Do Athletes Really Have the Right to a Fair Trial in "Non-Analytical Positive" Doping Cases? - ARIA - Vol. 22 No. 2 2011
Jérôme de Montmollin, Partner, Froriep Renggli (Geneva, Switzerland); Member of the Canton of Geneva
Bar Association (Switzerland).
Dmitry A. Pentsov, Associate, Froriep Renggli (Geneva, Switzerland); Law Faculty of St. Petersburg
State University, Diploma in Law (1993); Georgetown University Law Center, LLM
(1995); Law Faculty of the University of Geneva, Master of Law (2008); Member of the
New York State Bar Association and St. Petersburg City Bar Association (Russia).
Originally from American Review of International Arbitration - ARIA
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DO ATHLETES REALLY HAVE THE RIGHT TO A FAIR TRIAL IN
"NON-ANALYTICAL POSITIVE" DOPING CASES?
Jérôme de Montmollin∗ and Dmitry A. Pentsov∗∗
I. INTRODUCTION
Can the noble objective of a certain campaign and its intended benefits for the
people at whom it is aimed justify disrespecting the human rights of a few
individuals who are inadvertently or not caught in the middle of this campaign?
Or, more specifically, could the noble objectives of the World Anti-Doping
Program, namely protecting athletes’ fundamental right to participate in a dopingfree
sport and thus promoting health, fairness and equality for athletes
worldwide,1 justify disrespecting an athlete’s right to a fair trial?2 Such questions
may be asked in light of a recent Court of Arbitration for Sport (“CAS”) award in
a doping case involving seven female Russian track and field athletes, resulting in
the imposition of sanctions by the CAS Panel of two years and nine months
ineligibility to participate in all national and international competitions for a
fraudulent substitution of their samples collected under the out-of-competition
testing program of the International Association of Athletics Federations
(“IAAF”) in Russia (the “case of the seven Russian athletes”).3
This case first came to the spotlight of public attention on July 31, 2008, less
than a week before the official opening of the 2008 Summer Olympic Games in
Beijing, when the IAAF announced the provisional suspension of seven Russian
athletes for alleged doping offences.4 All suspended athletes were charged under
IAAF Competition Rules 32(2)(b) and 32(2)(e) with the fraudulent substitution of
urine samples, which is both a prohibited method and also a form of tampering
with the doping control process.5 The IAAF discovered the substitution of samples
following a specific investigation instigated and carried out by the IAAF for more
than a year, as it suspected that certain irregularities had arisen from its “out-ofcompetition”
testing program conducted in Russia.6 In particular, the IAAF
compared the DNA profiles of “out-of-competition” urine samples that had been
collected from twenty-three Russian athletes in Russia with the DNA profiles of
“in-competition” urine samples collected from the same athletes under conditions
that could guarantee the origin of the samples.7 The DNA analyses revealed that,
for the seven female athletes, the samples compared presented different genetic
profiles, thereby excluding the possibility that the same person had provided both
samples.8 Further DNA profile analysis of additional samples collected by the
IAAF from six of the seven athletes in the form of a buccal swab confirmed these
findings.9
This case of seven Russian track and field athletes was certainly not the first
instance where a CAS panel found athletes responsible for anti-doping rule
violations, not on the basis of a positive finding of a prohibited substance in the
athlete’s sample by a World-Anti-Doping Agency (“WADA”) accredited
laboratory, but solely on the basis of circumstantial evidence (the so-called “nonanalytical
positive” or “circumstantial evidence” doping cases).10 Neither was it
I. INTRODUCTION
II. LEGAL ASPECTS OF “NON-ANALYTICAL POSITIVE” DOPING CASES:
GENERAL OVERVIEW
A. The meaning of “doping” and types of “non-analytical
positive” anti-doping rule violations
B. People who may commit “non-analytical positive”
anti-doping rule violations
C. Foundations for liability in “non-analytical positive” doping cases
D. Proof of anti-doping rule violations in “non-analytical positive”
doping cases
1. Burden of proof and presumptions established by the WADC
a. Anti-doping organizations .
b. Athletes and others accused of committing anti-doping
rule violations
2. “Presumption of manipulation” developed by the CAS
3. Standards of proof
4. Methods of establishing facts
III. THE ATHLETE’S RIGHT TO A FAIR TRIAL: SOURCES AND CONTENT
A. The components of the right to a fair trial under Article 6(1)
of the ECHR
B. The athlete’s right of access to an independent and impartial
tribunal
1. The impact of “forced” nature of sports arbitration on the content
of the athlete’s right of access to court
2. The meaning of a “dispute involving civil rights and obligations”
3. Possible limitations on the athlete’s right of access to an independent
and impartial tribunal
C. The athlete’s right to procedural equality
1. General requirements concerning procedural equality in CAS
arbitration proceedings
a. Principle of “equality of arms” under Article 6(1) of the ECHR
b. Procedural equality under Chapter 12 of the Swiss Private
International Law Act
2. Procedural equality and presumptions
IV. PROVISIONAL SUSPENSION FROM THE POINT OF VIEW OF THE ATHLETE’S
RIGHT OF ACCESS TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL
A. Provisional suspension as a “dispute involving civil rights and
obligations”
1. The athlete’s right to participate in sports competitions as a
“civil right”
2. The athlete’s obligations not to use doping and to comply with the
doping control requirements as “civil obligations”
3. The imposition of provisional suspension as a “dispute over civil rights
and obligations”
B. Provisional suspension without the possibility of an appeal as a violation
of the athlete’s right of access to an independent and impartial tribunal
1. No impairment of the very essence of the athlete’s right of
access to an independent and impartial tribunal
2. The absence of a legitimate purpose of the restriction on the athlete’s
right to appeal a provisional suspension
3. The absence of a reasonable relationship of proportionality between
the means employed and the aim sought to be achieved
V. “PRESUMPTION OF MANIPULATION” FROM THE POINT OF VIEW OF
THE ATHLETE’S RIGHT TO PROCEDURAL EQUALITY
A. “Presumption of manipulation” as a violation of the “equality
of arms” principle
1. Arbitrary nature of the “presumption of manipulation”
2. Impossibility of properly arguing the athlete’s case and of rebutting
the “presumption of manipulation”
B. Public policy considerations
C. Minimizing the potential social cost of the “presumption of
manipulation”
VI. PROPOSALS FOR FUTURE ACTION TO SAFEGUARD ATHLETE’S RIGHTS TO FAIR
TRIAL IN “NON-ANALYTICAL POSITIVE” DOPING CASES
A. Proposed modifications to the WADC and IAAF Competition
Rules: compensating for the cost of “broken Olympic dreams”
B. Possible judicial challenges to provisional suspensions
imposed by the IAAF
1. Challenging the provisional suspension before the CAS
2. Challenging possible CAS refusal before the Swiss Federal Tribunal
3. Challenging the Swiss Federal Tribunal’s decision before the
European Court of Human Rights
C. Possible judicial challenges to the “presumption of manipulation”
1. Challenging CAS awards before the Swiss Federal Tribunal
2. Challenging the Swiss Federal Tribunal’s decision before the
European Court of Human Rights
VII. CONCLUSION