1. THE WORLD ANTIDOPING CODE: DOES THE END JUSTIFY THE MEANS?By
Michele Colucci
European College of Parma (Italy) –
Tilburg University(The Netherlands)
Website:

2. WADA Structure STRUCTURE Foundation Board Executive Committee
Athlete Committee
Education Committee
Medical & Research Committee
TUE Working Committee

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

4. WADA GOALS TO PROMOTE, TO COORDINATE,
TO MONITOR...THE FIGHT AGAINST DOPING

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

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

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

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

9. DEFINITION OF DOPING
“The occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.8 of the Code”

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

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

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

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

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

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

16. DIRECTIVE 2003/88/EC on “working time”
Recital 5 : “All workers should have adequate rest periods. The concept of ‘rest’ must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.
Art. 1 ‘rest period’: any period which is not working time
Chapter 2 : Daily rest (11 hours),breaks (cba), weekly rest (24 hours), annual leave (4 weeks)

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

18. Art. 29 Working Group Opinion 3/2008 of 1 August 2008
Code (entry into force: 1 January 2009)
Second opinion 4/2009 of 6 April 2009
International Standard for the Protection of Privacy and Personal Information (amended and approved by WADA on 9 May 2009)
European Commission press release on 11 May 2009: “A successful outcome of cooperation between the EU and WADA”

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

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

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

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

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

24. EC TREATY
ART. 101 TFEU:
Are incompatible (and void )with the common market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may:
affect trade between Member States
have as their object or effect the prevention, restriction or distortion of competition within the common market

25. Exceptions Agreements which contributes to improving:
the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit,
And which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in questio

26. ABUSE OF DOMINANT POSITION
ART. 102 TFEU:
Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.

27. ABUSE OF DOMINANT POSITION
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

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

29. The Legal Methodology in the Meca Medina case
STEP 1: Are the EU anti-trust rules, i.e. Articles 81 (101 and/or Art. 82 (102 EU) applicable to Sporting rules?
STEP 2: If EC anti-trust rules are applicable, does the sporting rule fall outside the prohibition of Articles 81 (1) and 82?
STEP 3: Can the rule be considered compatible with EC anti-trust rules because it fulfils the conditions of Article 81(3) EC or because of an objective justification under Article 82 EC?

30. Step 1
1. Is the sports association that adopted the rule in question an “undertaking” or an“association of undertakings”?
a. The sports association is an “undertaking” to the extent it carries out an “economic activity” itself.
b. The sports association is an “association of undertakings” if its members carry out an economic activity.
If no economic activity, Articles 81 and 82 do not apply
Is trade between MS affected (geographical market, production market, Community interest...)?

31. STEP 1 Is WADA subject to Art. 101 TFEU? WADA or IOC?
ECJ, Eurocontrol case (March 2009)
Economic services v. Regulatory activities
MECA MEDINA

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

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

34. SANCTIONS
Art No Athlete or other Person who has been declared Ineligible may, during the period of Ineligibility, participate in any capacity in a Competition or activity (other than authorized anti-doping education or rehabilitation programs) authorized or organized by any Signatory…
Comment to Art :”For example, an ineligible Athlete cannot participate in a training camp, exhibition or practice organized by
his or her National Federation or a club which is a member of that
National Federation.”

35. Step 3
Can the rule be considered compatible with EC anti-trust rules because it fulfils the conditions of Article 101(3) TFEU or because of an objective justification under Article 102 TFEU?
Case by case approach
No General sports exception!

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