Doping in sport and the principle of strict liability

Doping is a term which is used to describe the use of prohibited substances within sport relating to methods and substances used in a sporting context with the objective of enhancing one’s athletic performance.

This term has been developed to distinguish between the use of performance enhancing drugs during sport related activity and what is referred to as recreational drug use. This includes the use of prohibited substances to include certain methods and manipulations.

For century’s stories and legends about Athletes who lived on special diets, taken certain drugs and remedies including substances have existed. During the mid-twentieth century serious attention was afforded to what was recognised as the increasing use of performance enhancing substances in sport. Initially the focus grew out of health concerns for the athletes who ingested these substances and sports federations started to adopt rules to prevent or discourage the use of certain substances during participation in sport.

A few years later the International Olympic Committee (IOC) became increasingly concerned and although it did not have an administrative roll in the governance of international sport the Olympics eventually adopted anti-doping rules generally using the IOC “list”, which later became a reference list for doping. These rules generally included testing at competitions where one could detect the so called “race-day” stimulants. At this stage the rules did not yet make provision for the use of prohibited substances during the training season and although not found in the Athletes system, it did create residual advantage at the time of competition. This initial lack of focus on Out-of-Competition substance use resulted from the fact that the IOC did not have jurisdiction in this area until the rules of prohibiting the use of certain substances was developed.

The Definition of Doping

Many attempts have been made to define doping however it has proved to be nearly impossible to define or to arrive at a legally satisfactory definition of doping. According to the World Anti-Doping Agency’s code (WADA) doping can be defined as the occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 to Article 2.10 of the WADA Code, namely:

  1. Presence of a Prohibited Substance or its Metabolites or Markers in an Athletes Sample
  2. The use or attempted use by an Athlete of a Prohibited Substance or a Prohibited Method
  3. Evading, Refusing or Failing to Submit to Sample collection
  4. Whereabouts Failures
  5. Tampering or Attempted Tampering with any part of Doping Control
  6. Possession of a Prohibited Substance or a Prohibited Method
  7. Possession by an Athlete Support Person
  8. Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method
  9. Complicity
  10. Prohibited AssociationThe strict liability system in South African law

The astonishing development of technology and the industrial sector in the last century has brought about radical changes in socio-economic environments increasing the need to re-examine the traditional principle of liability. The law has found itself in a position where certain principles need to be adjusted and amended in order for new principles to be created to meet the needs of modern day society. In a South African context one will notice distinct traces of the development of a field of liability without fault, the principle of strict liability has been imposed by legislation, while the judiciary has started to stress the increased need for the development of a legal principle of liability without fault over and above the existing principles of liability based purely on fault.

Strict liability can be characterised as fault that is not required for liability claims for compensation. Vis Major (act of God) and fault on behalf of the prejudiced person are generally recognised as valid defences. Strict liability is usually imposed either by way of legislation or judicial intervention usually in circumstances which involve activities that by way of general rule create extraordinary increases in the risk of harm to the community. On the other hand when strict liability has been enforced by legislation the extent of the liability is usually reduced by fixing the maximum amounts of compensation. Lastly strict liability is restricted in most cases to damage of life, limb and property.

The existence of statutory cases of liability which is based on risk and the retention of several cases of strict liability is recognised by South African common law and indications of the insufficiency of fault as the general principle and only existing ground for delictual liability. Inspection into our case law and jurisprudence compels one to take notice of the appearance of liability without fault which can now be seen as an independent ground for delictual liability.

Strict Liability in a sporting context

In a sporting context the principle of strict liability is applied in situations and circumstances where urine and/or blood samples, but not limited thereto, are collected from athletes and may produce adverse analytical results. Thus as applied in practise this means that each athlete is strictly liable for the substance found in his or her bodily specimen and should a prohibited substance be found in the sample, whether it was the intentional or unintentional use of a prohibited substance, negligence, or otherwise at fault.

The before mentioned indicates the origin of strict liability in the South African Law system however the origin of the principle of strict liability in a sporting context was developed in order to combat the international war against doping and the World Anti-Doping Code was implemented prior to 1 January 2004. The principle of strict liability had been applied by the IOC in its own Anti-Doping code.

Strict Liability is put into practice by way of a sample that is taken from an Athlete during an In-Competition test, should the results of the sample contain traces of prohibited substances or prohibited methods, the results of the Athletes participation in a sport or contest will be automatically invalidated. Thus disqualification does not depend on guilty intent of the Athlete in taking the substance or having traces thereof in their body, disqualification will be automatic once a sample has proven to contain prohibited substances.

Although strict liability constitutes a legal principle, it is intricately related to more complicated scientific and procedural issues that are confronted by anti-doping enforcement. The rationale behind an effective anti-doping system is that there should be a legal principle that governs this system to ensure that there is efficient operation and fair punishment of Athletes that participate in prohibited use of substances or methods. If the law did not recognise such a legal principle it would become extremely difficult for anti-doping officials to implement and regulate the use of prohibited substances and methods as well as proving negligence on behalf of the Athlete in question.

