Sports people's right to defence under the new Spanish anti-doping law. A perspective.

• Author: Millan, Fernando del Cacho

1. Introduction

   "Doping" cannot be considered as a typical sports phenomenon but as one that is found throughout our entire society. In our society, sport is only one of the mirrors in which doping is reflected. These circumstances have given rise to numerous discussions (1) in other European countries (2) on the opportunity of promulgating the so-called "anti-doping law" (3). It is misleading to try and resolve such a complex phenomenon by law, regardless of one's intentions of enforcing it. However, it is also true that a law can always be an effective instrument, especially if the law in question is a precise and convincing one. One of the difficulties when legislating in this matter is that although health is a social (and individual) value, it is not an absolute value and it is not even possible to know, scientifically speaking, if some substances are harmful or not. Further difficulties are posed by the innumerable substances and ongoing research resulting in new discoveries all the time. The above points constitute such a complex panorama that some sportspeople have been sanctioned "fortuitously", without any intention of doping themselves (4). It is also a fact that nowadays, individuals in general can easily become addicted to drugs, although they would not survive without them either. This is the paradox.

2. Historical and legislative backgrounds of doping in Spain

   The different legislative landmarks and institutions that have gradually provided a framework in which to fight in favour of clean sports are summed up in the Exhibition of Motives of the Law 7/2006 of 21 November (International Olympic Committee -COI-, Law 10/1990 of 15 October, National Anti-Doping Commission, laboratory of the High Council of Sports -CSD-, World Anti-Doping Code, different Conventions within UNESCO, International Anti-Doping Agreement approved in 1989 by the European Council and its additional Protocol, laboratory of the Municipal Institute of Medical Investigation of Barcelona, World Anti-Doping Agency -AMA) (5). Monitoring of substances and drugs (as well as methods) is carried out by listing substances considered to be prohibited; this is elaborated every year by the High Council of Sports. This list is published annually in the State Official Bulletin. This new law is intended to "harmonise" national and international regulations (in the middle of a ratification and adaptation process), while simultaneously "speeding up" mechanisms for greater effectiveness in the fight against doping in sports. This complies with the right to health protection laid down in Article 43 of the Spanish Constitution and the obligation of the authorities to protect and foster this right. In this regard, the Spanish Government approved the Plan to Fight against Doping in Sports with the aim of laying down a number of foundations and means to eradicate a phenomenon considered as the biggest threat to professional sport competition (6). On 1 February last, the International Agreement against Doping in Sports--drawn up by UNESCO--took effect.

3. First steps towards the defence and principles of sportspeople's defence (7)

   The organic law 7/2006 of 21 November concerning health protection and the fight against doping in sports has the following two objectives: it tries to establish mechanisms of prevention and control, and it sets up proceedings for the imposition of sanctions strengthened with the introduction of a new Article in the Criminal Code. Here, it is important to bear the principles of the proceedings in mind, since the imposition of a sanction must be carried out with the maximum guarantees (8), such as the right to be heard and the right to appeal. Article 82 (9) of Law 10/1990 governing Sport refers to the "general and minimum conditions of disciplinary proceedings". Starting with the principles of defence that inform the proceeding, we should highlight the fact that, according to this Organic Law, sportspeople are legally obliged to undergo doping tests (Article 5.1). This limits the right to remain silent and not to declare against oneself. In principle, it affects sportspeople with a licence to participate in official state competitions, but the law itself extends the subjective environment to those sportspeople who have not renewed their licence and to those that have been suspended. Sportspeople can even be forced to undergo a "surprise" test. The law is clear in this respect and states that sportspeople are obliged to undergo this test, expressly recognised in the First Section of Chapter II of Title I. However, this is not the problem: the problem is to determine the legal consequences for those cases in which sportspeople refuse to be vetted. It is also important to define the responsibility of their trainers...