A comparative analysis between sports regulations and Italian criminal law in the light of the events of Torino 2006.

• Author: Colantuoni, Lucio
• Position: Doping And Olympic Games In Italy

Introduction

The Olympic Games are nowadays of such a great importance that their politic, economic and juridical relevance is increasingly shown during the various editions (enough to think about the growing global attention from Barcelona '92 to Beijing '08).

Behind the idea of Pierre De Coubertin, there was the utopia of a perfect world without distinctions on racial, sexual or religious basis. A universe of equal opportunities, democracy and peace where the physical education could become a vehicle for the individual growth.

His vision was founded upon some crucial values such as respect, brotherhood, fair play and sacrifice.

The Olympic spirit would have pervaded the entire world with the ambition of making it better. Therefore, the reintroduction of the Games should have been the means by which ethics and sport could be joined in serving the community, beyond the motto "mens sana in corpore sano".

According to such an idea, the athlete should embody these fundamental values during the sporting performance (1).

In the light of the above, there is a general shared opinion that a severe fight against doping should be conducted with increasingly rigid measures not only from a sporting point of view but also with the intervention of the criminal law. In fact, doping represents a plague which pollutes and oppresses those values at the bottom of the Olympic spirit itself. And some countries, like Italy, have enacted a specific anti doping criminal law.

Accordingly, this article has the aim of focusing and confronting the sporting regulations and the Italian criminal law on doping, by means also of the study of the disciplinary and judiciary cases on the matter during the XX edition of the Winter Olympic Games, held in Turin in 2006.

Therefore, the present study shall analyze the peculiarities of the Italian fight against doping, which caused many concerns before the Games, due to the fact that the government had qualified doping as a criminal offence. As a matter of fact, it could have created some critical issues towards the sports legal order, as well as deterrent effects in choosing Italy as the host country of the Games.

Part I - Doping and Italian Regulations

1. The Regulatory Framework On Doping.

   1.1 Introduction: the global evolution of the fight against doping.

   Alongside the restless work for the assignment of the XX edition of the Games, the end of the 90s was characterized by the increasing diffusion of doping, which made the world of sport aware of the connected risks.

   Such an awareness forced many countries to quickly develop the first global anti-doping program.

   From the early 80s, the European Union (at that moment, the European Economic Community) had noticed the problem and, therefore, had started enacting some recommendations (not binding for the Member States) on the matter: particularly, the recommendation n.19, on 25 September 1984, adopted the "European Charter against doping in sports", as established by the Ministers for Sport.

   Then, in 1989, the Council of Europe decided at last to settle a binding document: on 16 November, the Anti-Doping Convention of Strasburg was signed and, then, ratified by Italy with Law n.522/1995. (2) However, the real fulcrum of the global anti-doping regulations is constituted by the World Anti-Doping Code and by the policy of the World Anti-Doping Agency (WADA) (3).

   As a matter of fact, on 4 February 1999, the first World Conference of doping was held in Lausanne on the initiative of the IOC. The socalled Lausanne Declaration was approved, according to which doping violated the ethical principles of sport. All the parties agreed upon the creation of a sole World Anti-doping Code and of a body with monitoring and repressing powers against doping for all the sporting disciplines.

   Thus, the World Anti-Doping Agency (WADA) was created with the aim of coordinating the global fight against doping and promoting the values of fairness and impartiality through the coordination of the national and international anti-doping programs (4).

   The Agency became fully operational in 2000, while the Code came into force in January 2004 (the final version was approved by the World Anti-Doping Conference of Copenhagen) in order to be effective for the Olympic Games of Athens. It could be a mere coincidence, but that edition shall be remembered for the large number of positive athletes.

   Therefore, the WADA Code represents the document which established in writing the set of rules to be respected by the athletes and the relative responsibilities in case of breach.

   Meanwhile, in 2002, the Council of Europe of Warsaw allowed the Member States to ratify the Additional Protocol to the aforementioned Strasburg Convention of 1989.

   Finally, on 19 October 2005, the XXXIII UNESCO General Assembly in Paris unanimously adopted the International Anti-doping Convention, which was afterwards ratified by the Italian Government with Law n.230/2007 (5).

