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THE WORLD ANTIDOPING CODE: DOES THE END JUSTIFY THE MEANS?

THE WORLD ANTIDOPING CODE: DOES THE END JUSTIFY THE MEANS?. By Prof. Avv. Michele Colucci European College of Parma (Italy) – Tilburg University(The Netherlands) Website: www.colucci.eu - Email: info@colucci.eu. WADA Structure. STRUCTURE Foundation Board Executive Committee

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THE WORLD ANTIDOPING CODE: DOES THE END JUSTIFY THE MEANS?

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  1. THE WORLD ANTIDOPING CODE:DOES THE END JUSTIFY THE MEANS? By Prof. Avv. Michele Colucci European College of Parma (Italy) – Tilburg University(The Netherlands) Website: www.colucci.eu - Email: info@colucci.eu

  2. WADAStructure • STRUCTURE • Foundation Board • Executive Committee • Athlete Committee • Education Committee • Medical & Research Committee • TUE Working Committee

  3. WADAFoundation Board and Executive Committee • Foundation Board • 38 members • Representatives from the Olympic Movement and governments • WADA’s supreme decision-making body • EXecutive Committee • 10 Members (5 sports movement + 5 governments)

  4. WADAGOALS • TO PROMOTE, • TO COORDINATE, • TO MONITOR...THE FIGHT AGAINST DOPING

  5. WADA PRIORITIES • Code Compliance Monitoring • Co-operation with Law Enforcement • Science & Medicine • Anti-doping Co-ordination • Anti-Doping Development • Education

  6. World Anti-Doping Program • “To protect the Athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness, and equality for Athletes worldwide; and • To ensure harmonized, coordinated, and effective anti-doping programs at the international and national level with regard to detection, deterrence, and prevention of doping.”

  7. World Anti-Doping Program • The World Anti-Doping Code • International Standards • Models of Best Practice and Guidelines

  8. The World Anti-Doping Code • “A LIVING DOCUMENT” • “A framework for anti-doping policies, rules,and regulations for sport organizations and public authorities” • To be implemented • By Sports organizations: • compliance to the CODE (Olympic Charter). IF NOT, SANCTIONS! • By Governments: • UNESCO CONVENTION (2005) and its ratification

  9. DEFINITION 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”

  10. ANTI-DOPING RULE VIOLATIONS • Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample • Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method • Refusing or failing without compelling justification to submit to Sample collection after notification authorized in applicable anti-doping rules, otherwise evading Sample collection

  11. Anti- Doping rule violations • Violation of applicable requirements regarding Athlete availability for Out-of-Competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. • Tampering or Attempted Tampering with any part of Doping Control • Possession of Prohibited Substances and Prohibited Methods • Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method

  12. STRICT LIABILITY (art. 2.1.1) “It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an antidoping violation under Article 2.1”

  13. THE INTERNATIONAL STANDARDS • Prohibited List • International Standard for Testing • International Standard for Laboratories • International Standard for Therapeutic Use Exemptions • International Standard for the Protection of Privacy and Personal Information

  14. CRITICAL ISSUES UNDER EU LAW • PRIVACY AND DATA PROTECTION • LABOUR LAW • COMPETITION LAW • FREEDOM TO MOVE AND TO PROVIDE SERVICES

  15. International Standard for TestingThe “WHEREABOUTS” • Information about “location” of Top Elite Athlets • Who decides about the “ELITE”? The “RTP” • Time framework issue: one hour a day from 6 am to 11 pm and 365 days a year! • Is that reasonable? • Is that proportionate? • What about EU law?

  16. 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 time • Chapter 2 : Daily rest (11 hours),breaks (cba), weekly rest (24 hours), annual leave (4 weeks)

  17. Protection of Privacy andPersonal InformationDATA PROTECTION • Create a set of minimum privacy protections • Respect of national laws, BUT • WHAT ABOUT EU LAW? • The Role of Art. 29 Working Group

  18. Art. 29 Working Group • Opinion 3/2008 of 1 August 2008 • Code (entry into force: 1 January 2009) • Second opinion 4/2009 of 6 April 2009 • International 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”

  19. Directive 95/46/EC on Data Protection • “Consent” is “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”. (art.2 of Directive 95/46).

