1. Introduction
The rise in consumption of performance enhancers or enhancing substances that are majorly undetectable & untraceable in the bloodstream has materially complicated attempts to ensure a level playing field in the domain of sporting events. The impact of lack of uniformity & regulatory systems has impeded the prosecution of players involved in anti-competitive activities.[1] In order to combat this issue, efforts are underway in order to establish uniformity in the standards of evidence, testing, & sanctions against doping.[2] In the contemporary scenario, the World Anti-Doping Code (Hereinafter, ‘WADA’) & International Convention Against Doping in Sports provide an uniform system of prosecution & control.[3] This article shall be elaborating upon the standard of evidence admissible in cases involving prosecution of sportspersons in doping, and the evolution of standards of evidence from the beginning of emergence of doping cases to the present.
2. Classification of Offence
The classification of what constitutes an offence of ‘doping’ can be classified based on the governing agency. In the prior cases, the rules for what constituted as doping was governed by the International Federations (Hereinafter, ‘IF’), followed by the WADA Code, wherein a prohibition was laid down against the athletes with respect to alteration of a sample obtained via the doping control procedures. In case it was found after due process that an athlete has resorted to contamination/manipulation of a solution, the said person would be held liable for doping, regardless of whether the substance was administered or not. Therefore, if it was determined by a laboratory that the sample was tampered with, then there was no necessity for the tribunal or authorities to determine the same.[4]
Nevertheless, if a laboratory test determined tampering or manipulation, the International Federation could solely rely on circumstantial evidence in order to implicate the athlete who furbished the sample. In lines of the progression of use of circumstantial evidence to determine liability, the Court of Arbitration for Sport (Hereinafter, ‘CAS’) in the case of Boevski v. IWF[5] held that wherein evidence suggests a high probability of alteration of sample while in the custody of the athlete, the burden of proof lies on the athlete to refute the circumstantial evidence lined up against them. Thus, the trend moved from a preliminary liability to a two-step liability, with the latter incorporating the scope for presenting circumstantial evidence before holding the athlete liable.
3. Standard of Liability
Strict Liability, in the context of doping, can be defined as a circumstance when a doping violation occurs due to the presence of banned substances in the athlete’s body.[6] Thus, with the existence of strict liability, the conclusion on whether or not an infraction has occurred is not based on intention or lack of intention thereof. Rather, with the application of strict liability, an athlete can shield away from liability only if exceptional circumstances existed in order to avoid the degree of complete liability. The standard of liability being strict in nature has evolved in the jurisprudence of CAS[7] & has been subsequently inculcated in the WADA Code[8].
4. Standard of Proof & Procedure
Before the inception of WADA Code, there was a scattered application of different standards of proof based on practices of individual jurisdictions, which differed on a case to case basis.
The application of different standards of proof led to discrepancies in sanctioning of an offence as doping, depending upon different International Federations. Furthermore, due to lack of guidance, it was difficult to categorize the usage of evidence in different cases. The issue was resolved to a large extent by the adoption of the WADA Code, conceived and established in 2003.
4.1 Before WADA
The standard of proof required to be met in order to prove a doping offence varied across different International Federations (IFs), prior to the widespread universal acceptance of the WADA Code. In most cases, individual sports bodies’ regulations prescribed the substantive law that is to be applied in various doping cases & further indicated the standard of proof to be applied in such cases. An athlete on the verge of indiction would always argue for the standard of proof to be set as beyond reasonable doubt, or the highest possible standard, as opposed to a standard of comfortable satisfaction, or any other lesser standard.[9]
4.2 After WADA
The WADA Code was conceived and established in the year of 2003, and was adopted by most International Federations post the commencement of Athens Olympic Games in the year 2004. The pre-WADA Cases prove the difficulties posed by a lack of standardized framework, which leads to difficultly in setting the standard of strict liability. However, the general standards of either strict liability or ‘comfortable satisfaction’ have been widely used post WADA.[10]
5. Standards of Evidence to Determine Liability
As stated above, the standards of liability set out by WADA differ from case to case, however depending on the following factors, the standard can be determined.
