Vub calewaert lecture 2 doping
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Vub calewaert lecture 2 doping Presentation Transcript

  • 1. “ The Fight against Doping between Efficiency and Proportionality: a role for action taken at EU level?” Jacob Kornbeck Willy Calewaert Chair Second Lecture VUB, Brussels, Thursday, 2 December 2010, 6.00-7.15 pm
  • 2.
    • 1. Introduction
    • 2. Historical development of the theme: EU and anti-doping
    • 3. Why do we need a fight against doping?
    • 4. A role for the EU (?): harmonisation
    • 5. A role for the EU (?): coordination
    • 6. A role for the EU (?): cooperation for more inspiration
    • 7. Conclusion
    Table of Contents
  • 3.
    • 1.1. Introduction to this lecture
    • In 2010, news of three types of anti-doping related initiatives taken at EU level:
    • Council Conclusions of 18 November (anti-doping)
    • T.M.C. Asser Instituut (2010): The implementation of the WADA Code in the European Union. Report commissioned by the Flemish Minister responsible for Sport in view of the Belgian Presidency of the European Union in the second half of 2010.
    • Cañas v Commission (Case T-508/09)
    1. Introduction 1.1. Introduction to this lecture
  • 4. 1.2. Why efficiency and why proportionality? "I have no problem with the drug testing part and I don't care how much I get tested. But having to fill out where you are every single day, this is not human. It would be easier if they just put a chip inside us," said Ms. Wickmayer." (Cohen, 2009) "The whereabouts rule is a cornerstone of our policy," said Stuart Miller, anti-doping manager for the International Tennis Federation, the sport's governing body. "The only way to have an effective anti-doping policy is to know where a player will be to conduct random testing." (Cohen, 2009) 1. Introduction
  • 5. 1.2. Why efficiency and why proportionality? "You might consider it a large breach of privacy to have to pee into a cup in front of another person, but that's what we ask athletes to do," Mr. Howman said. "We have to look at all these things and get them into perspective." (Cohen, 2009) "If you have to be available every day of the year, it isn't vacation," said Wil van Megen, the head of FIFRPo's legal department. […] (Cohen, 2009) "Anti-doping rules are just private agreements, they are not law. They can restrict some freedoms, as long as it is proportionate to the objective," said Mr. Dupont. "The fight against doping is a priority, but you cannot go too far." (Cohen, 2009) 1. Introduction
  • 6.
    • 1.3. "Action at EU level": what does it mean?
    • The EU needs to justify its involvement very carefully:
    • principle of subsidiarity
    • numerous actors with well-established roles in the fight against doping
    • Differents types of action
    • Formal versus informal instruments
    • Regulation versus networking
    1. Introduction
  • 7.
    • 1992: EU campaign at the Olympics
    • 1998: European Council concerned over Festina Scandal
    • 1999: Report from European Group on Ethics
    • 1999: Community Support Plan to Combat Doping in Sports. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions. COM (99) 643 final, 1.12.1999
    2. Historical development of the theme: EU and anti-doping
  • 8.
    • 1999-2001: EU involvement in setting up WADA
    • 2000: Council Conclusions of 4 December
    • 2000: CAFDIS and HARDOP projects (DG RTD)
    • 2000-2002: anti-doping projects (DG EAC)
    • (Throughout): observer in Council of Europe's anti-doping groups
    • 2003: Anti-doping in collective bargaining at EU level
    2. Historical development of the theme: EU and anti-doping
  • 9.
    • 2005: European Parliament Resolution on combating doping in sport, 14 April 2005
    • 2008: Data protection becomes an issue
    • Meca Medina and Majcen, 2004 (CFI) and 2006 (ECJ)
    • 2007: Commission’s White Paper on Sport
        • “ The Commission recommends that trade in illicit doping substances be treated in the same manner as trade in illicit drugs throughout the EU.”
    2. Historical development of the theme: EU and anti-doping
  • 10.
    • 2008: EU Working Group on Anti-Doping
    • 2008: European Parliament study: Doping in Professional Sport
    • 2008: EP questions on whereabouts (Belet, Bozkurt)
    • 2009: Wickmayer & Malisse take action in Belgian courts
    • 2009: EU Conference in Athens
    • 2009: New EU competence for sport (Lisbon Treaty)
    2. Historical development of the theme: EU and anti-doping
  • 11.
