Proportionality in the world anti-doping code: is there enough room for flexibility?

• Author: Houben, by Jannica

The biggest advantage of the introduction of the World Anti-Doping Code in 2004 is the harmonization, but a disadvantage is that there are still some unclear matters left. The drafters of the WADC opted for a system of strict liability with mandatory (tough) penalties and a possibility of sanction reduction in the case of exceptional circumstances. The question of fault or negligence only plays a role in the determination of the sanction. In this article, I will evaluate this system and the rulings by the CAS. Are the sanctions imposed proportionate to the offenses? Does the Code leave room for the use of the principle of proportionality? If yes, does the CAS use the flexibility in the Code?

In this contribution it is argued that the CAS does not interpret the Code in a correct way. Although the Code can be seen as well drafted, the CAS does not use the flexibility that is incorporated therein. But there is hope: recently a CAS Panel held in the Puerta case (1) that "in those very rare cases in which Articles 10.5.1 and 10.5.2 of the WADC do not provide a just and proportionate sanction, i.e., when there is a gap or lacuna in the WADC, that gap or lacuna must be filled by the Panel. (2)"

In this article I will, in the first section, look at the system of strict liability, as this is the most important part of the system of sanctioning.

Then I will evaluate the burden of proof and the different types of sanctions and sanction reduction under the Code, in section 2, since these are important features in the Code.

In section 3 I will come to the main point of this article: proportionality.

I will look at the way CAS used the principle of proportionality before and after the introduction of the Code. In this section I will also look at the recent developments in the Puerta case.

I will end with a conclusion.

1. Strict liability

   The Code lies down a principle of strict liability. Under this system the question of fault or negligence only comes into play in the determination of the sanction. The drafters opted for this system because they believed it to be the best way to fight doping in an effective manner.

   The rule states that the mere presence of a prohibited substance will be sufficient to cause the loss of any results arising out of the competition during which the positive sample was taken. Article 9 of the Code stipulates that an anti-doping rule violation in connection with an in-competition test automatically leads to disqualification of the individual result. This is because the athlete had a potential advantage over the other athletes, regardless of whether he or she was at fault in any way.

   The system of strict liability was known before, both in CAS case law and in the vast majority of existing anti-doping rules (The IOC Anti-Doping Code for example). The WADC can be seen as a codification of this principle. In fact, CAS has always used the strict liability principle: in one of the first doping cases ever to be examined by CAS a provision was qualified as a strict liability rule (3). In the pre WADC Quigley case (4) the CAS panel stated that the practical necessities of the fight against doping justify the application of the strict liability rule.

   Two purposes of WADA are the protection of the athlete's right to participate in a doping-free sport and securing a harmonized, coordinated and effective fight against doping (5). To reach this second goal the concept of strict liability is laid down in the WADC. In a line of awards (6) the panels stated that, notwithstanding a certain degree of hardship, this strict rule was necessary. In literature too, the concept is generally considered a necessary instrument in the fight against doping (7), although there is criticism as well (8); as the outcome in some cases might be quite harsh and can be seen as unfair. The criticism is especially pointed at the imposing of additional sanctions without addressing the issue of guilt (9). As long as only disqualification was at stake, the CAS panels have always felt prepared to apply the strict liability regime without any alteration (10). The traditional means in the fight against doping did not work very well. It is an almost impossible task for an International Federation (IF) to prove that the athlete doped him- or herself intentionally or negligently, especially since these organizations do not enjoy any rights of investigation. The system of strict liability makes it easier for IFs to fight doping in an effective way, since the do not have to prove fault or negligence. Strict liability might not be an ideal system, but currently this is seen as the best option available. It provides a reasonable balance between effective anti-doping enforcement and fairness in the exceptional circumstance where a prohibited substance entered an athlete's body through no fault or negligence on his or her part (11).

   Notwithstanding the fact that the Code works with a system of strict liability, there is an article that takes fault and negligence into account. Article 10.5 WADC provides for a system of sanction reduction, and the question of (no) fault or negligence comes into play here. This approach reflects a compromise between the IFs applying the strict liability doctrine without any exemptions and those IFs attaching great importance to the principles of fault and proportionality. Article 10.5 was incorporated to satisfy the (in many countries) constitutional principles of fault and proportionality, since the possibility existed that national courts would not have accepted the regulation (12).

2. Proof and Sanctions

   2.1. Proof of an anti-doping rule violation

   The consequence of the system of strict liability is that the burden of proof shifts to the athlete. He or she has to proof that there were exceptional circumstances, and that he or she bears no (significant) fault or negligence.

   Under the Code the burden of proving that a violation of an anti-doping rule occurred lies with the IF (13). The IF must thus prove two points: a substance has to be detected in the bodily fluids of the athlete (1) and that substance has to be on the Prohibited List (2). Strict liability in doping cases means that the sanction is an inevitable consequence if an anti-doping rule violation has been established (14). The athlete has the burden to prove the facts on the basis of which the sanction could be reduced. This is laid down in Article 10.5 WADC. According to Article 3 WADC the IF must prove an allegation 'to the comfortable satisfaction of the hearing body', which is a relatively high standard. It is not quite as high as the criminal standard of 'beyond all reasonable doubt', but certainly higher than the ordinary civil standard of 'a balance of probabilities'. The criminal standard cannot be applied, since this would confuse the public law of the state with the private law of an association (15). The athlete on the other hand must prove the facts on a balance of probabilities. The last sentence of Article 3 states:

   Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability. This wording leaves enough room for the principle of proportionality to be applied.

   This shifting of the burden of proof to an athlete after a positive finding is called 'prima facie' proof. Prima facie proof allows culpable behavior or a cause of a finding to be proved in an indirect manner by using presumptions based on experience (16). An athlete in whose bodily fluids a prohibited substance is found has, according to experience, used the prohibited substance, in a culpable way (thus with intent or due to negligence) (17). By proving the existence of the fact, the behavior that may have caused it is therefore also proven. The prima facie proof therefore consists of a double presumption: first, of the use of the substance, and second, of a culpable element (18). However, this proof is only a presumption, which can be rebutted by the athlete.

   It could be argued that the presumption of fault in the strict liability system might not be consistent with Article 6 ECHR. The principle of the presumption of innocence is laid down in 6(2). The European Court of Human Rights however held in the Salabiaku v. France case (19) that presumption of fact or law that operates against an accused is not inconsistent with Article 6(2). So, if one assumes that the criminal law principles of Article 6(2) are applicable to doping offenses, this provision does not prohibit offenses of strict liability, provided that an IF respects the rights protected by the ECHR (20). Professor Steiner, a judge of the German Constitutional Court, is of the opinion that the shifting of the burden of proving fault is consistent with general rules of civil procedure and does not raise constitutional concern (21). This view was reconfirmed in the Baumann case (22). In the United States, a similar view has been expressed in the Mary Decker Slaney case (23).

   2.2. Sanctions

   With the introduction of the Code, the intention was to have every sanction imposed reflect the seriousness of the offence. A distinction was made between sport sanctions (disqualification) and disciplinary sanctions (suspension).

   In case the athlete is unable to prove that he or she bears no significant fault or negligence for the violation, Article 10.1 provides that an anti-doping rule violation in connection with a competition may also lead to disqualification from the entire event. In considering whether to disqualify other results in the event grounds may include the severity of the athlete's anti-doping rule violation and whether or not the athlete tested negative in the other competitions.

   The part on suspension can be found in the Articles 10.2 to 10.4. The sanctions range from a warning to a lifetime ban depending on various...