Marjolaine Viret

Legal Constraints on Evidence in Anti-Doping

This chapter presents the legal constraints on evidence in the context of anti-doping. A proper legal characterisation of evidentiary issues, which lie at the intersection between substantive and procedural rules, is essential to determining both the law applicable to these issues and the parties’ freedom in agreeing on their “own” law of evidence applicable to their dispute. Although the distinctive features of international doping cases make the characterisation of evidentiary issues particularly difficult, generally accepted principles governing evidence in international arbitration can be identified and proposed for use as a reference standard in international doping cases (Sect. 3.1). The WADC evidentiary regime—when implemented through international anti-doping regulations—can be described as a system of private agreement(s) on evidence, but limitations that may be imposed on private autonomy by a national legal system prevent the WADC regime from departing freely from the general principles governing evidence in international arbitration. These limitations should apply in a similar way, whether the evidentiary issue regulated in the WADC is substantive (i.e. dictates to the legal hearing panel a given burden or standard of proof), or procedural (i.e. contains prescriptions to the legal hearing panel about the admissibility or evaluation of evidence) (Sect. 3.2). A more relevant categorisation, however, is between all the substantive or procedural evidentiary rules that contain prescriptions directed at legal hearing panels during the judicial process on the one hand, and technical rules that govern the gathering of scientific evidence in Doping Control for the sake of future use in the judicial process on the other. The idiosyncrasies of anti-doping in this context need to be taken into account (Sect. 3.3).

Scientific Evidence in CAS Arbitration for Doping Disputes

This chapter analyses the main characteristics of the taking of evidence in CAS arbitration proceedings as it applies to scientific evidence. An assessment of the approach to scientific evidence in CAS arbitration proceedings is difficult to conduct in abstracto. The topic has a strong casuistic character, being tied to the facts of the dispute, the parties’ submissions and the CAS panel’s large discretion in conducting the proceedings. Moreover, information on the taking of evidence may be scarce in the award. The procedural background and the elements of the file that influenced the panel in its reasoning may be accessible only to the parties and counsel directly involved in the proceedings. Chapter 4 of this book laid the general foundations for the manner in which science participates in the judicial process. This chapter, by contrast, focuses on practical aspects and the manner in which these foundations are reflected in doping disputes before CAS panels. After a general survey of the principle of freedom of evidence and its limits in CAS arbitration, as well as the idiosyncrasies of doping disputes in this respect (Sect. 8.1), the chapter addresses the topic areas most relevant for scientific evidence, i.e. scientific documentary evidence (Sect. 8.2) and expert evidence (Sect. 8.3). The findings arising from this chapter lead into some general views on the challenges of litigating doping disputes before CAS when it comes to the taking of scientific evidence (Sect. 8.4).

Doping Control—Gathering Scientific Evidence for Legal Purposes

This chapter analyses how Doping Control is organised and regulated in the WADC regime. Doping Control is a multifaceted process that raises a variety of evidentiary issues, with different ways of approaching these issues. In outlining the legal constraints on anti-doping, we have described, in Chap. 3, Doping Control as a process designed to collect scientific evidence for use in subsequent anti-doping proceedings. Section 5.1 focuses on the regulatory framework that provides the operational foundations for collecting such scientific evidence. This framework can be characterised as a “mechanism of control” (as described in Chap. 4), built on two pillars necessary for setting up an effective system of detection in anti-doping programs: i. The scientific participants responsible for Testing and analysis on the field, i.e. primarily the entities in charge of Sample collection and the anti-doping laboratories, and ii. the technical rules adopted by WADA to regulate Doping Control, i.e. the International Standards and related documents, but also the Guidelines adopted in some areas. Our analysis will point at some ambiguities in the options taken in the WADC regime with respect to these participants and rules, revealing the hesitant path taken by this regime between leaving a maximum flexibility to anti-doping science and forcing this same science into a normative corset. The analysis will show how these ambiguities may work to the detriment of legal predictability. Section 5.2 turns to a feature of the WADC regime that demonstrates the complementarity of the two above pillars and makes the entwinement between science and law in anti-doping particularly apparent. This section deals with procedural defects during Doping Control, i.e. situations in which scientific participants depart from applicable procedures set forth in technical rules. The WADC regime conceives these departures as procedural irregularities, but they may or may not have an impact on the scientific reliability of the process. The treatment of procedural defects, especially rules imposing a specific distribution of the legal burden of proof or rules circumscribing the materiality of defects, constitute “mechanisms of coordination” or “mechanisms of avoidance” as identified in Chap. 4, depending on their severity. Section 5.3 builds on the insights gained from Sects. 5.1 and 5.2, to assess the soundness of the WADC regime when it comes to securing a reliable process of evidence gathering in Doping Control, and makes suggestions for enhancing or making better use of the current system.