For example commentary written on Article 2.2 indicates that, should an Athlete demonstrate the “attempted use” of prohibited substances or a prohibited method, proof is required of the Athletes intent. However the fact that intent is required to prove this particular anti-doping rule violation, does not undermine the principle of strict liability established for Article 2.1 and violations of Article 2.2 in respect of use of a prohibited substance or prohibited method. Therefore as per the code, an Athlete’s use of a prohibited substance constitutes an anti-doping rule violation unless substance is not prohibited Out-of-Competition and the Athlete’s use takes place Out-of-Competition. The presence of a prohibited substance or its metabolites or markers in a sample collected In-Competition is a violation of Article 2.1 regardless of when the substance might have been administered.

Thus an Athlete is strictly liable and an anti-doping rule violation occurs, whenever a prohibited substance is found in an Athletes sample, the Athlete may have the possibility to avoid or reduce sanctions if the Athlete can demonstrate that he/she was not at fault or significant fault.

One can assume that an anti-doping framework is needed and therefore a border principle must exist relating to competition and participation in sport in order to ensure the equality of players within the game or competition. Although the World Anti-Doping Code and the Court of Arbitration in Sport still currently use a strict liability regime, the fault of the athlete is still considered when determining sanctions. Currently the rules make provision for an automatic suspension, as mentioned in Article 2 of the Code, from the competition or the event when a positive sample is found.

Strict liability and the Human Rights of Athletes in doping

In terms of Section 9 of the Human Rights Bill everyone is equal before the law and has the right to equal protection and benefit of the law. Equality in this context includes the full and equal enjoyment of rights and freedoms, to promote this equality; legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

Further in terms of Section 33, everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Article 8 of the WADA Code provides that every Athlete has the right to a fair hearing and notice of the hearing decision. According to the provisions of Article 8.1, any person who is asserted to have committed an anti-doping rule violation, each anti-doping organisation with responsibility for the management of results shall provide, at a minimum, a fair hearing within a reasonable time by a fair and impartial hearing panel. A timely reasoned decision which specifically includes an explanation of the reason/s for any period of ineligibility shall be publicly disclosed as provided for in Article 14.3 of WADA. Therefore it is a requirement that at some point during the results management process, the Athlete shall be provided the opportunity for a timely fair and impartial hearing, these principles can also be found in Article 6.1 of the convention for the protection of Human Rights and Fundamental freedoms and are principles generally accepted in international law.

Any athlete charged with an anti-doping rule violation has the right to a fair hearing, anti-doping organisations are required (as mentioned in the above) to provide a hearing process to address whether an anti-doping rule violation was committed and if so, what are the appropriate consequences. Such process is required to respect the principles such as a fair and impartial hearing, the right to be represented by counsel, the right to be informed in a fair and timely manner of the asserted violation, the right to respond to the asserted violation and resulting consequences as well as the right to present evidence including the right to call witnesses. The Athlete also has the right which is in accordance with Section 33 of the Constitution of South Africa to receive a timeous, written, reasoned decision specifically including an explanation of the reasons for any period of ineligibility.

Should the Athlete waive the right to a hearing, expressly or by way of failure to challenge the ascertain of an anti-doping rule violation in a timeous manner, the responsible anti-doping organisation must submit a reasoned decision, explaining the reasons to the athlete or person liable or who is subject to the decision, if the outcome of the decision may have an effect.

In Article 4 of the WADA code, provision is made for a reasoned hearing decision or in cases where the hearing has been waived a reasoned decision explaining the action taken, shall be provided by the anti-doping organisation with a right to appeal the decision as provided for in Article 13.2.3 and Article 14.2.1 in the WADA Code.

The Bill of Rights in the Constitution of South Africa in Section 33(2) provides that, everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. Thus when the principles of strict liability are applied in a South African context it is important that all disciplinary procedures be in alignment with the principles of basic Human Rights as codified in the Bill of Rights to ensure that the rights of the Athlete are not infringed upon.

According to Section 34 of the Constitution, everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In 1984 the Court of Arbitration for Sport as a Swiss-based forum was established for the resolution of sport related disputes. The governance rests with the International Council for Arbitration for sport, which consists of numerous representatives of the IOC, athletes and some senior appointed judges. Usually a panel of potential arbitrators are established from names recommended by all stakeholders, the IOC and other components of the Olympic Movement generally agree that the resolution of any disputes will be referred to the Court of Arbitration for Sport, such as all decisions taken by the IOC during the Olympic games are referred to an ad hoc division of the Court of Arbitration for Sport which is specifically designed to deal with matters relating from the game. The decisions made under the Code may be appealed, however the decisions against which appeal is taken remain in effect while under appeal unless otherwise ordered by the appellate body.

Samantha Wonfor