A Liability Rule In Relation To Doping Rules Essay Example
A Liability Rule In Relation To Doping Rules Essay Example

A Liability Rule In Relation To Doping Rules Essay Example

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  • Pages: 10 (2716 words)
  • Published: August 30, 2017
  • Type: Case Study
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This text critically examines the issues of harmonization and strict liability regulation in relation to doping regulations in international athletics. It discusses natural justice, relevant instances, and the formation of the World Anti-Doping Association Code.
Section A provides a critical overview of harmonization in comparison to other consonant countries of international jurisprudence. Section B describes the latest development for harmonization as the World Anti-Doping Agency Code (WADA Code), including its initiation administration, the place of the Code in WADA’s programs strategy, and a brief overview of its main contents. Section C presents the entirety of this code.

The text below offers a thorough examination and evaluation of the strict liability regulation and its implementation in Anti-Doping regulations. Section D explores the synchronization of regulations and assesses the extent to which these criteria are adhered to according to the WADA Code. Additi


onally, Section E analyzes harmonization regarding the concept of natural justice and determines if the WADA Code is sufficient.

Understanding Harmonization in General

Before considering the potential for global harmonization of anti-doping regulations, it is crucial to fully comprehend what harmonization entails.

The process of harmonization, which involves creating a single rule or law for a specific industry or activity, is exemplified by the 1980 Vienna Convention for Contracts on the International Sale of Goods. This convention serves as a voluntary mechanism of Private International Law and aims to establish clear regulations for applicable contracts. Although there may be debates about issues such as fundamental breach and absence of provisions for property transfer, these concerns do not undermine the overall intention of creating a universally applicable international law.

Harmonization is considered the best approach for preventing and resolving disputes and ensuring

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equality by promoting familiarity with provisions among all parties involved. The primary goal behind harmonization is to provide clarity in international situations involving legal contracts or agreements like the Kyoto Protocol, GATS, or GATT. These examples highlight three key factors: firstly, there must be a designated group benefiting from harmonization; secondly, there must exist a clear and competent subject matter; finally, the benefits of harmonization should outweigh any loss of individual sovereignty in provinces.

These will be discussed in portion D below.
The World Anti-Doping Agency (WADA) was established in February 1999 in Lausanne, Switzerland at the International Olympic Commission (IOC) sponsored World Conference on Anti-Doping in Sport. The purpose of this establishment was to bring together various groups involved in international athletics, including the medical profession, the United Nations, governments, anti-doping agencies, and other international federations. Their aim was to coordinate efforts related to anti-doping.

The Agency was founded on November 10, 1999 to globally advocate and organize the fight against doping in athletics. Their mission also encompasses implementing plans for testing athletes outside of competitions and working towards standardization in collecting and testing samples. They prioritize harmonizing anti-doping legislation and collaborating with governments. Moreover, WADA aims to decrease the accessibility of prohibited substances and penalize doctors who endorse them. The formation of the World is a legislative aspect of their mission as well.The establishment of the World Anti-Doping Agency (WADA) Code, achieved during the Copenhagen World Conference on Doping in Sport on March 5, 2003, facilitates the harmonization of anti-doping regulations. This significant step in the World Anti-Doping Program was followed by its approval and adoption the next month, just in time for the Olympic games

in Athens. Developed collaboratively by major sports organizations like IOC and international anti-doping entities such as IADA and ADI, this crucial Code comprises universal and mandatory anti-doping regulations and processes that will gradually be implemented worldwide. It will also apply to events like Olympics, Para-Olympics, and certain other sports over time. The objective is to promote harmonization and create a level international playing field through this Code. WADA's three-tiered plan devised back in 2000 includes this Code along with enforcing international standards such as operational criteria, a banned substances list, and laboratory accreditation guidelines.

Finally, level three in the WADA plan involves creating voluntary theoretical models of best practice. These models will serve as templates for addressing current problems with anti-doping.

The World Code's contents

The World Code includes various elements: a justification for its existence within the World Anti-Doping Program, a definition of doping and violations, roles and responsibilities of program participants, as well as information, education, and infrastructure for doping control. Although lengthy, this code addresses key aspects related to the strict liability rule, natural justice fulfillment, applicable groups, subject matter clarity, and code superiority over sovereignty.

Rule locations

Prior to the implementation of the WADA Code, doping was typically considered a strict liability offense. This meant that athletes would be in violation of anti-doping regulations if their provided sample contained traces of a banned substance without considering their consumption circumstances.

According to Rule 55 of the IAAF Handbook (1996-1997), doping is strictly prohibited, which refers to the presence of a banned substance in an athlete's body tissues or fluids. Athletes like Sandra Gasser who break this rule will face severe consequences such as immediate loss of short term

revenue and future competition bans. The more recent WADA Code, Article 2, also enforces similar regulations for anti-doping violations. This code adheres to the principle of strict liability, meaning that a violation occurs regardless of the athlete's intention or negligence. Although some argue against strict liability due to potential contradictions with natural justice principles, there are valid reasons for its inclusion in anti-doping regulations.