    • “ […] In hoeverre vindt de Commissie de maatregelen die sporters verplichten 365 dagen per jaar, op elk uur van de dag beschikbaar te zijn voor controles proportioneel ten opzichte van het recht van individuele sporters op privacy? En in hoeverre strookt dat met Europese wetgeving m.b.t. werktijden? […]" (Bozkurt, 2008)
    • "In België is er heel wat consternatie ontstaan omdat tennisspelers vanwege het niet correct invullen van hun whereabouts voor 1 jaar geschorst werden. (…) Hoe evalueert de Commissie deze situatie in het licht van de schorsingen die uitgesproken werden in de zaak Meca-Medina? Deelt de Commissie de mening dat de strafmaat voor inbreuken op de whereabouts en de beroepsprocedure op Europees en internationaal niveau beter gecoördineerd dient te worden?” (Belet, 2008)
    2. Historical development of the theme: EU and anti-doping
  • 12.
    • 2009: Final report from UEB working conditions study
    • 2010: Cañas v Commission
    • 2010: Preparatory Action in the field of Sport
    • 2010? 2011?: Commission Communication on Sport
    2. Historical development of the theme: EU and anti-doping
  • 13. 3.1. The dilemma: doping is not just one thing From the World Anti-Doping Code 2009: ARTICLE 1: DEFINITION OF DOPING Doping is defined as 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. 2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample 2.2 Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method 2.3 Refusing or failing without compelling justification to submit to Sample collection after notification as authorized in applicable anti-doping rules, or otherwise evading Sample collection (…) 2.5 Tampering or Attempted Tampering with any part of Doping Control 2.6 Possession of Prohibited Substances and Prohibited Methods 2.7 Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method (…)
    • 3. Why do we need a fight against doping?
  • 14. 3.2. Why should performance-enhancing drugs be prohibited? From the World Anti-Doping Code 2009: 4.3 Criteria for Including Substances and Methods on the Prohibited List WADA shall consider the following criteria in deciding whether to include a substance or method on the Prohibited List. (…) 4.3.1.1 Medical or other scientific evidence, pharmacological effect or experience that the substance or method, alone or in combination with other substances or methods, has the potential to enhance or enhances sport performance; 4.3.1.2 Medical or other scientific evidence, pharmacological effect or experience that the Use of the substance or method represents an actual or potential health risk to the Athlete; (…) 4.3.1.3 WADA's determination that the Use of the substance or method violates the spirit of sport described in the Introduction to the Code.
    • 3. Why do we need a fight against doping?
  • 15. 3.2. Why should performance-enhancing drugs be prohibited? “ [...] athletes caught using drugs are, to an increasing degree, exposed as deviant outsiders in the world of sport. In addition to the official penalty which is imposed on them on account of their offence, they are labelled as athletes of poor morals, who are spoiling the game for everyone else. Although the athletes usually claim that they have always competed drug free and that a mistake must have been made, this hardly ever supports their case. Even if they are later acquitted due to contradictory B - sample test results or legal quibbling, they are already labelled.” (Vest Christiansen, 2006, p. 168) 3. Why do we need a fight against doping?
  • 16. 3.4. The presumption of innocence Sir William Blackstone (1723-1780) Commentaries on the Laws of England (1765-1769) "Better that ten guilty persons escape than that one innocent suffer." 3. Why do we need a fight against doping?
  • 17. 3.4. The presumption of innocence “ There is a legal as well as an ethical definition to this case. DCU has got certain ethical standards and these will not be stretched. We do not wish to persecute Bo Hamburger. But if a rider makes mistakes or acts in a way that is in discrepancy with our code of conduct, that is the end.” (Vest Christiansen, 2006, p. 168) Discrepancies between the “spirit of sport” and the “essence of sport” … 3. Why do we need a fight against doping?
  • 18.
    • 3.5. When stakes are high, so are expectations: a case for proportionality?
    • Are expectations too high?
    • What can the public expect?
    3. Why do we need a fight against doping?
  • 19. 3.6. Sport ethics “ Doping means cheating” – yes, but… 3. Why do we need a fight against doping?
  • 20. 3.6. Sport ethics “ Doping means cheating” – yes, but… “ Wenn der formale Charakter eines Spiels – der nach Suits (1973, 49 ff.) aus seinen Regeln, Zielen, Mitteln und der Spielhaltung besteht – bedeutet, dass er die Spielwelt vollkommen abschliesst („einformt“): auf welche Weise kann das Täuschen oder umgekehrt die bewusste Spielregelbefolgung moralisch definiert werden?“ (Court, 1996, p. 235) In other words, by opting for the „specificity“ of sport, those in charge of anti-doping potentially invalidate their claims to the immoral nature of doping. 3. Why do we need a fight against doping?
  • 21. 3.6. Sport ethics 2009 WADA Code, p. 14: The spirit of sport is the celebration of the human spirit, body and mind, and is characterized by the following values: • Ethics, fair play and honesty • Health • Excellence in performance • Character and education • Fun and joy • Teamwork • Dedication and commitment • Respect for rules and laws • Respect for self and other Participants • Courage • Community and solidarity (…) 3. Why do we need a fight against doping?
