By Stephanie Leong – Thompson Rivers University 3L JD Student
The German government last week presented a bill that would make doping in sport a criminal offence, punishable by up to three years imprisonment. Some of the early details of the proposed legislation are that it would only apply to professional athletes who receive federal funding; foreign athletes caught doping in Germany could be imprisoned; and that doctors who provide drugs to athletes could be punished with up to ten years in prison.
The purpose of this legislation is unquestionably to further punish athletes caught cheating and provide a greater deterrent to athletes who may consider using performance enhancing drugs. As a country, Germany has a dark history of doping relating back to the Cold War period when East German athletes were subjected to inhumane and widespread state-sponsored steroid use. More recently, decorated German cross-country skiing Olympian turned biathlete Evi Sachencacher-Stehle was disqualified from the Sochi Olympics after testing positive for a banned stimulant.
Sports and politics inevitably interact with each other. National governing bodies for sport are partially funded by government initiatives, not to mention the national pride associated with the Olympic Games. With sport being so integral to culture some European countries including Italy, Spain, and France have taken initiatives to bring doping under the jurisdiction of criminal law, making it akin to a drug offence. Although this may initially seem like a useful tool in the fight against doping, on further review making doping a criminal offense proves problematic.
In many countries an accused in criminal proceedings is guaranteed the presumption of innocence, no punishment without proof of intent, and a right to a fair hearing. Incorporating doping into criminal law proves difficult in all of these areas. The World Anti-Doping Agency (WADA) Code is the ultimate authority in doping disputes. The Code operates on a standard of strict liability so there is no presumption of innocence, in fact there is a presumption of fault as an athlete is responsible for all substances that enter their body (Code Article 2.1.1). In contrast, section 15 of the German Criminal Code provides that unless expressly stated, only intentional conduct shall attract criminal liability. This is consistent with the criminal law principle nulla poena sine culpa (no punishment without guilt) which is a foundation of criminal law.
According to online reports, the proposed law will only allow prosecution for athletes who fail both A and B sample testing. If the goal of the legislation is to stop all doping this may prove ineffective. Recent statistics published by USADA (United States Anti-Doping Agency) show only 0.003% of all samples tested in 2013 contained a banned substance. However, positive tests are not the only way to catch dopers under the WADA Code.
Under Article 2.2 of the Code, proof can be established by any reliable means, including admissions, witness statements, or other analytical information, meaning an athlete can be convicted of a doping offence without ever producing a positive test. Non-analytical evidence can also be purely circumstantial, something criminal law does not usually see as determinative. Requiring positive samples may be the only way to ensure fairness to the accused under this law, however it is probably not the most effective means of catching dopers.
Athletes are entitled to a fair hearing under Article 8.1 of the WADA Code which should include a timely hearing, fair and impartial panel, ability to be represented by counsel (at an athlete’s expense), and ability to present evidence. This article also allows for an expedited process for hearings held at during events. The benefit of sport arbitration courts are that they have specialized knowledge of lex sportiva and are efficient.
Criminal law courts in contrast cannot be hurried, especially when penal consequences are involved. Due process in criminal matters often provides an accused the right to appeal a judgement, which can be a lengthy process. Situations are foreseeable where an athlete charged with a doping offence awaits trial but before conviction is still permitted to compete. WADA’s system of mandatory provisional suspensions is far more effective in this manner (Article 7.5).
At its earliest, this law will come into effect in the spring of 2015. Before then, the bill must be debated in parliament where its necessity will be scrutinized. Perhaps more importantly, they will determine how and whether it can be practically implemented, because as demonstrated there are many questions remaining to be answered.