Rationale for the regulation
The method of preventing corruption in athletics is deemed fair as it treats all athletes equally, regardless of consumption circumstances. The Court of Arbitration for Sport previously addressed concerns about unfairness in cases of unintentional consumption, stating that food poisoning before a clean event is also unavoidable and unjust. Moreover, athletes can prove, under Article 10.5 of the WADA Code, that they were not at fault or made a significant mistake. Hence, the strict liability offense establishes a fair presumption of guilt but can be challenged by athletes presenting mitigating factors. This aligns with due process in natural justice where individuals are accountable for substances in their bodies; any suggestion otherwise is absurd. In international athletics, doping regulations differ from those in areas like international trade, services, human rights, competition, and the environment.

The grounds for this are related to the three demands for a demand for harmonization.
The identifiable group in the statement of anti-doping in international athletics
In the first topographic point, for most harmonizing regulations the affair of an identifiable group is a simple instance of happening the group of provinces that have, either by virtuousness of rank of an international establishment or as a consequence of single confirmation, signed up to the understanding. Anti-doping regulations add a

farther grade to the designation of a group by using the construct of the existent international sporting event. The group is hence that of international jocks stand foring their crowned head provinces. In relation to the designation of this group, it so has to be ascertained whether at that place ought to be harmonization in footings of the position of the participants and the event and the athletics being played. Differences Between professional and recreational events First, the cardinal issue that is of primary concern in the Sports industry is whether at that place ought to be harmonization of anti-doping regulations between both the professional and recreational sporting associations.

Professionals in the field argue that they should have more flexibility in their choice of drugs due to the increased strain on their muscles and bodies, which results in a higher risk of injury. They believe this justifies the use of painkillers. However, recreational organizations disagree and believe that recreational competitions should not be held to standards as strict as those set by the International Olympic Commission (IOC). They assert that amateurs have shorter sporting careers and a two-year ban would affect them more than professionals. These differing perspectives raise two main issues. Firstly, it is widely acknowledged that different sporting associations at various levels have varying anti-doping standards. This is expected given the different expectations and commitments in different sports.

The differences between various sports also mean that there may be varying standards depending on the sport. This includes factors such as muscles used, skills required, and the level of physical effort. These differences exist between amateur and professional athletes as well. The World Anti-Doping Agency (WADA)

Code chooses to ignore non-harmonization statements for these reasons as explained in the WADA Code. Additionally, the difference in punishment for first offenses (two-year ban) and second offenses (lifetime ban) was considered less important compared to the unfairness of applying different standards to athletes from the same country participating in different levels and types of sports.

Clear Subject Matter

In order to harmonize, it is important to determine what exactly is to be harmonized.

In terms of international trade of goods, there are duties related to the quality of the goods, determining the goods, and breach of contract standards. In the world of anti-doping regulations, this will cover issues such as the list of prohibited substances, definitions of doping, punishments, and measures for drug testing. According to Houlihan, harmonization can range from broad rules to detailed uniformity. The WADA Code provides harmonization that leans towards detailed uniformity, with strict regulations for the list of prohibited substances, definitions, testing, and unified punishments.
The removal of sovereignty is justified by the advantage it brings. In fact, acceptance and implementation of the World Anti-Doping Program is mandatory for sports and countries to participate in international competitions such as the Olympics, Para-Olympic Games, Commonwealth Games, and other world championships.

Despite this, it remains true that many provinces are happy to be compelled into such harmonization and were leading the development of the WADA Code themselves. For instance, Canada, being a pioneer in the international sporting community, sees compliance with the World Code as not just an obligation but a privilege. They have been enthusiastic proponents of a consistent set of regulations since the 1990 Dubin Report. However, this does not mean that Canada is

not making independent sacrifices as they will be required to make several changes to Canadian policy on Doping in Sport and their Control Regulations in order to align their domestic program with the international provisions of the WADA Code.

One potential barrier to harmonization is the use of criminal laws to punish doping activity. If each country applies its own criminal laws, it would be difficult to achieve harmonization. This is because countries with harsh laws would be excluded from hosting international competitions.

The harmonization of criminal laws – practices and implications

A possible solution is to harmonize the criminal prosecution laws for doping offenses across all countries, ensuring they follow the same practices. This is particularly important considering the significant revenue generated by hosting sporting events. However, fairness becomes an issue as all individuals who commit the same offense should face equal guilt and receive identical criminal penalties. It is crucial not to have double standards within a single jurisdiction, but fairness can be interpreted in various innovative ways.

The reality is that the system of featuring associations and event hosts does not involve prosecuting athletes for doping offenses. Instead, natural justice is served through public humiliation and effective suspension or termination of an athlete's career. This means that issues related to criminal prosecution and harmonization do not arise, and the question of detailed harmonization comes into play again.

