Although doping is most often discussed in the context of professional sports, the topic was brought back into focus during the Olympic Games in Paris. Recently, media reports highlighted decisions made by the World Anti-Doping Agency (WADA), including a situation where WADA allowed 23 Chinese swimmers to compete in the previous Olympic Games despite testing positive for the prohibited substance trimetazidine. WADA denied any wrongdoing in response to these claims.
Additionally, WADA addressed media accusations regarding the alleged discovery of a scheme in which the U.S. Anti-Doping Agency (USADA) allowed athletes who had used prohibited substances to compete over the past few years without being sanctioned for anti-doping rule violations. WADA emphasized that it had never approved such a practice, which it became aware of in 2021, and noted that USADA continued to violate the rules even after being ordered to stop.
In this article, we will not delve further into media speculation but instead aim to provide insight into how anti-doping rules are regulated in our country.
Anti-Doping regulation in Serbia
Anti-doping rules in the Republic of Serbia are primarily governed by the Law on the Prevention of Doping in Sports (Official Gazette of the Republic of Serbia No. 111/2014 and 47/2021), which outlines measures and activities to prevent doping in sports.
Doping in sports is prohibited and is defined as the occurrence of one or more anti-doping rule violations as outlined by the law.
When is there a violation of anti-doping rules?
Anti-doping rule violations are specified in Article 3 of the Law on the Prevention of Doping in Sports. There are 11 anti-doping rules, all of which apply to athletes, while some are also applicable to individuals close to the athlete, such as coaches, managers, physiotherapists, and support staff.
Primarily, the presence of a prohibited substance or its metabolites or markers in an athlete’s sample, as well as the use or attempted use of a prohibited substance, is considered a violation of anti-doping rules.
A violation also occurs when an athlete refuses or fails without compelling justification to provide a sample after being notified of doping control or avoids providing a sample by any other means.
It is important to note that a violation of these anti-doping rules does not require intent, negligence, failure, or conscious use of a prohibited substance.
Furthermore, any combination of three missed doping tests and/or failures to submit whereabouts information within a one-year period constitutes a violation. This also includes actions that obstruct or attempt to obstruct any part of the doping control process.
An athlete or person assisting the athlete must not possess a prohibited substance. We will further explain which substances are considered prohibited later in this text.
Unauthorized sale, transport, delivery, or distribution of a prohibited substance or method, or attempting any of these actions, is also a violation. Administering, applying, or attempting to administer any prohibited substance to an athlete during a competition, or applying a prohibited substance out of competition, is prohibited.
As mentioned, these rules do not only apply to athletes but also to individuals close to the athlete or those assisting the athlete. It is explicitly stated that assisting, encouraging, aiding, supporting, covering up, or any other intentional complicity in a violation of anti-doping rules or a breach of a sanction imposed for an anti-doping rule violation is prohibited, including any attempt to engage in these acts.
It is also prohibited for an athlete or another person to associate professionally or in any sports-related capacity with someone who has been sanctioned for an anti-doping rule violation or who has been penalized in criminal or other proceedings for acts that constitute an anti-doping rule violation under the Law on the Prevention of Doping in Sports, if the penalty is still in effect or if less than six years have passed since the penalty was imposed.
Finally, any action by an athlete or another individual that involves threatening or intimidating another person with the intent to deter them from reporting doping-related information or to disadvantage a person who has provided information or evidence in good faith related to doping is prohibited.
What is a Therapeutic Use Exemption?
It is important to note that there is no anti-doping rule violation if an approved Therapeutic Use Exemption (TUE) is granted.
If a particular medication or method is necessary for an athlete to treat a medical condition and is listed as a prohibited substance, the athlete must submit a request for an exemption in order to compete.
Article 15 of the Law specifies that an athlete may request the Anti-Doping Agency to grant a waiver from the prohibition on the use of a prohibited substance if there is a clear and necessary medical need.
What are prohibited substances?
According to the Anti-Doping Agency of the Republic of Serbia, the authorized domestic anti-doping organization, we will briefly explain the prohibited substances.
First, some substances are always prohibited, regardless of whether it is in or out of competition. These include anabolic agents, peptide hormones, growth factors, and related substances, beta-2 agonists (except those inhaled in prescribed doses), hormone and metabolic modulators, diuretics, and masking agents.
As for methods, always prohibited methods include manipulation of blood and blood components, chemical and physical manipulation, and gene doping.
Next, some substances are prohibited only during competition, such as stimulants (nonspecific and specific), narcotics, cannabinoids, and glucocorticoids. Certain substances like beta-blockers are prohibited in specific sports such as archery, motorsports, golf, and shooting.
What measures are prescribed for preventing doping in sports?
The Law on the Prevention of Doping in Sports mandates that athletes, and all others involved in sports activities and operations under the Law on Sports, must permit and facilitate doping control and disclose the identities of individuals assisting athletes at the request of the authorized anti-doping organization.
The Anti-Doping Agency is responsible for regulating and conducting doping control at domestic competitions and out of competition, except for those under the jurisdiction of another authorized anti-doping organization.
The rules must comply with the Law on the Ratification of the European Convention Against Doping in Sports, the World Anti-Doping Code, and international standards for doping testing.
What does doping control include?
Doping control includes planning test schedules, selecting athletes for testing, determining the registered testing pool, sample collection and handling, laboratory analysis, result management, and hearings and appeals.
It can be organized during competitions or out of competition, either announced or unannounced. Control is carried out by collecting urine and blood samples or by using another permitted technique to detect prohibited substances and methods.
