Ameshia, Revenue recognition principles are practiced when reven.docx

Ameshia,
Revenue recognition principles are practiced when revenues are
earned and realized, not necessarily received. Realizable means
that the goods and/or services have been received. However,
payment for the product/services is expected later. One example
of this revenue recognition principle would be a contractual
agreement to purchase a vehicle that is being financed. The car
is sold to the purchaser with the intent that the money will be
received later through monthly payments. Revenue becomes
realized and earned once the sales transaction has been
completed instead of after the purchase has been paid off. The
car is taken out of inventory and recorded as sold.
In this case, the expense recognition would be revenue that is
recorded during the time period the vehicle was purchased. The
buyer purchases the vehicle in July then the expense would be
recorded as revenue during July's accounting period. If not, the
expenses may be incurred, or follow the period in which the
related amount of revenue is recognized. Expense recognition is
met once all expenses have been recorded for that accounting
period.
Reference:
Expense recognition principle--Accounting tools. (2019,
January 9) retrieved from
https://www.accountingtools.com/articles/expense-recognition-
principle.html
When Should a Company Recognize Revenues on Its Books?--
Corporate Finance & Accounting. (2019, April 22) retrieved
from
https://www.investopedia.com/ask/answers/06/recognizingreven
ues.asp

Damian
Revenues are realized or realizable when a company exchanges
goods or services for cash or other assets. So if a business
enters into a transaction to sell inventory to a customer, the
revenue is realizable a specific amount of cash is identified in
the transaction. The revenue is not recorded, however, until it is
earned The last exception to the revenue recognition principle is
companies that recognize revenue when the cash is actually
received. Example, Three ponds of cement cost $550 for 16
bags to to pave a drive way but only 13 bags was delivered and
3 bags was damaged so the tree bags that was damaged as credit
with an extra 5 bags of cement the order was incorrect but to
keep the customer they way rewarded extra.
The expense recognition principle states that expenses should
be recognize in the same period as the revenue to which they
relate. If this were not the case, expenses would likely be
recognized as incurred, which might predate or follow the
period in which the related amount of revenue is recognized.
Reference:
Revenue Recognition Principle | Examples | My Accounting
Course. (n.d.). Retrieved from
https://www.myaccountingcourse.com › Accounting Principles
Expense recognition principle — AccountingTools. (2019,
January 9). Retrieved from
https://www.accountingtools.com/articles/expense-recognition-
principle.html
Biography

Dr Jonathan Morgan is currently Fellow and Tutor in Law at St
Catherine’s College, Oxford. From October 2012 he
will be University Lecturer in Tort Law, University of
Cambridge. He has written widely on tort, contract and
human rights. His book entitled, Great Debates: Contract Law is
being published by Palgrave Macmillan (forthcoming,
2012).
Legal Information Management, 12 (2012), pp. 109–120
© The Author(s) 2012. Published by British and Irish
Association of Law Librarians doi:10.1017/S1472669612000321
Drugs in Sport
Abstract: In this article Peter Charlish addresses the
controversial issue of the use of
performance enhancing drugs in sport. He looks at the legal
basis for regulation via the
World Anti-Doping Code and the nature of a sports participant’s
relationship with their
governing body and the anti-doping organisations. He explains
in the context of
proportionality, the measures designed to combat doping in
sport; the importance to the
Code of the central principle of strict liability. Also, he
highlights the use of non-analytical
positives as a further method of detection of doping violations,
whilst taking
consideration of the impact of these measures on the human

rights of participants.
Keywords: sports law; drug abuse
INTRODUCTION
The Olympic Games in London in
2012 will be the 30
th
of the modern
era. One of the major and on-going
news stories surrounding the Games
will undoubtedly be that of the use
of performance enhancing drugs.
These, we are told, will be the most
tested Olympic Games ever, for this
has been the story of the Olympic
Games through time – a progress-
ively increasing number of tests at
each successive summer and winter
Olympic Games, the most recent numbers being a total
of 4770 tests at Beijing in 2008, (with 20 failures, includ-
ing six horses), and 2149 tests at Vancouver in 2010,

with three positives reported (although these figures do
not include figures relating to the biological passport).1
The use of performance enhancing drugs is nothing
new. Evidence suggests that the Ancient Greeks used
crude combinations of different potions
in an attempt to fortify themselves.2
Abuse of substances gathered pace in the
modern era, with the first reported case
occurring as far back as 1904, with the
American Thomas Hicks using a combi-
nation of substances including strychnine
and brandy to help him to victory in the
marathon.3 In the 1920s and 1930s,
international sports governing bodies
began to recognise the threats posed by
performance enhancing drugs and began
to ban particular substances, although,
without any form of tests, these restric-

tions remained ineffective.4 A wake up call occurred at
the 1960 Olympic Games in Rome, when Danish cyclist
Knud Jensen crashed and died. A subsequent autopsy
revealed traces of amphetamines in his system.5
Progress in the fight against doping in sport began to
gather pace with the Union Cycliste Internationale (UCI)
and Federation Internationale de Football Association,
Peter Charlish
109
Drugs in Sport
(FIFA) both introducing tests in their respective World
Championships in 1966.6 The death of former world
champion cyclist, Tommy Simpson, near the summit of
Mount Ventoux in the 1967 Tour de France provided
impetus for further developments.7 These developments
came in the shape of compulsory tests for amphetamines
at the 1968 Winter and Summer Olympics at Grenoble

and Mexico City respectively.8
The 1970s and 1980s saw the emergence of evidence
of widespread and often systematic doping, even going as
far as a national conspiracy with state plan 14–25, which
was enacted in the former East Germany in the 1970s
with the intention of achieving Olympic sporting success
through a large scale doping programme of young, usually
female, athletes and swimmers, in particular.9 The land-
mark moment in 1988, when Ben Johnson, the Canadian
sprinter, was stripped of his Olympic 100m title in Seoul,
provided some evidence of success in the fight against
the use of anabolic steroids. However, the dopers were
finding other, perhaps more sophisticated ways of cheat-
ing, as emphasis switched to manipulation of haematolo-
gical parameters through blood doping and the ingestion
of substances such as EPO. The tipping point in this
phase of the fight came in 1998 with the Festina scandal
in the Tour de France.10 Festina were the world’s leading
cycling team and due to the scandal, were expelled from

the Tour de France. What this scandal highlighted was
the need for a global approach to the problem of drugs
in sport and, as WADA explain:
The IOC11 took the initiative and convened the
First World Conference on Doping in Sport in
Lausanne in February 1999. Following the propo-
sal of the Conference, the World Anti-Doping
Agency (WADA) was established on November
10, 1999.12
With WADA ultimately came the World Anti-Doping
Code (WADC), the first edition of which arrived in
2003. This was the first attempt to harmonise the
approach to combatting doping in sport across different
sports and nations. By the Athens Summer Olympics in
2004, all International Federations had adopted the
Code,13 with funding being provided for the organisation
by a mixture of IOC and matched governmental
funding.14 In 2005, the International Convention Against

Doping in Sport was unanimously adopted by UNESCO’s
general conference. This is now the third most ratified of
all UNESCO conventions and covers 168 states and 96%
of the world’s population.15 2005 also saw the launch of
the Anti-Doping Administration and Management System
(ADAMS), which aids, amongst other things the manage-
ment of the athlete’s whereabouts system.16 2008
brought the signing of a memorandum of understanding
with Interpol, and then in 2009 the revised Code and
International Standards came into force. Consultation is
on-going over the next edition of the Code and this is
due to take effect in January 2015.
This paper will move on to look at the relationship
between an athlete17 and their governing body, examining
the legal basis for doping control and specifically the role
of WADA and the WADC in the regulation of anti-
doping policy.18 The fundamental principle upon which
the Code is built, that of strict liability, will be examined in
particular in relation to the question of the proportional-
ity of the sanctioning and monitoring measures contained

within the Code, and also the compatibility of that funda-
mental principle with the human rights of the athletes it
affects. The paper will conclude with a brief overview of
some issues currently testing the application of the Code.
THE LEGAL BASIS OF REGULATION
An athlete’s relationship with their governing body is a
contractual one. This has very clear implications for the
provision of regulations, the sanctioning, and any reme-
dies that an athlete may either be subject to, or have the
opportunity to pursue. The nature of this relationship
has been examined in several cases, most notably
perhaps in Korda v ITF Ltd,19 where Petr Korda, the
Czech tennis player, was seeking to challenge the right of
his governing body to appeal an anti-doping sanction
imposed upon him in the Court of Arbitration for Sport
(CAS). The basis of his challenge was that there was no
contractual relationship between them and therefore
they had no right to appeal the sanctioning decision to
the CAS. As is common with many situations involving

sports participants, there was no formal written contract
between the parties. However, the Court was happy to
infer the existence of a contract due to issues such as
Korda’s previous acquiescence with the initial appeal
hearing and the anti-doping procedures of the
International Tennis Federation.20 Lightman J., concluded:
I have no doubt that such a contractual relation-
ship has been established. There is no written
agreement signed by the parties and there is no
oral agreement either. Such an agreement is
however plainly to be inferred.21
It is therefore clear from Korda that the relationship
between a sports participant and their governing body is
a contractual one and that, further, enforcement of anti-
doping control from the WADA, to the International
Governing Bodies (IGBs), the National Anti-Doping
Organisations, (NADOs), and the National Governing
Bodies (NGBs), is based on this contractual relationship.
One of the most important aspects of worldwide

