Academic journal article The International Sports Law Journal

Doping in Sport, the Rules on "Missed Tests", "Non-Analytical Finding" Cases and the Legal Implications

Academic journal article The International Sports Law Journal

Doping in Sport, the Rules on "Missed Tests", "Non-Analytical Finding" Cases and the Legal Implications

Article excerpt

Much discussion has been generated with the introduction of a new 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. (1)

Before, however, an analysis of the application of this rule can be produced, it is first of all necessary to explain and define the operation of the rule and perhaps attempt to discover the reasons for its creation.

The article would concentrate on the IAAF's [International Association of Athletics Federations] rule on missed tests and critically analyse its definition and application, particularly at the charging stage. This would enable us to test the validity of the rule, by examining its application on potential alleged offenders and would also provide us with a unique opportunity to interpret the intention of the legislator. The relevant rule under examination is the IAAF's Rule 32.2.d which states:

"Doping is defined as the occurrence of one or more of the following anti-doping rule violations: (d) the evaluation of 3 missed tests (as defined in Rule 35.17) in any period of 5 years beginning with the date of the first missed test." (2) Further, Rule 35.17 goes on to "define" what a missed test is. It states: "If an athlete fails on request to provide the IAAF with his whereabouts information, or to provide adequate whereabouts information, or is unable to be located for testing by a doping control officer at the whereabouts retained on file for that athlete, he shall be subject to an evaluation by the IAAF Anti-Doping Administrator for a missed test. If, as a result of such evaluation, the IAAF Anti-Doping Administrator concludes that the athlete has failed in his obligation to provide whereabouts information or adequate whereabouts information, the IAAF Anti-Doping Administrator shall evaluate the failure as a missed test and the athlete shall be so notified in writing. If an athlete is evaluated as having 3 missed tests in any period of 5 years beginning with the date of the missed test, he shall have committed an anti-doping rule violation in accordance with Rule 32.2(d)."

It is clear from the above rules that doping does not only relate to the use of prohibited substances and methods, but also to the "occurrence of one or more anti-doping rule violations". These anti-doping violations may incur in situations where the athlete did not use performance enhancing substances, but simply, where he "missed", "failed" and/or "evaded" the test. For the purposes of analysing these rules, we would call these specific cases "non-analytical finding" cases.

The reason for the examination of the IAAF's rule, concentrates on the fact that it is attracting intense criticism, in relation to its application on anti-doping violations. In addition, this regulation in question has been associated with high profile cases, and has also become the source of a unique form of questioning. A series of questions arise out of its construction, interpretation and application in practice.

These questions cannot be answered without a further examination of the factual issues that surround the application of this regulation. This work aims to explore the operation of these rules, in order to be able to explain and test the application of the regulations in question. It further aims to interpret the construction and the reasoning behind the creation of the said regulations.

Factual Analysis

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. (3) 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 missed, failed, refused and/or evaded the test. …

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