It is important to note that doping control can only be conducted by authorized and qualified doping control officers. The Anti-Doping Agency determines the organization responsible for analyzing doping samples from athletes or animals participating in competitions.
What are the duties of national sports federations?
The Law prescribes the duties of national sports federations in relation to doping prevention. We will provide a few examples.
They are required to establish disciplinary measures and regulate the process for imposing these measures in cases of anti-doping rule violations and ensure that the rights of individuals responsible for such violations are respected. This includes the right to legal representation at their own expense, respect for privacy, the opportunity to present legal arguments and evidence, and the right to appeal, among other rights.
Moreover, sports federations are obligated not to recognize the sports results achieved by athletes who were doping and to prohibit participation in sporting events by athletes, sports professionals, or other individuals under their authority who have been sanctioned for doping or convicted of a criminal offense or misdemeanor related to doping.
National sports federations must adopt an anti-doping program and submit it to the Anti-Doping Agency within the prescribed 15-day period and appoint a responsible person to oversee the implementation of doping prevention measures.
In sports involving animals, national federations must also establish and implement anti-doping rules for animals competing in sports.
National sports federations have specific obligations to inform relevant bodies. At least 21 days before a competition organized by the federation or under its control, they must notify the Anti-Doping Agency. They must also submit their competition calendar for the following year by the end of the current year. Every six months, federations are required to inform the Anti-Doping Agency about the training and preparation plans for elite athletes and national teams, and by the end of the year, report to the Ministry of Sport and the Anti-Doping Agency on the anti-doping measures taken during the year.
Lastly, every national sports federation has to promote the values of sports ethics, fair play, and the health of athletes. Further details on their duties can be found by consulting the law or seeking advice from a legal professional.
What disciplinary measures can be imposed for anti-doping rule violations?
The law stipulates the following disciplinary measures: disqualification of sports results, temporary suspension, prohibition from participating in competitions, prohibition from engaging in sports-related work, and other measures as determined by the World Anti-Doping Code and the sports rules of relevant national and international sports federations.
Examples from international practice
Let’s provide a couple of examples from the recent practice of the Court of Arbitration for Sport based in Lausanne, Switzerland.
In the case of Arbitration CAS 2023/O/9401 World Athletics (WA) v Russian Athletic Federation (RUSAF) & Yelena Korobkina from 2023, it is stated that facts related to violations of anti-doping rules can be established by any reliable means such as scientific evidence, credible witness statements, and the exchange of emails. In this regard, monitoring the washout schedule of the relevant athlete, whose samples showed the presence of banned substances, as well as the use of an information management system, may be taken into account.
The washout period in the context of doping refers to the time frame during which an athlete ceases using a banned substance before a competition or testing period to avoid detection.
If there is no direct evidence of the athlete’s use of doping substances or methods, the decision-making body must evaluate all evidence individually and collectively. In determining the length of the disqualification period, the general principle of fairness must prevail.
In the case of Arbitration CAS 2023/ADD/59 International Weightlifting Federation (IWF) v Armen Alekyan from 2023, the tribunal established that the fact that an athlete used multiple banned substances on several occasions and was protected by a specific detection avoidance scheme represents aggravating circumstances that justify a suspension period longer than the standard for a first violation of anti-doping rules. If the violations of anti-doping rules are serious, repeated, and more sophisticated, there is no reason not to disqualify the results achieved by the athlete during a specific time frame, starting from the date when the athlete’s first sample tested positive. However, if the disqualification period would last nearly ten years due to the start date of the athlete’s suspension, and there is no evidence of further doping use, fairness requires a reduction of the disqualification period to a duration that is more proportional and fairer in the specific case.
Next is the case of Arbitration CAS 2022/A/9033 International Tennis Federation (ITF) v Mikael Ymer from 2023, which established that an athlete who did not align their behavior with anti-doping regulations by not verifying the accuracy of their reported whereabouts and assuming that any discrepancies between the actual and reported locations would be corrected by an agent carries a degree of culpability. The doping control officer, who took all necessary steps to locate the athlete, knowing that it was not their duty to search for athletes at locations different from the reported ones, did everything necessary under the circumstances to find the athlete. The athlete’s obligation to comply with all anti-doping regulations is personal, as stated in the document titled ‘Tennis Anti-Doping Program’ and delegating assistance in fulfilling such obligations is not equivalent to relinquishing responsibility for compliance with anti-doping regulations.
The ruling in the case of Arbitration CAS 2022/A/8570 Bassem Mohammed v Fédération Équestre Internationale (FEI) noted that an athlete who consumed a banned substance, such as cannabis, may be sanctioned with a reduced suspension period according to the 2021 FEI Anti-Doping Rules for Human Athletes, provided the consumption occurred out of competition and was not related to performance in the sport. Furthermore, an athlete cannot claim a fair reduction of the sanction if high concentrations of the banned substance were found in their sample. That is, the athlete cannot argue that they were not at fault or negligent when their version of events (daily use of the substance out of competition and/or passive exposure to the substance in a hookah bar) indicates they were aware of the consequences of their actions.
The athlete’s duty to comply with anti-doping regulations was also mentioned in the case of Arbitration CAS 2022/ADD/52 Fédération Internationale de Ski (FIS) v Valentyna Kaminska. The standard of care is set high for an athlete participating in the Olympic Games considering the objective experience and expected knowledge of anti-doping rules. In other words, it is well known in the world of sports that an athlete must exercise particular caution when using or taking medications, due to the high risk of a banned substance entering their body under such circumstances, and a prescription issued by a doctor does not relieve the athlete of the obligation to check whether that medication contains banned substances.
Note: This text does not constitute legal advice but rather represents the author’s personal opinion.