anti-doping policy is its predication upon the principle of
strict liability. The WADC explains:
Under the strict liability principle an athlete is
responsible and an anti-doping rule violation
occurs, whenever a Prohibited Substance is found
in an Athlete’s Sample. The violation occurs
whether or not the Athlete intentionally or
110
Peter Charlish
unintentionally used a Prohibited Substance or
was negligent or otherwise at fault.22
The application of the principle of strict liability is a
contentious feature of the Code. However, it has found
favour in the English High Court, where it was examined
in Gasser v Stinson,23 1988. In this particular case, Swiss
athlete, Sandra Gasser, failed a drugs test and alleged that
the application of strict liability meant that she was unable
to prove her innocence. She challenged the International
Amateur Athletic Federation (IAAF) anti-doping rules as

being an unreasonable restraint of trade. In affirming the
legality of the IGB rules, the High Court drew attention
to the public policy reasons central to the fight against
doping in sport and further emphasised that the reason-
ableness or otherwise of the provisions must be
measured in the context of maintaining a drug free
sport.24 Similarly, the CAS has also recognised the clarity
and utility of the principle, commenting;
It appears to be a laudable policy objective not to
repair an accidental unfairness to an individual by
creating an intentional unfairness to the whole
body of other competitors. This is what would
happen if banned performance-enhancing sub-
stances were tolerated when absorbed inadver-
tently.25 Moreover, it is likely that even intentional
abuse would in many cases escape sanction for
lack of proof of guilty intent. And it is certain that
a requirement of intent would invite costly litiga-

tion that may well cripple federations – particu-
larly those run on modest budgets – in their fight
against doping.…For these reasons, the Panel
would as a matter of principle be prepared to
apply a strict liability test. The Panel is aware that
arguments have been raised that a strict liability
standard is unreasonable, and indeed contrary to
natural justice, because it does not permit the
accused to establish moral innocence. It has even
been argued that it is an excessive restraint of
trade. The Panel is unconvinced by such objec-
tions and considers that in principle the high
objectives and practical necessities of the fight
against doping amply justify the application of a
strict liability standard.26
Alongside legal approval, there has also been a moral
dimension underlying support of the provision, reinfor-
cing the public policy reasons cited approvingly by the
High Court and the CAS, with double Olympic gold

medallist Sebastian Coe27 commenting:
“…The rule of strict liability — under which ath-
letes have to be solely and legally responsible for
what they consume — must remain supreme, …
we cannot, without binding reason and cause,
move one millimetre from strict liability — if we do,
the battle to save sport is lost”.28
Whilst strict liability is a test that evidently provides
clarity, certainty, and perhaps above all else, a cost
economy, over conventional burdens of proof, it is also
the case that there are very clear ethical concerns over
the exceptionally harsh effects it can sometimes have,
where participants may face very harsh sanctions despite
exhibiting no fault or no attempt to improve perform-
ance in their positive test.29 It is without doubt a prin-
ciple which means that an athlete confronted with a
doping charge following a positive test is facing an uphill
task in any attempt to prove their innocence.
The conduct of the procedure of testing contains
assumptions which further stack the deck against individ-

ual athletes. The WADC makes clear:
WADA-accredited laboratories are presumed to
have conducted sample analysis and custodial pro-
cedures in accordance with the International
Standard for Laboratories.30
With such a harsh potential impact, it is therefore
entirely in keeping with the principles of proportionality31
that the effects may be mitigated by provisions in the
Code relating to exceptional circumstances. Under Article
10.5 of the Code, an athlete may reduce the length of
their sanction, or even eliminate it, for testing positive
for a prohibited substance if they can demonstrate either
that they bore no fault or negligence,32 or no significant
fault or negligence33 for the positive test. Understandably,
the requirements for athletes to overcome these burdens
are high and it has been made clear that exceptional cir-
cumstances should only succeed where the circumstances
are truly exceptional.34 In the first instance, the athlete
must demonstrate on the balance of probabilities how the
substance entered their system. If they cannot demon-
strate this at that stage, then the case is lost.35 If the

athlete, however, is able to overcome this initial hurdle,
then they must go on to demonstrate to the comfortable
satisfaction of the Panel qualification under articles
10.5.1,36 or 10.5.2,37 if they are to gain a reduction or
elimination in sanction for their positive test.
In addition to the provisions relating to Prohibited
Substances, the WADC also contains similar measures
aimed at alleviating the harsh effects which strict liability
may bring with regards to Specified Substances. These sub-
stances are ones which may be more readily associated
with non-doping explanations and hence the test required
to reduce a sanction, is perhaps a more forgiving one.
The WADA comment:
A specified substance is a substance which allows,
under defined conditions, for a greater reduction of
a two-year sanction when an athlete tests positive
for that particular substance. The purpose is to
recognize that it is possible for a substance to enter
an athlete’s body inadvertently, and therefore allow
a tribunal more flexibility when making a sanction-
ing decision. Specified substances are not necessarily

111
Drugs in Sport
less serious agents for the purpose of doping than
other prohibited substances, and nor do they
relieve athletes of the strict liability rule that makes
them responsible for all substances that enter his or
her body. However, there is a greater likelihood
that these substances could be susceptible to a
credible non-doping explanation, as outlined in
section 10.4 of the World Anti-Doping Code. This
greater likelihood is simply not credible for certain
substances – such as steroids and human growth
hormone – and this is why these are not classified
as specified.38
To recognise the difficulties which may be associated
with such specified substances, the WADC therefore
allows for particular provision where a positive test
results from these substances. Article 10.4 of the
Code,39 makes clear that, where an athlete can demon-

strate how the substance got into their system, and
further that there was no attempt to improve perform-
ance (or mask the use of other substances), to the com-
fortable satisfaction of the hearing panel, then the period
of ineligibility imposed following the failure may be
reduced or even eliminated.
NON-ANALYTICAL POSITIVES
The reach of the Code and anti-doping measures extend
beyond the apparent simplicity offered by a failed test.
The provision of what are termed non-analytical positives40
have performed an important role in breaking some of
what may be viewed as perhaps more high-tech attempts
to cheat through the provision, of performance enhan-
cing drugs. A non-analytical positive occurs where an
athlete is found guilty of doping despite not failing a test.
This measure proved highly significant in helping to
unravel the Bay Area Laboratory Cooperative (BALCO)41
conspiracy. At the heart of the battle to break BALCO
lay the question of the appropriate burden of proof to

apply in attempting to prove the doping violation. Key in
the analysis of the applicable burden of proof was the
case involving sprinter Michelle Collins.42 With no failed
test evident, it would therefore be down to the United
States Anti-Doping Agency (USADA), to demonstrate
that Collins had indeed been abusing performance enhan-
cing drugs. Prior to March 1
st
2004 the relevant rules of
the International Governing Body,43 required proof
beyond reasonable doubt. The change, however altered this
to the, “comfortable satisfaction of the relevant hearing
body bearing in mind the seriousness of the allegation
which is made”.44 The justification for the change in the
IAAF rules was essentially two-fold as explained;
The comfortable satisfaction standard was adopted
by the WADA Code in 200345 before the IAAF
adopted it in 2004. This standard had previously
been used by various CAS panels. It derives
from court decisions in Australia and other
Commonwealth countries that created a standard

for cases involving personal reputation more strin-
gent than balance of the probabilities but less bur-
densome than beyond a reasonable doubt.46
The WADC explains;
…The standard of proof shall be whether the
Anti-Doping Organization has established an anti-
doping rule violation to the comfortable satisfac-
tion of the hearing panel bearing in mind the ser-
iousness of the allegation which is made. This
standard of proof in all cases is greater than a
mere balance of probability but less than proof
beyond a reasonable doubt …47
That this approach has been approved by the Swiss
Federal Tribunal (SFT),48 has some significance, as
explained;
The view of the Arbitral Tribunal that the [r]
espondent must prove a doping [offense] “to the
comfortable satisfaction of the hearing panel”
does not violate public policy but refers to the

allocation of the burden of proof and the standard
of evidence which, in the area of application of
private law — even where disciplinary measures of
private sporting [organizations] are under review —
cannot be determined from the perspective of
criminal law concepts such as the presumption of
innocence or the principles of “in dubio pro reo”
or on the basis of the guarantees which result
from the ECHR. Even with respect to her
[defense] that the standard of evidence on which
the decision was based leads to disregard of the
principle of proportionality, the [a]ppellant does
not point out a violation of public policy.49
A key issue must be as to the appropriateness of
applying this particular standard in assessing issues which
may have a grave effect on the future wellbeing of ath-
letes. It is unsurprising, therefore, that the adoption of
this comfortable satisfaction standard has not been without
criticism.50 Dawer argues vehemently that such a stan-
dard is inherently unfair to the athletes and that a more

appropriate approach would be an application of the
criminal burden of proof, asserting that;
The ambiguity of this evidentiary standard threa-
tens athletes’ due process rights. In an ordinary
criminal proceeding, the defendant receives
specific due process protections, including a fair
and full trial and discovery. Chief among these
protections is the establishment of a clear eviden-
tiary burden for the prosecutor: guilt must be
proven beyond a reasonable doubt in order to
convict.51
112
Peter Charlish
In drawing attention to the similarities between the
anti-doping control system and elements of the criminal
justice system, Straubel highlights the concerns and
dangers in denying athletes basic due process rights,52
concluding persuasively;

