American Review of International Arbitration, Vol. 22, No. 2, pp. 189-240, 2011
56 Pages Posted: 15 Feb 2012 Last revised: 16 Feb 2012
Date Written: February 14, 2012
The ever-increasing number of “non-analytical positive” doping cases where the Court of Arbitration for Sport (CAS) Panels found athletes responsible for anti-doping rule violations not on the basis of a positive finding of a prohibited substance in the athlete’s sample by a World-Anti-Doping Agency accredited laboratory, but only on the basis of circumstantial evidence, could pose a question whether a noble objective of a certain campaign and its intended benefits for the people at whom it is aimed can justify the non-respect of human rights of few individuals advertently or inadvertently caught in the middle of this campaign. Or, more specifically, could noble objectives of the World Anti-Doping Program, namely protecting athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide, justify the non-respect of athlete’s right to a fair trial? Accordingly this article analyzes the existing anti-doping rules, primarily the Word Anti-Doping Code (WADC), the IAAF Competition Rules and the IAAF Anti-Doping Regulations as well as their application by the CAS in “non-analytical positive” doping cases from the point of view of the athlete’s right to a fair trial. The article explores the content of the athlete’s right to fair trial under Article 6 of the European Convention on Human Rights (ECHR), explains why, in the authors view, the guarantees of Article 6(1) of the ECHR shall be applicable to anti-doping cases and CAS arbitration proceedings in general and analyzes the provisional suspension of the athletes suspected of committing anti-doping rule violations from the point of view of an athlete’s right to a fair trial. This article offers similar analysis with respect to the presumptions currently existing in “non-analytical positive” doping cases in favor of the international sports federations, notably, from the point of view of their respect of the “equality of arms” principle of Article 6 of the ECHR. Finally, the authors make concrete proposals for action to bring the existing anti-doping rules and case law of the CAS into conformity with the fair trail requirements of the ECHR and Swiss law as well as measures which could be currently undertaken by the athletes to safeguard their right to fair trial until such modifications are made.
Keywords: Non-analytical positive doping cases, right to a fair trial, equality of arms, Court of Arbitration for Sport , Word Anti-Doping Code, IAAF Competition Rules, the IAAF Anti-Doping Regulations
JEL Classification: K33, K41
Suggested Citation: Suggested Citation
de Montmollin, Jérôme and Pentsov, Dmitry A., Do Athletes Really Have the Right to a Fair Trial in 'Non-Analytical Positive' Doping Cases? (February 14, 2012). American Review of International Arbitration, Vol. 22, No. 2, pp. 189-240, 2011. Available at SSRN: https://ssrn.com/abstract=2004981