Upload
grady
View
27
Download
0
Tags:
Embed Size (px)
DESCRIPTION
THE WORLD ANTIDOPING CODE: DOES THE END JUSTIFY THE MEANS?. By Prof. Avv. Michele Colucci European College of Parma (Italy) – Tilburg University(The Netherlands) Website: www.colucci.eu - Email: [email protected]. WADA Structure. STRUCTURE Foundation Board Executive Committee - PowerPoint PPT Presentation
Citation preview
11
THE WORLD ANTIDOPING CODE:THE WORLD ANTIDOPING CODE:DOES THE END JUSTIFY THE MEANS?DOES THE END JUSTIFY THE MEANS?
By By Prof. Avv. Michele ColucciProf. Avv. Michele Colucci
European College of Parma (Italy) – European College of Parma (Italy) – Tilburg University(The Netherlands)Tilburg University(The Netherlands)Website: Website: www.colucci.euwww.colucci.eu - Email: - Email:
[email protected]@colucci.eu
22
WADAWADAStructureStructure
• STRUCTURESTRUCTURE
• Foundation BoardFoundation Board
• Executive CommitteeExecutive Committee
• Athlete CommitteeAthlete Committee
• Education CommitteeEducation Committee
• Medical & Research CommitteeMedical & Research Committee
• TUE Working CommitteeTUE Working Committee
33
WADAWADAFoundation Board and Foundation Board and Executive CommitteeExecutive Committee
• Foundation BoardFoundation Board– 38 members38 members– Representatives from the Olympic Representatives from the Olympic
Movement and governments Movement and governments – WADA’s supreme decision-making bodyWADA’s supreme decision-making body
• EXecutive CommitteeEXecutive Committee– 10 Members (5 sports movement + 5 10 Members (5 sports movement + 5
governments)governments)
44
WADAWADAGOALSGOALS
• TO PROMOTE, TO PROMOTE,
• TO COORDINATE,TO COORDINATE,
• TO MONITOR...THE FIGHT AGAINST TO MONITOR...THE FIGHT AGAINST DOPINGDOPING
55
WADA WADA PRIORITIESPRIORITIES
• Code Compliance MonitoringCode Compliance Monitoring
• Co-operation with Law EnforcementCo-operation with Law Enforcement
• Science & MedicineScience & Medicine
• Anti-doping Co-ordinationAnti-doping Co-ordination
• Anti-Doping DevelopmentAnti-Doping Development
• EducationEducation
66
World Anti-Doping World Anti-Doping ProgramProgram • ““To protect the Athletes’ fundamental To protect the Athletes’ fundamental
right to participate in right to participate in doping-free sportdoping-free sport and thus and thus promote health, fairness, and promote health, fairness, and equality for Athletes worldwideequality for Athletes worldwide; and ; and
• To ensure harmonized, coordinated, and To ensure harmonized, coordinated, and effective anti-doping programs at the effective anti-doping programs at the international and national level with international and national level with regard to detection, deterrence, and regard to detection, deterrence, and prevention of doping.” prevention of doping.”
77
World Anti-Doping World Anti-Doping ProgramProgram
• The World Anti-Doping CodeThe World Anti-Doping Code
• International StandardsInternational Standards
• Models of Best Practice and Models of Best Practice and GuidelinesGuidelines
88
The World Anti-Doping The World Anti-Doping CodeCode• ““A LIVING DOCUMENT”A LIVING DOCUMENT”• ““A framework for anti-doping policies, A framework for anti-doping policies,
rules,and regulations for sport rules,and regulations for sport organizations and public authorities”organizations and public authorities”
• To be implementedTo be implemented– By Sports organizations: By Sports organizations:
• compliance to the CODE (Olympic Charter). compliance to the CODE (Olympic Charter). IF NOT, IF NOT, SANCTIONS!SANCTIONS!
– By Governments: By Governments: • UNESCO CONVENTION (2005) and its ratification UNESCO CONVENTION (2005) and its ratification
99
DEFINITION OF DOPINGDEFINITION OF DOPING
“The occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.8 of the Code”
1010
ANTI-DOPING RULE ANTI-DOPING RULE VIOLATIONSVIOLATIONS
• Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample
• Use or Attempted Use by an Athlete of aProhibited Substance or a Prohibited Method
• Refusing or failing without compelling justification to submit to Sample collection after notification authorized in applicable anti-doping rules, otherwise evading Sample collection
1111
Anti- Doping rule violationsAnti- Doping rule violations
• Violation of applicable requirements regarding Athlete availability for Out-of-Competition Testing, including failure to file required whereabouts information andmissed tests which are declared based on rules which comply with the International Standard for Testing.
