Proportionality and the application of the World Anti-Doping Code.

• Author: Ram, Herman

1. INTRODUCTION

   Even since before the first version of the World Anti-Doping Code (the Code) came into force in January 2004, there has been an intense debate about the principle of proportionality in the Code. Much of the debate focussed on the possibility of 'individual case management', in a Code which was designed to establish world wide harmonisation and standardisation. The question (or perhaps "fear" is a more accurate term) was whether this wish for harmonisation would take over the need for rules which would allow an athlete to receive a sanction which was in accordance with (i) the offence and (ii) the individual or exceptional circumstances under which the offence was committed. The debate continued during the first Code revision process, which led to the adoption of the revised Code in 2007. (2) Now that the second Code revision process has commenced, it may be expected that proportionality will again be a hot topic, revived in the months to come. (3)

   The Code is the foundation of all the anti-doping rules and procedures world wide. A recurring aspect of the Code discussion is the tension between the necessity to harmonize anti-doping rules on the one hand, and the wish to treat individual doping cases individually on the other hand. The Code should allow sufficient flexibility for taking the individual aspects of each case into consideration, while at the same time ensuring global harmonization through the Code.

   The tension between these two goals is quite significant, especially because the Code aims at equal treatment across sports. This has inspired and will continue to inspire a lively debate about - for instance - whether or not imposing a two year sanction is equal treatment for athletes from different sports. (4) The tension between individual assessment and global harmonization may be reduced over the years if more flexibility will be allowed for taking the individual aspects of each case into consideration, but global harmonization through the Code is the cornerstone of the World Anti-Doping Program, and the Code is a central and indispensable tool within that program. (5)

   But still, the present Code offers relevant possibilities for individual assessment of doping cases. This is not always recognized by the general public and, more importantly, it is not always understood by legal counsel, which acts on behalf of the athlete in doping cases. In other words, there is limited but relevant room for flexibility and proportionality within the Code, but this room is not always used as it could and should be.

   In this article, we will try to shed some light on the positions of athletes (paragraph 2) and Anti-Doping Organizations (paragraph 3), in relation to the proportionality issue we have introduced above. In the fourth paragraph, we will describe the approach of the Dutch Doping Authority, and the fifth and last paragraph provides some conclusions and input for further discussion.

2. THE ATHLETES' POSITION

   The possibilities that the Code offers for individual assessment of doping cases should be fully used by panels and legal counsel, in order to reach decisions that are both Code-compliant and proportionate. The extent to which this is actually realized is largely dependent on the defence of the athletes who are involved in doping cases. Athletes are dependent on others to defend their case, others meaning people with a relevant legal and/or scientific background. Athletes themselves are very seldom able to defend their own case in a knowledgeable way, because athletes with both a Law degree and a PhD in Chemistry are rare indeed. So the question is: who helps the athlete?

   2.1 LEGAL COUNSEL

   When we try to answer that question, it is important to note that the majority of athletes that get involved in disciplinary proceedings because of an (alleged) Anti-Doping Rule Violation (ADRV) are not top level, professional athletes. On the contrary, most (alleged) doping offenders are amateurs who more often than not are unknown to the general public.

   WADA's Laboratory Statistics 2010 mention 2790 Adverse Analytical Findings. The global number of Non-Analytical Findings (refusals, tampering, etc.) is unknown, but it is safe to say that each year more than 3.000 doping cases are brought before disciplinary panels around the world (or at least they should be brought before panels). It is unknown in how many of these cases legal counsel has been involved, but it is our estimate that not more than 20% of Dutch athletes have enough financial resources to hire legal counsel: out of 61 Dutch cases in 2009-2011, legal counsel was involved in only 11 cases.

   The situation in other countries may be very different (both better and worse), but there can be no doubt that most athletes cannot afford to hire legal counsel, considering the costs of legal counsel and the average income of athletes. (6)

   And even if an athlete can afford to hire legal counsel (because he is a well paid athlete, or he has a generous sponsor, rich parents, or an adequate legal aid insurance) it may be quite hard to find a lawyer who has adequate knowledge about the World Anti-Doping Code and the national anti-doping regulations, because the number of doping cases in a certain country is usually (far) too low to enable law firms to specialize in the field.

   In short, adequate legal counsel is available in only a limited number of doping cases, and in the majority of cases, no counsel is available to help the athlete. And the outcome of procedures where legal counsel is absent, or fails to offer adequate legal support can be disastrous. (7)

   2.2 CONFIDENTS AND ACTIVISTS

   As a result of the inaccessibility (due to the high costs) or unavailability (due to the lack of relevant expertise/experience) of adequate legal counsel, many athletes put their trust in confidents who may be their parent, teammate or spouse, or someone who profiles himself as an anti-doping expert.

   If an athlete solely relies on a trusted member of his team or family that may be of great psychological help to him, but it usually does not add much to the quality of his defense. We have witnessed several hearings in which the confident went to great lengths to convince the panel that the athlete involved is an honest, reliable and likeable human being, but this unfortunately does not bear much weight in assessing doping cases.

   Some athletes do not rely on their social surroundings, but try to find support elsewhere. We are not at all sure about other countries, but at least in the Netherlands we have a number of activists who oppose the current anti-doping policies, and who try to get involved in doping cases in order to promote their views on the subject. They seek publicity, and more or less offer themselves as counsel. The result of the involvement of such activists in doping cases is ineffective at best and disastrous at worst. Several athletes have been severely disadvantaged by this kind of counsel. For instance, some athletes missed their right to appeal because they were misinformed about their position, the procedures, the deadlines, etc. On top of that, athletes may end up with costs and fines that they're...