By Sergey Yurlov
Abstract: Sports medicine has developed significantly over recent years and has become a “weapon” in the hands of professional athletes. It is clear that those developments may be used in lawful and unlawful purposes. Hence, some athletes use the developments of sports medicine to recover after training, sporting competitions or personal injuries. Unfortunately, some athletes do not want to obey the rules of the game and use the achievements of sports medicine to enhance their athletic performance i.e. they use doping. It is to be noted that there are two types of doping: i) intentional and ii) unintentional. It is very important to understand recent developments in court practice.
Introduction
Court of Arbitration for Sports (hereinafter, referred to as “CAS”) considers a great number of cases relating to doping rules violations. The CAS has yielded some landmark decisions based on which sports lawyers and sports federations” officials may draft (and sometimes should) clarifications on disputable issues, recommendations and suggestions for athletes and other staff.
Needless to say, the CAS construes legal provisions based on particular circumstances of particular cases. In other words, the CAS serves as an official interpreter of legal provisions in the field of sport. On its face, the CAS”s points of view are not binding but actually sports governing bodies, national sports arbitration courts, athletes, coaches, sports federation officials and those who file appeals before the courts of the higher instances use, abide and repose on the CAS”s clarifications and constructions.
Thus, based on the CAS”s practice relating to doping rules violations we can draw the following conclusions:
An athlete that has used doping remains a doped athlete regardless of circumstances and reasons of such a using (for example, it does not matter if an athlete has been victimized by his doctor, coach, sports federation”s official or other person)[46]; and
Whereabouts filing — an athlete is fully responsible for whereabouts filing[47].
A Doped Athlete Is a Doped Athlete
As a starting point, the CAS confirmed that each athlete should be subjected to liability if he has committed an anti-doping rules violation. It is to be noted that there is a distinction between intentional doping (intentional doping rules violation) and negligent conduct (inadequate degree of care) of an athlete. The general principle, framed by the CAS’s practice, reads as follows: “a doped athlete is a doped athlete”.
The CAS confirmed that the following circumstances do not relieve of liability an athlete who has committed a doping rules violation:
When choosing sport nutrition and food supplements an athlete relied on assurances of his coach;
An athlete”s doctor (or physician) recommended sport nutrition which contains prohibited substances;
An athlete trusted in a doctor”s skills and knowledge;
An athlete had no intent to enhance his athletic performance using sport nutrition which contains prohibited substances;
Sales person in a sport nutrition store recommended such nutrition;
An athlete is not native speaker in a country where he bought sport nutrition;
An athlete believed that a sales person was well educated and was aware of product”s characteristics;
Use of a product which contains a prohibited substance was short, lasting no more than one week;
An athlete has never tested positive before; and
An athlete has had special medication for years.
An athlete should always ensure that medicine is “doping free”, as far as he always bears a risk that such a medicine may contain prohibited substances.
Unfortunately in many cases degree of care is less than should be expected from elite athletes.
We recommend enacting of internal anti-doping policy, enacting the guidelines for sport nutrition use, conducting a wide range of events on anti-doping issues. It appears that each sports federation should enact a list of recommended sport nutrition based on scientific research.
An Athlete Is Fully Responsible for Whereabouts Filing
The CAS has confirmed that if an athlete authorizes a third party to file whereabouts on his behalf, such an athlete remains fully responsible for the fulfillment or non-fulfillment of such an obligation. Of course, in some cases such a third party violates its obligation and does not file whereabouts forms. In such a case an athlete would be subjected to liability by a doping governing body. In the meantime, the CAS has confirmed that there is one case when an athlete is not responsible for a third party”s actions — when an athlete was not aware of such violations. In such a case a third party did not send to the athlete reports stating that it had filed whereabouts information. Therefore, if an athlete does not receive failure notices he is not responsible for such violations. Therefore, we recommend including a contractual provision (between an athlete and a third party) whereby a third party is obliged to forward copies of such forms to athlete, also a third party should compile special reports stating how many whereabouts forms have been filed, how many have been rejected etc. Thus, an athlete should be sure that such a third party forwards whereabouts information to an anti-doping governing body in due order.
References
Arbitration CAS 2002/A/432 D. v.Federation Internationale de Natation (FINA), award of 27 May 2003, available at: http://arbitrationlaw.com/files/free_pdfs/CAS%202002-A-432%20D%20v%20FINA%20Award.pdf (Accessed 28 May 2015)
Arbitration CAS 2010/A/2216 Ryan Napoleon v. Fédération Internationale de Natation (FINA), award of 22 December 2010, available at: http://jurisprudence.tas-cas.org/sites/CaseLaw/Shared%20Documents/2216.pdf (Accessed 28 May 2015)
Arbitration CAS 2011/A/2499 Albert Subirats v. Fédération Internationale de Natation (FINA), award of 24 August 2011, available at: http://jurisprudence.tas-cas.org/sites/CaseLaw/Shared%20Documents/2499.pdf (Accessed 28 May 2015)
Yurlov is a lawyer, graduate Moscow State University, law faculty, member of National Union of Sport Lawyers, member of International Association of Sports Law (IASL), master of sports, sport judge. He can be reached at tommii125@yandex.ru
[46] See: Arbitration CAS 2002/A/432 D. v.Federation Internationale de Natation (FINA), award of 27 May 2003; Arbitration CAS 2010/A/2216 Ryan Napoleon v. Fédération Internationale de Natation (FINA), award of 22 December 2010.
[47] See: Arbitration CAS 2011/A/2499 Albert Subirats v. Fédération Internationale de Natation (FINA), award of 24 August 2011.