   Accordingly, such a Convention, as well as the 2002 Warsaw Protocol and the WADA Program constitute the corner stone of the global fight against doping.

   As said above, the WADA Code has been often modified and updated over the years due to the need for more effectiveness (in 2005, 2007 and, ultimately, in 2008 after the III World Anti-Doping Conference in Madrid). The last changes came into force in January 2009 and they represent the current version. Therefore, the World Anti-Doping Program is constituted by the International Standards (6), the Models of best praxis (7) and the WADA Code (8).

   In the light of the aforementioned regulations, it is clear how doping has become through the years a crucial issue to be fought at the international level (9).

   In this context, Italy took a strong position against such a phenomenon by approving Law n.376/2000 ("Regulation of health standards in sports activities and the fight against doping (10)"), according to which doping is considered as a criminal offence (punished with imprisonment).

   1.2 The regulatory framework in Italy and the enactment of Law n. 376/2000.

   Before the analysis of Law n.376/2000, we will now briefly analyze the former regulatory framework in Italy, which had mostly delegated to the sporting regulations the fight against doping until the end of the 90s.

   In July 1988, the Italian Olympic Committee (CONI) enacted a circular providing with uniform rules and a list of prohibited substances as well. Accordingly, the National Sports Federations implemented them and regulated the controls and the relative sanctions.

   As said, until the introduction of Law n.376/2000, there was a sort of legislative vacuum in Italy and doping was only countered by the set of rules as enacted by CONI (11).

   All those theories endured within the sporting scenario until the year 2000, when the Italian Legislator finally enacted a specific criminal law on doping.

   Under the new regulations, doping is considered again as a criminal offence to be sanctioned with strong measures, namely imprisonment from 3 months to 3 years (and even to 6 years in the most serious cases).

   In the aftermath of the enacting the law, the doctrine started analyzing the relation with the aforementioned Law n.401/1989 on sporting fraud. The mainstream deemed that there was a complementary relationship: as a matter of fact, those cases not covered by the new set of rules could be included within the previous law (such as, the use of a prohibited substance out of the list in order to alter a match) (12).

   Particularly, from a structural point of view, the law is made by 10 articles in accordance with the principles and values set forth by the Convention of Strasburg in 1989.

   Accordingly, Art. 1 par. 1 states that: "the aim of sport is to promote individual and collective health and thus sporting activities must be governed by the ethical principles and educational values set forth in the Anti-Doping Convention, and relative appendix, opened in Strasbourg on 16 November 1989 and ratified pursuant to Law N[degrees] 522 of 29 November 1995. Sporting activity shall therefore be monitored according to the provisions established by the legislation in force regarding the protection of health and the legality of competitions and may not be undertaken using techniques, methodologies or substances of any type which could present a risk to the psycho-physical integrity of the athletes involved".

   Therefore, not only does the law have the aim of prosecuting dangerous conducts, but also those behaviors capable of modifying the psycho-physical conditions of the organism, which are not actually harmful (13).

   Consequently, this new set of rules provides with an abstract crime of danger ("reato di pericolo astratto"): otherwise, it would have been nearly impossible for the judge to understand whether the result of the competition would have been different if the athlete had not assumed a doping substance (crime of damage - "reato di danno") (14).

   The judge shall only evaluate whether the substance is capable of modifying the performance and such a characteristic is simply proven by its insertion within the list of prohibited substances as enacted by a Ministerial Decree.

   With specific regard to the prohibited conducts, Art.1 par. 2 states that: "doping consists in the administration or taking of drugs or substances which are biologically or pharmacologically active" as well as "the adoption of - or the participation in - medical practices which are not justified by pathological conditions and may change the psycho-physical or biological conditions of the organism and thus alter the performance of the athletes".

   Furthermore, Art.1 par. 3 establishes that: "For the purposes of this law, the administration of drugs or substances which are biologically or pharmacologically active, and the adoption of medical practices which are not justified by pathological conditions and which may - and indeed intend to - modify the results of monitoring of the use of...