As a criminal system, an athlete should be afforded
the protections of the criminal process. The
burden of proof should always rest with the
sports governing body. The athlete should be
given a full and fair hearing, including full discovery,
before being punished. And the punishment
should fit the crime. If athletes are not afforded
the protections of the criminal system, the stab-
ility, legitimacy, and effectiveness of the doping
control process will always be in jeopardy. If the
system wrongfully punishes or harshly treats ath-
letes it will lose the support of those it governs,
perhaps lose the support of the ticket buying
public. …The best way to eliminate drugs is to
build a thorough testing system that is fair and
operates with a high level of integrity.53
The recent developments in the realms of
cooperation between anti-doping organisations and law

enforcement agencies54 have perhaps pushed the issue of
the appropriate burden of proof and release of infor-
mation further up the agenda, as action to investigate
anti-doping violations moves further away from a purely
sporting endeavour and the margins of a criminal investi-
gation, as opposed to a purely sporting one, become
further blurred. One has to ask whether it remains
defensible to maintain a position whereby the standard of
proof utilised55 to demonstrate guilt is acknowledged to
be more appropriate for matters of professional repu-
tation, when the resources utilised to pursue athletes
suspected of committing doping violations now engage
with organisations at the very heart of serious inter-
national criminal investigations.
In addition to facing the near impossible task of
proving their innocence in the face of a positive test for a
prohibited substance, an athlete also faces the prospect
of suspension from all competition in advance of any

hearing designed to prove or disprove their guilt. Article
7.5 of the WADC details “Principles Applicable to
Provisional Suspensions”,56 with article 7.5.1 specifying;
… when an A Sample57 Adverse Analytical
Finding is received for a Prohibited Substance,
other than a Specified Substance, a Provisional
Suspension shall be imposed promptly after the
review and notification described in Articles 7.1
and 7.2..58
The implications of this of course means that an
athlete may be deprived of their chance to earn their
living in advance of a full hearing designed to establish
guilt or innocence (in a procedure which is further
slanted in favour of the anti-doping organisation).
Furthermore, at this stage, once interested parties have
been informed of the adverse analytical finding, under
article 14.2 relating to Public Disclosure;
The identity of any Athlete or other Person who
is asserted by an Anti-Doping Organization to

have committed an anti-doping rule violation, may
be publicly disclosed by the Anti-Doping
Organization with results management responsibil-
ity only after notice has been provided to the
Athlete or other Person in accordance with
Articles 7.2, 7.3 or 7.4, and to the applicable Anti-
Doping Organizations in accordance with Article
14.1.2..59
What we may then left be with is an athlete who has
not been conclusively found guilty but who may be either
provisionally suspended from earning their living, and/or
publically named, (and shamed?). Left with the prospect
of public disclosure, or perhaps worse, a possible leaking
of their details, an athlete may feel they have little option
other than to try and take a modicum of control of the
situation and reveal their own name as someone who has
failed a test.60
Perhaps in an effort to soothe the concerns that
many may have of imposing a standard seemingly ill at

ease with the overtly criminal nature of the anti-doping
investigative and prosecution process, it has been
suggested that an approach utilising the standard of com-
fortable satisfaction does enough to at worst pay lip
service to traditional burdens of proof in criminal
matters, and at best is sufficiently closely related to the
standard of beyond reasonable doubt as to render con-
cerns redundant. In United States Anti-Doping Agency,
(USADA), v Gaines,61 the CAS addressed concerns about
the appropriate burden of proof, stressing;
As often becomes evident when the question of
standard of proof is debated, the debate looms
larger in theory than practice. …In all cases the
degree of probability must be commensurate with
and proportionate to those allegations; the more
serious the allegation the higher the degree of
probability, or “comfort”, required. That is
because, in general, the more serious the alle-
gation the less likely it is that the alleged event
occurred and, hence, the stronger the evidence
required before the occurrence of the event is
demonstrated to be more probable than not.62

Quite obviously, as acknowledged by the Panel, a guilty
verdict in an anti-doping hearing can have extremely serious
consequences, for an athlete, and with these very serious
circumstances would therefore come the necessity to
demonstrate a very clear notion of guilt before any Panel
would be comfortably satisfied. Therefore, the reality was,
that on many occasions, there would be little practical
113
Drugs in Sport
difference between the application of the two seemingly
competing standards, the panel concluding;
From this perspective, and in view of the nature
and gravity of the allegations at issue in these pro-
ceedings, there is no practical distinction between
the standards of proof advocated by USADA and
the Respondents. It makes little, if indeed any,
difference whether a “beyond reasonable doubt”
or “comfortable satisfaction” standard is applied to

determine the claims against the Respondents.63
One, of course may ask the question that, if it is tan-
tamount to beyond reasonable doubt, then why not name
it as such, and leave the question unanswered about
those violations that are perhaps considered less serious
and therefore the circumstances that are necessarily
applied are less akin to a standard of beyond reasonable
doubt.
PROPORTIONALITY AND
HUMAN RIGHTS64
What is clear, is that any sanctions to be applied to ath-
letes who fall foul of the anti-doping system, must be a
proportionate response to the perceived threat. One must
therefore question two aspects of this dichotomy. First,
the nature of the threat perceived by doping, and second,
what has been the sanction applied and could any other
less stringent measure have achieved the same effect?
The threat perceived by doping is the compromising
of ethical and moral considerations central to notions of
fair play within sport. These issues have been addressed

directly by the WADC and explicitly defined as encom-
passing what has been termed, “the spirit of sport”. The
fundamental rationale of the Code is described thus;
Anti-doping programs seek to preserve what is
intrinsically valuable about sport. This intrinsic
value is often referred to as “the spirit of sport”,
it is the essence of Olympism; it is how we play
true. 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; char-
acter and education; fun and joy; teamwork; dedi-
cation and commitment; respect for rules and
laws; respect for self and other Participants;
courage; community and solidarity.65
The WADA promote educational programmes and
reference to the philosophy and rationale behind these is
contained within Article 18 of the Code;66
The basic principle for information and education

programs for doping-free sport is to preserve the spirit
of sport, as described in the Introduction to the Code,
from being undermined by doping. …The programs
should promote the spirit of sport in order to establish
an environment that is strongly conducive to doping-free
sport and will have a positive and long-term influence on
the choices made by Athletes and other Persons.67
This, then, is the threat posed by the exploitation of
drugs in sport, and in order to address this threat, the
world’s IGBs have signed up to the harmonisation of
rules designed to combat those who may be tempted to
the shortcuts promised by prohibited substances. That
this global harmonisation is a central aim of the
anti-doping system suggests therefore that the degree of
flexibility or room to manoeuvre so as to permit the
specific circumstances of the individual case to be taken
into account, should be limited and therefore it will be
extremely difficult to discern a disproportionate response
where the sanctions imposed are stated clearly within

the Code. Opinion from the SFT has suggested that it is
perfectly within keeping with the principle of proportion-
ality, that anti-doping rules may severely restrict the
breadth of circumstances which may be taken into
consideration when assessing the severity of sanctions
which might be imposed upon any given individual.68
As long as the restriction on the rights of individual is
not excessive, then they will not be deemed to be
unlawful;
The mechanism of fixed sanctions according to
the WADC is incorporated into the ISR Doping
Regulations, At least in the opinion of the Swiss
Federal Tribunal, sports bodies can limit in their
rules the circumstances to be taken into account
when fixing sanctions and thereby also restrict the
application of the doctrine of proportionality.
However, in the opinion of the Swiss Federal
Tribunal, the sport associations exceed their

autonomy if these rules constitute an attack on
personal rights, the nature and scope of which is
extremely serious and totally disproportionate to
the behaviour penalised. In the Sole Arbitrator’s
opinion, this threshold has not been exceeded in
the present case. The Sole Arbitrator holds that a
two years period of ineligibility is not out of pro-
portion, excessive or disproportional.69
The acceptance of the generic harmonised approach
to anti-doping sanctions has been identified beyond tra-
ditional sports dispute resolution mechanisms. The
English High Court in Gasser v Stinson emphasised that a
two year ban for a doping violation was not an unlawful
restraint of trade,70 and such an approach has also been
approved within the context of the Netherlands Civil
Code;
This opinion is not contrary to the standard as set
out in section 2:8 of the Netherlands Civil Code.
This provision implies that a judging body is not

allowed to apply a rule when the result of the
application of that rule will be unacceptable. As
114
Peter Charlish
said above, the application of the mandatory rule
of a two years suspension is not unacceptable
according to standards of reasonableness and fair-
ness in the given circumstances.71
The wide-scale adoption of a two year ban for a first
doping offence can be traced back to a case which came
before a German District Court in Munich. In this
particular case, the sprinter Katrin Krabbe submitted a
urine sample that contained traces of chlenbuterol, a per-
formance enhancing substance.72 Krabbe was initially sus-
pended for one year by the German Athletic Federation
(the substance was not at the time on any banned list).
This ban was subsequently extended to three years by

the IAAF Council, despite Krabbe not having the oppor-
tunity to be heard before the sanction was imposed.
Krabbe then sued before the District Court of Munich.
The most significant issue from this case was the confir-
mation that a suspension of three years for a first doping
offence would be unlikely to withstand scrutiny by
national courts. Therefore, we saw the emergence of the
two year sanction, with the Court in Krabbe holding that
a two year ban, “represents the highest threshold admis-
sible under the fundamental rights and democratic prin-
ciples”,73 and that a three year ban for a first doping
offence was both inappropriate and disproportionate.74
The implications of this decision reverberated around the
sporting world and resulted in the default imposition of a
two year ban for a first doping offence. Rigozzi et al
conclude;
The reason for choosing this period of ineligibil-
ity75 can be traced back to the Krabbe case, in
which the Munich courts held that a suspension
exceeding two years must be considered to be

disproportionate. Following this decision, almost
every sports governing body reduced the length of
its suspension for a first offence to two years. This
sanction for a first offence subsequently withstood
scrutiny by several national courts and CAS
Panels.76
The restriction imposed upon athletes (that of a ban
from all competition), has been seen to be a proportion-
ate and reasonable response to the threat to sport posed
by the spread of doping practices. Rouiller explains;
a measure that restricts fundamental rights77 is
admissible only if it is suited to the achievement of
the public interest objective sought (suitability or
appropriateness), if no less intrusive measure is
capable of achieving such a result (necessity) and
if, in practical terms, the measure does not go
beyond what is required for this purpose (propor-
tionality as such).78

