TEN ON NO DOPING
Stephanie Orji
International law –
International Olympic Committee Anti-Doping Rules applicable to the Games of the XXXIII Olympiad Paris 2024 (30 May 2023, as amended on 13 June 2024)1
The Olympics game is an international sporting event, fairness and integrity is expected from all participants. Doping is prohibited. It is some days to the end of the Olympic Games Paris 2024, is this article still relevant?
Yes please, Article 17 of the Rule under consideration provides that the statute of limitation for anti-doping rule violations is 10 years. That is, that the athlete or other person must be notified (or a reasonable attempt thereof) of the anti-doping rule violation within 10 years from the date the violation is alleged to have occurred. Perhaps for some persons, within 10 years from now, there may be implications from the Olympic Games Paris 2024. This is asides other reasons why this article is relevant.
“ARTICLE 17 – STATUTE OF LIMITATIONS
No anti-doping rule violation proceeding may be commenced against an Athlete or other Person unless he or she has been notified of the anti-doping rule violation as provided in Article 7.2.3.1. or 7.4.2.1. of these Rules, or notification has been reasonably attempted, within ten years from the date the violation is alleged to have occurred.”
Lets start with definitions.
1. Definition
International Olympic Committee Anti-Doping Rules applicable to the Games of the XXXIII Olympiad Paris 2024 (30 May 2023, as amended on 13 June 2024), defines doping as –
“ARTICLE 1 – DEFINITION OF DOPING
Doping is defined as the occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.11 of these Rules.”
Articles 2.1 to 2.11 are reproduced below without their subparagraphs –
“The following constitute anti-doping rule violations:
2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample
2.2 Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method
2.3 Evading, Refusing or Failing to Submit to Sample Collection by an Athlete
2.4 Whereabouts Failures by an Athlete
2.5 Tampering or Attempted Tampering with any Part of Doping Control by an Athlete or Other Person
2.6 Possession of a Prohibited Substance or a Prohibited Method by an Athlete or Athlete Support Personnel
2.7 Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method by an Athlete or Other Person
2.8 Administration or Attempted Administration by an Athlete or Other Person to any Athlete In-Competition of any Prohibited Substance or Prohibited Method, or Administration or Attempted Administration to any Athlete Out-of-Competition of any Prohibited Substance or any Prohibited Method that is prohibited Out-of-Competition
2.9 Complicity or Attempted Complicity by an Athlete or Other Person
2.10 Prohibited Association by an Athlete or Other Person
2.11 Acts by an Athlete or Other Person to Discourage or Retaliate Against Reporting to Authorities”
2. Responsibility to know the anti-doping rule violations and the substances and methods on the Prohibited List is on the athletes and other persons. –
“ARTICLE 2
…
Athletes and other Persons shall be responsible for knowing (and shall be deemed to know) what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List.”
Prohibited List applicable to the games is – World Anti-Doping Code International Standard Prohibited List 2024, it came into effect on 1 January, 2024, it can be accessed at – https://www.wada-ama.org/sites/default/files/2023-09/2024list_en_final_22_september_2023.pdf .
3. The burden and standard of proof
The burden of proof is on the IOC (or the ITA) and the standard of that proof is – “to the comfortable satisfaction of the hearing panel”. Where the Rule places the burden of proof on the athlete or other person, “the standard of proof shall be by a balance of probabilities”. –
“ARTICLE 3 – PROOF OF DOPING
3.1 Burdens and Standards of Proof
The IOC (or the ITA acting before the hearing panel on behalf of the IOC as set forth in Article 8.1.1 of these Rules) shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the IOC has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probabilities but less than proof beyond a reasonable doubt. Where these Rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, except as provided in Articles 3.2.2 and 3.2.3 of these Rules, the standard of proof shall be by a balance of probabilities.”
4. Notification
Where there is an Adverse Analytical Finding, and the review of same does not reveal a TUE or an entitlement to a TUE, or a departure from the applicable international standards, or that the Finding was caused by an intake of the relevant prohibited substance through a permitted route, the ITA shall promptly notify the following of the Adverse Analytical Finding –
“7.2.3 Notification
…
(a) the Athlete;
(b) the Athlete’s NOC;
(c) the Athlete’s International Federation (who will be entitled to send a representative(s) to attend the hearing);
(d) the relevant National Anti-Doping Organisation of the Athlete;
(e) the IOC; and
(f) WADA (which will be entitled to send a representative to attend the hearing) and, during the Period of the Olympic Games Paris 2024, a representative of the Independent Observer Programme”
In the case of notification of atypical finding, by 7.3.3 of the Rule, the ITA will not provide notification of an Atypical Finding until it has completed its investigation and has decided that it will bring the Atypical Finding forward as an Adverse Analytical Finding, subject to the exceptions listed thereunder.
See also 7.4.2.1 for Notification for specific cases under Article 7.4.1 of these Rules and other Anti-Doping rules violations not involving an Adverse Analytical Finding or Atypical Finding.