Doping matters are handled by disciplinary discretion, specifically by WADA under the WADA Code, rather than being overseen by the host country's government. While this may seem like a violation of principles of natural justice, it is important to consider that suspending or ending a sporting career has significant consequences

for athletes' livelihoods. This was acknowledged in Quirke V Bord Luthcheas na hEireann case where Barr J noted that international athletes who are suspended for up to 18 months, including missing an Olympic Games, face substantial punishment.

Moreover, even after the period of suspension ends, there are ongoing moral implications associated with its imposition. The argument made by McCutcheon in 2001 highlights the demand for governments to operate fairly based on due process. It is evident that disciplinary procedures for athletes should align with those used in criminal proceedings.

In Flanagan v University College Dublin case, Barron J believed that sacrificing procedural protections in favor of natural justice would not be problematic.The text highlights the importance of athletes having certain fundamental rights in disciplinary proceedings. These rights include receiving written charges, having legal representation, being provided with clear rights, and being able to hear and challenge evidence against them. It argues that a fair system like this should be an essential component of these proceedings. Without it, any proposed harmonizing regulations would be both unpopular and ineffective. Additionally, the text mentions that many international associations have already implemented similar procedures that resemble criminal trials. Specifically, there has been significant debate surrounding vague offenses such as 'bringing the game into discredit' and 'misconduct'.

The author suggests that in addition, full publication of trial proceedings should also be required in journals such as the Sport Law and Journal and the Digest of the Court of Arbitration for Sport. Implementing measures like this can only strengthen the argument for harmonization. It is important to note that since the writing of this Article, the WADA Code has been established, which includes many

provisions that maintain the need for due process.


Regarding strict liability, the justification for this rule is strong because it is the only effective way to prevent corruption in sports, and it is reasonable to hold athletes responsible for everything they consume.

In any case, potential unfairness is counterbalanced by the opportunity to challenge the presumption of guilt that stems from strict liability regulation. The scope of harmonization, as described by Houlihan, is clearly defined within WADA, not only in terms of the prohibited substances and potential punishments, but also in identifying the specific groups to which these regulations apply. While WADA does acknowledge the distinct differences between amateur and professional athletes, as well as the unique requirements of different sports, there is no substantial justification for including the broad group designated by WADA as subject to the harmonizing effects of its Code.

The differences in criteria create a need for a system that separates both recreational and professional groups. When it comes to separating sports, diverse laws are reasonable, but only when they fall under the umbrella of harmonizing regulations. In terms of subject matter, the uniqueness of athletics provides a clear insight into why criminal proceedings can be abandoned in light of the stakes involved, but there is also a need for an equally fair due process of natural justice, which is excellently provided for under the WADA Code. Lastly, WADA has made it very clear regarding justifications for the removal of sovereignty.

If the province does not adhere, they cannot have representation in the most important international competitions.

The bibliography includes the following sources:
1. The World Anti-Doping Agency Code ( Version 3, 20 February 2003

2. The IAAF Handbook 1996-1997
3. For comparative intents:
4. The 1980 Vienna Convention for Contracts on the International Sale of Goods
5. The General Agreement for Tariffs in Trade ( GATT )
6. The General Agreement for Trade in Services ( GATS )
7. Quirke V Bord Luthcheas na hEireann [ 1988 ] IR 83
8. Wright v The Jockey Club QBD, unreported, 15 May 1995
9. Cowley V Heatley, The Times, 24 July 1986
10. McInnes v Onslow-Fane [ 1978 ] 3 All ER 211
11. Flanagan v University College Dublin [ 1988 ] IR 724
12. Quigley V UIT Court of Arbitration for Sport ( 1998 ) WADA Code Version 3
13. Bitel, ‘Disciplinary Procedures from the Point of View of the Individual, ’ 3 Sport and the Law Journal ( 1995 ) , no 3, 7 and 8
14. Beloff, M. Kerr, T. ;A ;Demetriou, M, “Sports Law, ” ( Oxford, Hart Publishing ( 1999 )
15. Gardiner, S, “Sports Law, ” ( London, Cavendish Publishing, 2001 )
16. Grayson, E, “Sport and the jurisprudence, ” ( 3rd Edition, London, Butterworths, 2001 )
17. Greenfield, S. ;A ;The following texts contain references to books on the topic of law and sport in modern society:

  1. Osborne, G, “Law and Sport in modern-day society, ” ( London, Frank Cass ( 2000 )
  2. Houlihan, B, “Dying to win, ” ( Strasbourg, Council of Europe, 2000 )
  3. Howe, P.D. “Sport, Professionalism and Pain, ” ( London, Routledge, Taylor and
  4. Francis, 2004 )
  5. Lewis, A. ;A ;Taylor, J, “Sport: Law and Practice, ” ( London, Butterworth, Lexis Nexis, 2003 )
  6. McArdle, D. “Football, Society and the

Law, ” ( London Cavendish, 2002 )

  • O'Leary, J.”Drugs and Doping in Sport: Socio Legal Perspectives, ” ( London, Cavendish 2001 ).
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