Evidence in Anti-Doping at the Intersection of Science and Law

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Acknowledgements

Thanks are owed to two anti-doping colleagues (one working for a NADO, the other in private consultancy practice), as well as to the book review editor of this journal, Prof Carwyn Jones, for comments and suggestions received on previous versions of this text.

Notes

1. Analytical findings result from laboratory analyses of actual, bodily samples taken from athletes. But while they constitute more robust evidence than much of the indirect or circumstantial evidence derived from meta-analysis or from investigations, many such results may actually represent involuntary doping, as discussed further below. Under ‘no-start rules’, athletes might be banned from starting without having their reputation compromised by a sanction. Sport philosophers and sport ethicists need to address such questions because, as Berg (2017) has argued in this journal, they tend to ask two sorts of questions, about athletic excellence and about (sports) justice respectively and that these are only partly related.

2.

‘But generally speaking this decision [scil. to impose a sanction] is most likely to have been based on the level of intent to enhance performance or the degree of fault of the person involved, since admission of an ADRV [anti-doping rule violation] or the possibility to assist anti-doping organisations in discovering other ADRVs are far less likely to occur, especially in the years under study. A similar picture can be seen in the outcomes of non-AAF[Adverse Analytical Findings]-ADRVs, even though these ADRVs are generally sanctioned with longer periods of ineligibility than ‘traditional’ AAFs. It can thus be assumed that up to 40% of all ADRVs did not ‘catch’ intentional doping cheats in the eyes of the juridical panels.’ (Hon 2016, 89)

3. Judgment of the Court (Third Chamber) of 18 July 2006. David Meca-Medina and Igor Majcen v Commission of the European Communities. Case C-519/04 P. ECR 2006 I-06991. ECLI:EU:C:2006:492.

4. Meca Medina (see footnote 3) at 44: ‘[…] given that penalties are necessary to ensure enforcement of the doping ban, their effect on athletes’ freedom of action must be considered to be, in principle, inherent itself in the anti-doping rules.’.

Meca Medina (see footnote 3) at 47: ‘It must be acknowledged that the penal nature of the anti-doping rules at issue and the magnitude of the penalties applicable if they are breached are capable of producing adverse effects on competition because they could, if penalties were ultimately to prove unjustified, result in an athlete’s unwarranted exclusion from sporting events, and thus in impairment of the conditions under which the activity at issue is engaged in. It follows that, in order not to be covered by the prohibition laid down in Article 81(1) EC, the restrictions thus imposed by those rules must be limited to what is necessary to ensure the proper conduct of competitive sport […].’.

Meca Medina (see footnote 3) at 48: ‘Rules of that kind could indeed prove excessive by virtue of, first, the conditions laid down for establishing the dividing line between circumstances which amount to doping in respect of which penalties may be imposed and those which do not, and second, the severity of those penalties.’.

5. See e.g. ECHR, 27 September 2011, case Menarini Diagnostics S.R.L. vs. Italy, complaint 43,509/08, on the application of Article 6(1) ECHR (right to a fair trial).

6. Court of Arbitration for Sport (CAS) Ad Hoc Division—XXIII Olympic Winter Games in Pyeongchang CAS OG 18/03 Alexander Legkov, Maxim Vylegzhanin, Evgeniy Belov, Alexander Bessmertnykh, Evgenia Shapovalova, Natalia Matveeva, Aleksandr Tretiakov, Elena Nikitina, Maria Orlova, Olga Fatkulina, Alexander Rumyantsev, Artem Kuznetcov, Tatyana Ivanova, Albert Demchenko, Sergei Chudinov v. International Olympic Committee. Pyeongchang, 9 February 2018. http://www.tas-cas.org/fileadmin/user_upload/Award_OG_18-03.pdf. —See also CAS Media Release: Anti-Doping-Sochi 2014. The Court of Arbitration for Sport (CAS) delivers its decisions in the matter of 39 Russian athletes v. the IOC: 28 appeals upheld, 11 partially upheld, http://www.tas-cas.org/fileadmin/user_upload/Media_Release__decision_RUS_IOC_.pdf. —See also press release by the lawyer of one of the athletes: Alexander Legkov wins case before the CAS against IOC, http://wieschemann.eu/en/alexander-legkov-gewinnt-vor-dem-cas-gegen-ioc.