The World Anti-Doping Code - The Fight for the Spirit of Sport - Part 5 | |||
38. In French, the athlete faced a range of particularised allegations that he had breached various provisions of the doping policy of Cycling Australia. He was found, at the initial hearing before an arbitrator, to have breached the cycling anti-doping policy as regards some of the breaches alleged. While the anti-doping policy in question did not replicate the violations in the Code, the various violations were similar in substance to the violations under the Code. The allegations involved doping, aiding and abetting others to dope or being concerned in doping by others, trafficking by buying or holding prohibited substances, admitting doping or aiding or abetting doping by others. All the alleged breaches involved Cycling Australia seeking to prove the violations by means of evidence in the form of admissions, evidence from lay witnesses, and scientific evidence (which did not involve a positive test of the athlete for a prohibited substance). 39. The allegations arose after a bag of used syringes and needles and waste products and a bucket containing used syringes and needles had been found in a room which Mr French had occupied at the Australian Institute of Sport in South Australia. This discarded material created a media storm on the eve of the Athens Olympics. Mr French was banned at the first hearing before the Olympics and his appeal was ultimately heard by CAS in May 2005. The two banned substances which, it was alleged, were involved in the violations, were glucocorticosteroids and egH (equine growth hormone). Ultimately, the CAS panel was not satisfied to the standard required on the evidence provided that the various allegations had been established. Mr French had made admissions that he had used a substance called “Testicomp” but, in the absence of scientific evidence proving that this product contained the prohibited glucocorticosteroid, the panel found that the violations involving using the prohibited substance were not made out. The CAS panel approached the matter as requiring proof somewhere between the balance of probabilities and beyond a reasonable doubt (see para 42 of the Award). This was based on the Australian case of Briginshaw v Briginshaw (15) (because the parties to the anti-doping policy had chosen Australian law) and CAS jurisprudence. 40. While one set of allegations failed because there was no appropriate testing for glucocorticosteriods, the problems in the chain of custody before testing and the possibility, on the analysis of the evidence from various cyclists, that the traces of egH on needles in the bucket could have been the result of another cyclist injecting himself, not French, meant that the allegations against French involving egH were also found not to have been proven. 41. The case should be required reading for anti-doping organisations as they begin to work to investigate and present cases in relation to a wider range of allegations. It is complex both procedurally and evidentially and ultimately covered a wide range of lay and scientific evidence. On a practical level, the investigation and proof of violations such as trafficking were there are no clear admissions will be one of the major challenges represented by the adoption of the WADA Code. Anti-doping organisations will have to be conscious of the need to provide cogent evidence to satisfy the burden of proof on them where serious anti-doping violations are alleged and the principles of strict liability are not applicable. 42. On the standard of proof, the approach in French might be criticised. It is submitted that the standard for a serious allegation such as doping should remain the balance of probabilities but with a requirement that the evidence required to tip the balance of probabilities and satisfy the Tribunal is commensurate with the seriousness of the allegation. On the facts of French it seems doubtful that the application of a different approach to the standard or of Article 3.1 would have made a difference to the outcome. POSSIBLE CHALLENGES BASED ON GENERAL PRINCIPLES OF INTERNATIONAL LAW AND HUMAN RIGHTS43. There has been a consistent debate since the beginning of drug testing in sport concerning the extent to which anti-doping regimes may infringe the fundamental rights of individuals. In the past, various fundamental rights have been asserted by athletes seeking either to overturn findings that a violation has occurred or to set aside sanctions. Freedoms such as the right to personal liberty, privacy, the right to a fair hearing, the right to work, the requirement that conduct be truly criminal before a penalty is imposed, proportionality, the presumption of innocence, have all been relied on (16). The general trend in such challenges has been to accept that, notwithstanding the public significance of sport, the imposition of doping sanctions by sporting bodies sits outside the protection of fundamental human rights because it is a matter for private bodies and private agreement. In addition, in most areas of challenge, the argument that anti-doping regimes should be struck down for breaching individual rights has been rejected on the basis that the general aims of anti-doping regimes, which have international support in various international instruments, justify the curtailment of an athlete’s individual rights. 44. WADA has published an opinion on the conformity of the Code with general principles of international law in which the various features of the Code are analysed for compliance with the principles of human rights and general principles of international law. The learned authors of the opinion find that the WADA testing regime, the principle of strict liability (which leads to the automatic disqualification of results), the reversal of onus which applies if an athlete wishes to have the Tribunal consider his or her fault or negligence to eliminate or reduce sanction, are all compatible with fundamental rights given the aims of the Code (17). The fundamental points in paragraph 43 above which have made such challenges difficult will, it is submitted, apply with greater force where the Code applies because the various international agreements supporting the Code provide a strong policy justification for any infringement of the athlete’s individual freedoms. 45. One general principle has had a particular influence on the imposition of sanctions for anti-doping violations by CAS. This is the principle of proportionality. Generally this principle involves the basic principle that excessive means must not be employed to achieve given ends. In Commonwealth courts the principle has been adopted as a basis for the judicial review of governmental decisions. Where individual freedoms are concerned, the principle of proportionality can be relied on to claim that the means to achieve a desired end should not go further in limiting the freedom than is necessary. However, in the anti-doping context, the principle has been used to lessen sanctions imposed by private sporting bodies where the effect on the individual athlete was seen as so great as to be disproportionate to the overall aim of the anti-doping regime in question. 46. The provisions of the WADA Code in Article 10 were introduced to provide for flexibility in the sanctions applied where the athlete can establish that he or she bore no fault or no significant fault in relation to certain violations. The view has been expressed that the Code now adopts a “proportionate approach” and that, as a consequence, the concept has no further role to play and that the provisions of the Code meet the standards imposed by the principle of proportionality (18). If this is correct, the result would be that CAS Panels would simply interpret and apply the relevant Articles of the Code in deciding whether the mandatory sanctions can be eliminated or reduced. 15. (1938) 60 CLR 336, 362 (HCA). The case does not appear to be authority for a different standard but rather confirms that with a serious allegation, while the standard is balance of probabilities, the proof required to prove a serious allegation to that standard will need to be clear and cogent. The different formulations may make little practical difference. See also eg. Hornal v Newberger Products Ltd [1957] 1 QB 247; Re H and Ors (minors) (sexual abuse: standard of proof) [1996] 1 All ER 1, 16 (HL); cf Bhandari v Advocates Committee [1956] 3 All ER 742.
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