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THE WORLD ANTIDOPING THE WORLD ANTIDOPING CODECODE::

DOES THE END JUSTIFY THE MEANS?DOES THE END JUSTIFY THE MEANS?

By By Michele ColucciMichele Colucci

European College of Parma (Italy) – European College of Parma (Italy) – Tilburg University(The Netherlands)Tilburg University(The Netherlands)

Website: Website: www.colucci.euwww.colucci.eu - Email: - Email: info@colucci.euinfo@colucci.eu

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WADAWADAStructureStructure

STRUCTURESTRUCTURE

Foundation BoardFoundation Board

Executive CommitteeExecutive Committee

Athlete CommitteeAthlete Committee

Education CommitteeEducation Committee

Medical & Research CommitteeMedical & Research Committee

TUE Working CommitteeTUE Working Committee

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WADAWADAFoundation Board and Executive Foundation Board and Executive

CommitteeCommittee

Foundation BoardFoundation Board– 38 members38 members– Representatives from the Olympic Representatives from the Olympic

Movement and governments Movement and governments – WADA’s supreme decision-making bodyWADA’s supreme decision-making body

EXecutive CommitteeEXecutive Committee– 10 Members (5 sports movement + 5 10 Members (5 sports movement + 5

governments)governments)

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WADAWADAGOALSGOALS

TO PROMOTE, TO PROMOTE,

TO COORDINATE,TO COORDINATE,

TO MONITOR...THE FIGHT AGAINST TO MONITOR...THE FIGHT AGAINST DOPINGDOPING

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WADA WADA PRIORITIESPRIORITIES

Code Compliance MonitoringCode Compliance Monitoring

Co-operation with Law EnforcementCo-operation with Law Enforcement

Science & MedicineScience & Medicine

Anti-doping Co-ordinationAnti-doping Co-ordination

Anti-Doping DevelopmentAnti-Doping Development

EducationEducation

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World Anti-Doping ProgramWorld Anti-Doping Program ““To protect the Athletes’ fundamental To protect the Athletes’ fundamental right to participate in right to participate in doping-free sportdoping-free sport and thus and thus promote health, fairness, and promote health, fairness, and equality for Athletes worldwideequality for Athletes worldwide; and ; and

To ensure harmonized, coordinated, and To ensure harmonized, coordinated, and effective anti-doping programs at the effective anti-doping programs at the international and national level with international and national level with regard to detection, deterrence, and regard to detection, deterrence, and prevention of doping.” prevention of doping.”

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World Anti-Doping ProgramWorld Anti-Doping Program

The World Anti-Doping CodeThe World Anti-Doping Code

International StandardsInternational Standards

Models of Best Practice and Models of Best Practice and GuidelinesGuidelines

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The World Anti-Doping CodeThe World Anti-Doping Code““A LIVING DOCUMENT”A LIVING DOCUMENT”““A framework for anti-doping policies, A framework for anti-doping policies, rules,and regulations for sport rules,and regulations for sport organizations and public authorities”organizations and public authorities”To be implementedTo be implemented– By Sports organizations: By Sports organizations:

compliance to the CODE (Olympic Charter). compliance to the CODE (Olympic Charter). IF NOT, IF NOT, SANCTIONS!SANCTIONS!

– By Governments: By Governments: UNESCO CONVENTION (2005) and its ratification UNESCO CONVENTION (2005) and its ratification

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DEFINITION OF DOPINGDEFINITION OF DOPING

“The occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.8 of the Code”

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ANTI-DOPING RULE VIOLATIONSANTI-DOPING RULE VIOLATIONS

Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s SampleUse or Attempted Use by an Athlete of a

Prohibited Substance or a Prohibited MethodRefusing or failing without compelling justification to submit to Sample collection after notification authorized in applicable anti-doping rules, otherwise evading Sample collection

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Anti- Doping rule violationsAnti- Doping rule violationsViolation of applicable requirements regarding Athlete availability for Out-of-Competition Testing, including failure to file required whereabouts information andmissed tests which are declared based on rules which comply with the International Standard for Testing.Tampering or Attempted Tampering with any part of Doping ControlPossession of Prohibited Substances and Prohibited MethodsTrafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method