• Tampering or Attempted Tampering with any part of Doping Control
• Possession of Prohibited Substances and Prohibited Methods
• Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method
1212
STRICT LIABILITY (art. 2.1.1)STRICT LIABILITY (art. 2.1.1)
“It is each Athlete’s personal duty to ensure thatno Prohibited Substance enters his or her body.Athletes are responsible for any ProhibitedSubstance or its Metabolites or Markers foundto be present in their Samples. Accordingly, it isnot necessary that intent, fault, negligence orknowing Use on the Athlete’s part bedemonstrated in order to establish an antidopingviolation under Article 2.1”
1313
THE INTERNATIONAL THE INTERNATIONAL STANDARDSSTANDARDS
• Prohibited ListProhibited List
• International Standard for TestingInternational Standard for Testing
• International Standard for International Standard for LaboratoriesLaboratories
• International Standard for Therapeutic International Standard for Therapeutic Use ExemptionsUse Exemptions
• International Standard for the International Standard for the Protection of Privacy and Personal Protection of Privacy and Personal InformationInformation
1414
CRITICAL ISSUES UNDER EU CRITICAL ISSUES UNDER EU LAWLAW
• PRIVACY AND DATA PROTECTIONPRIVACY AND DATA PROTECTION
• LABOUR LAWLABOUR LAW
• COMPETITION LAWCOMPETITION LAW
• FREEDOM TO MOVE AND TO FREEDOM TO MOVE AND TO PROVIDE SERVICESPROVIDE SERVICES
1515
International Standard for International Standard for TestingTesting
The “The “WHEREABOUTS”WHEREABOUTS”• Information about “location” of Top Elite Information about “location” of Top Elite
AthletsAthlets
• Who decides about the “ELITE”? The “RTP”Who decides about the “ELITE”? The “RTP”
• Time framework issue: one hour a day Time framework issue: one hour a day from 6 am to 11 pm and 365 days a year!from 6 am to 11 pm and 365 days a year!
• Is that reasonable?Is that reasonable?
• Is that proportionate?Is that proportionate?
• What about EU law?What about EU law?
1616
DIRECTIVE 2003/88/ECon “working time”
• Recital 5 : “All workers should have adequate rest periods. The concept of ‘rest’ must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.
• Art. 1 ‘rest period’: any period which is not working time
• Chapter 2 : Daily rest (11 hours),breaks (cba), weekly rest (24 hours), annual leave (4 weeks)
1717
Protection of Privacy andPersonal Information
DATA PROTECTIONDATA PROTECTION•Create a set of minimum privacy
protections
•Respect of national laws, BUT
•WHAT ABOUT EU LAW?
•The Role of Art. 29 Working Group
1818
Art. 29 Working Group
• Opinion 3/2008 of Opinion 3/2008 of 1 August 20081 August 2008• Code (entry into force: Code (entry into force: 1 January 20091 January 2009))• Second opinion 4/2009 of Second opinion 4/2009 of 6 April 20096 April 2009• International Standard for the Protection of
Privacy and Personal Information (amended and approved by WADA on 9 May 2009)
• European Commission press release on 11 May 2009: “A successful outcome of cooperation between the EU and WADA”
1919
Directive 95/46/EC on Data Directive 95/46/EC on Data ProtectionProtection
• ““Consent”Consent” is is
““any freelyany freely given specific and given specific and informed indication of his wishes by informed indication of his wishes by which the data subject signifies his which the data subject signifies his agreement to personal data relating agreement to personal data relating to him being processed”. (art.2 of to him being processed”. (art.2 of Directive 95/46).Directive 95/46).
2020
Art. 29 working GroupArt. 29 working Group
• Opinion 3/2008:Opinion 3/2008:Art. 6.1 of Standards: the consent Art. 6.1 of Standards: the consent is not free is not free
nor informed!nor informed!Opinion 4/2009:Opinion 4/2009:Art. 6.3.”The sanctions and consequences Art. 6.3.”The sanctions and consequences
attached to a possible refusal by attached to a possible refusal by participants to subject themselves to the participants to subject themselves to the obligations of the Code (whereabouts) obligations of the Code (whereabouts) prevent the WP from considering that the prevent the WP from considering that the consend would be, consend would be, in any way, given in any way, given freely”.freely”.
