations. Set in this context, it may be

suggested that the requirement for the WADC to be

fully compliant with human rights becomes more com-

pelling, regardless of whether Sports Governing Bodies

are seen as being public, quasi-public or fully private

authorities.

116

Peter Charlish

Reinforcing the likelihood of human rights challenges

confronting sports governing bodies, Rigozzi et al comment;

because sports governing bodies exercise a mono-

polistic “quasi-public” position in their relation with the athletes, there is an understanding among

lawyers that sports governing bodies can no

longer ignore fundamental rights issues in their

activities, at least if they want to avoid governmen-

tal intervention.91

The most obvious cause for concern that one may

identify in the measures designed to combat doping in

sport lies in the application of the principle of strict liab- ility, with potential reference to a breach of the ECHR, in particular, Article 6(2).92 Although some of these issues

were rehearsed as long ago as 1983 in Gasser v Stinson,93

they have not been addressed with specific reference to

the HRA. Sport is not alone in applying the principle of

strict liability,94 and the courts outwith of sport, both domestically,95 and in the European Court of Human

Rights,96 have addressed these issues. In Salabiaku v France, it was made clear that;

Contracting States may, under certain conditions,

penalise a simple or objective fact as such, irre-

spective of whether it results from criminal intent

or from negligence.97

And further that;

Presumptions of fact or law operate in every legal

system. Clearly, the convention does not prohibit

such presumptions in principle. It does, however,

require the contracting states to remain within

certain limits in this respect as regards criminal

law…. [Article6(2)] requires states to confine [presumptions] within reasonable limits which

take into account the importance of what is at

stake and maintain the rights of the defence.98

It is clear, therefore, that the presumption of inno-

cence, although inarguably important, is not absolute.

The key issue is whether the rationale behind the pro-

vision of anti-doping measures is sufficiently important to

justify the departure from the presumption of innocence

that strict liability effectively creates. It is submitted that the overarching aims of the elimination of doping set in

the context of issues such as; the threat posed to fair-

play and honesty in sport, to the health of participants,

the educational messages transmitted by a tacit

acceptance of the practice of doping and to the financial

costs that may be wrought by a fault based system; may

be viewed as both laudable and legitimate objectives.

Coupling these with the moderating effects of measures

contained in Article 10 of the WADC,99 lead to a sense

of proportionality in pursuance of legitimate aims and

therefore compatibility of article 2.1.1. of the WADC100

with Article 6(2) of the ECHR.

CONCLUSION

This note has just touched on the concerns about poten-

tial breaches of an athlete’s human rights. Due to limit- ations of space, it has concentrated on the concerns

raised by the central principle of strict liability. The ele- phant in the room however is a potential breach of

article 8,101 writ large by the athlete whereabouts system

designed to facilitate no notice, out of competition

testing. This system requires elite athletes in the regis-

tered testing pool to submit their whereabouts to the

online ADAMS system102 entering where they will be for

one hour each day between the hours of 6am and 11pm,

three months in advance. If a tester turns up at the

location stipulated and the athlete is not in attendance

then that is a whereabouts failure. Three whereabouts

failures within the space of eighteen months and this is a

doping violation. The provision has faced criticism and is

currently being challenged under a violation of European

privacy laws in Belgium.103 Such a violation following

three whereabouts failures would also currently mean

that a British athlete is banned for life from the Olympic

Games due to the British Olympic Association (BOA),104

by law 25. This by law is currently facing a challenge in

the CAS from the WADA, claiming that it is an additional

penalty, over and above the conventional two year ban

faced by athletes for a first doping violation and further

that as it is a British rule, it compromises the harmonised

approach to anti-doping that the WADC tries to

promote. The BOA is defending their stance on the basis

that the lifetime ban is actually an eligibility rule, (i.e. no

athlete who has committed a doping offence is eligible

for Olympic selection), rather than an additional punish-

ment and further that all athletes have a right to appeal

against any ban imposed. Their stance is compromised by

the fact that the CAS ruled late in 2011 that the Osaka

rule, based on rule 44 of the Olympic Charter105 was

unlawful,106 and it is likely when the decision is

announced sometime in April, the CAS will rule against

the BOA.107

Footnotes 1 http://sportsanddrugs.procon.org/view.resource.php?resourceID=004420 – last accessed 22

nd January 2012

2 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/ – last accessed 22

nd January 2012

3 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/ – last accessed 22

nd January 2012

117

Drugs in Sport

4 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/

5 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/

6 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/

7 http://www.telegraph.co.uk/sport/columnists/brendangallagher/2316933/Tom-Simpson-haunts-Tour-40-years-on.html