5.1 Direct Evidence
As new advancements for identifying drug use in sport battles to stay aware of the formation of new doping substances and strategies have emerged, the role of direct evidence in prosecution is being lessened due to manipulation tactics to avoid liability. Despite the fact that doping offenses are most regularly settled by direct proof, where a positive insightful outcome from an authorized research facility straightforwardly shows that a competitor had a denied substance in their body, circumstances will emerge where just conditional proof focuses on the commission of a doping offense. The test in such cases will be to demonstrate the utilization of denied substances or methods without direct proof.
In the case of USADA v. Collins[11], the International Association of Athletics Federation (IAAF) stated that the United States Anti-Doping Agency (USADA) needed to prove beyond reasonable doubt that the sports person had used a prohibited substance.
5.2 Circumstantial Evidence
It has been contended by athletes that the highest possible standard of beyond reasonable doubt must be applied in consonance with the existence of direct evidence. Furthermore, it is also stated that application of circumstantial evidence can be deemed as troublesome based on the fact that the applicability of strict liability corresponding to the presence of direct evidence is diluted. Nevertheless, circumstantial evidence has been used to facilitate cases of doping.[12]
In the de Bruin case[13], there was circumstantial evidence that contamination of a sample with alcohol had been done by the Irish Swimmer. Furthermore, no direct observation of the sampling process by the sampling officers was done. The court took into consideration circumstantial evidence to rule out the involvement of third parties in the contamination process.
5.3 Comfortable Satisfaction
The standard of “comfortable satisfaction” has generated serious interest in terms of jurisprudence. “Comfortable satisfaction” is defined to be “greater than a mere balance of probability but less than proof beyond a reasonable doubt.” Thus, the WADA Code adopted a standard whose ambit lies somewhere between what is normally propounded in private law and what is generally applied under public (penal or criminal) law. An Official Comment notes that the standard of “comfortable satisfaction”, “is comparable to the standard which is applied in most countries to cases involving professional misconduct.” The Comment, citing a Court of Arbitration for Sport (CAS) decision[14], also observes that the standard “has been widely applied by courts and tribunals in doping cases.”[15] It is therefore now established as a rule of custom in international sports law.[16]
In the de Bruin case[17], the standard of proof applied by FINA was that of comfortable satisfaction. This standard was also reiterated in the case of Korneev & Ghouliev v. IOC[18], wherein the panel laid stress on the fact that the ingredients must be established to the standard of comfortable satisfaction of the court taking into consideration the seriousness of all allegations made against the athlete.
In conclusion, it can be reiterated that with the increase in the cases of doping by various athletes across different jurisdictions, the mandate of the WADA Code since the year of 2004 has eased the process of determining the cases falling under “doping”. However, the standards applied by adjudicating bodies are determined upon the facts and circumstances of each particular case. There is a need for more uniformity in application of demarcated procedures to ease the process of labelling cases of doping.
[1] James A.R. Nafziger, Circumstantial Evidence of Doping: BALCO and Beyond, 16 Marq. Sports L. Rev. 45 (2005)
[2] World Anti-Doping Code (2003); see James A.R. Nafzigar, International Sports Law 162-64 (2nd Edition, 2004)
[3] United Nations Educational, Scientific & Cultural Organization (UNESCO), International Convention Against Doping in Sport, ED/2005/CONV-DOP, October 19, 2005
[4] World Anti-Doping Code (2005) Prohibited List
[5] Boevski v. IWF, CAS 2004/A/607, P. 7.9.6
[6] Richard H. McLaren, An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports, 16 Marq. Sports L. Rev. 193 (2006) pp. 3, Available at: http://scholarship.law.marquette.edu/sportslaw/vol16/iss2/3
[7] Adam Lewis & Jonathan Taylor, Sport: Law & Practice 950 (2003).
[8] World Anti-Doping Agency Code (2004), Article 2.1.1
[9] Supra Note 5
[10] Ibid
[11] USADA v. Collins, AAA No. 3o 190 00658 04 (Dec. 2004)
[12] Lauri Tarasti, Legal Solutions in International Doping Cases (2000).
[13] de Bruin, TAS 98/211, P. 10.1
[14] N.J.Y.W v. FINA, CAS 98/208 (1998).
[15] Supra Note 2
[16] Supra Note 1
[17] de Bruin, TAS 98/211, P. 10.1
[18] Korneev & Ghouliev v. IOC, CAS O.G. 96/003-004
YLCC would like to thank Tamanna Gupta for her valuable inputs in this article.
