| Feature | No.43 January 2005 |
The Athlete’s Liability for Doping Lauri Tarasti, Finland |
1. Preliminary comments An important practical and juridical question in doping control is the liability of the athlete. It is an obligation of every athlete to observe all rules concerning his/her sport. Doping rules are an important part of the games’ rules. The observation of rules is not only the obligation of the athlete, but is also his/her right. He/she can demand that all other participants observe the same rules, i.e. fair play is applied in the sport. If the athlete does not follow the rules, he/she can be disqualified and punished. These sanctions, including the sanction for a doping offence, are not criminal punishments, but disciplinary measures. The guilt is not estimated in sport and in relation to games rules, including doping rules, in completely the same way as in criminal law1. In sport, the issue is not only the accused athlete and who is guilty, but also a question of similar conditions i.e. fair play in respect to all participants. The athlete who takes a short cut in cross-country running or uses underweight throwing equipment will be disqualified regardless of his/her culpability. In this respect, doping rules are judged in the same way as other games rules. There is no prevention to disqualify an athlete who has taken advantage by using doping methods in a certain event, but more critical examination is needed before imposing a long period of ineligibility. In this connection, I will concentrate only on an anti-doping rule violation where a prohibited substance is found to be present within an athlete´s body tissue or fluids. This is also the most common doping offence. Already, the wording of this violation indicates that this type of doping offence can include wider liability, strict liability, than in other types of doping offences where the liability is estimated in accordance with normal juridical principles. Wide liability is understandable in this anti-doping rule violation, because the only available, but very heavy, evidence of a doping offence has usually been the doping test which has detected substances within an athlete´s body tissue or fluids. The accusing party, the sport organisation, may have no means to show intention or culpable negligence of the athlete. In law, the term "strict liability" has usually been understood as liability without intent or negligence. The question here is, which kind of context "strict liability" might have in doping control and, when determining liability in doping cases, whether it is possible to deviate from the general international principle of criminal law related to guilt. 2 My understanding has always been that we cannot use the term strict liability in sport with the same conditions or in the same way as in civil law, for example in compensation law, where the liability for damages in air traffic or for dangerous chemicals can be absolute. This term has its own context in sport.3 2. Interpretation of liability so far Until today there have been many different kinds of doping rules in various sports. The World Anti-Doping Code, which was accepted in March 2003, is a great attempt to harmonize these anti-doping rules (the Code uses the term anti-doping rules instead of the old term doping rules). Juridically it is, however, possible, to examine the interpretation of this liability, and of strict liability, before the World Anti-Doping Code has come into force, by looking at the decisions of the two international sport tribunals: the Arbitration Panel of the IAAF (International Association of Athletics Federations) which started its jurisprudential activity in 1985 and the Court of Arbitration for Sport (CAS) which started its activities one year later. The IAAF finished the Arbitration Panel in 2001 and transferred to use the CAS. I was the chairman of the Arbitration Panel 1984-1997 and a member 1998-1999. The concept "strict liability" had not been defined in the IAAF Rules. Rule 55.2(i) said that a doping offence had been committed when "a prohibited substance is found to be present within an athlete´s body tissue or fluids" and Rule 55.4 that "it is an athlete´s duty to ensure that no substance enters his body tissues or fluids which is prohibited under these Rules. Athletes are warned that they are responsible for all or any substance detected in samples given by them." From this basis, the Arbitration Panel discussed extensively "strict liability" in many cases and made some farleading decisions. In the Bevilacqua Case, Ms. Antonella Bevilacqua, an Italian high jumper, tested positive for the prohibited substances, ephedrine and pseudoephedrine, twice during the same month. She had, according to her testimony, taken health pills from a can whose printed label showed the substances of the pills but without mentioning ephedrin or pseudoephedrin. The Arbitration Panel stated in its arguments: "According to IAAF Rule 55.4 athletes are warned that they are responsible for all or any substance detected in samples given by them. Taking into account the liability of Ms. Bevilacqua, according to the above-mentioned Rules and Guidelines, we have concluded that a doping offence has taken place in this case. We are of the view that she had not done enough to ensure that no prohibited substance has entered her body tissues or fluids. 