Doping: Evidences beside the Analytical Positive

Proof by any reliable means


Masterarbeit, 2010

42 Seiten, Note: B


Leseprobe

Contents

Abstract

Chapter 1 Introduction to Doping and Ethical Aspects of Performance Enhancement

Chapter 2 Types of Evidence: Analytical and Non-Analytical Methods
A. Analytical Evidence, the Positive and Strict Liability
B. Non-Analytical Evidence
I. Variety of Proofs
II. Lack of Strict Liability
C. Distinction of Direct and Circumstantial Evidence

Chapter 3 Analysis of Non-Analytical and Circumstantial Evidence Cases
A. Standard of Proof
B. Use of a Prohibited Substance or Method
I. Case Montgomery and Gaines
II. Case French
III. Case Pechstein
C. Trafficking and Possession
I. Case Wyper
II. Case Troy
III. Case Marinov
D. Attempt
I. Case Wyper
II. Case Troy
III. Case Gibilisco

Chapter 4 Conclusion

Bibliography

Abstract

Unfortunately, sport nowadays does not always meet the idealized image of a clean competition. In too many cases, illegal performance enhancement, so called “doping”, plays a dominant role in sports. This development might derive from the circumstance that sport is rather a business than an individual endeavour and self-realisation. Enormous amounts of money are involved in hosting events and marketing of athletes. However, increased doping actions may also result from the development and availability of various technical possibilities for performance enhancement.

In the rather widespread field of doping, this paper focuses on the specific area of evidences on doping rule violations other than by so called “analytical positives”. This paper concentrates on circumstantial, non-analytical and evidence by longitude profiling. Concluding from the number of decisions, these forms of evidence play an important role in the conviction of doping infractions.

Circumstantial evidences, for example, inhabit crucial importance in cases where an analytical sample is not available. This refers to cases where, for instance, a doping offence is detected some time later and where a blood or urine sample can not be collected afterwards, or to cases where, with present laboratory techniques, the use of a substance or method in general is hard or impossible to detect. Especially in the latter case, methods like longitude profiling of blood or urine may be more widely used in the long term.

However, in non-analytical cases, authorities have to face the challenge that the principle of strict liability is not applicable, as in cases where the use of a prohibited substance is proven by the positive result of analytical laboratory tests. In this circumstance, strict liability means that the proof of knowledge or intent of the athlete to use the substance is redundant. Furthermore, the questions arise when the burden of proof is fulfilled in case of a doping allegation, and when non-analytical and/or circumstantial evidences amount to a conviction. Partially, the referring answer is dependent on the distinction between the system of criminal law and classification of disciplinary rules as part of public law.

This paper will deal with these issues raised above standing. It will furthermore provide a critical analysis of selected cases and decisions made by the International Court of Arbitration for Sport based on these special types of evidence. The paper, finally, will summarize difficulties and inconsistencies throughout the decisions, but also confirmations and similarities.

Chapter 1: Introduction to Doping and Ethical Aspects on Performance Enhancement

Dick Pound, head of the World Anti-Doping Agency (WADA) until 2007, once said:

“You respect the rules, you respect your opponents, you respect yourself. You play fair.”[1]

This catchy statement reflects in simple words the intention and aim of the worldwide anti-doping movement.

In legal terms, which actually set the frame for any abolition of unwanted performance enhancement, doping is defined as the occurrence of any anti-doping rule violation, as given by the World Anti-Doping Code 2009 (WADC) through the World Anti-Doping Agency or by other sporting body associated rules. A violation of rules shall always occur where an athlete uses a prohibited substance or method, is tampering with any doping control, is in possession of a prohibited substance or method or is involved in any trafficking or administration. The decision on the prohibition of a substance or method is made by the World Anti-Doping Agency. It decides on the ban of substances or methods in accordance to a set of criteria.[2] A substance or method will be banned if 2 out of 3 criteria are fulfilled. The first criterion is given if the substance or method has the potential to enhance sporting performance. Secondly, the substance or method must constitute a present or potential risk to the athlete’s health. And third, the use of the substance or method contradicts with the “spirit of sport” and thereby with values like ethics, fair play and honesty, character and education, respect, as listed in the introduction to the World Anti-Doping Code 2009. In this context, the Code explicitly states that “Doping is fundamentally contrary to the spirit of sport.” The 2 out of 3 system of selection criteria on banning a substance or method, of course, causes cases where substances, which are not performance-enhancing and against the spirit of sport, but represent a risk to the athlete’s health, are not prohibited, like tobacco. Or cases where there is clearly a potential to increase the performance, but the substance is neither a health risk nor against the spirit of sport, like caffeine which increases the fat storage of an athlete and therefore slows down exhaustion.[3] However, in being partly permeable, the system provides a balance of its aims as the sustainment of health, ethics, equality on the one side and the athlete’s autonomy and individual lifestyle on the other side. By the requirement of at least two criteria provided, it prevents an overreaching restriction.