8 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/

9 http://www.pbs.org/wnet/secrets/features/doping-for-gold/the-state-sponsored-doping-program/52/; http://www.la84foundation.org/

SportsLibrary/ISOR/ISOR2004t.pdf 10 http://news.bbc.co.uk/1/hi/special_report/1998/07/98/tour_de_france/134842.stm; http://news.bbc.co.uk/sport1/hi/other_sports/

988530.stm (Festina timeline) 11 International Olympic Committee

12 http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/

13 http://www.wada-ama.org/en/About-WADA/History/WADA-History/

14 Matched funding stood at only 16% in 2003 but had risen to 100% by 2008 see http://www.wada-ama.org/en/About-WADA/

History/WADA-History/ 15 Fahey J. President of WADA at http://www.wada-ama.org/Documents/News_Center/Speeches_Presentations/2012/2012-02-07-

WADA-Media-Symposium-President-Speech.pdf; Lausanne, Feb 7 th 2012

16 The system which requires athletes to submit their location for one hour each day up to three months in advance.

17 The term athlete will be used throughout this paper to refer to a sports participant.

18 Their role is aided by the fact that it is a condition of inclusion in the Olympic Games that any sport is compliant with the

Code. 19 Korda v ITF Ltd (t/a the International Tennis Federation) The Times 4 February 1999 20 Korda v ITF Ltd (t/a the International Tennis Federation) The Times 4 February 1999 at p8 of unrecorded transcript 21 Korda v ITF Ltd (t/a the International Tennis Federation) The Times 4 February 1999 at p7 of unrecorded transcript 22 The World Anti-Doping Code (2009), The World Anti-Doping Agency, Montreal, Canada, Comment to article 2.1.1 23 Gasser v Stinson (1988), QBD, Unreported 24 Gasser v Stinson (1988), QBD, Unreported. Citing with approval arguments put forward by Holt, (then IAAF General Secretary) at p26 unreported transcript

25 This may of course be a laudable policy where the substance is indeed a performance enhancing one but the reasoning is more

questionable where the substance ingested inadvertently is not one which will enhance performance, (see Amos, A., &

Fridman, S., (2009): “Drugs in sport: the legal issues”, Sport in Society: Cultures, Commerce, Media, Politics, 12:3, 356–374 p362 26 Arbitration CAS 94/129 USA Shooting & Q./Union Internationale de Tir (UIT), award of 23 May 1995. At paras 15–16 27 Now Lord Coe

28 Coe, S., “We cannot move from strict liability rule”, Daily Telegraph, 25 February 2004

29 For example, Scottish skier, Alain Baxter lost his Olympic bronze medal following a positive test for a banned stimulant at the

2002 Winter Olympics despite the CAS acknowledging that he had made no attempt to cheat whatsoever and that the positive

test was the result of inadvertent consumption of the banned substance in a Vicks nasal spray taken to relieve congestion. See

http://www.ukad.org.uk/resources/video/alain-baxter; http://tinyurl.com/7mjdclk; last accessed 18th March 2012. 30 The World Anti-Doping Code (2009), The World Anti-Doping Agency, Montreal, Canada article 3.2.1 31 Discussed in more detail later

32 Article 10.5.1 WADC 2009

33 Article 10.5.2 WADC 2009

34 Kicker Vencill v USADA CAS 2003/A/484 35 CAS 2006/A/1067 IRB v Keyter

36 No fault or negligence

37 No significant fault or negligence

38 http://www.wada-ama.org/en/Science-Medicine/Prohibited-List/QA-on-2012-Prohibited-List/# (last accessed 18th March 2012)

39 Article 10.4 WADC 2009

40 These may be where an athlete has interfered with or manipulated their sample but technically have not failed a test or where

an athlete has tested with no apparent failure. (See McLaren, R., An Overview of Non-Analytical Positive & Circumstantial

Evidence Cases in Sports, 16 Marq. Sports. L. Rev. 193 (2006) 41 This consisted of an attempt to create the world’s fastest human being through the provision of a new artificial steroid, (THG).

