The application of criminal law on doping infractions and the 'whereabouts information' rule: state regulation v self-regulation.

• Author: Ioannidis, Gregory

Introduction

Much discussion has been generated with the introduction of a rule to combat the use of performance enhancing substances and methods in sport. This discussion has been initiated and subsequently became an integral part of the sporting public opinion, as a result of the application of this rule on high profile professional athletes, such as the Greek sprinters Kenteris and Thanou, the British 800m athlete Christine Ohuruogou, as well as FIFA's disagreement to incorporate the rule in its regulatory framework.

The "Whereabouts Information" Rule [thereafter WIR] concerns the so-called "non-analytical finding" cases, which do not require a finding of a positive result of an anti-doping test for the application of sanctions on anti-doping rules violations. Instead, they require that the athlete fail to submit whereabouts information and/or fail to be present, for an anti-doping test, during the chosen time and place of his/her whereabouts information. The WIR, therefore, is a prerequisite for a "missed test"; before the sanction of an anti-doping violation could be applied on an athlete and during the analysis the reader must always keep the two together. (1)

The consequences, for an athlete, of failing to adopt, apply and follow the WIR are immense. When an athlete fails to submit up to dated whereabouts information or is not where his information states he should be and an officer attempts to test the athlete unsuccessfully, the athlete, according to the World Anti-Doping Code [thereafter WADC], is deemed to have missed the test and he would be the subject of an evaluation of a missed test. Three missed tests in a consecutive period of eighteen [18] months constitute an anti-doping violation, which carries a sanction of ineligibility from all competitions.

The historical framework

The creation of the WIR dates back to June 2004. It was the International Association of Athletics Federation [thereafter IAAF], that first incorporated such rule into its regulatory framework. This rule came into force in June 2004 and all National Olympic Committees and National Governing Bodies had been notified as to the existence and application of this rule during the last week of June 2004. This was almost 7 weeks before the opening of the Athens Olympiad in August 2004. (2)

This Rule came into force for one obvious and well documented reason: that is, to enhance the ability of the sporting governing bodies towards detection of those who attempt to refuse and/or avoid the anti-doping test. Applying the strict liability standard, the result, of the intended aim of the rule, is also obvious: to create an anti-doping violation [in a form of a positive test for performance enhancing substances] even where the athlete has not tested positive for the use of performance enhancing substances and/or methods of enhancing one's performance.

Once the legality of such rule has been established, there is little question as to the ethics of its application. Despite the fact that there are concerns as to the serious detriment to an athlete's career if this rule is applied in an arbitrary and capricious way, the aim of its inception and application appears to be defeating all arguments against its use. Once a justification for the ban on doping practices has been established, all arguments on ethicality and morality tend to become weak in rebuttal.

I would not argue as to the ethicality or morality of the existence of this rule. To do so, would require me to consider the highly subjective contention of "what is wrong with drugs and doping in sport." The justifications of the ban on doping in sport are well documented elsewhere and another analysis, here, to this effect, would simply leave me repeating the point. What is important, however, for the purposes of this work, is to examine and critically analyse the practicalities of the application of the WIR. It is not only important that gaps in knowledge must be filled, but it is equally important and thought provoking, to enhance practice in this area of sports law. This will assist not only those who practice sports law, but also the ones who practice different sports and, in particular, those who are responsible for the governance of these sports.

I would aim to further analyse and constructively criticise the inefficiency of the operation of the said rule in practice. In doing so, I would analyse the theoretical framework, the intention of the legislator for the creation of this rule, the response of the governing bodies and that of the state governments. The latter will help us consider the argument for criminalising doping methods and practices in sport.

The theoretical framework

It is submitted that the WIR is controversial not only because of its apparent subjectivity in its application, but also because it fails to consider principles of privacy and human rights. It also fails to address issues of transparency and equality. Its operation in practice does not consider due process and natural justice and violates general principles of law.

There are, at the moment, significant gaps in the knowledge and omissions that emanate from lack of practice. The rule appears to be problematic and creates significant gaps in its application. These gaps reveal significant findings, which they would, without a doubt, call for a review and re-examination of the propriety and fairness towards the application of the general anti-doping rules. It would come as no surprise when the time arrives where a case attempts to test the legality and fairness of these rules before a national court of law. Despite the fact that certain regulations of sporting governing bodies attempt to exclude the resolution of a private dispute before national courts of law, it is submitted that where an error of law and/or injustice have occurred, immunisation from judicial intervention may not so easily be achieved.

Under English law, an attempt to exclude the courts from their effort to interpret the law is considered to be against public policy. To this effect, Lynskey J has argued in the past: "The parties can, of course, make a tribunal or council the final arbiter on quotations of fact. They can leave questions of law to the decision of a tribunal, but they cannot make it the final arbiter on a question of law." (3)

This is obviously an encouraging statement which should allow some latitude for the accused athlete, where an obvious error of law has occurred, or some other principles of law have not been observed. The truth of the matter, however, is that the Court of Arbitration for Sport in Lausanne (CAS) remains the final arbiter, for both the facts and the law, and as such is followed by the parties to a dispute. (4) Lynskey J's statement, however, would not find application in practice, if the accused athlete feels that his rights have been breached and CAS has failed to produce an appropriate remedy. In my experience and in recent cases before CAS, the panel has remained silent on questions relating to human rights. (5) On a different issue, that of the lifting of the provisional suspension, the Panel suggested that CAS is not a court of law, but a tribunal, and therefore not the appropriate forum to deal with complex legal issues, such as the one raised by counsel for the accused athletes! And with the ECJ's recent decision in Meca-Medina v Commission of the European Communities [C519?04] (6) it is clear that actions that take a different road from that to Lausanne may also conventionally fail.

The consequences for failing to submit 'Whereabouts Information" and/or missing tests

Article 2.4 of the WADC states: "Violation of applicable requirements regarding Athlete availability for Out-of-Competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation."

This regulation was further implemented with some important changes applicable as of 1 January 2009. The two major changes that resulted from the revision of the WADC and the International Standards for Testing in relation to whereabouts information and missed tests are as follows:

* The requirement for top-level athletes included in the registered testing pool of either their International Federation or National Anti-Doping Organisation to specify 1 hour each day (between 6 a.m. and 11p.m.) during which they can be located at a specified location for testing. These athletes do not have to identify the 60-minute time-slot at a home address, but they can if they wish to.

* The harmonization of what constitutes an anti-doping rule violation in relation to whereabouts and missed tests and what potential sanctions can be applied. Any combination of 3 missed tests and/or failures to provide accurate whereabouts information within an 18-month period now leads to the opening of a disciplinary proceeding by the ADO with jurisdiction over the athlete. Sanctions range between 1 and 2 years depending on the circumstances of the case. Previously this was discretionary for ADOs with a suggested range of between 3 months to 2 years.

As it was submitted earlier, the significance of this regulation lies

in the fact that it does not concern positive tests for the use of performance enhancing substances, but instead the so-called "non-analytical finding" cases. (7) Such cases, as mentioned above, do not include positive tests on behalf of the athletes, but rather anti-doping violations, in a form of a strict liability offence, where the accused athlete failed to submit whereabouts information and/or missed the anti-doping test. There may be an argument that these two offenses are similar and they must be kept together when one...