4 Those health pills were not everyday food that one consumes." This same question was dealt with also in the Mitchell Case in which the Panel pointed out that "We have, however, to remind that according to Rule 55.4 "It is an athlete´s duty to ensure that no substance enters his body tissues or fluids which is prohibited under these Rules. Athletes are warned that they are responsible for all or any substance detected in samples given by them." The athlete has strict liability in this respect. The information available on Symbiotropin and Triboxin (which Mr Dennis Mitchell, an American sprinter, had ingested) tells that both products which are not daily food are to be used for the improvement of performances and consist of agents which have anabolic or growth hormone influence. The athlete has the liability to take care that such substances do not cause a positive finding in a doping control." I examined these and other decisions made by the Arbitration Panel in 1985-1999 and compared these with the decisions of the CAS 5 thoroughly in my book "Legal Solutions in International Doping Cases" (Milano 2000). The conclusion, which I consider valid until the World Anti-Doping Code was accepted, in my book is as follows: Firstly the rule "a prohibited substance is found to be present within an athlete´s body tissue or fluids" has been interpreted to be mainly a rule concerning the burden of proof. The rule shows, that when a prohibited substance has been found, the burden of proof will move to the athlete concerned. It is then his/her task to show that no doping offence has taken place. Because the negligence, but also the carefulness has been very difficult to show, the discussion has concentrated on the question of the burden of proof. The situation is nearly the same in a criminal case, when for example finger-prints have been found on means of commission of an offence. The evidence is so strong that the burden of proof moves to the opposite side and the question of culpability remains in the background. Secondly, the positive finding causes a presumption of negligence of the athlete. If an athlete does not pay attention to what he/she ingests, he/she is negligent in the sense of the rules. Different kinds of explanations may previously have been credible when the general knowledge of doping and prohibited substances was low. But today, at least in athletics, where some 15 000 doping tests are performed annually, and when a wide educational programme is carried out, all athletes who are competing internationally are well aware of their duties. An athlete who says that a trainer or a girl friend has given him some pills whose content is unknown, means today that the athlete has in most cases made himself guilty of negligence, if a doping substance has been detected. In this respect the liability of a top-athlete for negligence is much higher than the liability of ordinary people. If it would be accepted, that due to the unawareness of the athlete a doping offence had not been committed, this would make doping control impossible to be conducted. It might be possible to find somebody who takes the responsibility for doping and informs that it was only him/her who gave a prohibited substance to the athlete in such a way that the athlete was unaware of it. It would also be possible to try consciously to prevent the athlete from getting any information on the substances. It is not a passive but an active duty for an athlete to take care that no prohibited substance enters his/her body. In fact, the responsibility of an athlete seems in some respect to cover the whole training, including the actions of his/her assistants. The athlete should make clear beforehand to his assistants that he/she does not accept doping in any circumstances. The conclusion of what has been said above is: The liability of the athlete with respect to doping can be determined by two subsequent factors: by the shifting of the burden of proof to the athlete after a positive finding and by the presumption of negligence of the athlete including his/her active duty to avoid doping. In fact, we could give up speaking about shifting of the burden of proof, because it happens by itself. The presence of prohibited substance in the athlete´s sample is normally a full evidence if the athlete cannot show something else i.e. he/she has to take the burden of proof if he/she wants to avoid guilt. After this, it is a question of the presumption of negligence of the athlete. It is refutable. But when the athlete is obliged to overthrow this presumption according to the burden of proof, this has seldom succeeded. It is difficult for the athlete to show credibly that he/she has manifested cautiousness and avoided actively any negligence, when his/her test has been positive. The main attention will not be paid to the athlete´s intention but his/her cautiousness. This is according, to my understanding, the content of strict liability for doping. The content differs clearly from the definition of strict liability in criminal or civil law. This interpretation disapproves the opinion that strict liability disables the athlete from providing any exculpatory explanation of the circumstances in which the substance was found in the body fluids.6 The liablility of an athlete in sport is not the same as culpability according to criminal law or civil law - it is the liability of its own 7 - but I cannot see in the above mentioned interpretation of liability, anything against normal juridical principles. The decisions by both the Arbitration Panel and the CAS as well as many decisions in national civil courts have accepted this kind of interpretation. 