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STRICT LIABILITY (art. 2.1.1)STRICT LIABILITY (art. 2.1.1)“It is each Athlete’s personal duty to ensure thatno Prohibited Substance enters his or her body.Athletes are responsible for any ProhibitedSubstance or its Metabolites or Markers foundto be present in their Samples. Accordingly, it isnot necessary that intent, fault, negligence orknowing Use on the Athlete’s part bedemonstrated in order to establish an antidopingviolation under Article 2.1”

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THE INTERNATIONAL THE INTERNATIONAL STANDARDSSTANDARDS

Prohibited ListProhibited List

International Standard for TestingInternational Standard for Testing

International Standard for International Standard for LaboratoriesLaboratories

International Standard for International Standard for Therapeutic Use ExemptionsTherapeutic Use Exemptions

International Standard for the International Standard for the Protection of Privacy and Personal Protection of Privacy and Personal InformationInformation

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CRITICAL ISSUES UNDER EU CRITICAL ISSUES UNDER EU LAWLAW

PRIVACY AND DATA PROTECTIONPRIVACY AND DATA PROTECTION

LABOUR LAWLABOUR LAW

COMPETITION LAWCOMPETITION LAW

FREEDOM TO MOVE AND TO FREEDOM TO MOVE AND TO PROVIDE SERVICESPROVIDE SERVICES

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International Standard for International Standard for TestingTesting

The “The “WHEREABOUTS”WHEREABOUTS”

Information about “location” of Top Elite Information about “location” of Top Elite AthletsAthlets

Who decides about the “ELITE”? The “RTP”Who decides about the “ELITE”? The “RTP”

Time framework issue: one hour a day Time framework issue: one hour a day from 6 am to 11 pm and 365 days a year!from 6 am to 11 pm and 365 days a year!

Is that reasonable?Is that reasonable?

Is that proportionate?Is that proportionate?

What about EU law?What about EU law?

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DIRECTIVE 2003/88/ECon “working time”

Recital 5 : “All workers should have adequate rest periods. The concept of ‘rest’ must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.

Art. 1 ‘rest period’: any period which is not working timeChapter 2 : Daily rest (11 hours),breaks (cba), weekly rest (24 hours), annual leave (4 weeks)

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Protection of Privacy andPersonal InformationDATA PROTECTIONDATA PROTECTION

Create a set of minimum privacy protectionsRespect of national laws, BUTWHAT ABOUT EU LAW?The Role of Art. 29 Working Group

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Art. 29 Working Group

Opinion 3/2008 of Opinion 3/2008 of 1 August 20081 August 2008Code (entry into force: Code (entry into force: 1 January 20091 January 2009))Second opinion 4/2009 of Second opinion 4/2009 of 6 April 20096 April 2009International Standard for the Protection of Privacy and Personal Information (amended and approved by WADA on 9 May 2009)European Commission press release on 11 May 2009: “A successful outcome of cooperation between the EU and WADA”

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Directive 95/46/EC on Data Directive 95/46/EC on Data ProtectionProtection

““Consent”Consent” is is

““any freelyany freely given specific and given specific and informed indication of his wishes by informed indication of his wishes by which the data subject signifies his which the data subject signifies his agreement to personal data relating agreement to personal data relating to him being processed”. (art.2 of to him being processed”. (art.2 of Directive 95/46).Directive 95/46).

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Art. 29 working GroupArt. 29 working GroupOpinion 3/2008:Opinion 3/2008:

Art. 6.1 of Standards: the consent Art. 6.1 of Standards: the consent is not free is not free nor informed!nor informed!

Opinion 4/2009:Opinion 4/2009:Art. 6.3.”The sanctions and consequences Art. 6.3.”The sanctions and consequences

attached to a possible refusal by attached to a possible refusal by participants to subject themselves to the participants to subject themselves to the obligations of the Code (whereabouts) obligations of the Code (whereabouts) prevent the WP from considering that the prevent the WP from considering that the consend would be, consend would be, in any way, given in any way, given freely”.freely”.