This presented a particular problem as there existed no test to detect this newly created drug and with no test, could come

no failure. 42 U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION ASS’N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10, 2004). 43 The International Amateur Athletic Federation, (IAAF)

44 IAAF 2004 rules 33.2, 38.9 cited in U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION ASS’N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10, 2004). At para 3.3

118

Peter Charlish

45 WADC article 3.1

46 U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION ASS’N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10, 2004). At para 3.4.

47 World Anti-Doping Agency, WADC 2009 article 3.1

48 The CAS is based in Lausanne in Switzerland and is therefore subject to Swiss Law. The SFT acts as the final Court of Appeal

for decisions of the CAS. 49 See Tribunal fédéral [TF] [Federal Tribunal] Feb. 10, 2010, 4A_612/2009 (Switz.), 6.3.2.

50 http://www.utexas.edu/cola/progs/plan2/_files/pdf/worthington/dawer08.pdf (last accessed 25th March 2012)

51 http://www.utexas.edu/cola/progs/plan2/_files/pdf/worthington/dawer08.pdf. At p2, (last accessed 25th March 2012)

52 Straubel M. “Doping Due Process: A Critique of the Doping Control Process in International Sport”, 106 Dick. L. Rev. 523*569

53 Straubel M. “Doping Due Process: A Critique of the Doping Control Process in International Sport”, 106 Dick. L. Rev. 523*569–570

54 See WADA & Interpol cooperation as per http://www.interpol.int/News-and-media/News-media-releases/2009/PR006 (last

accessed 29th March 2012) and the memorandum of understanding concerning information gathering signed by United

Kingdom Anti-Doping, (UKAD) and The Serious Organised Crime Agency as per http://www.legislation.gov.uk/uksi/2010/1955/

pdfs/uksiem_20101955_en.pdf (last accessed 29th March 2012) 55 That of comfortable satisfaction

56 World Anti-Doping Agency, WADC 2009 article 7.5

57 An A sample and a B sample are always taken from an athlete, the urine sample is divided into two different sealed containers,

(A & B). An athlete has the right to have both theoretically identical samples tested before a conclusive finding of guilt can be

established. 58 World Anti-Doping Agency, WADC 2009 article 7.5.1

59 World Anti-Doping Agency, WADC 2009 article 14.2.1

60 http://www.guardian.co.uk/sport/2012/feb/06/alberto-contador-case-chronology; (last accessed 29th March 2012)

61 United States Anti Doping Agency v Gaines CAS 2004/O/649 62 United States Anti Doping Agency v Gaines CAS 2004/O/649 at p13 63 United States Anti Doping Agency v Gaines CAS 2004/O/649 at p15 64 It is beyond the remit of this note to go into detail on the compatibility of anti-doping measures with the HRA. It will therefore only address the principle of strict liability, the foundation of the WADC in this context. For a wide ranging analysis of the com- patibility of the WADC with Human Rights see Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping and fundamental

rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67. 65 World Anti-Doping Agency “Fundamental Rationale For The World Anti-Doping Code”, World Anti-Doping Code, 2009,

Montreal, Canada. 66 Article 18 specifically refers to Education

67 World Anti-Doping Agency, articles 18.1 & 18.2, World Anti-Doping Code, 2009, Montreal, Canada

68 Arbitration CAS 2005/A/847 Hans Knauss v. FIS, award of 20 July 2005, at para 32

69 CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick Zuijkerbuijk at para 77

70 The doctrine of restraint of trade is based on principles of proportionality

71 CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick Zuijkerbuijk at para 78

72 http://www.iilj.org/GAL/documents/Lang.pdf

73 Krabbe v IAAF et al, Decision of the LG Munich 17th May 1995, SpuRt, 1995, p161, p167 74 Krabbe v IAAF et al, Decision of the OLG Munich 28th March 1996, SpuRt, 1996, p133, p138 75 Two years for a first offence

76 Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping and fundamental rights of athletes: comments in the wake of the

adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67 *61 77 Quite clearly here sanctions imposed as a result of doping violations do restrict fundamental rights.