3. Strict liability in the World Anti-Doping Code The World Anti-Doping Agency (WADA) was established in 1999 from the iniative of the International Olympic Committee (IOC). The greatest achievement of the WADA so far has been that it succeeded to create the harmonized doping code for all sports and all countries, the World Anti-Doping Code (WADC). The Code, as such, is not applicable in sport. It presupposes that the international sport federations and other sport organisations will include the Code into their own anti-doping and other rules. But these organisations have committed themselves to do so and the IOC has demanded that all summer olympic federations must do so before the Olympic Games in Athens, 2004. This seems to have happened. The consequence is that it is now possible, for the first time, to examine the athlete´s liability for doping mostly from the basis of only one code, the WADC. The World Anti-Doping Code includes both rules which must be incorporated into the rules of each sport federation without any substantive changes and rules which allow flexibility in the formulation of the rules. All important rules on the Athlete´s liability belong to the first mentioned, obligatory rules. The athlete´s liability, strict liability, was one of the most difficult points when negotiating the WADC. The WADC itself does not mention strict liability, but it has been acknowledged and dealt with in the official comments on the Articles of the WADC.8 In the comment under Article 2.1.1 it has been said that "the Code adopts the rule of strict liability ..........under the strict liability principle, an anti-doping rule violation occurs whenever Prohibited Substance is found in an Athlete´s bodily Specimen. The violation occurs whether or not the Athlete intentionally or unintentionally used a Prohibited Substance or was negligent or otherwise at fault. If the positive Sample came from an In-Competition test, the results of that Competition are automatically invalidated. However, the Athlete then has the possibility to avoid or reduce sanctions if the Athlete can demonstrate that he or she was not at fault or significant fault. The strict liability rule for the finding of a Prohibited Substance in an Athlete´s Specimen, with the possibility that sanctions may be modified based on specified criteria, provides a reasonable balance between effective anti-doping enforcement for the benefit of all "clean" Athletes and fairness in the exceptional circumstance where a Prohibited Substance entered an Athlete´s Specimen through no fault or negligence on the Athlete´s part. It is important to emphasize that while the determination of whether the anti-doping rule has been violated is based on strict liability, the imposition of a fixed period of Ineligibility is not automatic." This interpretation devides the dealing of strict liability into two parts: in the phase of the analysis and in the phase of sanctioning. Strict liability must concern the phase of the analysis but not any more the phase of sanctioning9. The WADC has adopted this approach. Personally, I consider that in the phase of the analysis it is not mainly a question of liability but a question of evidence. The evidence in the case indicates whether an anti-doping rule violation has happened or not. The liability will be dealt with when sanctioning, but I can understand the solution in the WADC. It was a compromise between so called hard liners and a milder attitude. Both sides received something: hard liners could keep strict liability and those who wanted to have milder attitude could avoid or reduce the sanctions in exceptional circumstances. I would like now to deal with the differences between, on one hand, my interpretation on strict liability presented in the above mentioned book and, on the other hand, the WADC. 1) The first factor in my interpretation was: The shifting of the burden of proof to the athlete after a positive finding in the sample. The WADC confirms the main principle which is valid in all interpretations previously and now i.e. the anti-doping organization shall have the burden of establishing that an anti-doping rule violation has occurred. Then it mentions two cases where the burden of proof transfer to the athlete: a) WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the International Standard for laboratory analysis and b) departures from the International Standard for Testing which did not cause an adverse analytical finding or other anti-doping rule violation shall not invalidate such results. The WADC says nothing of the shifting of the burden of proof to the athlete after a positive finding in the sample (=adverse analytical finding). However, the WADC approves quite evidently this fact. It says in Article 10.5.1 which concerns the presence of prohibited substance or its metabolites or markers that "if the Athlete establishes in an individual case ...that he or she bears No Fault or Negligence for the violation, the otherwise applicable period of Ineligibility shall be eliminated" and later that "the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility eliminated". This is not against the principle in criminal law that the prosecutor must prove the prosecution. As I have pointed out above, the presence of the prohibited substance in the sample (like DNA-sample or finger-prints in a criminal case) is a so convincing evidence, full evidence, that the only possibility for the defendant is to prove counter-evidence. I n this sense the WADC does not change the previous situation which I have described in my book. 2) The second factor in my book was: the presumption of negligence of the athlete including his/her active duty to avoid doping. The interpretation of this presumption concentrates on the carefulness of the athlete. The requirements in this respect are strict. It is not a question of the intention of the athlete to use doping. He or she has the full responsibility what he or she ingests or allows to be put into his/her body. He or she has an active duty to avoid doping. If he or she neglects this duty, he or she is guilty of negligence and will be punished for an anti-doping rule violation. In this interpretation I have also accepted that the principle nulla poena sine culpa can be applied in doping offences. Culpa, guilt, is composed of negligence10. Some lawyers have said that this presumption is against the presumption of innocence in criminal law. I