The World Anti-Doping Code - The Fight for the Spirit of Sport - Part 4

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32. The statutory framework will be changed to reflect the Code (although the changes required overall in New Zealand to implement the Code are few because of the agreements which are already in place between NSOs and their members). The legislation will be amended to provide for the Agency to function in accordance with the Code and the Agency will be empowered to make delegated legislation in the form of rules relating to its functions which follow the Code. However, these statutory provisions will not change the fact that it will be by agreement that the Code binds sporting organisations and participants (9).

33. In summary, the application of the Code has the following effects:

The Code confirms that the international anti-doping regime is based on agreements between participants in sport and sporting organisations and forms part of the rules of sport.
The Code makes testing and analysis by reference to WADA International Standards mandatory if signatories are to comply.
The Code significantly enlarges the range of anti-doping violations which can be investigated and established beyond violations for doping based on a positive test or for refusal to submit to sample collection, to include further violations such as using prohibited substances, tampering with doping control, possession, trafficking, administering prohibited substances and aiding, abetting the administration of a prohibited substance. Proof of these violations cannot rely on the principle of strict liability but will, in many cases, involve establishing knowing conduct.
The Code affirms the basic principle of strict liability relating to doping violations developed under previous sporting rules and tribunal decisions (10).
The Code confirms the need for anti-doping violations to be established to the applicable standard by evidence which matches the seriousness of an adverse finding in the same way as allegations of professional misconduct are established.
The Code provides for flexibility in respect of sanctions to soften the rigorous application of the strict liability principle and allows a Tribunal to consider, to an extent, the question of the degree of fault or negligence of an athlete in relation to particular violations, in assessing the sanction which should be imposed.

Likely issues and challenges

34. The Code, and sports’ doping policies implementing the Code, have already been applied and considered in a number of cases both before national tribunals and CAS and the Code builds upon established principles which have, to a large extent, withstood a number of challenges in various legal systems in the past. However, the application of the Code seems likely to give rise to a number of possible issues, both legal and practical, which will have to be addressed if it is to achieve its aims. In my view, the main issues appear to be:

(a) The practical and legal questions which will arise in relation to the investigation and proof of the wider range of violations contained in Article 2 of the Code;
(b) The possible challenge to the testing and hearing processes and sanctions imposed under the Code on the basis that an individual’s fundamental rights have been infringed; and
(c) The challenge represented by the need for the consistent application and interpretation of the provisions of the Code, in particular the provisions of Article 10 relating to the reduction of sanctions.

The wider range of anti-doping violations - legal and practical issues

35. In the past, anti-doping regimes centred on the proof of doping by testing in-and out-of-competition for the presence of prohibited substances in an athlete’s body. Only recently have anti-doping organisations begun to seek to prove anti-doping violations by other evidence whether factual, scientific or in the form of admissions (11). By way of example, in New Zealand, under the current anti-doping regime, the statutory body responsible for testing - the Agency - tests urine only. The Agency can only determine that there has been a doping infraction where there has been a positive test for a prohibited substance or where there has been a refusal to provide a sample without reasonable excuse. Under the Code, in addition to violations of this kind, there are a number of other violations which an anti-doping organisation can investigate and seek to prove before the relevant Tribunal. Some of the further anti-doping violations are of a very serious nature (eg. trafficking, administering prohibited substances to athletes etc) and carry significant sanctions and stigma. Any alleged violation has to be established to the “comfortable satisfaction” of the Tribunal with due regard being given to the general principle that the more serious the allegation, the more cogent the evidence required if the Tribunal is to find the violation proven (12). Where doping after a positive test and refusals are concerned, investigation and the proof of allegations at a hearing usually proves relatively straightforward. Refusal cases can, of course, give rise to significant conflicts of evidence, but the evidential issues are usually relatively confined and any investigation process is fairly straightforward. Where doping is concerned, and there is a positive test, the principle of strict liability removes from consideration the question of the athlete’s fault or negligence in deciding whether a violation has occurred. The process of investigation and proof is likely to be much more difficult under the broader range of anti-doping violations.

36. Under the new anti-doping violations it will be necessary to establish the knowledge of the athlete that he or she was, by way of example, knowingly administering or trafficking in prohibited substances. Anti-doping organisation (and the governments which support them) will need to use a much wider range of resources and forensic skills to investigate violations and establish them to the required standard. While this area will require much more work for the organisations in investigating and presenting cases, the proof of such anti-doping violations has the potential to be one of the most fruitful ways of attacking the problem of doping in sport at source (13). This makes the practical and forensic challenges involved for the anti-doping organisations in their roles under the Code all the more important.

37. The recent case on appeal before CAS involving the young Australian cyclist Mark French (14) illustrates some of the problems which can arise in investigating and proving a wider range of anti-doping violations.

9. Legislation has been introduced into the New Zealand Parliament - the Sports Anti-Doping Bill - and it is anticipated that the Bill and Rules made under it will become law in 2006. In other jurisdictions, similar changes to the processes which are carried out by agreement with sporting organisations by national anti-doping organisations will take place. In Australia a new body will be established to carry out the functions of the Australian Sports Drug Agency and to prepare and present cases alleging breaches of anti-doping violations before tribunals.
10. CAS has endorsed the rationale behind strict liability on a number of occasions, in particular in CAS 94/129, USA Shooting v Quigley Award of 23 May 1995, CAS Digest 1, p 187, 196-197 where the impracticality and difficulty of a sporting body having to prove fault to establish a doping violation and how, if it did, the floodgates to drug cheats would be opened, was explained. The general need for a strict liability regime for doping if the taking of performance enhancing drugs is to be combated in an effective manner has been accepted in National courts (see eg. Gasser v Stinson, High Court, Unreported, Scott J, 15 June 1988).
11. See, for an example of telling admissions and a sad history of the pressures in professional cycling CAS 2004/A/707 David Millar v The British Cycling Federation.
12. Article 3.1 of the Code.
13. The recent large scale doping operations such as the BALCO investigation by USADA illustrate this point.
14. Mark French v Australian Sports Commission and Cycling Australia, CAS 2004/A/651.

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