5. Suspension
“7.6.1 Mandatory Provisional Suspension after an Adverse Analytical Finding or Adverse Passport Finding”
Where analysis of an A Sample has resulted in an Adverse Analytical Finding or Adverse Passport Finding, bearing in mind the provisions of 7.2.3 of the Rule, “a Provisional Suspension shall be imposed by the ITA and/or CAS Anti-Doping Division promptly upon or after the review and notification described in Article 7.2.3 of these Rules, provided that the Athlete or other Person is given the opportunity to be heard as specified in Article 7.6.3.”.
See also 7.6.2 of the Rule for – “Optional Provisional Suspension Based on an Adverse Analytical Finding for Specified Substances, Specified Methods, Contaminated Products or Other Anti-Doping Rule Violations.” This is in case of any other anti-doping rule violations not covered by Article 7.6.1.
In both cases in 7.6.1 and 7.6.2 of the Rule, the Provisional Suspension shall be limited to the Olympic Games Paris 2024.
6. Opportunity to be heard
7.6.3 Opportunity for Hearing or Appeal
The athlete or the other person referred to in Articles 7.6.1 and 7.6.2 “shall be given an opportunity for a Provisional Hearing or an expedited final hearing before the CAS Anti-Doping Division on a timely basis, which may be held by tele-conference, video-conference or written submissions, before or after the imposition”. The opportunity for appeal is provided, pursuant to Article 12. However, by Article 7.6.4 – “A hearing panel’s decision not to lift a mandatory Provisional Suspension on account of the Athlete’s assertion regarding a Contaminated Product shall not be appealable.”
Persons entitled to appeal –
“12.2.2.1 The following Persons shall have the right to appeal to CAS:
(a) the Athlete or other Person who is the subject of the decision being appealed;
(b) the IOC;
(c) the relevant International Federation;
(d) the National Anti-Doping Organisation of the Person’s country of residence or countries where the Person is a national or license holder; and
(e) WADA.”
7. Sanctions and consequences for anti-doping rules violations
Individuals –
“ARTICLE 9 – AUTOMATIC DISQUALIFICATION OF INDIVIDUAL RESULTS –
An anti-doping rule violation in Individual Sports in connection with an In-Competition test automatically leads to Disqualification of the result obtained in that Competition with all resulting Consequences, including forfeiture of any medals, diplomas, points and prizes.”
Article 10 provides for sanctions on individuals. It includes sanctions such as – Disqualification of results in the Olympic Games Paris 2024, forfeiture of all medals, diplomas, points and prizes, being declared ineligible to participate in competitions not yet participated in, exclusion from Olympic Games Paris 2024, loss of accreditation. Also, Article 10.3 provides for automatic publication of sanction.
Teams –
“11.1 Testing of Team Sports
Where more than one member of a team in a Team Sport has been notified of an anti-doping rule violation under Article 7 in connection with the Olympic Games Paris 2024, the ITA shall conduct appropriate Target Testing of the team during the Period of the Olympic Games Paris 2024.”
Where one or more members of team have been found to have violated an anti-doping Rule, apart from the sanctions imposed on the team, sanctions are also imposed on the individual athlete(s) found wanting. (11.12 and 11.13).
8. Horses are not left out.
Article 15
The Rules recognize and states that the FEI2 Regulations (“FEI Equine Anti-Doping and Controlled Medication Regulations” and the “FEI Veterinary Regulations”) should govern anti-doping rules for horses.
9. Swiss Law and the Olympic Charter
“18.2 These Rules shall be governed by Swiss law and the Olympic Charter.”
10. Some Definitions from Appendix 1 of the Rules
“ADAMS: The Anti-Doping Administration and Management System …”
“Adverse Analytical Finding: A report from a WADA-accredited laboratory or other WADA-approved laboratory that, consistent with the International Standard for Laboratories establishes in a Sample the presence of a Prohibited Substance or its Metabolites or Markers or evidence of the Use of a Prohibited Method.”
“Atypical Finding: A report from a WADA-accredited laboratory or other WADA-approved laboratory which requires further investigation as provided by the International Standard for Laboratories or related Technical Documents prior to the determination of an Adverse Analytical Finding.”
“CAS: The Court of Arbitration for Sport; unless the contrary is stated, references to the CAS shall include its ad hoc Division on the occasion of the Olympic Games Paris 2024, to the exclusion of its CAS Anti-Doping Division.”
“CAS Anti-Doping Division: the Division of the Court of Arbitration for Sport set up by the Procedural Rules, CAS Anti-Doping Division.”
“Code: The World Anti-Doping Code.”
“Independent Witness: A Person, invited by the IOC, the ITA, the laboratory or WADA to witness parts of the analytical Testing process. The Independent Witness shall be independent of the Athlete and the Athlete’s representative(s), the laboratory, the IOC, the ITA or WADA, as applicable.”
