The international war against doping: limiting the collateral damage from strict liability.

Author:Cox, Thomas Wyatt
 
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ABSTRACT

The World Anti-Doping Agency (WADA) and the World Anti-Doping Code are largely considered the model for an effective and well-coordinated antidoping regime. This model has allowed numerous sports and various countries to secure the same rules for domestic and international athletes. Within this regime, strict liability for prohibited substances stands as the "cornerstone." Strict liability has allowed antidoping officials to prosecute doping violations through an effective testing regime. However, this principle occasionally implicates innocent athletes with no intention of performance enhancement. This Note proposes that WADA modify its criteria for including substances on the Prohibited List and suspend strict liability in certain exceptional cases in order to better serve the policies behind preventing doping in sports. These reforms will allow WADA to continue to serve as the model for combating doping in sports.

TABLE OF CONTENTS I. Introduction II. Structure of the Current International System A. World Anti-Doping Agency B. Court of Arbitration for Sport III. Application of the Code: Two Unique Cases A. The Case of Alberto Contador B. The British Olympic Association's Lifetime-Ban Rule IV. The Strict Liability Principle: The "Cornerstone" A. Rationale for Strict Liability B. Scientific Issues Within Antidoping C. Culpability V. Revising the Strict Liability Principle A. Performance-Enhancing Substances B. More Flexible Culpability Standards VI. Conclusion I. INTRODUCTION

On September 31, 2000, well-wishers greeted Andreea Raducan with a bitter welcome back to her home country of Romania. (1) Raducan, a sixteen-year-old gymnast, had been stripped of the gold medal she won for the Women's Individual All-Around Event at the 2000 Olympic Games, the most prized gold medal for gymnastic events. (2) The reason was cold medicine. (3) The team doctor had administered to her a standard cold remedy containing pseudoephedrine, a banned substance for which she subsequently tested positive. (4) Despite the clear evidence of lack of fault, Raducan was unsuccessful in her fight to keep her gold medal. (5)

Although Raducan's case was certainly extreme, avoiding positive tests might be more difficult than one might initially think for athletes who are regulated by the World Anti-Doping Code (the Code). Medicines, (6) recreational drugs, (7) and contaminated supplements (8) can all lead to positive drug tests and are not necessarily taken for performance-enhancing purposes. The strict liability principle has forced athletes to be constantly vigilant about what substances enter their body. Failure to do so can result in forfeiture of competition results and lengthy suspensions. (9)

On the opposite end of the spectrum are those athletes that intentionally take substances to improve their results. The multitude of cases demonstrates that there is no shortage of athletes that are willing to subvert doping controls in order to gain the upper hand in competition. (10) Modern science has aided these athletes by constantly creating more sophisticated doping techniques. (11) For example, in 2007, Barry Bonds broke Hank Aaron's legendary home-run record with the help of a designer steroid known as tetrahydrogestrinone (THG), which was completely unknown and not tested for until after 2003. (12) More recently, international cycling has garnered attention with the use of erythropoietin (EPO) and autologous blood transfusions. (13) The World Anti-Doping Agency (WADA) and the International Court of Arbitration for Sport (CAS) have been at the center of the fight against these performance-enhancing techniques.

Ever since its inception in 1999, WADA has been remarkably effective at combating doping in sports and promulgating uniform rules to govern the detection and punishment of violations. (14) CAS has reinforced the legitimacy of the international antidoping regime by resolving disputed cases and developing case law that creates a framework of international law. (15) At the center of WADA is the Code, which has been signed by numerous government agencies and endorsed by international sports organizations ranging from Federation Internationale de Football Association (FIFA) to the International Olympic Committee (IOC). (16) Antidoping efforts have reached an unprecedented level of coordination and uniformity: the same basic procedures now largely govern testing across sports, and the same substances are banned in most international competitions under the Code. (17)

The fight against doping, however, has not been without its costs. It has burdened international athletes for the sake of the integrity of international competition. According to WADA's whereabouts requirement, top-level athletes must constantly be available for random tests and must provide information on where they will be for an hour of every day so that random tests can be given during that hour. (18) Athletes are also subject to strict liability for any substance found in their body that is on the Prohibited List. (19) CAS has repeatedly upheld these two provisions provided for in the Code, citing them as necessary for fair competition. (20) Considered in light of the fact that athletes have little bargaining power in making the rules that govern them, these strict controls seem to undermine what they also promote: the athlete. Given these stakes, this Note will analyze the rationales behind the Code and how the Code's rigid measures serve its purposes.