The key issue when fixing sanctions is that they do
not unfairly restrict these fundamental rights in a
disproportionate manner. Fixed sanctions are a necessary
part of the push to harmonise the global approach to the
legal regulation of doping in sport, and this being the
case, it makes the imposition of these fixed punishments
both more palatable and justifiable. Whilst acknowledging
that doping sanctions must comply with the principle of
proportionality, the CAS acknowledge that due to the
threats posed by doping and the aims behind global sanc-
tions, it is reasonable to restrict the application of the
principle. The CAS comment;
As a general rule when determining the period of
ineligibility the Respondent must observe the prin-
ciple of proportionality. However, it is open to
question which facts, if any, must be taken into
consideration. …The WADC and the FIS-Rules,
which follow it considerably restrict the appli-

cation of the principle proportionality. …The ath-
lete’s age, the question of whether taking the
prohibited substance had a performance-enhan-
cing effect or the peculiarities of the particular
type of sport are not – according to the WADC –
matters to be weighed when determining the
period of ineligibility. To be sure, the purpose of
introducing the WADC was to harmonise at the
time a plethora of doping sanctions to the greatest
extent possible and to un-couple them from both
the athlete’s personal circumstances (amateur or
professional, old or young athlete, etc.) as well as
from circumstances relating to the specific type of
sport (individual sport or team sport, etc.).79
The CAS has made clear that a two year ban for a
first offence is an appropriate response, declaring;
in the opinion of the Swiss Federal Tribunal,
sports bodies can limit in their rules the circum-
stances to be taken into account when fixing sanc-
tions and thereby also restrict the application of

the doctrine of proportionality. However, in the
opinion of the Swiss Federal Tribunal, the sport
associations exceed their autonomy if these rules
constitute an attack on personal rights, the nature
and scope of which is extremely serious and
totally disproportionate to the behaviour pena-
lised. In the Sole Arbitrator’s opinion, this
threshold has not been exceeded in the present
case. The Sole Arbitrator holds that a two years
period of ineligibility is not out of proportion,
excessive or disproportional.80
There are now provisions contained within the latest
incarnation of the WADC which allow for a ban of more
than two years for a first offence. These are contained in
a new article 10.6, which relates to aggravating circum-
stances. The Code lays out the conditions under which it
may be appropriate to apply an ineligibility period greater
than two years. Such conditions may include issues such
115
Drugs in Sport

as involvement in a larger doping scheme, impeding an
anti-doping investigation, or evidence of the use of illegal
substances on multiple occasions. The case involving Carl
Fletcher is an example of the kind of cooperation now
possible between UKAD and law enforcement agencies
following the signing of the memorandum of understand-
ing between UKAD and the Serious Organised Crime
Agency (SOCA) signed in 2011. At the time of Fletcher’s
conviction, Andy Parkinson, the Chief Executive of
UKAD commented;
This case proves the invaluable role that law enfor-
cement agencies have in the fight against doping in
sport and demonstrates that our intelligence
system is working effectively. … I would like to
thank the Merseyside Police and SOCA for their
vital assistance in helping our intelligence team
with this case. By attacking the supply chain and
those that supply performance-enhancing sub-

stances, we stand a better chance of protecting
the right of the clean athletes to compete in
doping-free sport.81
As cooperation between organs of the State and
those private organisations seeking to eradicate doping in
sport grows and increases in complexity, questions and
concerns over the compatibility of anti-doping processes
and basic human rights will continue to grow. It has been
suggested that the element of strictly enforced common
sanctions promoted by the WADC is compatible with
the human rights of individuals. Kaufmann-Kohler et al
explain;
the rigid system of fixed sanctions in the WADC
considerably restricts the doctrine of proportion-
ality, but is nevertheless compatible with human
rights and general legal principles. These experts
justify this characteristic by citing the legitimate
aim of harmonising doping penalties.82

This though perhaps does not deal fully with the
whole story, and this short section will provide a brief
overview which considers whether the ambit of the anti-
doping machine has now grown to such an extent that it
does indeed violate one or more of an athlete’s basic
human rights.
Based on classic interpretation of human rights law,
the contractual relationship between an athlete and their
governing body, and hence anti-doping provision, has
meant that remedies via the Human Rights Act (HRA)
1998, would remain unavailable to participants fighting an
anti-doping charge. Human rights retain vertical applica-
bility,83 meaning that all public authorities84 must comply
with the legislation. However, the traditional view of
sports governing bodies is that they are private entities
and therefore not subject to the HRA. Whilst this may be
the traditional view, it is not one that can be accepted
without some qualification. There remains a degree of
uncertainty, as was highlighted by the then Home

Secretary Jack Straw, when during the passage of the Bill
to introduce the HRA through Parliament, referred to the
Jockey Club,85 and by implication other sports governing
bodies as performing public functions and therefore by
definition within the ambit of section 6 of the HRA,86
meaning that their decisions may require compatibility
with the legislation. Note, however the decision in R v
Disciplinary Committee of the Jockey Club ex parte Aga
Khan,87 a pre-HRA judicial review case, in which the
relationship between the jockey club and its members
was held to be private in character.88 The requirement,
pursuant to section 3(1) of the HRA 1988, all domestic
legislation in England and Wales must, so far as is possible
to do so, be interpreted and given effect in a manner
which is compatible with the European Convention on
Human Rights (ECHR), opens the door to indirect hori-
zontal applicability. The position of sports governing
bodies becomes even more intriguing when viewed in the
context of the approach that some countries take to the
applicability of human rights measures. Oliver, D.,

reports;
So what are the arguments around extending hori-
zontal effect to human rights generally? Professor
Joerg Fedtke of the UCL Faculty of Laws and I
have recently completed a comparative study of
the extent, if any, to which fourteen countries
(and the European Court of Human Rights) give
effect to civil and political rights “in the private
sphere”.89
Each of those fourteen countries to a greater or
lesser extent provide either direct horizontal effect (both
India and Spain have this requirement within their
constitutions), or some degree of indirect horizontal
effect. The point is made more compelling by the pos-
ition adopted by the IOC outlined in the Olympic
Charter;
The practice of sport is a human right. Every indi-
vidual must have the possibility of practising sport,
without discrimination of any kind and in the

Olympic spirit, which requires mutual understand-
ing with a spirit of friendship, solidarity and fair
play90
That compliance with the WADC is a requirement
for any sport to be featured in the Olympic Games raises
some interesting issues about the comment above from
the IOC perspective and any reluctance that may exist to
hold anti-doping measures to account via basic human
rights considerations. Set in this context, it may be
suggested that the requirement for the WADC to be
fully compliant with human rights becomes more com-
pelling, regardless of whether Sports Governing Bodies
are seen as being public, quasi-public or fully private
authorities.
116
Peter Charlish
Reinforcing the likelihood of human rights challenges

confronting sports governing bodies, Rigozzi et al comment;
because sports governing bodies exercise a mono-
polistic “quasi-public” position in their relation
with the athletes, there is an understanding among
lawyers that sports governing bodies can no
longer ignore fundamental rights issues in their
activities, at least if they want to avoid governmen-
tal intervention.91
The most obvious cause for concern that one may
identify in the measures designed to combat doping in
sport lies in the application of the principle of strict liab-
ility, with potential reference to a breach of the ECHR, in
particular, Article 6(2).92 Although some of these issues
were rehearsed as long ago as 1983 in Gasser v Stinson,93
they have not been addressed with specific reference to
the HRA. Sport is not alone in applying the principle of
strict liability,94 and the courts outwith of sport, both
domestically,95 and in the European Court of Human
Rights,96 have addressed these issues. In Salabiaku v
France, it was made clear that;