2121
Art. 29 working GroupArt. 29 working Group
• Processing of Data by ADO if:Processing of Data by ADO if:– Public statusPublic status– National Public interest, BUT...National Public interest, BUT...– CONI (necessity test: interest of the CONI (necessity test: interest of the
controller v. Protection of fundamental controller v. Protection of fundamental rights)rights)
– ““SENSITIVE DATA” SENSITIVE DATA” – DATA ABOUT OFFENCESDATA ABOUT OFFENCES
2222
ADAMSADAMSAnti-doping Administration & Management Anti-doping Administration & Management
SystemSystem
• A web-based data base managementA web-based data base management• Not mandatory in theory, yes in practice (Code)Not mandatory in theory, yes in practice (Code)• Data accessible to ADOs and IF worldwideData accessible to ADOs and IF worldwide• Necessity test : “purpose of the contract”Necessity test : “purpose of the contract”• The retention periods: The retention periods:
– Whereabouts: “up to 18 months” (CODE).Whereabouts: “up to 18 months” (CODE).• WP: justified only in case ofan alleged whereabouts filing failure WP: justified only in case ofan alleged whereabouts filing failure
and/or missing test...and/or missing test...– Test planning, Test results, TUE, records of doping violations Test planning, Test results, TUE, records of doping violations
(up to 8 years)(up to 8 years)• WP: yes for convictions, to retain samples, but not for Test planning WP: yes for convictions, to retain samples, but not for Test planning
or TUE or TUE
• Call for a “more proportionate approach” for doping Call for a “more proportionate approach” for doping violations (See art. 2 of CODE)violations (See art. 2 of CODE)
2323
Art. 29 Workin group Art. 29 Workin group
• Art. 14.2.2:Art. 14.2.2:
• DOPING INFRINGEMENT, SANCTIONS, DOPING INFRINGEMENT, SANCTIONS, AND PUBLIC REPORT...AND PUBLIC REPORT...
• ON ADOs WEB SITEON ADOs WEB SITE
• FOR 1 YEARFOR 1 YEAR
• NO! NECESSITY AND NO! NECESSITY AND PROPORTIONALITYPROPORTIONALITY
2424
EC TREATYEC TREATY
ART. 81 EC: Are incompatible (and void )with the common market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may:
•affect trade between Member States •have as their object or effect the
prevention, restriction or distortion of competition within the common market
2525
ExceptionsExceptions
• Agreements which contributes to improving:– the production or distribution of goods or to promoting
technical or economic progress, while allowing consumers a fair share of the resulting benefit,
• And which does not:(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in questio
2626
ABUSE OF DOMINANT ABUSE OF DOMINANT POSITIONPOSITION
• ART. 82 EC:ART. 82 EC:Any abuse by one or more
undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.
2727
ABUSE OF DOMINANT ABUSE OF DOMINANT POSITIONPOSITION• Such abuse may, in particular, consist in:• (a) directly or indirectly imposing unfair purchase or
selling prices or other unfair trading conditions;• (b) limiting production, markets or technical
development to the prejudice of consumers;• (c) applying dissimilar conditions to equivalent
transactions with other trading parties, thereby placing them at a competitive disadvantage;
• (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2828
Basic Principles of Community Basic Principles of Community LawLaw
• EC law applies to Sport in so far it EC law applies to Sport in so far it constitutes an economic activity (ECJ case constitutes an economic activity (ECJ case law)law)
• No Activities “purely” social, artistic or No Activities “purely” social, artistic or sporting ......sporting ......
• but then “MECA MEDICA” judgement of 18 but then “MECA MEDICA” judgement of 18 July 2006...July 2006...
• Test of “Necessity”Test of “Necessity”
• Test of “Proportionality”Test of “Proportionality”
2929
The Legal Methodology The Legal Methodology in the Meca Medina casein the Meca Medina case• STEP 1STEP 1: Are the EC anti-trust rules, i.e. Articles 81 : Are the EC anti-trust rules, i.e. Articles 81
and/or Art. 82 applicable to Sporting rules?and/or Art. 82 applicable to Sporting rules?• STEP 2STEP 2: If EC anti-trust rules are applicable, does : If EC anti-trust rules are applicable, does
the sporting rule fall outside the prohibition of the sporting rule fall outside the prohibition of Articles 81 (1) and 82?Articles 81 (1) and 82?