Focus of the Analysis

This Chapter explains how the analysis will concentrate on international doping cases before the Court of Arbitration for Sport (“Court of Arbitration for Sport” or “CAS”) (Sect. 2.1) and uses as a starting point the evidentiary regime enshrined in the revised 2015 WADC and related documents (Sect. 2.2). The focus on the interplay between science and law—beyond highlighting the need for confronting different perspectives on anti-doping—naturally brought the spotlight onto “analytical” cases, i.e. cases in which all or part of the evidence relied upon is derived from a laboratory analysis, with the ultimate goal of providing an insight both into traditional and novel approaches to scientific evidence in Doping Control (Sect. 2.3).

Scientific Constraints on Evidence in Anti-Doping

This Chapter discusses the constraints that science exerts on evidentiary matters in anti-doping, starting with a description of the multiple roles that science plays in the fight against doping, as well as some reflections on the definition of “scientific” (Sect. 4.1). This Chapter then identifies the challenges that lawyers face in a science-based context, and presents the evidentiary mechanisms developed to reconcile the fields of science and law (Sect. 4.2). Due to the growing space for interaction that modern human society creates (e.g. genetic engineering, artificial procreation or bio-banks) science and law inevitably influence each other, to the point that one may truly speak of shaping of new contours for both fields. The mutual influences among the two fields raise novel questions and needs, especially when it comes to defining the interplay between the scientific expert and the judge (Sect. 4.3). The insights gained from our analysis will enable us to formulate some guidance for an assessment of the soundness of the WADC regime that combines both legal and scientific aspects and will lead over to Part II (Sect. 4.4). The topics addressed in this Chapter have engendered passionate debates among scholars in the fields of the philosophy of law, philosophy of science or ethics. Since this book investigates the practical interplay of science and law with respect to the 2015 WADC regime, this Chapter will only give a general insight, as necessary for setting the foundations of the analysis. This Chapter uses the generic term “judge” as referring to any judicial authority that may be called upon to adjudicate a dispute in a science-based context (e.g. state courts, internal “tribunals” of a sports federation or arbitral tribunals such as CAS panels).

Paths to Improvement Through New Approaches

This Chapter 10 builds on the lessons learned from traditional Doping Control to explore proposals for tackling the challenges that anti-doping faces and will continue to face under the 2015 WADC. Addressing these challenges requires that scientists and lawyers combine their expertise and their efforts to design paths to improvement (Sect. 10.1). These joint efforts should allow for a stronger qualitative approach to the gathering of evidence in Doping Control on the one hand (Sect. 10.2), and for greater refinement in the evaluation of the evidence gathered on the other hand (Sect. 10.3).