Contracting States may, under certain conditions,
penalise a simple or objective fact as such, irre-
spective of whether it results from criminal intent
or from negligence.97
And further that;
Presumptions of fact or law operate in every legal
system. Clearly, the convention does not prohibit
such presumptions in principle. It does, however,
require the contracting states to remain within
certain limits in this respect as regards criminal
law…. [Article6(2)] requires states to confine
[presumptions] within reasonable limits which
take into account the importance of what is at
stake and maintain the rights of the defence.98
It is clear, therefore, that the presumption of inno-
cence, although inarguably important, is not absolute.
The key issue is whether the rationale behind the pro-
vision of anti-doping measures is sufficiently important to
justify the departure from the presumption of innocence

that strict liability effectively creates. It is submitted that
the overarching aims of the elimination of doping set in
the context of issues such as; the threat posed to fair-
play and honesty in sport, to the health of participants,
the educational messages transmitted by a tacit
acceptance of the practice of doping and to the financial
costs that may be wrought by a fault based system; may
be viewed as both laudable and legitimate objectives.
Coupling these with the moderating effects of measures
contained in Article 10 of the WADC,99 lead to a sense
of proportionality in pursuance of legitimate aims and
therefore compatibility of article 2.1.1. of the WADC100
with Article 6(2) of the ECHR.
CONCLUSION
This note has just touched on the concerns about poten-
tial breaches of an athlete’s human rights. Due to limit-
ations of space, it has concentrated on the concerns
raised by the central principle of strict liability. The ele-
phant in the room however is a potential breach of

article 8,101 writ large by the athlete whereabouts system
designed to facilitate no notice, out of competition
testing. This system requires elite athletes in the regis-
tered testing pool to submit their whereabouts to the
online ADAMS system102 entering where they will be for
one hour each day between the hours of 6am and 11pm,
three months in advance. If a tester turns up at the
location stipulated and the athlete is not in attendance
then that is a whereabouts failure. Three whereabouts
failures within the space of eighteen months and this is a
doping violation. The provision has faced criticism and is
currently being challenged under a violation of European
privacy laws in Belgium.103 Such a violation following
three whereabouts failures would also currently mean
that a British athlete is banned for life from the Olympic
Games due to the British Olympic Association (BOA),104
by law 25. This by law is currently facing a challenge in
the CAS from the WADA, claiming that it is an additional

penalty, over and above the conventional two year ban
faced by athletes for a first doping violation and further
that as it is a British rule, it compromises the harmonised
approach to anti-doping that the WADC tries to
promote. The BOA is defending their stance on the basis
that the lifetime ban is actually an eligibility rule, (i.e. no
athlete who has committed a doping offence is eligible
for Olympic selection), rather than an additional punish-
ment and further that all athletes have a right to appeal
against any ban imposed. Their stance is compromised by
the fact that the CAS ruled late in 2011 that the Osaka
rule, based on rule 44 of the Olympic Charter105 was
unlawful,106 and it is likely when the decision is
announced sometime in April, the CAS will rule against
the BOA.107
Footnotes
1
http://sportsanddrugs.procon.org/view.resource.php?resourceID
=004420 – last accessed 22
nd

January 2012
2
http://www.wada-ama.org/en/About-WADA/History/A-Brief-
History-of-Anti-Doping/ – last accessed 22
nd
January 2012
3
History-of-Anti-Doping/ – last accessed 22
nd
January 2012
117
Drugs in Sport
4
History-of-Anti-Doping/
5
6
7
http://www.telegraph.co.uk/sport/columnists/brendangallagher/2

316933/Tom-Simpson-haunts-Tour-40-years-on.html
8
9
http://www.pbs.org/wnet/secrets/features/doping-for-gold/the-
state-sponsored-doping-program/52/;
http://www.la84foundation.org/
SportsLibrary/ISOR/ISOR2004t.pdf
10
http://news.bbc.co.uk/1/hi/special_report/1998/07/98/tour_de_fr
ance/134842.stm; http://news.bbc.co.uk/sport1/hi/other_sports/
988530.stm (Festina timeline)
11
International Olympic Committee
12
13
http://www.wada-ama.org/en/About-WADA/History/WADA-
History/
14
Matched funding stood at only 16% in 2003 but had risen to
100% by 2008 see http://www.wada-ama.org/en/About-WADA/
History/WADA-History/
15
Fahey J. President of WADA at http://www.wada-
ama.org/Documents/News_Center/Speeches_Presentations/2012/

2012-02-07-
WADA-Media-Symposium-President-Speech.pdf; Lausanne, Feb
7
th
2012
16
The system which requires athletes to submit their location for
one hour each day up to three months in advance.
17
The term athlete will be used throughout this paper to refer to a
sports participant.
18
Their role is aided by the fact that it is a condition of inclusion
in the Olympic Games that any sport is compliant with the
Code.
19 Korda v ITF Ltd (t/a the International Tennis Federation)
The Times 4 February 1999
The Times 4 February 1999 at p8 of unrecorded transcript
The Times 4 February 1999 at p7 of unrecorded transcript
22 The World Anti-Doping Code (2009), The World Anti-
Doping Agency, Montreal, Canada, Comment to article 2.1.1
23 Gasser v Stinson (1988), QBD, Unreported
24 Gasser v Stinson (1988), QBD, Unreported. Citing with
approval arguments put forward by Holt, (then IAAF General
Secretary) at p26 unreported transcript
25
This may of course be a laudable policy where the substance is
indeed a performance enhancing one but the reasoning is more

questionable where the substance ingested inadvertently is not
one which will enhance performance, (see Amos, A., &
Fridman, S., (2009): “Drugs in sport: the legal issues”, Sport in
Society: Cultures, Commerce, Media, Politics, 12:3, 356–374
p362
26 Arbitration CAS 94/129 USA Shooting & Q./Union
Internationale de Tir (UIT), award of 23 May 1995. At paras
15–16
27
Now Lord Coe
28
Coe, S., “We cannot move from strict liability rule”, Daily
Telegraph, 25 February 2004
29
For example, Scottish skier, Alain Baxter lost his Olympic
bronze medal following a positive test for a banned stimulant at
the
2002 Winter Olympics despite the CAS acknowledging that he
had made no attempt to cheat whatsoever and that the positive
test was the result of inadvertent consumption of the banned
substance in a Vicks nasal spray taken to relieve congestion.
See
http://www.ukad.org.uk/resources/video/alain-baxter;
http://tinyurl.com/7mjdclk; last accessed 18th March 2012.
30 The World Anti-Doping Code (2009), The World Anti-
Doping Agency, Montreal, Canada article 3.2.1
31
Discussed in more detail later

32
Article 10.5.1 WADC 2009
33
Article 10.5.2 WADC 2009
34 Kicker Vencill v USADA CAS 2003/A/484
35
CAS 2006/A/1067 IRB v Keyter
36
No fault or negligence
37
No significant fault or negligence
38
http://www.wada-ama.org/en/Science-Medicine/Prohibited-
List/QA-on-2012-Prohibited-List/# (last accessed 18th March
2012)
39
Article 10.4 WADC 2009
40
These may be where an athlete has interfered with or
manipulated their sample but technically have not failed a test
or where
an athlete has tested with no apparent failure. (See McLaren, R.,
An Overview of Non-Analytical Positive & Circumstantial
Evidence Cases in Sports, 16 Marq. Sports. L. Rev. 193 (2006)
41
This consisted of an attempt to create the world’s fastest human
being through the provision of a new artificial steroid, (THG).

This presented a particular problem as there existed no test to
detect this newly created drug and with no test, could come
no failure.
42 U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION
ASS’N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10,
2004).
43
The International Amateur Athletic Federation, (IAAF)
44
IAAF 2004 rules 33.2, 38.9 cited in U.S. Anti-Doping Agency
v. Collins, AM. ARBITRATION ASS’N No. 30 190 00658 04
(N. Am.
CAS Panel Dec. 10, 2004). At para 3.3
118
Peter Charlish
45
WADC article 3.1
46 U.S. Anti-Doping Agency v. Collins, AM. ARBITRATION
ASS’N No. 30 190 00658 04 (N. Am. CAS Panel Dec. 10,
2004). At para
3.4.
47
World Anti-Doping Agency, WADC 2009 article 3.1
48
The CAS is based in Lausanne in Switzerland and is therefore

subject to Swiss Law. The SFT acts as the final Court of Appeal
for decisions of the CAS.
49
See Tribunal fédéral [TF] [Federal Tribunal] Feb. 10, 2010,
4A_612/2009 (Switz.), 6.3.2.
50
http://www.utexas.edu/cola/progs/plan2/_files/pdf/worthington/
dawer08.pdf (last accessed 25th March 2012)
51
http://www.utexas.edu/cola/progs/plan2/_files/pdf/worthington/
dawer08.pdf. At p2, (last accessed 25th March 2012)
52
Straubel M. “Doping Due Process: A Critique of the Doping
Control Process in International Sport”, 106 Dick. L. Rev.
523*569
53
Straubel M. “Doping Due Process: A Critique of the Doping
Control Process in International Sport”, 106 Dick. L. Rev.
523*569–570
54
See WADA & Interpol cooperation as per
http://www.interpol.int/News-and-media/News-media-
releases/2009/PR006 (last
accessed 29th March 2012) and the memorandum of
understanding concerning information gathering signed by
United
Kingdom Anti-Doping, (UKAD) and The Serious Organised
Crime Agency as per

http://www.legislation.gov.uk/uksi/2010/1955/
pdfs/uksiem_20101955_en.pdf (last accessed 29th March 2012)
55
That of comfortable satisfaction
56
World Anti-Doping Agency, WADC 2009 article 7.5
57
An A sample and a B sample are always taken from an athlete,
the urine sample is divided into two different sealed containers,
(A & B). An athlete has the right to have both theoretically
identical samples tested before a conclusive finding of guilt can
be
established.
58
World Anti-Doping Agency, WADC 2009 article 7.5.1
59
World Anti-Doping Agency, WADC 2009 article 14.2.1
60
http://www.guardian.co.uk/sport/2012/feb/06/alberto-contador-
case-chronology; (last accessed 29th March 2012)
61 United States Anti Doping Agency v Gaines CAS
2004/O/649
2004/O/649 at p13
2004/O/649 at p15
64
It is beyond the remit of this note to go into detail on the

compatibility of anti-doping measures with the HRA. It will
therefore
only address the principle of strict liability, the foundation of
the WADC in this context. For a wide ranging analysis of the
com-
patibility of the WADC with Human Rights see Kaufmann-
Kohler, G., Rigozzi, A., and Malinverni, G., “Doping and
fundamental
rights of athletes: comments in the wake of the adoption of the
World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67.
65
World Anti-Doping Agency “Fundamental Rationale For The
World Anti-Doping Code”, World Anti-Doping Code, 2009,
Montreal, Canada.
66
Article 18 specifically refers to Education
67
World Anti-Doping Agency, articles 18.1 & 18.2, World Anti-
Doping Code, 2009, Montreal, Canada
68
Arbitration CAS 2005/A/847 Hans Knauss v. FIS, award of 20
July 2005, at para 32
69
CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick
Zuijkerbuijk at para 77
70
The doctrine of restraint of trade is based on principles of
proportionality
71