am not of this opinion. There are numerous other respective examples where the level of the carefulness is as strict when imposing sanctions, for example in dangerous transports, in dealing many chemicals or medicines, in dangerous building works etc. The WADC does not use this presumption to its full range. It says, however, in Article 2.1.1 that "it is each Athlete´s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete´s part be demonstrated in order to establish an anti-doping violation under Article 2.1...." The last sentence here indicates the system of the WADC as I have pointed out above. Strict liability is in force in the phase of the analysis, but not in the phase of sanctioning. In the latter phase in accordance with Article 10.5 "Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances" the athlete can establish that he or she bears no fault or negligence (Article 10.5.1) or no significant fault or negligence (Article 10.5.2.) for the violation with the consequence that the otherwise applicable period of ineligibility shall be eliminated (Article 10.5.1) or reduced (Article 10.5.2). My opinion is that these articles will be the most disputable ones in the whole WADC. They open many questions: which is fault or negligence compared with significant fault or negligence, can the athlete bear any fault or negligence if he or she has been totally unaware what his or her coach or doctor has given, has the intention of the athlete some importance and how to prove it etc.? On the other hand the WADC offers more detailed possibilites to deal with doping cases before sport tribunals. Although it has been defined in the WADC´s Article 2.1 that it is each athlete´s personal duty to ensure that no prohibited substance enters his or her body, which is the same correct rule for the presumption of negligence which has been the basis on my interpretation, the importance of this rule compared with the rules in the WADC:s Article 10 (above) is an open question. The WADC itself indicates how difficult it will be to interpret Article 10. In the official comment under Article 10.5.2 it has been presented following explanations: "The Code also provides for the possible reduction or elimination of the period of Ineligibility in the unique circumstance where the Athlete can establish that he or she had No Fault or Negligence or No Significant Fault or Negligence, in connection with the violation. This approach is consistent with basic principles of human rights and provides a balance between those Anti-Doping Organisations that argue for a much narrower exception, or none at all, and those that would reduce a two year suspension based on the range of other factors even when the Athleteas admittedly at fault. These Articles apply only to the imposition of sanctions: they are not applicable to the determination of whether an anti-doping rule violation has occurred. Article 10.5 is meant to have an impact only in cases where the circumstances are truly exceptional and not in the vast majority of cases. To illustrate the operation of Article 10.5, an example where no Fault or Negligence would result in the total elimination of a sanction is where an Athlete could prove that, despite all due care, he or she was sabotaged by a competitor. Conversely, a sanction could not be completely eliminated on the basis of No Fault or Negligence in the following circumstances: a) a positive test resulting from a mislabeled or contaminated vitamin or nutritional supplement (Athletes are responsible for what they ingest (Article 2.1.1) and have been warned against the possibility of supplement contamination); b) the administration of a prohibited substance by the Athlete´s personal physician or trainer without disclosure to the Athlete (Athletes are responsible for their choice of medical personnel that they cannot be given any prohibited substance); and c) sabotage of the Athlete´s food or drink by a spouse, coach or other person within the Athlete´s circle of associates (Athletes are responsible for what they ingest and for the conduct of those persons to whom they entrust access to their food and drink). However, depending on the unique facts of a particular case, any of the referenced illustrations could result in a reduced sanction based on No Significant Fault or Negligence. (For example, reduction may well be appropriate in illustration a) if the Athlete clearly establishes that the cause of the positive test was contamination in a common multiple vitamin purchased from a source with no connection to Prohibited Substances and the Athlete exercised care in taking other nutritional supplements.) This text indicates clearly how complicated these articles and the system of the WADC are. They offer space for many kinds of explanations and interpretations and there is no doubt that lawyers would not use these new means when defending their clients, the athletes. In conclusion I would like to present some personal remarks. 1. The official comments of the WADC which I have repeated above are not rules. Sport tribunals are not obliged to apply them, only articles are binding. In addition, the WADC is not applicable as such. It must be incorporated into each sport federation´s own rules. I am quite sure that the official comments will not be incorporated in any way to these own rules. Thus the meaning of the comments remains obscure. 