  • 22. 3.7. Individual and public health Savulescu, Foddy & Clayton (2004) British Journal of Sports Medicine Leader Why we should allow performance enhancing drugs in sport Br J Sports Med 2004;38:666-670 “ The starkest example is the Finnish skier Eero Maentyranta. In 1964, he won three gold medals. Subsequently it was found he had a genetic mutation that meant that he “naturally” had 40–50% more red blood cells than average. Was it fair that he had significant advantage given to him by chance?” - Nevertheless, individual and public health remain very valid reasons to address the problem… and this approach makes the fight against doping very credible and very legitimate. 3. Why do we need a fight against doping?
  • 23. 3.8. The protection of public, social and moral order “ […] Doping practices involving illegal substances pose a serious threat to social order, including criminal justice issues, and to the integrity of the sporting community. They rely on a generalised and systematic breach of law practised by persons acting within networks. Many substances used for doping are covered by national legislation on illicit drugs and/or international drug conventions. While the possession of these substances may be illegal, they are often easily available. In this respect, a remarkable enforcement deficit can be observed. For the criminal community, the trade in doping substances can offer an attractive mixture of low risk and high return on investments. Trade in doping substances is often not subject to severe punishment. ” (European Commission, White Paper on Sport, Staff Working Document, 2007, sec. 2.2) 3. Why do we need a fight against doping?
  • 24.
    • WADA: large notion of harmonisation
    • EU: narrow (restrictive) notion of harmonisation
    • “ The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented.” (2009 WADA Code , p . 11)
    4. A role for the EU (?): harmonisation
  • 25. Asser study: implementation of WADA Code In a doping act = light blue In a sports act = red In other acts = green In rules of NF’s = purple No implementation = turquoise 4. A role for the EU (?): harmonisation
  • 26. Asser study: implementation of WADA Code Unrestricted use of ADAMS = light blue Restricted use of ADAMS = red In the process of implementing ADAMS = green No use of ADAMS = purple (Anti-Doping Administration & Management System) 4. A role for the EU (?): harmonisation
  • 27. Asser study: criminalisation of trade in doping substances Criminal Code = light blue Drugs laws = red Sports Act = green No existing laws and regulations relating to trade and distribution of doping products = purple 4. A role for the EU (?): harmonisation
  • 28. “ The present status is that approx. half of the EU’s Member States now criminally sanction trade in doping substances in one way or another. Evidence seems to suggest that the fight against doping on the supply side is indeed facilitated when trade in illicit doping substances has been criminalised. For this reason, the trend among Member States is clearly toward criminalisation. Based on these developments, it would seem appropriate to call upon the other half of the Member States to join the trend and criminalise also.” (European Commission, 2009, p. 3) 4. A role for the EU (?): harmonisation
  • 29. Article 81 (1) TFEU = possible Article 81 (2) TFEU = possible "After all, the promise is also to create an area of freedom and justice. In spite of this, it seems that the Lisbon Treaty offers a more attractive framework, in terms of competences and protection of the individual, than the current regime." (Herlin-Karnell, 2009, p. 242) 4. A role for the EU (?): harmonisation
  • 30.
    • EU coordination in relation to WADA
    • Ensuring sincere cooperation
    • Coordination of actual anti-doping work?
    • Most probably not… but the Asser study showed Member States interested in an EU mechanism for mutual recognition…
    5. A role for the EU (?): coordination
  • 31. 6.1. Introduction Size of RTP’s Country RTP size [1] NTP size [2] Population [3] Austria +/- 350 +/- 500 8.3 Belgium (VL) 682 6.6 [4] Bulgaria n/a [5] 7.6 Czech Republic 450 10.5 Cyprus n/a [6] 0.8 Germany +/- 500 +/- 1,200 82 Denmark +/- 65 5.5 Estonia 133 1.3 Finland 64 5.3 6. A role for the EU (?): cooperation for more inspiration
  • 32.
    • 6.2. Cooperation with whom?
    • EU-MS
    • EU-CoE
    • EU-NADO's/labs
    • EU-sports org.
    • EU-trade unions
    • EU-WADA…
    • A multitude of actors
    6. A role for the EU (?): cooperation for more inspiration
  • 33.
    • 7.1. Uniformity
    • Uniform application of EU law is of paramount importance .
    • Example: data protection (Opinions of the Article 29 Working Party, 2008 and 2009)
    7. Conclusion
  • 34.
