Fundamental Rights of the Athlete in Doping Cases

It was recently revealed that the French police had carried out laboratory tests on hair samples from various international cyclists. In doing so, they tested for the non-banned substance tizinadine. This is interesting, since taking body samples is a far-reaching power that infringes fundamental rights of the athlete involved. The idea that this far-reaching power can be used for the detection of non-prohibited substances is frightening.

However, looking more closely at the doping regulations, it is immediately clear: the athlete has hardly any rights when it comes to doping. The athlete’s fundamental rights seem to be worth very little.

Table of Contents

Doping Rules

For most sports, the athletes will be directly or indirectly bound by World Anti-Doping Code (WAD-Code). These rules have been drawn up by the World Anti-Doping Agency (WADA).

The purpose of these rules is first of all to create a level playing field within sports. In addition, there are also medical reasons for fighting doping, as doping could also lead to certain unacceptable medical risks.

The WAD-Code itself describes its purpose as follows:

To protect the Athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athletes worldwide

Another aim of the WAD-Code is to ensure proportionality and protection of human rights.

Rule of law — to ensure that all relevant stakeholders have agreed to submit to the Code and the International Standards, and that all measures taken in application of their anti-doping programs respect the Code, the International Standards, and the principles of proportionality and human rights.

However, if you look more closely at the anti-doping rules and their implementation, it is precisely the protection of these human rights that seems to be lacking.

Criminal Law nature of doping rules

Before delving a deeper into the conflict between the doping rules and fundamental rights of the athlete, it is important to note that the WADA doping rules do not have the status of a law. The rules are based on athlete consent. By becoming a member of a sports association and/or participating in competitions, the athlete undertakes to comply with these doping rules. By doing so, the athlete also submits to the disciplinary regime that is part of these rules.

And that is where the shoe pinches. The question can be asked to what extent the athlete has a free choice in accepting these rules. This is even more important where doping rules interfere on a large scale with fundamental rights of the athlete. In this respect it is very similar to criminal law. However, criminal law regimes, in contrast to the doping rules unilaterally adopted by WADA, are subject to constitutional control.

It should also be noted that many investigative measures, such as doping tests, are carried out without there being any suspicion of use of doping.

Infringements on the Fundamental Rights of the Athlete

As said, anti-doping rules may often infringe the fundamental rights of the athlete. Examples are the following:

Principle of strict liability (reversed burden of proof)

In short, this principle means that an athlete is guilty of a doping offence if a prohibited substance is found in a sample. The doping authority usually does not have to prove that the ingestion was intentional (art. 2.1 WAD code).

At the very least, this creates the impression that someone is being found guilty before they have had a chance to defend themselves. Moreover, it is very difficult to prove your innocence. For example, how do you prove that contaminated meat or contaminated food supplements were the cause? One may wonder how this relates to the fundamental right to a fair trial (Art. 6 ECHR).

Noteworthy in this context is footnote 58 to article 10.2.1.1. WAD-Code which states that the athlete must prove that a drug was taken unintentionally.

While it is theoretically possible for an Athlete or other Person to establish that the anti-doping rule violation was not intentional without showing how the Prohibited Substance entered one’s system, it is highly unlikely that in a doping case under Article 2.1 an Athlete will be successful in proving that the Athlete acted unintentionally without establishing the source of the Prohibited Substance.

This idea means that WADA burdens the athlete with proving that a prohibited substance is contained in a product taken by the athlete. It will often be impossible to determine which product was contaminated. This burden of proof is therefore difficult to meet. WADA explicitly recognizes that there is almost no other way to meet the burden of proof. Nevertheless, WADA imposes a burden of proof on the athlete, on pain of a four-year suspension.

Whereabouts

Some athletes are required to submit so-called “whereabouts”. In short, this means that an athlete must indicate where he can be found 24 hours a day. It goes without saying that this infringes the fundamental right to respect for one’s private life (Article 8 ECHR).

Doping Controls

These doping controls are often carried out by taking samples from a person’s body (blood / urine / hair). Such a check violates the right to physical integrity (Art. 11 of the Dutch Constitution). In addition, the doping control officer has specific guidelines regarding watching while the samples are taken.