Abbildung in dieser Leseprobe nicht enthalten

In both number and intensity, doping appears to occur differently in elite and amateur sport. From a general point of view, amateur and semi-professional sport does not seem to be as affected by doping issues as highly professional sport. One reason for this impression derives from the simple fact that fewer controls are carried out and therefore a smaller amount of violations are detected. Moreover, athletes in amateur or semi-professional competitions quite often are not bound by any anti-doping rules. Anti-doping rules only apply to the athlete if he agreed on it and makes himself subject to them. Without anticipating the identification of the character of anti-doping rules at this point[4], provisions regarding doping only have an effect on the athlete by contractual agreement. In this regard, anti-doping rules are different from drug and narcotic laws which apply without explicit consent. But perhaps doping in less professional sports actually plays a minor role since competition, and consequently the pressure to succeed, is less developed. Further, the more professional and elitist the sport is, the more money is involved. With higher professionalism the “value” of the sport increases, by the value of marketing rights, prize monies, salaries and scholarships, equipment. Also, popularity and individual fame become an impulse to convince by extra ordinance which is more likely to achieve with doping. Subsequently, incentives and motivation increases to implement prohibited measures of performance enhancement and to rely on these. Nevertheless, the ethical principles of anti-doping are applicable in the same way to amateurs and semi-professionals as to elite athletes. The spirit of sport and its associated values are universal: sport is seen as a human endeavour to see how far one can go on its given talent[5].

As good as the intentions of the anti-doping movement may be, it faces massive criticism by athletes as well as non-athletes. These voices rather see a further obstacle in the anti-doping rules than any advantage to the sport, competition, and health of the athletes, which could justify their existence.

Opponents to the anti-doping movement first of all criticize that the rules fail to achieve equality amongst the athletes in a competition.[6] In their view, there never is real equality referring to the different socioeconomic status and dissimilar access to training standards and equipment. Equality only exists insofar as (anti-doping) rules apply equally to the rivals. From a rational point of view, the latter is essential. The anti-doping rules do not claim to establish overall equality. The rules only contribute to the general approach of a fair competition.

Further, critics emphasise the paradox that elite sport can be as harmful as doping.[7] On the contrary, well-dosed doping would not necessarily impair the health of athletes[8], but these objections disregard that the anti-doping rules only contribute to the protection of health. The final decision to harm the body by other means, as by extensive training or during the course of a match, is up to the individual athlete. In opposition to the risk of impairing the health by the intake of doping substances, which is decided as unbearable by society, it is left to the athlete’s autonomy to evaluate and adjust the risk of its sport performance as such. This is not a misconception, but rather contributes to the fact, that doping is abolished for of a variety of reasons. Besides, it is rather unlikely that athletes rely on smaller doses, the focus lies on the effectivity of a dose as the decisive criterion.

Closely connected to the latter is the demand for a general abolition of the anti-doping rules, because open doping would reduce the risk of the intake of unsecure substances. As long as doping is prohibited, the focus would remain on making the substances and methods undetectable rather than safe.[9] This argument is also not convincing. For one thing, the safety of a doping substance still would range behind its effectivity and it is more than questionable that both most effective and safe drugs will be produced. For another thing, the ability to purchase performance enhancers which are safe and/or of high quality would still depend on the athlete’s or sporting body’s spending power as it is today.

The border-line of doping and legal enhancing substances and methods sometimes is unsharp, in terms of exceptions for medical intake, enhancing substances which do not fulfil 2 out of 3 selection criteria. However, the line has to be drawn somewhere, and the price of a less rigid but more balanced and flexible regime as a matter of fact implies certain inconsistencies.

Chapter 2: Types of Evidence: Analytical and Non-Analytical Methods

In the majority of cases, evidence on doping is established by a positive analytical testing result determining the use of a prohibited substance. But recently, in a growing number of cases, the conviction is solely based on non-analytical evidences, not only in terms of charges for attempt, aiding and abetting, trafficking or possession, but also regarding charges for use of a prohibited substance or method. This chapter will explain the difference of analytical and non-analytical evidences; it will point out the consequences resulting from this distinction. Further on, the terms “direct” and “circumstantial evidence” in the context of doping cases will be analyzed in more detail and will lead on to Chapter 3.

A. Analytical Evidence, the Positive and Strict Liability

In the detection of doping violations by use or attempted use, different analytical testing methods have been established. But not all of these give direct evidence about the presence of prohibited substances in the athlete’s body. For example, longitude profiling provides information about the status and changes of urine and blood values, wherefrom over an extended term conclusions about the use of prohibited substances and methods can be drawn. The substance, in contrary, can not be shown directly. This type of analysis differs from the so called “analytical positive”, where information about the presence of prohibited substances in the athlete’s body by a methodical testing result determined through an accredited laboratory is directly provided. In respect of the corresponding trial, it is therefore regarded as direct evidence. The material screened by the laboratory is collected in the course of an official doping control under the surveillance of the anti-doping organization. With removal of the material from the body, the samples, usually in form of an A and B sample, are properly stored and transferred to the laboratory.