78 Claude Rouiller, “Legal Opinion – WADA Code”, October 2005 at p30, located at http://www.wada-ama.org/Documents/

World_Anti-Doping_Program/WADP-Legal_Library/Advisory_and_Legal_Opinions/Article_10_2_WADC_Swiss_Law.pdf 79 Arbitration CAS 2005/A/847 Hans Knauss v. FIS, award of 20 July 2005, paras 29–30

80 CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick Zuijkerbuijk at para 77

81 British shot-putter Carl Fletcher was recently banned for a period of 4 years in addition to receiving a prison sentence for traf-

ficking drugs. See http://tinyurl.com/czhz68r last accessed 31st March 2012 82 Kaufmann-Kohler G., Rigozzi A., and Malinverni G., “Legal Opinion on the Conformity of Certain Provisions of the Draft

World Anti-Doping Code with Commonly Accepted Principles of International Law”, 26 February 2003 83 S6(1) Human Rights Act 1998

84 S6(3) Human Rights Act 1998

85 Then the Governing Body of Horseracing in the United Kingdom

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Drugs in Sport

86 See House of Commons Hansard Debates, May 20, 1998, http://tinyurl.com/6wapjzs, at col. 1020

87 R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 1 WLR 90 88 http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf (last accessed 2nd April 2012)

89 Oliver, D., “Human Rights and the Private Sphere”, UCL Human Rights Review, vol. 1, no. 1, 2008 pp. 8–16

90 International Olympic Committee, “Olympic Charter”, 2011, p10, para 4, Lausanne, Switzerland.

91 Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping and fundamental rights of athletes: comments in the wake of the

adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67*49 92 Article 6(2), ECHR, Right to a fair trial, and specifically the presumption of innocence, which is incorporated into UK law by virtue of section 1 of the HRA 1998

93 Gasser v Stinson (1988), QBD, Unreported 94 For example s5, Road Traffic Act 1998, (in relation to driving with excess alcohol) and s92(5) Trademarks Act 1994, (in relation to possession of counterfeit goods) both create offences of strict liability.

95 Attorney General’s Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division)) Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty’s High Court of Justice) (Conjoined Appeals) [2004] U.K.H.L. 43, [2005] 1 A.C. 264

96 Salabiaku v France (1988) 13 EHRR 379 97 Salabiaku v France (1988) 13 EHRR 379 at para 27 98 Salabiaku v France (1988) 13 EHRR 379 at para 28 99 Article 10.4 Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances;

Article 10.5 Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances; 100 Strict liability 101

Article 8 Right to Respect for Private and Family Life ECHR 102

Anti-Doping Administration and Management System, see http://www.ukad.org.uk/athletes/my-adams/; http://tinyurl.com/ctfjvn9

(last accessed 2 nd

April 2012) 103

http://news.bbc.co.uk/sport1/hi/front_page/7844918.stm (last accessed 2 nd

April 2012) 104

The BOA are responsible for selecting the British Olympic Team 105

The rule stated that any athlete who had been banned for a period of more than six months for a doping violation was auto-

matically prohibited from the next Olympic Games 106

http://tinyurl.com/6d4hf8o (last accessed 2 nd

April 2012) 107

On April 30 th

2012 the CAS ruled that the BOA By Law was not in compliance with the WADC, stating clearly that the

By Law was a doping sanction and not an eligibility criteria: http://www.tas-cas.org/d2wfiles/document/5878/5048/0/Media20

Release20BOA20WADA20final.pdf

Biography

Peter Charlish, Principal Lecturer in Law, BA(Hons), PGCE, MA(Law), MPhil at Sheffield Hallam University. My

thanks go in particular to my colleagues Sam Burton, Dr Miroslav Baros and Dr Stephen Riley for their help and

advice in the writing of this paper. All errors remain my own.

120

Peter Charlish

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