Academic journal article The International Sports Law Journal

The Hybrid Character of WADA and the Human Rights of Athletes in Doping Cases (Proportionality Principle)

Academic journal article The International Sports Law Journal

The Hybrid Character of WADA and the Human Rights of Athletes in Doping Cases (Proportionality Principle)

Article excerpt

1. Introduction

Generally speaking, what may be termed "sports law" consists of two parts, a public and a private one. The private part is formed by the rules and regulations of organized sport. Organised sport is built up of national and international organisations for each sport. The national associations are members of regional (continental) and universal, global and worldwide federations (IFs). From an institutional point of view, his part is hierarchically structured with - in association football - universal federations such as FIFA at the top and with UEFA as the regional organization for Europe. Besides, the Olympic Games which have an "omnisport" character, are organized under the umbrella of the IOC in cooperation IFs regarding the technical sporting aspects. The private part of sports law is the core part of this field of law, whereas the public one is of a non-systematic, fragmented nature. This part mainly consists of national legislation and a number of agreements under public international law (treaties) which relate specifically to sport.

"Anti-Doping law" belongs to "sports law". In the past, its private part was represented by national and international anti-doping regulations. With the introduction of the WADA Code in 2003 (WADA = World Anti-Doping Agency; officially, the correct naming is WAD Code (WADC), however, the Code is popularly known as and called WADA Code) this part was uniformised in one single international legal instrument. The public part consists of a number of national Anti-Doping Acts as well as two treaties which deal with the subject under consideration, that is the Council of Europe's Anti-Doping Convention of 1989 (and its Additional Protocol) and the UNESCO International Convention against Doping in Sport of 2005. As far as disciplinary law is concerned, the (private) jurisprudence of the Court of Arbitration for Sport (CAS) plays a very significant role. The special characteristic of "anti-doping law" from an institutional, organizational perspective is the fact that national governments and intergovernmental organisations (IGOs) directly participate in WADA and the close linkage between the UNESCO Convention and the WADA Code. This issue will be discussed in detail in the first part of this article. The hot issue of the legal aspects of the fight against doping in sport is the relationship between "anti-doping law" and the human rights of athletes in doping cases, that is the applicability of general public human rights law to doping in sport. In the second part of the article a case of this type in which in 2009 this author was personally involved as a member of the appeals committee of the Instituut Sportrechtspraak [Netherlands Institute for Sport Adjudication] will be presented. The Appeals Board's decision was finally submitted to the CAS which was and still is the first time in history with regard to a Dutch case.

2. WADA: a public-private body

According to Richard Pound, Member of the IOC and the first Chairman of WADA, in 2002, the seminal event that led to the creation of the World Anti-Doping Agency (WADA) was the Tour de France in 1998. During the event, the French police found doping substances in the possession of certain of the teams and proceeded to arrest not only officials, but also athletes. The sight of athletes being led away by the police, to face possible criminal charges, was most dramatic. It also delivered a "wake-up" message to all other sports; if this could happen to one of the major European sports, in its showcase event, then it could also happen to them. The prospect of sport being governed by criminal law, with the concomitant intervention of the state, was thoroughly unattractive.

The situation was compounded by remarks made by IOC President Juan Antonio Samaranch to a Spanish journalist during the same Tour de France, in which he speculated that the list of substances prohibited was too long and that, so far as he was concerned, anti-doping scrutiny should be limited solely to substances that were harmful to the athletes, regardless of their performance-enhancing capacities. …

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