“IOC: The International Olympic Committee.”
“ITA: International Testing Agency; set up as a Swiss foundation and having the purpose of providing independent Doping Control services to Anti-Doping Organisations, including without limitation the IOC.”
“Marker: A compound, group of compounds or biological variable(s) that indicates the Use of a Prohibited Substance or Prohibited Method.”
“National Olympic Committee or NOC: The organisation recognised by the IOC. The term National Olympic Committee shall also include the National Sport Confederation in those countries where the National Sport Confederation assumes typical National Olympic Committee responsibilities in the anti-doping area.”
“Olympic Games Paris 2024: Games of the XXXIII Olympiad, Paris 2024.”
“Procedural Rules, CAS Anti-Doping Division: the procedural rules, adopted by ICAS3, applicable to doping-related cases arising upon the occasion of the Olympic Games, setting up the CAS Anti-Doping Division to conduct hearings and issue decisions under the Rules.”
“Prohibited List: The list identifying the Prohibited Substances and Prohibited Methods.”
“Protected Person: An Athlete or other natural Person who at the time of the anti-doping rule violation: (i) has not reached the age of sixteen years; (ii) has not reached the age of eighteen years and is not included in any Registered Testing Pool and has never competed in any International Event in an open category; or (iii) for reasons other than age has been determined to lack legal capacity under applicable national legislation”
“Registered Testing Pool: The pool of highest-priority Athletes established separately at the international level by International Federations and at the national level by National Anti-Doping Organisations, who are subject to focused In-Competition and Out-of-Competition Testing as part of that International Federation’s or National Anti-Doping Organisation’s test distribution plan and therefore are required to provide whereabouts information as provided in Article 5.5 of the Code and the International Standard for Testing and Investigations.”
“Results Management: The process encompassing the timeframe between notification as per Article 5 of the International Standard for Results Management, or in certain cases (e.g., Atypical Finding, Athlete Biological Passport, whereabouts failure), such pre-notification steps expressly provided for in Article 5 of the International Standard for Results Management, through the charge until the final resolution of the matter, including the end of the hearing process at first instance or on appeal (if an appeal was lodged).”
“Rules: The IOC Anti-Doping Rules applicable to the Olympic Games Paris 2024.”
“Strict Liability: The rule which provides that under Article 2.1 and Article 2.2, it is not necessary that intent, Fault, Negligence, or knowing Use on the Athlete’s part be demonstrated by the Anti-Doping Organisation in order to establish an anti-doping rule violation.”
“Target Testing: Selection of specific Athletes for Testing based on criteria set forth in the International Standard for Testing and Investigations.”
“Therapeutic Use Exemption (TUE): A Therapeutic Use Exemption allows an Athlete with a medical condition to Use a Prohibited Substance or Prohibited Method, but only if the conditions set out in Article 4.4 of these Rules and the International Standard for Therapeutic Use Exemptions are met.”
“TUEC: Therapeutic Use Exemption Committee, as described in Article 4.4.2.”
“Use: The utilisation, application, ingestion, injection or consumption by any means whatsoever of any Prohibited Substance or Prohibited Method.”
“WADA: The World Anti-Doping Agency.”
Other Comment
Article 7.6.6 may be seen as an occupational hazard in instances where the B sample does not confirm the A sample and a provisional suspension has been imposed, or there has been a removal based on it, and where as a result of this, it is hardly possible to reinsert the athlete or team without affecting the event. The innocent party is affected. Article 7.6.6 –
“7.6.6 If a Provisional Suspension is imposed based on an A Sample Adverse Analytical Finding and subsequent analysis of the B Sample does not confirm the A Sample analysis, then the Provisional Suspension shall automatically be lifted on account of a violation of Article 2.1 of these Rules. In circumstances where the Athlete (or the Athlete’s team) has been removed from an Event based on a violation of Article 2.1 of these Rules and the subsequent B Sample analysis does not confirm the A Sample finding, then if it is still possible for the Athlete or team to be reinserted without otherwise affecting the Event, the Athlete or team may continue to take part in the Event. In addition, the Athlete or team may thereafter take part in other Competitions and Events at the Olympic Games Paris 2024.”
Thank you.
Stephanie Orji lawyers at Heptagon & Associates, a full service law firm in Abuja, Nigeria.
8-August-2024.
- https://stillmed.olympics.com/media/Documents/Olympic-Games/Paris-2024/IOC-Anti-Doping-Rules-applicable-to-the-Games-of-the-XXXIII-Olympiad-Paris-2024.pdf Accessed on 8th August, 2024. ↩︎
- Fédération Équestre Internationale (FEI) ↩︎
- ICAS (International Council of Arbitration for Sport) – https://en.m.wikipedia.org/wiki/Court_of_Arbitration_for_Sport#:~:text=The%20International%20Council%20of%20Arbitration,Director%2DGeneral%20of%20the%20CAS. Accessed on 8th August, 2024. ↩︎