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Art. 29 working GroupArt. 29 working Group

Processing of Data by ADO if:Processing of Data by ADO if:– Public statusPublic status– National Public interest, BUT...National Public interest, BUT...– CONI (necessity test: interest of the CONI (necessity test: interest of the

controller v. Protection of fundamental controller v. Protection of fundamental rights)rights)

– ““SENSITIVE DATA” SENSITIVE DATA” – DATA ABOUT OFFENCESDATA ABOUT OFFENCES

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ADAMSADAMSAnti-doping Administration & Management SystemAnti-doping Administration & Management System

A web-based data base managementA web-based data base managementNot mandatory in theory, yes in practice (Code)Not mandatory in theory, yes in practice (Code)Data accessible to ADOs and IF worldwideData accessible to ADOs and IF worldwideNecessity test : “purpose of the contract”Necessity test : “purpose of the contract”The retention periods: The retention periods: – Whereabouts: “up to 18 months” (CODE).Whereabouts: “up to 18 months” (CODE).

WP: justified only in case of an alleged whereabouts filing WP: justified only in case of an alleged whereabouts filing failure and/or missing test...failure and/or missing test...

– Test planning, Test results, TUE, records of doping Test planning, Test results, TUE, records of doping violations (up to 8 years)violations (up to 8 years)

WP: yes for convictions, to retain samples, but not for Test WP: yes for convictions, to retain samples, but not for Test planning or TUE planning or TUE

Call for a “more proportionate approach” for Call for a “more proportionate approach” for doping violations (See art. 2 of CODE)doping violations (See art. 2 of CODE)

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Art. 29 Workin group Art. 29 Workin group

Art. 14.2.2:Art. 14.2.2:

DOPING INFRINGEMENT, SANCTIONS, DOPING INFRINGEMENT, SANCTIONS, AND PUBLIC REPORT...AND PUBLIC REPORT...

ON ADOs WEB SITEON ADOs WEB SITE

FOR 1 YEARFOR 1 YEAR

NO! NECESSITY AND NO! NECESSITY AND PROPORTIONALITYPROPORTIONALITY

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EC TREATYEC TREATYART. 101 TFEU:

Are incompatible (and void )with the common market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may:affect trade between Member States have as their object or effect the prevention, restriction or distortion of competition within the common market

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ExceptionsExceptionsAgreements which contributes to improving:– the production or distribution of goods or to

promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit,

And which does not:(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in questio

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ABUSE OF DOMINANT POSITIONABUSE OF DOMINANT POSITION

ART. 102 TFEU:ART. 102 TFEU:Any abuse by one or more

undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.

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ABUSE OF DOMINANT POSITIONABUSE OF DOMINANT POSITIONSuch abuse may, in particular, consist in:(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;(b) limiting production, markets or technical development to the prejudice of consumers;(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

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Basic Principles of Community LawBasic Principles of Community Law

EU law applies to Sport in so far it EU law applies to Sport in so far it constitutes an economic activity (ECJ constitutes an economic activity (ECJ case law)case law)

No Activities “purely” social, artistic or No Activities “purely” social, artistic or sporting ......sporting ......

but then “MECA MEDICA” judgement but then “MECA MEDICA” judgement of 18 July 2006...of 18 July 2006...

Test of “Necessity”Test of “Necessity”

Test of “Proportionality”Test of “Proportionality”

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The Legal Methodology The Legal Methodology in the Meca Medina casein the Meca Medina case

STEP 1STEP 1: Are the EU anti-trust rules, i.e. Articles 81 : Are the EU anti-trust rules, i.e. Articles 81 (101 and/or Art. 82 (102 EU) applicable to (101 and/or Art. 82 (102 EU) applicable to Sporting rules?Sporting rules?STEP 2STEP 2: If EC anti-trust rules are applicable, does : If EC anti-trust rules are applicable, does the sporting rule fall outside the prohibition of the sporting rule fall outside the prohibition of Articles 81 (1) and 82?Articles 81 (1) and 82?STEP 3: Can the rule be considered compatible STEP 3: Can the rule be considered compatible with EC anti-trust rules because it fulfils the with EC anti-trust rules because it fulfils the conditions of Article 81(3) EC or because of an conditions of Article 81(3) EC or because of an objective justification under Article 82 EC?objective justification under Article 82 EC?