2. The stricter the interpretation of carefulness will be, the more consistent the application of the WADC will be. If many kinds of exceptional circumstances will be accepted as the reasons to use the possibility (in Article 10.5 in the WADC) to eliminate or reduce sanctions, a great part of the effectiveness of the doping control is lost. 3. Because of the binding Article 13 of the WADC, each sport federation must allow to appeal against all before mentioned decisions in doping cases as the last instance to the Court of Arbitration for Sport (CAS). This means that the CAS will have a decisive position in interpreting new rules. It will draw the lines of how to interprete the athlete´s liability for doping. Also, the WADA has the right to appeal, which makes it possible for the WADA to supervise consistent interpretations. It will be interesting to see how often the WADA will use its right to appeal. 4. The complete harmonization in doping sanctions is not any more probable, nor the main aim of the WADC. The sanctions will vary from the normal two years ineligibility to the elimination of the sanction totally or to reduce two years to some shorter time period. To achieve a compomise in the WADC, especially with the FIFA (International Football Federation), this flexibility was compelled to be allowed. The harmonization can succeed within these sports where all doping cases can be concentrated to be dealt with only in one instance, internal sport tribunal, as for example in professional tennis or squash. For harmonization, the widest international sport federation, the IAAF (International Association of Athletics Federations), has determined in its rules that the right to use exceptional circumstances (Article 10.5 in the WADC) for the elimination or reduction of doping sanctions has been transferred from the national members of the IAAF to a special doping review board under the IAAF Council. In accordance with the WADC, this is possible because the flexibility is allowed in organisational matters. 5. The new interpretation, if any, on the athlete´s liability for doping will be seen in the near future when the new anti-doping rules accepted in sport federations will start to be applied. If the new interpretation will not be satisfactory, it is naturally possible, although very difficult and time demanding, to change the WADC. 1 See the decision of the Court of Arbitration for Sport CAS 95/141: "The Panel nonetheless points out that too literal an application of the principle "Nulla poena sine culpa" could have damaging consequences on the effectiveness of anti-doping measures. Indeed, if for each case the sports federations had to prove the intentional nature of the act (desire to dope to improve one´s performance) in order to be able to give it the force of an offence, the fight against doping would become practically impossible." 2 In its judgement of March 15,1993, concerning the juridical nature of the awards pronounced by CAS the Swiss Federal Tribunal pointed out, that "as for the opinion of the CAS, whereby it is sufficient that the analyses performed reveal the presence of a banned product for there to be presumption of doping and, consequently, a reversal of the burden of proof, this relates not to public policy but to the burden of proof and the assessment of evidence, problems which cannot be resolved, in private law matters, in the light of notions proper to criminal law, such as the presumption of innocence and the principle "in dubio pro reo", and corresponding guarantees which feature in the European Convention on Human Rights." 3 The CAS 95/142: "The use of the term "strict liability" in the context of doping could be misleading: under the term "strict liability", one should understand a concept of liability similar to that of civil liability, without fault in tort, or comparable to product liability cases (see, e.g., Honsell, Schweizerisches Haftpflichtrecht, Zurich 1995, 2 f.). It does not raise the issue of guilt (or the "presumption of guilt") with respect to the applicability of disciplinary sanctions. The concept of "strict liability, as it has been used in doping cases, does not imply an intentional element. ...There is no tie between sanction and intent. The sanction is an inevitable consequence, if a doping offence has been established. Whether a severe sanction such as a two year ban may be imposed on an athlete without examining the issue of guilt and intent is not undisputed, particularly in view of art. 28 of the Swiss Civil Code (Personality Rights) and art. 18 of the Swiss Penal Code (requirement of intent)..." 4 See CAS 98/208: "The FINA regulatory provisions require the Panel to consider what was in the competitor´s fluids, and not why." 5 Most of them are in the book Digest of CAS Awards 1986-1998, edited by Matthieu Reeb, 1998. 6 This opinion see Michael J.Beloff, Drugs, Laws and Versapaks, in John O´Leary (ed.), Drugs and Doping in Sport: Social-Legal Perspectives, 2001 and a mention of it see Rigozzi, Kaufmann-Kohler and Malinverni: Doping and Fundamental Rights, Sweet&Maxwell´s International Sports Law Review, August 2003. This article was based on the opinion provided by the authors to the WADA. 7 In the CAS 98/208 this question was dealt with in many points. "To adopt a criminal standard (at any rate where the disciplinary charge is not of one of a criminal offence) is to confuse the public law of the state with the private law of an association." "There is no requirement of Swiss law which would contradict or override clear words of the FINA doping control provisions, in particular since such provisions do not constitute part of the public criminal law." 8 Rigozzi, Kaufmann-Kohler and Malinverni (n.6, above) p.52 have pointed out that "strict liablity doping offences are, in and themselves, consistent with internationally recognised fundamental rights standards and general principles of law". 9 Rigozzi, Kaufmann-Kohler and Malinverni (n.6) p. 51 10 Rigozzi, Kaufmann-Kohler and Malinverni (n.6) p.56-59 Lauri Tarasti Justice , Supreme Administrative Court of Finland Member of the IOC Sport and Law Commission Email: lauri.tarasti@om.fi http://www.icsspe.org/portal/bulletin-january2005.htm The Athlete’s Liability for Doping Lauri Tarasti, Finland