Once in the Sample Collection area the DCO/Chaperone instructs the Athlete to remove or adjust any clothing that restricts the DCO’s/Chaperone’s clear, unobstructed view of Sample provision.

In addition, doping tests are sometimes carried out at someone’s home, where an athlete just has to let an inspector in. This violates the fundamental right to the protection of private life (Article 8 ECHR).

Excluding access to ordinary courts

When a person is found “guilty” of a doping offence and punished for it, the athlete has no recourse to a civil court. The athlete can only appeal against his or her punishment before the disciplinary body of the sports federation. As an ultimum remedium, the only recourse is to the Court of Arbitration for Sport, an arbitration body governed by private law. This may be contrary to the right to a fair trial (Art. 6 ECHR) as the European Court of Human Rights also ruled in the case of speed skater Claudia Pechstein (para. 182).

Suspensions

For many athletes, practicing their sport is also their profession. By suspending an athlete, a doping authority is actually prohibiting an athlete from practicing its profession. This is therefore an infringement of the right to freedom of employment (e.g. Article 23 of the Universal Declaration of Human Rights).

Provisional suspensions

In various cases where a banned substance is found in a sample, or where there is a discrepancy in a blood passport, an athlete is automatically provisionally suspended (Article 7.4.1 WAD Code). It has already been explained above that this affects the freedom of employment.

In addition, in the context of the provisional suspension, one can have doubts about a fair trial. An athlete who has not yet been found guilty can almost only get out of a provisional suspension if he demonstrates that the discovery was probably the result of a contaminated product. For example, meat or a food supplement. This burden of proof is very high for the athlete, as was demonstrated last summer at the Ad Hoc Committee of CAS in the case of Swiss athlete Alex Wilson. He had to prove within a few days that his positive test was probably caused by contaminated meat. An almost impossible task. In his case, the consequence was that he could not participate in the Olympic Games, even though he was not yet convicted.= for the use of doping.

The presumption of innocence (innocent until proven guilty), as it applies in criminal law, does not seem to matter when it comes to doping. This can have unpleasant consequences in the very rare occasion that an athlete can indeed later prove the presence of the substance in a contaminated supplements. That causes the provisional suspension to be wrongly imposed or was for too long, as was the case with the Dutch cyclo-cross rider Denise Betsema, for example.

Athletes Rights Act

Does WADA then do nothing at all for the fundamental rights of the athlete? No, that is also not the case. WADA does seem to have made an attempt to take the fundamental rights of the athlete more into account. After consulting with athletes, WADA published a so-called “Athletes’ Anti-Doping Rights Act” (AADRA), which lists some of the rights of athletes.

At first glance, this “Act” appears to be a good initiative. WADA evidently has an eye for the fundamental rights of the athlete. On reading the preamble, this picture changes. The starting point of AADRA, in fact, would be the fundamental right to participate in a sport free of doping. Although doping-free sport is a good thing, one can wonder whether this right is equal to rights following from various human rights treaties and declarations. After all, the right as stated by WADA is and remains unilaterally determined by WADA without a public law basis.

Moreover, the AADRA does not seem to have much value for WADA itself either. After all, in the preamble it writes:

However, this Act is not a legal document; athletes’ legal rights in the context of anti-doping are only those rights that are set forth in the Code and International Standards regardless of how they are described in this Act. In case of conflicting interpretations, the provisions of the Code and International Standards shall prevail in all cases.

In short, although WADA describes AADRA as an act, it has no legal status whatsoever. The question is therefore how seriously doping authorities take the athlete’s basic human rights.

Conclusion

Doping authorities are pursuing a good goal. Doping-free sport is fairer. However, the impression is created that this goal must be pursued at all costs, with the doping authorities forgetting to take into account the athlete’s fundamental rights.

It is not said that infringements of the athlete’s fundamental rights are never permissible, but it is worth remembering that several infringements are very serious. All the more so since these infringements can be made without any indication that an athlete has used doping. We must therefore ask ourselves whether we could not achieve the same objective that sport that is as free from doping as possible with less far-reaching infringements.

This blog was originally posted on www.sportrecht.blog on 3 November 2021 (in Dutch)

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