Academic journal article The International Sports Law Journal

Analyzing the New World Anti-Doping Code: A Different Perspective

Academic journal article The International Sports Law Journal

Analyzing the New World Anti-Doping Code: A Different Perspective

Article excerpt

I--Introduction

Observations regarding the World Anti-Doping Code can often be divided in two distinct categories. One the one hand, there are those that defend the doping regulations, stressing the necessity of the described elements of the anti-doping programs and policies. On the other hand are those observations that detail the unfairness of these programs and policies, or the Code's disregard for the privacy and other interests of (professional) athletes.

Marshall and Hale have written a more neutral analysis of the provisions in the new, 2009 Code, pointing out the major changes and offering a critical view to various aspects of the 2009 Code. Our contribution will take the analysis and views of Marshall and Hale as a starting point, offering additional insights and opinions concerning the 2009 Code and the way this set of rules will work out in practice.

II--Who are cheats?

I. Doping is a many-sided phenomenon. This also applies to anti-doping rule violations. The Code distinguishes eight different kinds of violations, but it will come as no surprise that per violation a wide range of variation exists on how these violations may actually take place. This is especially true when it comes to use of prohibited substances:

* An athlete may for instance use a prohibited substance for therapeutic reasons, but without the required Therapeutic Use Exemptions (TUE).

* Another athlete may enter into a sophisticated doping program, using several drugs, following a well prepared scheme which is designed to avoid being caught, with the help of a number of people who provide the necessary knowledge and facilities.

* Another athlete may act on his own, by purchasing a prohibited substance without any outside help or knowledge, while being keenly aware of the nature of his actions.

* Yet another athlete may look for something extra by using supplements, without being aware of the possible risks involved or even checking whether or not any of the contents are mentioned on the Prohibited List.

* A fifth athlete may buy a nutritional supplement, read carefully what ingredients it contains, double check with the manufacturer and his federation that indeed no prohibited substances are mentioned or included, and still be faced with an adverse analytical finding due to contamination.

* A sixth athlete may abuse the asthma medication for which he has received a TUE for performance enhancing purposes.

* A seventh athlete may take a few puffs of marihuana during a party, with no intention of gaining any performance enhancing advantage and without ever being aware that his behaviour involves the use of a prohibited substance.

2. The sports community, the press and the general public make distinctions between these different kinds of violations (to which more examples could easily be added). Some of these violations are not always seen as doping or as abuse of substances with the intent to gain an advantage over other athletes. Consequently, opinions may vary about how the different violations as described above should be treated. Usually there are rather strong feelings about the penalties that should (or should not) follow such behaviour. To many, at least one or two of our imaginary seven athletes should not be considered cheats, and should therefore not be punished.

3. However, for the understanding of how the Code works, it is fundamental to recognize that it intends and is designed to catch all the athletes that are mentioned in our examples. As the intention of the Code is to 'to catch them all', all these athletes are considered to be cheats and should be punished. Under the Code, there is no such thing as a 'by-catch'. In our opinion, this basic principle has to be acknowledged in any discussion about the Code. Therefore, our article is based on the idea that under the Code, there is no by-catch and in this respect our opinions are clearly different from the approach that Marshall and Hale have chosen. …

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