• STEP 3: Can the rule be considered compatible STEP 3: Can the rule be considered compatible with EC anti-trust rules because it fulfils the with EC anti-trust rules because it fulfils the conditions of Article 81(3) EC or because of an conditions of Article 81(3) EC or because of an objective justification under Article 82 EC?objective justification under Article 82 EC?
3030
Step 1Step 1
• 1. Is the sports association that adopted the rule in question an “undertaking” or an“association of undertakings”?– a. The sports association is an “undertaking” to the
extent it carries out an “economic activity” itself.– b. The sports association is an “association of
undertakings” if its members carry out an economic activity.
– If no economic activity, Articles 81 and 82 do not apply
– Is trade between MS affected (geographical market, production market, Community interest...)?
3131
STEP 1STEP 1
• Is WADA subject to Art. 81 EC? Is WADA subject to Art. 81 EC?
• WADA or IOC?WADA or IOC?
• ECJ, ECJ, EurocontrolEurocontrol case (March 2009) case (March 2009)
• Economic services v. Regulatory Economic services v. Regulatory activitiesactivities
• MECA MEDINAMECA MEDINA
3232
Step 2Step 2
• Compatibility of rules with the Community rules Compatibility of rules with the Community rules on competition cannot be assessed in the on competition cannot be assessed in the abstract.abstract.
• Taking into account:Taking into account:– “ “the overall context” in which the decision of the the overall context” in which the decision of the
association of undertakings was taken or produces association of undertakings was taken or produces its effects.its effects.
– Its objectives: Its objectives: measures inherent in the pursuit of measures inherent in the pursuit of those objectives and proportionate to themthose objectives and proportionate to them. .
– Proportionality of measures (quid sportive Proportionality of measures (quid sportive sanctions?)sanctions?)
3333
SANCTIONSSANCTIONS Presence of prohibited substances/use or attempted use of prohibited substances:Presence of prohibited substances/use or attempted use of prohibited substances: - 2 years- 2 years Refusing or failing to submit to sample collection/Tampering with Doping Control:Refusing or failing to submit to sample collection/Tampering with Doping Control: - 2 years (CAS: Mannini and Possanzini cqse)- 2 years (CAS: Mannini and Possanzini cqse) Trafficking or Attempted Trafficking/Administration or Attempted Administration of Prohibited Trafficking or Attempted Trafficking/Administration or Attempted Administration of Prohibited
Substance or Prohibited Method:Substance or Prohibited Method: - a minimum of 4 years up to lifetime- a minimum of 4 years up to lifetime Whereabouts Filing Failures and/or Missed Tests:Whereabouts Filing Failures and/or Missed Tests: - minimum 1 year and at maximum 2 year - minimum 1 year and at maximum 2 year Second anti-doping rule violation: Second anti-doping rule violation: - from 4 years to lifetime- from 4 years to lifetime Third anti-doping rule violation: Third anti-doping rule violation: - from 8 years to lifetimefrom 8 years to lifetimeBUT ALSO MORE FLEXIBILITY....in case of co-operation (reprimand and other sanctions)BUT ALSO MORE FLEXIBILITY....in case of co-operation (reprimand and other sanctions)
3434
SANCTIONSSANCTIONS
Art. 10.10.1. No Athlete or other Person Art. 10.10.1. No Athlete or other Person who has been declared Ineligible may, who has been declared Ineligible may, during the period of Ineligibility, during the period of Ineligibility, participate in any capacity in a participate in any capacity in a Competition or activityCompetition or activity (other than (other than authorized anti-doping education or authorized anti-doping education or rehabilitation programs) rehabilitation programs) authorized or authorized or organized by any Signatory…organized by any Signatory…
Comment to Art. 10.10.1:”Comment to Art. 10.10.1:”For example, an ineligible Athlete cannot participate in a training camp, exhibition or practice organized by
his or her National Federation or a club which is a member of that
National Federation.”
3535
Step 3Step 3
• Can the rule be considered Can the rule be considered compatible with EC anti-trust rules compatible with EC anti-trust rules because it fulfils the conditions of because it fulfils the conditions of Article 81(3) EC or because of an Article 81(3) EC or because of an objective justification under Article objective justification under Article 82 EC?82 EC?– Case by case approachCase by case approach– No General sports exception!No General sports exception!
3636
CONCLUSIONCONCLUSION
• Efficiency v. Necessity Efficiency v. Necessity
• Fight against doping v. Protection of Fight against doping v. Protection of fundamental rights...fundamental rights...
FINDING THE RIGHT BALANCEFINDING THE RIGHT BALANCE