Analytical Science—Approaches in “Traditional” Doping Control

The legitimacy of procedures established to regulate Doping Control—with a view to collecting scientific evidence that supports anti-doping proceedings—depends on how closely these procedures can be scientifically justified. Understanding the subtleties of anti-doping science is a prerequisite for assessing the evidentiary WADC regime. This Chapter focuses on the activities of anti-doping laboratories, analyses the historical pillars of the WADC regime in this respect and examines their ability to generate both scientifically reliable and legally sustainable evidence. Aspects of Sample analysis that do not pertain to the evidentiary value of the analytical findings will only be addressed as needed. This Chapter identifies three aspects of the complexity in analytical science that impact the strength of the scientific evidence that is generated through traditional Doping Control. (i) The variability in technology available for Sample analysis at a certain point in time. This variability arises from discrepancies within the laboratory network, coupled with the reluctance of certain ADOs to cover the costs of sophisticated –but potentially essential—analyses (Sect. 6.1); (ii) The zero tolerance rule, its formal and informal limits, and current challenges inherent in operating a legal regime based on evidence derived from biological materials. Such materials are intrinsically complex and subject to natural variability, and thus ill-suited to black-or-white determinations and standardised legal regulation (Sect. 6.2); (iii) The evolution of analytical science over time, due to the progress needed to keep pace with new doping agents and methods. Scientific innovation is an essential component of Doping Control, but complicates the process of judicial review (Sect. 6.3). The last Section summarises the findings and lists a series of traits that characterise the evidential strength of analytical findings in traditional Doping Control (Sect. 6.4).

Athlete Biological Passport: A Paradigm Shift?

The Athlete Biological Passport (or “ABP”) has been designed to serve multiple purposes in anti-doping. These include: research for setting future priorities in the fight against doping; a deterrence effect due to the higher likelihood of being “caught”; and gathering intelligence for target Testing. This Chap. 11 focuses on the Athlete Biological Passport’s most crucial function from the perspective of its evidentiary value in legal practice. It analyses how data derived from the ABP can be used directly to support anti-doping proceedings for Use of a Prohibited Substance or Prohibited Method under Article 2.2 of the WADC (referred to in this chapter as Athlete Biological Passport or ABP “cases”). Describing the main features of the ABP Program as conceived by WADA is a prerequisite for assessing the improvements that this new approach could bring with respect to traditional Doping Control (Sect. 11.1). As a new evidentiary approach inserted into a pre-existing regulatory framework, the ABP brings along its own challenges, both legal and practical (Sect. 11.2). The evaluation of the evidence and the task-sharing between scientific experts and legal hearing panels represent key factors in the use of the ABP Program (Sect. 11.3). Reliance on the ABP in the judicial process also raises a number of issues with respect to the traditional standardising mechanisms of the WADC when it comes to a finding of a violation, as well as to Strict Liability and presumed Fault (Sect. 11.4).

Standardisation in Anti-Doping—Science versus Evidentiary Pragmatism

From a scientific viewpoint, advances in anti-doping science pursue one main goal which is to uncover doping conducts in an effective and reliable manner. However, given the legal context in which anti-doping operates, other concerns may become equally important or even predominant. These include the need to produce evidence that will survive the scrutiny of judicial authorities and the need to avoid excessive complications in the conduct of the proceedings. This chapter analyses how these concerns are reflected in standardising mechanisms that seek to make the fight against doping “legally manageable”, even if this at times has to occur to the detriment of scientific accuracy. Building on the findings regarding the organisation of Doping Control and the scientific features of the detection system gained from Chaps. 5 and 6, this chapter focuses on three core aspects of the WADC philosophy that illustrate these mechanisms: The reliance on a non-challengeable, non-exhaustive list of substances and methods for defining the scope of the doping prohibition (Sect. 7.1); The limited role of the factor of performance enhancement, especially with respect to the Disqualification regime (Sect. 7.2); The approach to the Athlete’s Fault, in particular the irrelevance of the Athlete’s Fault to a finding of an anti-doping rule violation (“Strict Liability”) and the shift onto the Athlete of the burden of proof (“presumption of Fault”) with respect to disciplinary sanctions (Sect. 7.3). The analysis of these three mechanisms will provide valuable insights for suggestions on new approaches in Part III.

Mechanisms Used in “Traditional” Doping Control

Chapter 3 identified three categories of evidentiary mechanisms designed to reconcile the diverging features of law and science when legal regulations need to be set up in a scientific context. After our analysis of the WADC evidentiary regime in Part II, we are now able to describe this regime through a synthesis of the various mechanisms used by its drafters when called upon to accommodate the high degree of standardisation and simplification that traditional Doping Control demands in dealing with science. To match the description in Chap. 3 of this book, these mechanisms are grouped in the three categories of mechanisms of avoidance (Sect. 9.1), mechanisms of coordination (Sect. 9.2) and mechanisms of control (Sect. 9.3).