1. 1 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: info@colucci.eu www.colucci.euinfo@colucci.euwww.colucci.euinfo@colucci.eu

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

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

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

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

6. 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 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. 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. 7 World Anti-Doping Program The World Anti-Doping Code The World Anti-Doping Code The World Anti-Doping Code The World Anti-Doping Code International Standards International Standards International Standards International Standards Models of Best Practice and Guidelines Models of Best Practice and Guidelines Models of Best Practice and Guidelines Models of Best Practice and Guidelines

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

9. 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. 10 ANTI-DOPING RULE VIOLATIONS Presence of a Prohibited Substance or its Metabolites or Markers in an Athletes 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. 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. 12 STRICT LIABILITY (art. 2.1.1) It is each Athletes 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 Athletes part be demonstrated in order to establish an antidoping violation under Article 2.1

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

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

15. 15 International Standard for Testing International Standard for Testing The WHEREABOUTS International Standard for Testing Information about location of Top Elite Athlets Information about location of Top Elite Athlets Who decides about the ELITE? The RTP 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! Time framework issue: one hour a day 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?

16. 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. 17 DATA PROTECTION 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. 18 Art. 29 Working Group Opinion 3/2008 of 1 August 2008 Opinion 3/2008 of 1 August 2008 Code (entry into force: 1 January 2009) Code (entry into force: 1 January 2009) Second opinion 4/2009 of 6 April 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. 19 Directive 95/46/EC on Data Protection Consent is 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).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. 20 Art. 29 working Group Opinion 3/2008: 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. 21 Art. 29 working Group Processing of Data by ADO if: 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. 22 ADAMS Anti-doping Administration & Management System A web-based data base management A 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 worldwide Data 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). WP: justified only in case ofan alleged whereabouts filing failure and/or missing test... WP: justified only in case ofan 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 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) Call for a more proportionate approach for doping violations (See art. 2 of CODE)

23. 23 Art. 29 Workin group Art. 14.2.2: Art. 14.2.2: DOPING INFRINGEMENT, SANCTIONS, AND PUBLIC REPORT... DOPING INFRINGEMENT, SANCTIONS, AND PUBLIC REPORT... ON ADOs WEB SITE ON ADOs WEB SITE FOR 1 YEAR FOR 1 YEAR NO! NECESSITY AND PROPORTIONALITY NO! NECESSITY AND PROPORTIONALITY

24. 24 EC 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

25. 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. 26 ABUSE OF DOMINANT POSITION 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.

27. 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. 28 Basic Principles of Community Law EC law applies to Sport in so far it constitutes an economic activity (ECJ case law) EC law applies to Sport in so far it constitutes an economic activity (ECJ case law) No Activities purely social, artistic or sporting...... No Activities purely social, artistic or sporting...... but then MECA MEDICA judgement of 18 July 2006... but then MECA MEDICA judgement of 18 July 2006... Test of Necessity Test of Necessity Test of Proportionality Test of Proportionality

29. 29 The Legal Methodology in the Meca Medina case STEP 1: Are the EC anti-trust rules, i.e. Articles 81 and/or Art. 82 applicable to Sporting rules? STEP 1: Are the EC anti-trust rules, i.e. Articles 81 and/or Art. 82 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 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? 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. 30 Step 1 1. Is the sports association that adopted the rule in question an undertaking or anassociation 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. 31 STEP 1 Is WADA subject to Art. 81 EC? Is WADA subject to Art. 81 EC? WADA or IOC? WADA or IOC? ECJ, Eurocontrol case (March 2009) ECJ, Eurocontrol case (March 2009) Economic services v. Regulatory activities Economic services v. Regulatory activities MECA MEDINA MECA MEDINA

32. 32 Step 2 Compatibility of rules with the Community rules on competition cannot be assessed in the abstract. Compatibility of rules with the Community rules on competition cannot be assessed in the abstract. Taking into account: 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. 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. 34 SANCTIONS Art. 10.10.1. 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. 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.

35. 35 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? 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? –Case by case approach –No General sports exception!

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