72
http://www.iilj.org/GAL/documents/Lang.pdf
73 Krabbe v IAAF et al, Decision of the LG Munich 17th May
1995, SpuRt, 1995, p161, p167
74 Krabbe v IAAF et al, Decision of the OLG Munich 28th
March 1996, SpuRt, 1996, p133, p138
75
Two years for a first offence
76
Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping
and fundamental rights of athletes: comments in the wake of the
adoption of the World Anti-Doping Code”, I.S.L.R. 2003,
3(Aug), 39–67 *61
77
Quite clearly here sanctions imposed as a result of doping
violations do restrict fundamental rights.
78
Claude Rouiller, “Legal Opinion – WADA Code”, October 2005
at p30, located at http://www.wada-ama.org/Documents/
World_Anti-Doping_Program/WADP-
Legal_Library/Advisory_and_Legal_Opinions/Article_10_2_W
ADC_Swiss_Law.pdf
79
Arbitration CAS 2005/A/847 Hans Knauss v. FIS, award of 20
July 2005, paras 29–30
80

81
British shot-putter Carl Fletcher was recently banned for a
period of 4 years in addition to receiving a prison sentence for
traf-
ficking drugs. See http://tinyurl.com/czhz68r last accessed 31st
March 2012
82
Kaufmann-Kohler G., Rigozzi A., and Malinverni G., “Legal
Opinion on the Conformity of Certain Provisions of the Draft
World Anti-Doping Code with Commonly Accepted Principles
of International Law”, 26 February 2003
83
S6(1) Human Rights Act 1998
84
S6(3) Human Rights Act 1998
85
Then the Governing Body of Horseracing in the United
Kingdom
119
Drugs in Sport
86
See House of Commons Hansard Debates, May 20, 1998,
http://tinyurl.com/6wapjzs, at col. 1020
87 R v Disciplinary Committee of the Jockey Club ex parte Aga

Khan [1993] 1 WLR 90
88
http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrig
hts/39/39.pdf (last accessed 2nd April 2012)
89
Oliver, D., “Human Rights and the Private Sphere”, UCL
Human Rights Review, vol. 1, no. 1, 2008 pp. 8–16
90
International Olympic Committee, “Olympic Charter”, 2011,
p10, para 4, Lausanne, Switzerland.
91
Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping
and fundamental rights of athletes: comments in the wake of the
adoption of the World Anti-Doping Code”, I.S.L.R. 2003,
3(Aug), 39–67*49
92
Article 6(2), ECHR, Right to a fair trial, and specifically the
presumption of innocence, which is incorporated into UK law
by
virtue of section 1 of the HRA 1998
93 Gasser v Stinson (1988), QBD, Unreported
94
For example s5, Road Traffic Act 1998, (in relation to driving
with excess alcohol) and s92(5) Trademarks Act 1994, (in
relation
to possession of counterfeit goods) both create offences of strict
liability.
95 Attorney General’s Reference No 4 of 2002 (On Appeal from
the Court of Appeal (Criminal Division)) Sheldrake
(Respondent)

v. Director of Public Prosecutions (Appellant) (Criminal Appeal
from Her Majesty’s High Court of Justice) (Conjoined Appeals)
[2004] U.K.H.L. 43, [2005] 1 A.C. 264
96 Salabiaku v France (1988) 13 EHRR 379
97 Salabiaku v France (1988) 13 EHRR 379 at para 27
98 Salabiaku v France (1988) 13 EHRR 379 at para 28
99
Article 10.4 Elimination or Reduction of the Period of
Ineligibility for Specified Substances under Specific
Circumstances;
Article 10.5 Elimination or Reduction of Period of Ineligibility
Based on Exceptional Circumstances;
100 Strict liability
101
Article 8 Right to Respect for Private and Family Life ECHR
102
Anti-Doping Administration and Management System, see
http://www.ukad.org.uk/athletes/my-adams/;
http://tinyurl.com/ctfjvn9
(last accessed 2
nd
April 2012)
103
http://news.bbc.co.uk/sport1/hi/front_page/7844918.stm (last
accessed 2
nd
April 2012)
104

The BOA are responsible for selecting the British Olympic
Team
105
The rule stated that any athlete who had been banned for a
period of more than six months for a doping violation was auto-
matically prohibited from the next Olympic Games
106
http://tinyurl.com/6d4hf8o (last accessed 2
nd
April 2012)
107
On April 30
th
2012 the CAS ruled that the BOA By Law was not in
compliance with the WADC, stating clearly that the
By Law was a doping sanction and not an eligibility criteria:
http://www.tas-
cas.org/d2wfiles/document/5878/5048/0/Media20
Release20BOA20WADA20final.pdf
Biography
Peter Charlish, Principal Lecturer in Law, BA(Hons), PGCE,
MA(Law), MPhil at Sheffield Hallam University. My
thanks go in particular to my colleagues Sam Burton, Dr
Miroslav Baros and Dr Stephen Riley for their help and

advice in the writing of this paper. All errors remain my own.
120
Peter Charlish
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Reducing Traumatic Brain Injuries in Youth Sports:
Youth Sports Traumatic Brain Injury State Laws,
January 2009–December 2012
Hosea H. Harvey, JD, PhD
Since the beginning of 2011, 35 US states and
Washington, DC, passed legislation designed to
reduce the overall impact of traumatic brain
injuries (TBIs) among young athletes—bringing
the total number of states that have done so
since 2009 to 44 (45 including Washington,
DC). Given the pace of lawmaking in this area
(hereinafter “youth sports TBI laws”), it is an
optimal time to compare the content of these
laws with current scientific consensus regarding

symptoms, impact, and treatment of youth TBIs.
There is consensus about basic TBI epide-
miology, at least with respect to short-term
causes and consequences. A TBI is an injury
caused by a blow to the head or rapid accel-
eration---deceleration forces, and such an injury
may lead to decreased levels of consciousness,
amnesia, neurologic or neuropsychological ab-
normalities, or other consequences including
death.1 Symptoms and effects of TBIs are wide
ranging, from mild headaches to memory loss
and significant neurologic deficits.2 There is no
agreed-upon TBI diagnostic metric, and there
are no uniform national TBI reporting pro-
tocols.3 In athletics, individuals who suffer
a TBI and resume play too soon may be at
greater risk of re-injury. This re-injury could
result in second-impact syndrome, which may
have serious health consequences, although
there is still much to learn about scope of the
phenomenon and its consequences.4
Although TBIs can result from many activ-
ities, sports activities cause an estimated 20%
of all TBIs among youths and young adults.5
Children and young teenagers are at the
greatest risk of TBIs,6 and TBIs in these popu-
lations take longer to heal in part because
youths’ brains are still growing and develop-
ing.7 Sports activities account for an estimated
300 000 TBIs per year.8 There is an upward
trend in emergency room visits for TBIs across
all demographics, although whether this is
a result of increased awareness of TBIs or an

overall rise in injury rates is not certain.9
No state comprehensively tracks TBI data
(by state, by age, by sport),10,11 and, therefore,
estimates about the scope of the problem vary
widely. Finally, because (as of yet) there have
been no longitudinal cohort studies that eval-
uate long-term health outcomes by following
athletes with and without TBIs over a multi-
decade span, it is impossible to precisely de-
termine the causal relationship, if any, between
youth-sports injuries and subsequent early
onset dementia that has been observed in
former professional athletes.12
Despite uncertainty about the best approach
to TBI reduction, many sport-specific strategies
have been proposed to reduce TBIs in sports.
These include changes in equipment, sports
rules, or the times and locations in which sports
are played.13 Both the National Football
League14 and the National Hockey League
have changed rules with the explicit intent of
reducing TBIs.15 At the collegiate level, the
National Collegiate Athletic Association has
partnered with the Centers for Disease Control
and Prevention (CDC) to promote TBI pre-
vention and best practices.16 In youth sports,
similar efforts are underway to establish clear
guidelines and recommendations for various
sports.17 Most recently, Pop Warner (an um-
brella organization for youth football, cheer,
and dance programs in 42 states) created
new standards to limit contact during football

practice and heighten TBI awareness among
its participants.18 Despite these efforts by
professional, collegiate, and youth sports
organizations, during recent years, state-wide
legislation has become an increasingly com-
mon approach to achieving a reduction in
instances of TBIs in youth populations.
The proliferation of youth sports TBI laws
within the past few years had its genesis in
a single galvanizing event. In 2006, Zackery
Lystedt, a 13-year-old middle-school student,
suffered a severe head injury during a football
game after returning to play following a con-
cussion that was not properly diagnosed.19
Public attention to his injury and vigorous
support for his recovery led in April 2009 to
Objectives. I sought to describe current state-wide youth sports
traumatic
brain injury (TBI) laws and their relationship to prevailing
scientific understand-
ings of youth TBIs, and to facilitate further research by creating
an open-source
data set of current laws.
Methods. I used Westlaw and Lexis-Nexis databases to create a
50-state data
set of youth sports TBI laws enacted between January 2009 and
December 2012.