  20. Art. 29 working Group • Opinion 3/2008: Art. 6.1 of Standards: the consent is not free nor informed! Opinion 4/2009: Art. 6.3.”The sanctions and consequences attached to a possible refusal by participants to subject themselves to the obligations of the Code (whereabouts) prevent the WP from considering that the consend would be, in any way, given freely”.

  21. Art. 29 working Group • Processing of Data by ADO if: • Public status • National Public interest, BUT... • CONI (necessity test: interest of the controller v. Protection of fundamental rights) • “SENSITIVE DATA” • DATA ABOUT OFFENCES

  22. ADAMSAnti-doping Administration & Management System • A web-based data base management • Not mandatory in theory, yes in practice (Code) • Data accessible to ADOs and IF worldwide • Necessity test : “purpose of the contract” • The retention periods: • Whereabouts: “up to 18 months” (CODE). • WP: justified only in case ofan alleged whereabouts filing failure and/or missing test... • Test planning, Test results, TUE, records of doping violations (up to 8 years) • WP: yes for convictions, to retain samples, but not for Test planning or TUE • Call for a “more proportionate approach” for doping violations (See art. 2 of CODE)

  23. Art. 29 Workin group • Art. 14.2.2: • DOPING INFRINGEMENT, SANCTIONS, AND PUBLIC REPORT... • ON ADOs WEB SITE • FOR 1 YEAR • NO! NECESSITY AND PROPORTIONALITY

  24. EC TREATY ART. 81 EC: 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

  25. Exceptions • Agreements 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

  26. ABUSE OF DOMINANT POSITION • ART. 82 EC: 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.

  27. ABUSE OF DOMINANT POSITION • Such 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.

  28. Basic Principles of Community Law • EC law applies to Sport in so far it constitutes an economic activity (ECJ case law) • No Activities “purely” social, artistic or sporting ...... • but then “MECA MEDICA” judgement of 18 July 2006... • Test of “Necessity” • Test of “Proportionality”

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

  30. Step 1 • 1. 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...)?

  31. STEP 1 • Is WADA subject to Art. 81 EC? • WADA or IOC? • ECJ, Eurocontrol case (March 2009) • Economic services v. Regulatory activities • MECA MEDINA

  32. Step 2 • Compatibility of rules with the Community rules on competition cannot be assessed in the abstract. • Taking into account: • “the overall context” in which the decision of the association of undertakings was taken or produces its effects. • Its objectives: measures inherent in the pursuit of those objectives and proportionate to them. • Proportionality of measures (quid sportive sanctions?)

  33. SANCTIONS Presence of prohibited substances/use or attempted use of prohibited substances: - 2 years Refusing or failing to submit to sample collection/Tampering with Doping Control: - 2 years (CAS: Mannini and Possanzini cqse) Trafficking or Attempted Trafficking/Administration or Attempted Administration of Prohibited Substance or Prohibited Method: - a minimum of 4 years up to lifetime Whereabouts Filing Failures and/or Missed Tests: - minimum 1 year and at maximum 2 year Second anti-doping rule violation: - from 4 years to lifetime Third anti-doping rule violation: • from 8 years to lifetime BUT ALSO MORE FLEXIBILITY....in case of co-operation (reprimand and other sanctions)

  34. SANCTIONS Art. 10.10.1. No Athlete or other Person who has been declared Ineligible may, during the period of Ineligibility, participate in any capacity in a Competition or activity (other than authorized anti-doping education or rehabilitation programs) authorized or organized by any Signatory… 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.”

  35. Step 3 • Can the rule be considered compatible with EC anti-trust rules because it fulfils the conditions of Article 81(3) EC or because of an objective justification under Article 82 EC? • Case by case approach • No General sports exception!

  36. CONCLUSION • Efficiency v. Necessity • Fight against doping v. Protection of fundamental rights... FINDING THE RIGHT BALANCE

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