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Step 1Step 11. Is the sports association that adopted the rule in question an “undertaking” or an“association of undertakings”?– a. The sports association is an “undertaking” to the

extent it carries out an “economic activity” itself.– b. The sports association is an “association of

undertakings” if its members carry out an economic activity.

– If no economic activity, Articles 81 and 82 do not apply

– Is trade between MS affected (geographical market, production market, Community interest...)?

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STEP 1STEP 1

Is WADA subject to Art. 101 TFEU? Is WADA subject to Art. 101 TFEU?

WADA or IOC?WADA or IOC?

ECJ, ECJ, EurocontrolEurocontrol case (March 2009) case (March 2009)

Economic services v. Regulatory Economic services v. Regulatory activitiesactivities

MECA MEDINAMECA MEDINA

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Step 2Step 2Compatibility of rules with the Community Compatibility of rules with the Community rules on competition cannot be assessed rules on competition cannot be assessed in the abstract.in the abstract.

Taking into account:Taking into account:– “ “the overall context” in which the decision of the overall context” in which the decision of

the association of undertakings was taken or the association of undertakings was taken or produces its effects.produces its effects.

– Its objectives: Its objectives: measures inherent in the pursuit measures inherent in the pursuit of those objectives and proportionate to themof those objectives and proportionate to them. .

– Proportionality of measures (quid sportive Proportionality of measures (quid sportive sanctions?)sanctions?)

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SANCTIONSSANCTIONS  Presence of prohibited substances/use or attempted use of prohibited substances:Presence of prohibited substances/use or attempted use of prohibited substances:  - 2 years- 2 years  Refusing or failing to submit to sample collection/Tampering with Doping Control:Refusing or failing to submit to sample collection/Tampering with Doping Control:  - 2 years (CAS: Mannini and Possanzini cqse)- 2 years (CAS: Mannini and Possanzini cqse)  Trafficking or Attempted Trafficking/Administration or Attempted Administration of Prohibited Trafficking or Attempted Trafficking/Administration or Attempted Administration of Prohibited

Substance or Prohibited Method:Substance or Prohibited Method:  - a minimum of 4 years up to lifetime- a minimum of 4 years up to lifetime  Whereabouts Filing Failures and/or Missed Tests:Whereabouts Filing Failures and/or Missed Tests:  - minimum 1 year and at maximum 2 year - minimum 1 year and at maximum 2 year   Second anti-doping rule violation: Second anti-doping rule violation:   - from 4 years to lifetime- from 4 years to lifetime  Third anti-doping rule violation: Third anti-doping rule violation:   - from 8 years to lifetimefrom 8 years to lifetimeBUT ALSO MORE FLEXIBILITY....in case of co-operation (reprimand and other sanctions)BUT ALSO MORE FLEXIBILITY....in case of co-operation (reprimand and other sanctions)  

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SANCTIONSSANCTIONSArt. 10.10.1. No Athlete or other Person Art. 10.10.1. No Athlete or other Person

who has been declared Ineligible who has been declared Ineligible may, during the period of Ineligibility, may, during the period of Ineligibility, participate in any capacity in a participate in any capacity in a Competition or activityCompetition or activity (other than (other than authorized anti-doping education or authorized anti-doping education or rehabilitation programs) rehabilitation programs) authorized authorized or organized by any Signatory…or organized by any Signatory…

Comment to Art. 10.10.1:”Comment to Art. 10.10.1:”For example, an ineligible Athlete cannot participate in a training camp, exhibition or practice organized by

his or her National Federation or a club which is a member of that

National Federation.”

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Step 3Step 3

Can the rule be considered Can the rule be considered compatible with EC anti-trust rules compatible with EC anti-trust rules because it fulfils the conditions of because it fulfils the conditions of Article 101(3) TFEU or because of an Article 101(3) TFEU or because of an objective justification under Article objective justification under Article 102 TFEU?102 TFEU?– Case by case approachCase by case approach– No General sports exception!No General sports exception!

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CONCLUSIONCONCLUSION

Efficiency v. Necessity Efficiency v. Necessity

Fight against doping v. Protection of Fight against doping v. Protection of fundamental rights...fundamental rights...

FINDING THE RIGHT BALANCEFINDING THE RIGHT BALANCE