What is special about the analytical evidences is the application of strict liability. According to Article 2.1.1 and 2.2.1 of the World Anti-Doping Code 2009 any analytical evidence leads to the athlete’s strict liability for the substance in his body. The athlete is accountable for any substance present in his body. Consequently, the proof of intent, fault, negligence or even knowledge of the use becomes superfluous. Subsequently, the athlete by itself is obliged to prove the presence of exceptional circumstances to avoid or reduce the sanction. For the anti-doping bodies the principle of strict liability simplifies the conviction tremendously. They only have to provide that the samples have been taken properly and that the chain of custody was reliable. Furthermore, the testing by an accredited laboratory is assumed to be conducted properly according to the state of art. Therefore, the burden to show any irregularities lies on the athlete.[10] Also, so far any attempt of an accused athlete to be cleared of charges by claiming a manipulation or a confusion of the sample through a third party, has been unsuccessful.[11] The Court of Arbitration for Sport (CAS) considers that there is a higher probability that the sample has been altered by the athlete himself while in its reach of efficacy than by a third person. Therefore, the burden of proof lies on the athlete to oppose the circumstantial evidence and to prove a manipulation through a third party.[12]

[...]


[1] D. Pound “The Enforcer” (2003) CBC Sports Online, Sports & Drugs <http://www.cbc.ca/sports/indepth/drugs/stories/qa_dickpound.html>.

[2] B. Foddy and J. Savulescu “Ethics of Performance Enhancement in Sport: Drugs and Gene Doping” in R.E. Ashcroft, A. Dawson, H. Draper and J.R. McMillan (ed) Principles of Health Care Ethics (2nd ed John Wiley & Sons Ltd., 2007) 511 at [511].

[3] B. Foddy and J. Savulescu “Ethics of Performance Enhancement in Sport: Drugs and Gene Doping” in R.E. Ashcroft, A. Dawson, H. Draper and J.R. McMillan (ed) Principles of Health Care Ethics (2nd ed John Wiley & Sons Ltd., 2007) 511 at [511].

[4] For more detail, see Chapter 3.A.I.

[5] D. Pound “The Enforcer” (2003) CBC Sports Online, Sports & Drugs <http://www.cbc.ca/sports/indepth/drugs/stories/qa_dickpound.html>.

[6] B. Foddy and J. Savulescu “Ethics of Performance Enhancement in Sport: Drugs and Gene Doping” in R.E. Ashcroft, A. Dawson, H. Draper and J.R. McMillan (ed) Principles of Health Care Ethics (2nd ed John Wiley & Sons Ltd., 2007) 511 at [515].

[7] B. Foddy and J. Savulescu “Ethics of Performance Enhancement in Sport: Drugs and Gene Doping” in R.E. Ashcroft, A. Dawson, H. Draper and J.R. McMillan (ed) Principles of Health Care Ethics (2nd ed John Wiley & Sons Ltd., 2007) 511 at [515f].

[8] B. Foddy and J. Savulescu “Ethics of Performance Enhancement in Sport: Drugs and Gene Doping” in R.E. Ashcroft, A. Dawson, H. Draper and J.R. McMillan (ed) Principles of Health Care Ethics (2nd ed John Wiley & Sons Ltd., 2007) 511 at [514, 517].

[9] B. Foddy and J. Savulescu “Ethics of Performance Enhancement in Sport: Drugs and Gene Doping” in R.E. Ashcroft, A. Dawson, H. Draper and J.R. McMillan (ed) Principles of Health Care Ethics (2nd ed John Wiley & Sons Ltd., 2007) 511 at [514].

[10] C. A. Myler “Resolution of doping disputes in Olympic sport: challenges presented by “non-analytical” cases” (2006) 40 New Eng L Rev 747 at [750].

[11] As stated in R. H. McLaren “An overview of non-analytical positive & circumstantial evidence cases in sports” (2006) 16 Marq Sports L Rev 193 at [196].

[12] As stated in Boevski v IWF CAS 2004/A/607 at [36].

Ende der Leseprobe aus 42 Seiten

Details

Titel
Doping: Evidences beside the Analytical Positive
Untertitel
Proof by any reliable means
Hochschule
University of Auckland
Note
B
Autor
Jahr
2010
Seiten
42
Katalognummer
V163108
ISBN (eBook)
9783640815395
ISBN (Buch)
9783640815081
Dateigröße
642 KB
Sprache
Deutsch
Schlagworte
Doping, Beweis, Sport
Arbeit zitieren
Julia Neumann (Autor), 2010, Doping: Evidences beside the Analytical Positive, München, GRIN Verlag, https://www.grin.com/document/163108

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