I collected and coded the text and citations of each law and
developed a protocol
and codebook to facilitate future research.
Results. Forty-four states and Washington, DC, have passed
youth sports TBI
laws since 2009. No state’s youth sports TBI law focuses on
primary prevention.
Instead, such laws focus on (1) increasing coaches’ and parents’
ability to
identify and respond to TBIs and (2) reducing the immediate
risk of multiple TBIs.
Conclusions. Existing youth sports TBI laws were not designed
to reduce
initial TBIs. Evaluation is required to assess their effectiveness
in reducing the
risk and consequences of multiple TBIs. Continued research and
evaluation of
existing laws will be needed to develop a more comprehensive
youth TBI-
reduction solution. (Am J Public Health. Published online ahead
of print May 16,
2013: e1–e6. doi:10.2105/AJPH.2012.301107)
RESEARCH AND PRACTICE

Published online ahead of print May 16, 2013 | American
Journal of Public Health Harvey | Peer Reviewed | Research and
Practice | e1
the passage of Washington State’s Zackery
Lystedt Law, the first law that attempted to set
general guidelines and standards involving the
identification and reduction of TBIs in youth
sports.20 The Lystedt law was organized
around 3 core elements: (1) annual education
of athletes and parents, (2) the mandatory
removal from play of athletes suspected of
having concussions, and (3) clearance by
a designated health professional before a
concussed athlete returned to play.
In this article, I comprehensively describe the
state of youth sports TBI laws now that all but
a few states have enacted such laws. I describe
the specific features of youth sports TBI laws,
postulate their consequences in implementation,
and provide guidance for whom those interested
in the ostensible goals of such laws can begin to
determine whether these laws will significantly
reduce youth TBIs. To facilitate future empirical
evaluation of these laws, I conducted and eval-
uated legal research in accord with scientific prin-
ciples of transparency and reproducibility,21 and
the data for this article is embodied in an open-
source protocol, code book, and data set available
on the Internet (http://lawatlas.org/welcome).
METHODS

Research for this article followed the legal
research methods described by Ibrahim et al.21
I conducted a comprehensive survey of youth
sports TBI laws enacted between 2009 and
2012. I used LexisNexis and Westlaw to search
for current laws (in all 50 states and Washington,
DC) that attempted to reduce the risk of TBIs in
youth sports. The search terms included “con-
cussions state law,” “concussions and youth
sports,” “concussion guidelines,” “traumatic brain
injury and school sports,” and “student sports
concussion.” To verify the search results, I made
comparisons between the data that were col-
lected and publicly available tables of state TBI
laws compiled by third-party organizations. Be-
cause the research focused on identifying laws
explicitly addressing youth sports TBIs after
passage of the Lystedt Law, I excluded broader
youth public health laws as well as laws that
indirectly addressed head injuries outside the
context of organized youth sports, such as
seat-belt laws or bicycle helmet laws. I did not
attempt to gather or analyze other competing
TBI-reduction mechanisms that may have been
directly implemented by local governments, school
districts, sport governing bodies, sport accrediting
bodies, private youth leagues, and others.
After I collected the full text of each state’s
youth sports TBI law, I completed an initial
review to determine and define a list of vari-
ables for which each law would be coded.
Three law students coded the laws, and peri-
odically revised the initial list of variables as

more laws were enacted during 2011 and
2012. The final list of variables included
dichotomous, continuous, or categorical vari-
ables, including types of sports covered, age of
target population, public or private school dis-
tinctions, liability waivers, mandatory reporting,
scope of athlete’s removal after a suspected TBI,
requirements for athlete post-TBI clearance, and
mandatory education for athletes, parents, and
coaches. To ensure intercoder reliability, each
student coded all laws separately. Rates of
divergence were minimal, and I resolved any
divergence through adjudication. After the law
students completed the coding, I reviewed and
revised the codebook and protocol to ensure
continuity and include instructions on how to
collect TBI-reduction laws, how to code such
laws, how to recode or create new variables, and
how to conduct reliability tests when necessary.
The full data set, codebook, and protocol are
available at the Public Health Law Research
Policy Surveillance Web Portal.22
RESULTS
Between 2009 and 2012, 44 states (and
Washington, DC) enacted 1 or more youth sports
TBI laws. Six states have no youth sports TBI
laws, although, at the time of this writing, the pace
of legislative developments suggests that this
number may change throughout 2013. The pace
of legislative development has quickened since
the initial 2009 legislation. Thirty-five states and
Washington, DC, enacted such laws between
January 1, 2011, and December 31, 2012.
There are no states that have banned traditional

youth sports with high TBI risks or that have set
out legal regimens attempting to govern sports
play by legislation or regulatory oversight.
Scope of the Laws
Youth sports TBI laws vary little in their
substance. The most common elements of such
laws include a minimum 24-hour mandatory
removal from play of young athletes suspected
of having a TBI, requiring assessment from
a health professional before an athlete’s return
to play, coach training in concussion manage-
ment, yearly information sheets for parents, and
exculpatory clauses waiving liability for certain
parties. Key features across all such laws include
a focus on secondary, not primary prevention—
and a general adherence to the Lystedt framework.
The Lystedt framework features 3 prongs of
secondary-level intervention: a young athlete’s
removal after an initial TBI, evaluation of such
athlete by a designated health professional, and
distribution of concussion information to key
constituents. In Table 1, state laws are compared
by reference to their most common elements
and those of the Lystedt framework. As the
results indicate, states that have passed youth
sports TBI laws have conformed to a similar
model with minimal policy experimentation.
Each component of the Lystedt framework is
further described in the next paragraphs.
Removal from play. Forty-one states and
Washington, DC, have youth sports TBI laws

that require coaches and teams to remove
young athletes from play if they are suspected
of having suffered a TBI, and all of those states
but Wisconsin and Ohio require removal for
a minimum of 24 hours. The states that have
such a minimum time-length removal require-
ment do not substantively vary in their ap-
proach, which is based on the Lystedt frame-
work. Accordingly, only Delaware mandates
a removal time beyond 24 hours, although the
accompanying health evaluation and clearance
provisions in other states may effectively create
a longer minimum removal provision by default.
Evaluation and clearance to play. Forty states
and Washington, DC, have youth sports TBI
laws that require a young athlete to be cleared
by a third party before returning to play. All
but 1 of the “removal from play” provisions are
coupled with this mandatory evaluative or
clearance component. Clearance must be pro-
vided by an individual who meets 1 of poten-
tially several different “health professional”
categories. These laws assign clearance re-
sponsibility by explicit descriptions of permit-
ted health professional roles or titles, such as
certified athletic trainer, health professional
certified with experience in concussion man-
agement, physician, physician trained in con-
cussion management, nurse, or neuropsychologist.
e2 | Research and Practice | Peer Reviewed | Harvey American
Journal of Public Health | Published online ahead of print May
16, 2013

http://lawatlas.org/welcome
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C
on
tin
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d
Practice | e3
Across the states with such laws, there is no
general consensus regarding why a particular
health professional should perform this func-
tion or whether one type of professional is
more preferred than another. For example,
some states define “health professional” to
include individuals who do not have
TBI-specific training. Others require that such
professionals must be medical specialists of
some kind such as licensed physicians (with or
without TBI training). Still other states permit
neuropsychologists to provide clearance. Ath-
letic trainers and nurses (who can also be
specialists in many areas) are included in some
clearance provisions but not others. In fact, of
the states that require clearance by a health
professional, only 26 of the 45 jurisdictions
with such laws require that such a health pro-
fessional be trained in TBI identification or
management. It is unclear why the remaining
states did not adopt such a provision.

Information distribution. The third most com-
mon element in such laws, present in 33 states
and Washington, DC, totaling 34 of 45 such
jurisdictions, is that some form of TBI information
be annually distributed to parents and student
athletes and (coupled with such a distribution)
that parents or guardians provide a signature
release that they have received the information.
The substance of such education and the form’s
language are not specified in the laws, although
the CDC’s well-disseminated materials have been
explicitly mentioned in some laws as an initial
guidepost for creating such educational materials.
No Consensus on Coach Training and
Liability Waivers
Of the 45 jurisdictions that have such laws,
only 25 explicitly require coach education in
recognizing the symptoms of TBIs in youth
sports, and the training requirements range from
annually to several years. Although a few states,
such as Michigan, provide general guidelines
regarding the broad contours of a training pro-
gram or methods of distributing training mate-
rials, none of the laws studied here define exactly
how such coach education efforts should be
constructed, delegating the function to third
parties such as school boards, athletic associa-
tions, or departments of health. However, in
many of these states, coaches may be subject
to TBI education requirements mandated by
their voluntary membership associations or

athletic governing bodies, which can be more
rigorous than the state-mandated requirements.
For states that require training, only 5 explicitly
require prospective evaluation of the efficacy of
the coach education or information requirements
that the laws authorize or mandate.
Finally, 16 states have some form of liability
limitation or exculpatory provision as part of
their youth sports TBI laws, but the remaining
29 jurisdictions have no such provisions in
their youth sports TBI laws. An exculpatory
provision provides a form of legal immunity in
states where athletes and families might sue
health professionals, schools, and coaches as
a result of their actions or inactions pertaining
to youth sports injuries suffered following
enactment of the state’s youth sports TBI law.
In the 16 states with such provisions, various
professionals who may play a role in identify-
ing TBIs or clearing an athlete to return to play
following a suspected or actual TBI are given
some form of liability protection from lawsuits
filed by athletes, their families, and others who
might sue for damages on the basis of
TBI-related events. Although the provisions
vary with respect to protected parties (schools,
health care professionals, others), a typical
provision provides that a protected party “shall
be immune from civil liability for good faith
conduct arising from or pertaining to the injury
or death of a student-athlete” if the party
provides some proof that the conduct was in
compliance with the law and “local school
board policies relative to the management of
concussions and head injuries.”23(p2)

