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A Legal Analysis of the WADA-Code Beyond the Contador Case

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A Legal Analysis of the WADA-Code Beyond the Contador Case A legal analysis of the WADA-code beyond the Contador case Faculty: Tilburg Law School Department: Social Law and Social Politics Master: International and European Labour Law Author: Lonneke Zandberg Student number: 537776 Graduation date: March 14, 2012 Exam Committee: Prof. dr. M. Colucci Prof. dr. F.H.R. Hendrickx Table of contents: LIST OF ABBREVIATIONS ...................................................................................................................... 4 INTRODUCTION ........................................................................................................................ 5 1. HISTORY OF ANTI-DOPING .................................................................................................... 7 2. WADA .................................................................................................................................. 8 2.1 The arise of WADA .............................................................................................................. 8 2.2 World Anti Doping Code 2009 (WADA-code) ..................................................................... 8 2.3 The binding nature of the WADA-code ............................................................................. 10 2.4 Compliance and monitoring of the WADA-code .............................................................. 11 2.5 Sanctions for athletes after violating the WADA-code ..................................................... 12 3. HOW TO DEAL WITH A POSITIVE DOPING RESULT AFTER AN ATHLETE HAS EATEN CONTAMINATED MEAT? WADA’S POSITION. ........................................................................... 13 3.1 General rules ..................................................................................................................... 13 3.2 Exceptions ......................................................................................................................... 15 4. AN EVALUATION OF THE STRICT LIABILITY PRINCIPLE ........................................................... 17 4.1 Consequences for the athlete ........................................................................................... 17 4.2 Is the strict liability rule proportional in case of eating contaminated meat? ................. 20 5. CASE LAW ........................................................................................................................... 20 5.1 Adam Dariusz Seroczyoski................................................................................................. 21 5.2 Alessandro Colo ................................................................................................................ 22 5.3 Philip Nielsen ..................................................................................................................... 24 5.4 Dimitri Ovtcharov .............................................................................................................. 25 5.5 James Stanton ................................................................................................................... 27 5.6 Rudi van Houts .................................................................................................................. 28 5.7 Alberto Contador .............................................................................................................. 29 5.8 Mexican soccer players ..................................................................................................... 35 5.9 Under 17 World Cup ......................................................................................................... 36 5.10 Burden of proof ............................................................................................................... 37 5.11 Conclusion on case law ................................................................................................... 39 6. INTERVIEW WITH BIOCHEMIST DR. D. DE BOER ................................................................... 40 7. CONCLUSION AND RECOMMENDATIONS ............................................................................. 45 7.1 Conclusion ......................................................................................................................... 45 7.2 Recommendations ............................................................................................................ 49 2 BIBLIOGRAPHY ................................................................................................................................... 53 ANNEX I Interview Dr. D. de Boer ..................................................................................................... 56 ANNEX II Scheme of levels of clenbuterol found, different athletes ................................................ 67 3 LIST OF ABBREVIATIONS CAS Court of Arbitration for Sport DTTB Deutscher Tischtennis Bund (German table tennis federation) IOC International Olympic Committee IPC International Paralympics Committee ISL International Standard for Laboratories ITTF International Table Tennis Federation FIFA Fédération Internationale de Football Associations KNWU Koninklijke Nederlandsche Wielren Unie (Royal Dutch Cycling Union) MFADC Mexican Football Association’s Disciplinary Committee MRPL Minimum Required Performance Level UCI Union Cycliste Internationale UCI ADR Union Cycliste Internationale Anti-Doping Regulations WADA World Anti-Doping Agency WADA-code World Anti-Doping Agency Code 4 INTRODUCTION For many years the sport has faced problems with athletes using doping. This resulted in unfair competitions and health risks for the athletes, therefore the use of doping is now prohibited in sports. The World Anti-Doping Agency (hereinafter: WADA) has constructed the World Anti-Doping Code (hereinafter: WADA-code) containing anti-doping rules. WADA also developed a list of prohibited substances. If someone who is bound by this WADA-code violates one of the articles of article 2.1 through article 2.8 of the WADA-code an anti-doping rule violation has occurred. These rules are amongst other things about the presence or possession of a prohibited substance and the availability for doping tests. If an athlete violates the WADA-code, consequences will follow. Athletes face the strict liability principle. This means that: “An athlete is responsible and that an anti-doping rule violation occurs, whenever a prohibited substance is found in an athlete’s sample. The violation occurs whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault”1 But is that fair in case of an athlete who has ingested a prohibited substance, for instance clenbuterol, without knowing this? Nowadays animals are given all kinds of medicine in order to keep them ‘healthy’ and make them grow faster so they can be slaughtered sooner and farmers can make more money. But these medicines which are given to animals to achieve these goals, will sometimes also end up in the bodies of those who eat the meat of these animals. When we eat meat we don’t know what kind of substances this meat contains. Athletes are frequently tested on doping. If an athlete has recently eaten meat which is contaminated with clenbuterol, the substance will probably be found in the samples provided by the athlete. This way an athlete might present a sample which contains a substance which is prohibited based on the prohibited substance list of WADA, without the athlete has knowingly ingested this prohibited substance and without the athlete could have prevented the intake of this 1 WADA Code, 2009, p.19, comment to art. 2.1.1 5 substance. The athlete still has to face the consequences of this ingestion on the basis of the fact that he or she is responsible for all prohibited substance found to be present in the samples he or she provided. The main goal of this thesis is to find out how there is currently dealt with clenbuterol cases and to give recommendations if it turns out that improvement are possible. In order to reach this goal the WADA-code and the case law surrounding clenbuterol cases will be analyzed, furthermore, there will be looked at the history of doping, the definition of doping and a interview biochemist dr. D. de Boer. In the first chapter a small overview of the history of anti-doping will be discussed. The second chapter provides information about WADA, when an athlete is bound by the WADA-code, how a government can commit to the WADA-code and what sanctions will follow after violating the WADA-code. Information on, according to WADA, how to deal with a positive doping result after an athlete has eaten contaminated meat can be found in chapter three. In the fourth chapter there will be discussed if the strict liability principle is proportional in cases of eating contaminated meat. Case law surrounding clenbuterol will be presented in chapter five. Chapter six contains an interview with biochemist dr. D. de Boer. The paper ends with chapter seven, in that chapter a conclusion will be given and recommendations on how to better deal with clenbuterol cases will be presented. 6 1. HISTORY OF ANTI-DOPING The use of products or substances to enhance performances is as old as sports itself. “Ancient Greek athletes are known to have used special diets and stimulating potions to fortify themselves. Strychnine, caffeine, cocaine, and alcohol were often used by cyclists and other endurance athletes in the 19th century. Thomas Hicks ran to victory in the marathon at the 1904 Olympic Games,
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