The World Anti-Doping Code and CAS Jurisprudence

1. Dennis Koolaard – Dennis@mirbar.co.il The World Anti-Doping Code and CAS Jurisprudence

2. Content • General introduction on Doping • General introduction on the WADC • System of the WADC

3. A. General introduction on Doping • IAAF enacted an anti-doping provision (1928) • KnudEnemark Jensen (1960) • Tommy Simpson (1967) • IOC established list of Prohibited Substances (1968) • Ben Johnson (1988) • Tour de France (1998) • Creation of the World Anti-Doping Agency (1999) • First version of WADC was enacted (2003) • Recognition of WADC by UNESCO Convention (2005) • Revised WADC enacted (2009)

4. B. General Introduction on the WADC • I. Purpose of the WADC • II. Differences between sports • III. Differences between countries

5. B. General Introduction on the WADC I. Purpose of the WADC • The purpose of the World Anti-Doping Code and the World Anti-Doping Programme which supports it are: • To protect the Athlete’s fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athlete’s worldwide, and; • To ensure harmonised, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping.

6. B. General Introduction on the WADC I. Purpose of the WADC • Signatories of the WADC: • The IOC • International Paralympic Committee • All National Olympic Committees • All Olympic International Federations • Almost all International sports-governing bodies • Governments are not signatories: • In 2005 UNESCO enacted the International Convention Against Doping in Sport. 139 countries ratified, entered and/or accepted this Convention, whereby the Governments expressed their support of the Code.

7. B. General Introduction on the WADC II. Differences between sports • Why would International Federations implement the WADC? • Pressure and responsibility because of being the global governing body of a sport. • Art. 43 Olympic Charter: “The World Anti-Doping Code is mandatory for the whole Olympic Movement.”

8. B. General Introduction on the WADC II. Differences between sports • The WADC sets forth specific anti-doping rules and principles that are to be followed by Anti-Doping Organizations • Some provisions are mandatory • Other provisions only establish mandatory guiding principles • Consequence: • Not the WADC, but the Anti-Doping Regulations of the National/ International Federation are directly applicable as a lexspecialis. • Differences between sports • Examples: • Differences in testing pools • Different appeals procedures

9. B. General Introduction on the WADC II.Differences between sports

10. B. General Introduction on the WADC III. Differences between countries • Compliance of national laws with the WADC • Examples: • Art. 14.3 WADC: • “(…) Athletes in a Registered Testing Pool shall provide accurate, current location information (art. 11.3.d IST: including temporary lodgings, hotels, etc.) • Art. 45.1.c. (Spanish Law) • Although Athletes must provide information regarding their whereabouts, this information only includes the habitual residence and the training place of the athlete.

11. C. System of the WADC • I. Burden and Standards of Proof • II. Burden of Proof • III. Standard of Proof • IV. Anti-Doping Rule Violations

12. C. System of the WADC I. Burden and Standards of Proof • Art. 3.1 WADA Code: • “The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an anti- doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness 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. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except as provided in Articles 10.4 and 10.6 where the Athlete must satisfy a higher burden of proof.”

13. C. System of the WADC II. Burden of Proof • The Burden of Proof: • As a general principle of law, the party claiming a right on the basis of an alleged fact shall carry the burden of proof. • “The Anti-Doping Organization shall have the burden of establishing (…)” •  The Anti-Doping Organisation, except where: • “(…) the Code places the burden upon the Athlete (…)” • Art. 3.2.1: Departure from the International Standard for Laboratories • Art. 10.5.1: If the Athlete establishes in an individual case that he or she bears No Fault or Negligence • Art. 10.5.2: If the Athlete establishes in an individual case that he or she bears No Significant Fault or Negligence •  The Athlete

14. C. System of the WADC III. Standard of Proof • Beyond any reasonably doubt • The highest standard of proof used as a burden of proof and typically only applies in criminal proceedings. • Balance of probabilities • Common standard in Civil proceedings. “For the Panel to be satisfied that a fact is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred.” • Comfortable satisfaction • “(…) in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.”

15. C. System of the WADC III. Standard of Proof • Anti-Doping Organization:  Comfortable Satisfaction • Athlete :  Balance of probability

16. C. System of the WADC IV. Anti-Doping Rule Violations • Violations: • Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample • Use or Attempted Use of a Prohibited Substance or a Prohibited Method • Refusing to submit to Sample collection • Violation of Out-of-Competition Testing • Tampering of Doping Control • Possession of Prohibited Substances or Prohibited Methods • Trafficking or Attempted trafficking of any Prohibited Substance or Prohibited Method • Administration, assisting, encouraging, aiding, abetting, covering up or any other type of complicity

17. C. System of the WADCIV. Anti-Doping Rule Violations • Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample • Strict liability principle: • “(…) Athletes are responsible for any Prohibited Substance (…) found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Article 2.1.” • “Sufficient proof of an anti-doping rule violation under Article 2.1 is established by either of the following: presence of a Prohibited Substance (…) in the Athlete’s A Sample where the Athelete waives analysis of the B Sample and the B Sample is not analyzed; or, where the Athlete’s B Sample is analyzed and the analysis of the B Sample confirms the presence of the Prohibited Substance (…) found in the Athlete’s A Sample.”

18. C. System of the WADCIV. Elimination or reduction of sanction • Prohibited & Specified substances: • “There is a greater likelihood that Specified Substances, as opposed to other Prohibited Substances, could be susceptible to a credible, non-doping explanation.” • All Prohibited Substances shall be considered as “Specified Substances” except Substances in classes S1, S2.1 to S2.5, S.4.4 and S6.a, and Prohibited Methods M1, M2 and M3. • Examples: • Testosterone: Prohibited substance • Furosemide: Specified substance • Ephedrine: Specified substance, only if threshold is reached • Cocaine, Cannabis: Prohibited substance, only prohibited in competition • Alcohol: Prohibited substance, only in particular sports and if threshold is reached

19. C. System of the WADCIV. Elimination or reduction of sanction • Specified substance: • 1. Establish how the substance entered the body • 2. Establish that it was not intended to enhance sporting performance • Established?  Sanction: • Minimum: Reprimand • Maximum: Two year period of Ineligibility • Prohibited substance: • No Fault or Negligence • 1. Establish how the substance entered the body • 2. Establish that the Athlete bears No Fault or Negligence • Established?  Sanction eliminated • No Significant Fault or Negligence • 1. Establish how the substance entered the body • 2. Establish that the Athlete bears No Significant Fault or Negligence • Established? Sanction: • Minimum: 1 year period of ineligibility • Maximum: 2 year period of ineligibility