    • 7.2. Normality
    • No man is an Iland, intire of it selfe; every man is a peece of the Continent, a part of the maine; (…)
    • (John Donne, 1572-1631, Meditation XVII, 1623)
    • It should be seen as normal that athletes want to use state courts and trade unions to promote their interests.
    7. Conclusion
  • 35. 7.2. Normality 2009 WADA Code (p. 18): “ These sport-specific rules and procedures aimed at enforcing anti- doping rules in a global and harmonized way are distinct in nature from and are, therefore, not intended to be subject to or limited by any national requirements and legal standards applicable to criminal proceedings or employment matters. When reviewing the facts and the law of a given case, all courts, arbitral hearing panels and other adjudicating bodies should be aware and respect the distinct nature of the anti-doping rules in the Code and the fact that those rules represent the consensus of a broad spectrum of stakeholders around the world with an interest in fair sport.” 7. Conclusion
  • 36. 7.2. Normality 2009 WADA Code (p. 18): “ These sport-specific rules and procedures aimed at enforcing anti- doping rules in a global and harmonized way are distinct in nature from and are, therefore, not intended to be subject to or limited by any national requirements and legal standards applicable to criminal proceedings or employment matters. When reviewing the facts and the law of a given case, all courts, arbitral hearing panels and other adjudicating bodies should be aware and respect the distinct nature of the anti-doping rules in the Code and the fact that those rules represent the consensus of a broad spectrum of stakeholders around the world with an interest in fair sport.” 7. Conclusion
  • 37. 7.2. Normality 2007 Olympic Charter (Bye-law to Rule 45, pp. 84-85): “ "6. Any participant in the Olympic Games in whatever capacity must sign the following declaration: (…) I also agree that any dispute arising on the occasion of or in connection with my participation in the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration (Rule 59)." 7. Conclusion
  • 38.
    • 7.2. Normality
    • Litigation – a threat to the fight against doping?
    • "Die Auslegung oder Veröffentlichung einer Namensliste unterfalle grundsätzlich dem Schutzbereich des Grundrechts der Meinungsfreiheit. Nach der ständigen Rechtsprechung des Bundesverfassungsgerichts hänge die Zulässigkeit einer Äußerung im Konflikt zwischen Meinungsfreiheit und allgemeinem Persönlichkeitsrecht wesentlich davon ab, ob es sich um ein Werturteil oder eine Tatsachenbehauptung handele. Im vorliegenden Fall gehe es um eine der Wahrheit entsprechende Tatsachenbehauptung." (OLG Karlsruhe, Urteil vom 30.01.2009, Az.: 14 U 131/08)
    7. Conclusion
  • 39.
    • 7.3. Necessity
    • "necessary in a democratic society" (European Convention on Human Rights (ECHR) of the Council of Europe)
    • Necessity must be proven (or at least made plausible).
    • Democracy allows us to have conflicts… and carry them out openly:
    • "In der Familie gelten viele Spielregeln. […] Man kritisiert einander nicht unnötig – und man kritisiert einander auf keinen Fall gegenüber Mitgliedern anderer Familien. […] Die Familie setzt voraus, dass wie alle gemeinsame Interessen haben. Die Demokratie dagegen baut auf der Erkenntnis auf, dass wir verschiedene Interessen haben, und bietet uns eine Methode, mit welcher wir unsere Interessenkonflikte lösen können. Dies wiederum setzt voraus, dass die Konflikte sichtbar werden und diskutiert werden können." (Sejer Andersen, 2006, p. 83)
    7. Conclusion
  • 40.
    • 7.4. Testing proportionality
    • The necessity test: Is the measure really needed, or is it just there as a matter of "business as usual"?
    • 2. The contingency test: Which options are available in total? Which measures would you take, were you to be banned from using this one?
    7. Conclusion
  • 41. 7.4. Testing proportionality 3. The proportionality test: Is this a reasonable measure, as much as necessary and as little as possible? Is it appropriate to reach its objective, or is it more like cracking a nut with a steam hammer? 7. Conclusion
  • 42. Thu 27 January 2011 (6-7.30 pm) Gianluca Monte: Sport and the media which role does the EU play? Thu 10 February 2011 (6-7.30 pm) Bart Ooijen : EU perspective on Education and Training Qualifications in Sport Thu 17 February 2011 (6-7.30 pm) Gianluca Monte : Transfers, licensing systems and players agents: the EU as a gatekeeper of the integrity of sport competitions? Thu 3 March 2011 (6-7.30 pm) Jacob Kornbeck: Play, not therapy: the EU’s role in promoting health-enhancing physical activity (HEPA) Thu 31 March 2011 (6-7.30 pm) Jacob Kornbeck: Looking into the future: the implementation of the Lisbon Treaty in the field of sport Happy Holidays and All the Best in 2011