DISCUSSION
State legislatures across the United States are
responding to increasing public awareness of
youth sports TBIs by passing legislation that
aims to improve identification and manage-
ment of TBIs occurring in youth sports. The
President of the United States has expressed
doubts about the safety of youth football.24
Legislation is unfolding as clinicians, epidemi-
ologists, public health organizations, and sports
authorities are also working to better under-
stand and prevent TBIs. In this dynamic envi-
ronment, with public health law interacting
with politics, youth sports culture, and an array
of public and private interest groups interested
in youth TBI policy, questions still remain
TA
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—
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o
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SD

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T
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X
X
X
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X
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X

X
X
X
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A
X
X
X
X
X
X
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I
X
X
X
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X
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Y
X
X

X
To
ta
l
42
26
40
25
34
16
7
9
4
5
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ot
e.
RT
P
=
re
tu
rn
to
pl
ay
;
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I=
tr
au
m
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ic
br
ai
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.
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“X
”
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ca
te
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or

ts
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a
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th
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.
e4 | Research and Practice | Peer Reviewed | Harvey American
Journal of Public Health | Published online ahead of print May
16, 2013
regarding the fit between these state-level
legislative mandates and current public health
knowledge and practice.
Most state laws establish a minimum
24-hour period of athlete removal, but there is
still no scientific agreement about the optimal
removal time frame for any individual who
suffers a sports-related TBI. An influential
study of National Collegiate Athletic Associa-
tion athletes found that recovery can come as
early as 24 hours and that, by 7 days later,
91% of athletes suffering TBIs had recovered. 25
However, it is not clear that a 24-hour mini-
mum standard derived from observation of
college athletes is an appropriate standard for
youth athletes. Furthermore, in states that per-
mit the return-to-play decision to be made by
a nonphysician, the risk of premature return
may be increased, although there has been no

evaluation of such concerns.
State laws diverge regarding who is qualified
to provide medical clearance and which met-
rics are appropriate for making such decision.
For example, some suggest that athletic trainers
could have a conflict of interest when returning
the player to the active roster would benefit the
team, but whether this influences clearance
decisions in practice is unknown and empirical
evidence may suggest otherwise.26 With respect
to methods of evaluation, there is no profes-
sional consensus regarding the best standard
diagnostic procedure or metric for TBIs, or the
professional qualifications required to make the
decision that an athlete is able to return to play.
Furthermore, should such an agreed best TBI
diagnostic metric or clinical best practice
emerge, legislation may need to be changed to
adopt it and include the appropriate professional
qualifications for those who provide clearance
by using such techniques. Finally, since 19
jurisdictions with such laws do not require the
clearance be provided by an individual with
TBI-specific training, it is unclear how those who
lack TBI-specific training can be expected to
provide an authoritative evaluation of when TBI
symptoms have decreased enough to allow a
youth athlete’s safe reentry into sports activity.
Another key area of uncertainty across youth
sports TBI laws involves the common educa-
tional components for parents and athletes and
the less frequently required education for
coaches. Although the CDC has created broad
guidance, the fidelity of state and local

informational materials to CDC guidance is
currently unknown. Instead, with respect to the
parents’ and athletes’ educational components of
these laws, most states have delegated this in-
formation content and distribution to a state
agency or local school board. South Dakota, for
example, specifies that the state’s high-school
athletic conference and its Department of Edu-
cation “shall develop guidelines to inform and
educate member schools, coaches, athletes, and
the parents or guardians of athletes, of the nature
and risk of concussion.”27(p1) With respect to
coaches, there is further divergence in the appro-
priate educational components and how such
components should be best utilized by coaches to
increase their ability to identify and prevent TBIs.
The “education” components of these laws
thus present a number of important issues for
implementers and researchers. First, the efficacy
of education and consent in helping parents
prevent, identify, and respond to TBIs in this
context is unknown. Second, the content of the
required education is in most cases not specified
in the laws—thus allowing for wide variance in
implementation and standardization of such
materials. Third, there is divergence between the
education requirements among key stake-
holders (e.g., parents vs coaches), which may
produce inconsistent responses to potential TBI
events. Fourth, as some training materials al-
ready exist, the value proposition for each state
to create standards from scratch remains un-
certain. Finally, some coaches may already re-
ceive substantial training through membership

athletic associations and other nongovernment
entities, but the laws do not contemplate the
integration of such education into a more uni-
form education approach among stakeholders
such as coaches, parents, athletes, and schools.
Youth sports TBI laws also differ in their
approach to liability waivers. At present, there is
no basis in evidence for assessing whether
liability waivers positively or negatively influ-
ence the identification and management of TBIs.
Two thirds of states with youth sports TBI laws
do not provide liability waivers, thus leaving
those that do divided regarding the various
individuals and organizations that are immu-
nized and the circumstances under which im-
munity attaches. This may raise legal questions;
contests may involve athletes from different
states or take place outside of one state’s
jurisdiction under a different set of liability rules.
Uniformity and Avoidance
Finally, it is important to note that youth sports
TBI laws have generally taken a 1-size-fits-all
approach. There may be many reasons for this,28
but, nonetheless, the laws do not incorporate
scientific consensus that youth concussions vary
on the basis of age, the type of sport, and whether
the athlete is male or female.29 In the future, there
may be value in legislation that addresses orga-
nized sports risks in a more specific manner. For
example, because a significant proportion of TBIs
suffered by female youth student-athletes occur
in soccer and cheerleading, more narrowly or finely

tailored laws might direct state officials to in-
volve soccer or cheerleading sport-specific associa-
tions in the development of TBI identification and
treatment guidelines. Or, because most male youth
student-athlete TBIs occur in soccer and football,
such laws could heighten sport-specific TBI re-
duction techniques particular to those sports.
Youth sports TBI laws also avoid a variety of
other areas of uncertainty. For example, no youth
sports TBI laws attempt to directly regulate the
content of sports activity—for example, banning
certain types of maneuvers or prohibiting certain
types of contact. No youth sports TBI laws
explicitly require data collection and analysis of
all youth sports TBI events—whether at the ag-
gregate, school district, or individual level. And,
although morbidity and mortality are commonly
associated with all types of TBIs in children,30 re-
forms in youth sports TBI laws do not directly
address the study of morbidity and mortality with
respect to youth TBIs developed outside of athle-
tics and compare interventions for those TBIs with
ones that might be appropriate in youth sports.
Therefore, youth sports TBI laws enacted to
date are only part of a comprehensive youth
sports TBI-prevention framework. Other inter-
ventions could include changing sports rules and
culture, utilizing advanced equipment technology
to absorb impact, changing player or coach in-
centives to ignore TBIs to win contests,31 and
identifying the best education programming. Each
of these efforts is individually challenging, as is
coordinating these changes at local, state, and
national levels. The legislative response to TBIs

has been rapid, but it remains a work in progress.
Conclusions
Since 2009, 44 states and Washington, DC,
have enacted youth sports TBI laws aimed at
increasing awareness or preventing repeat injury
Practice | e5
or both. The laws reflect a uniform, but not
scientifically proven, consensus about the mini-
mum time a young athlete should refrain from
reentering youth sports activities, and the laws
also exhibit divergence regarding what type of
health professional is best qualified to make the
decision that an athlete is able to return. These
laws also rely on parent and coach education for
TBI reduction, but the content and delivery of
such education is not generally specified in the
laws, is delegated to varied state agencies to
implement, and has not been uniformly vali-
dated for efficacy. Despite the rapid pace of
legislation, and the widespread adoption of the
Lystedt approach, we are at the very beginning
of the process of developing legal and nonlegal
interventions to reducing TBIs in youth sports.
Going forward, interested parties must ask
whether any such laws will substantially reduce

TBIs in youth sports. Ideally, a range of primary
and secondary prevention interventions, legal and
nonlegal, would be applied in an evidence-in-
formed and coordinated way. But there remain
many questions about preventing TBIs that will
have to be answered. There are economic and
cultural barriers to any substantial changes in
popular sports rules or techniques of play. And,
legal focus on secondary or tertiary prevention
may take some attention away from the harder
changes entailed in preventing TBIs in the first
place. If so, one may be concerned that the pas-
sage of laws described herein reduces the impetus
for other, possibly more effective, interventions.
This study contributes to the debate by defining
the key components of state-level youth sports
TBI laws and contributes to the evaluation of such
laws by creating a comprehensive data set of
recently enacted state provisions. As we move
forward, rigorous evaluation of legal and nonlegal
interventions, and comparison of the effectiveness
of the various legal approaches, will help guide
us toward even more effective measures. j
About the Authors
Hosea H. Harvey is with Temple University, Beasley School
of Law, Philadelphia, PA.
Correspondence should be sent to Hosea H. Harvey,
1719 N Broad St, Temple University Beasley School of
Law, Philadelphia, PA 19122. Reprints can be ordered at
http://www.ajph.org by clicking the “Reprints” link.
This article was accepted October 9, 2012.
Acknowledgments
The author thanks the Robert Wood Johnson Foundation

and the Center for Health Law, Policy, and Practice at
Temple University for research support.
The author also thanks Evan Anderson, Scott Burris,
Shawneequa Callier, Rebecca Cole, Kerry Lowrey, and
anonymous reviewers for helpful comments on earlier
drafts. The author especially thanks Shilpa Kadoo, Stephanie
Kammer, and Nikos Kaplanov for excellent research assistance.
Human Participant Protection
Institutional review board approval was not needed for
this article because no human participants were involved.
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