Part II of this Note will examine the background of WADA and CAS along with the specialized issues these institutions address within the area of antidoping. Part III will examine the implementation of the Code through two unique cases that were appealed to CAS. Part IV will analyze the rationales behind strict liability, how it relates to the various scientific issues that arise in antidoping efforts, and the use of culpability in penalizing athletes. Part V will suggest a revision of the strict liability principle and the criteria used for adding substances to the Prohibited List, which will better serve the underlying rationales of the Code.

  1. Structure of the Current International System

    The current antidoping regime developed as part of the Olympic movement, which led to its widespread adoption by international bodies. (21) The IOC holds the rights to the current Olympic Games, (22) and any International Federation that wishes to participate in the Olympics must abide by the rules of the Olympic Charter. (23) International Federations are nongovernmental organizations that govern one or more sports at a global level, such as FIFA and Union Cycliste Internationale (UCI). (24) Given that the IOC holds the keys to the Olympics, the IOC's efforts to implement doping controls has encouraged the International Federations to generally adopt this stance. Although the IOC was largely the impetus for the creation of WADA and CAS, these two bodies now largely operate independently of the IOC, and their reach extends beyond just Olympic sports.

    1. World Anti-Doping Agency

      In 1998, the IOC was prompted to act when French authorities discovered a stash of performance-enhancing drugs (PEDs) (25) at the Tour de France. (26) The "Tour of Shame," in which only about half of the riders that began the race finished, led to the creation of WADA approximately a year later at the First World Conference on Doping in Sport. (27) WADA was designed to be an independent agency that would coordinate with the IOC and other private and public organizations to battle doping in sports. (28) With its constitution ratified in 1999, WADA was operational for the 2000 Olympic Games in Sydney, Australia. (29) The 2000 Olympic Games marked the first time WADA conducted tests and employed its independent observer program to oversee testing at the games. (30)

      In 2003, the Second World Conference on Doping in Sport was held in Copenhagen, Denmark, where the Code was ratified. (31) This enabled all Olympic organizations to adopt the Code before the 2004 Olympic Games in Athens, Greece. (32) Later in 2007, the United Nations Educational, Scientific and Cultural Organization International Convention against Doping in Sport allowed national governments to become signatories of the Code. (33) Thus, both private and public entities can become bound by the Code, which has further bolstered doping controls.

      The Code governs the implementation of antidoping practices by its signatories. (34) Two of the more important international standards incorporated into the Code are the Prohibited List and the International Standard for Testing. (35) The Prohibited List is updated every year by WADA and names all of the substances that are prohibited both in competition and out of competition. (36) The International Standard for Testing provides requirements for test distribution planning, notification of athletes, preparing for and conducting sample collection, post-test administration, and transport of samples; it also requires national antidoping organizations to conduct regular testing. (37) It also provides the "whereabouts requirement" for athletes in certain testing pools. (38) The Code and the international standards that it references bind all signatories. (39)

    2. Court of Arbitration for Sport

      CAS, much like WADA, was also created by the IOC to quickly and cost effectively settle sports-related disputes. (40) At first, CAS was fully funded and managed by the IOC, but an independent entity was created in 1994 to oversee it. (41) Today, CAS is operated by the International Council for Arbitration for Sport and consists of a pool of approximately 275 arbitrators that are legally trained and familiar with sports law. (42) CAS is headquartered in Lausanne, Switzerland, but it also has courts located in New York and Sydney. (43)

      The disputes that CAS settles are purely contractual in nature. (44) Athletes generally agree to abide by an International...

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