Fixed Sanction Framework in the World Anti-Doping Code: Can Hearing Panels Go Below the Limits in the Pursuit of Proportionate Sanctions?
25 Pages Posted: 30 Jun 2019
Date Written: June 27, 2019
In this paper, I argue that hearing panels should have the flexibility to impose sanctions for anti-doping rule violations even below the limits of the current World Anti-Doping Code (Code), if the sanction set by the Code would be disproportionately harsh and if the purpose of the Code could be fulfilled even by a shorter period of ineligibility. I believe that hearing panels should consider all objective elements of the case as well as subjective elements of the athlete or other person while determining the sanction. While I consider the fixed sanction regime of the Code itself a proportionate and suitable response to the legitimate aim of the fight against doping, there inevitably were, are and will be cases where the “one size fits all” solution does not work. If such an exceptional gap de lege lata occurs, hearing panels should have the power to fill the gap and prevent disproportionate consequences caused by the rigid application of the fixed sanctions. I simultaneously argue that such flexibility does not necessarily compromise the harmonization of sanctions, equal treatment amongst athletes, legal certainty and other core elements of the fight against doping in sport. Conversely, I believe that such an approach would present another important step towards greater compliance of the Code and implementing regulations of sporting governing bodies with the internationally recognized principle of proportionality.
Keywords: World Anti-Doping Code, anti-doping rule violation, fixed sanction regime, harmonization of sanctions, proportionality
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