Anti-doping provisions viewed as an integral part of athletic labor safety system in Russia

Dr. of Law, Professor M.O. Buyanova
Research University "Higher School of Economics", Moscow

Keywords: Winter World Universiade, sport discipline, ski orienteering, International Orienteering Federation.

Today Russian sport is going through difficult times. The disqualification of Russian athletes from participating in the Winter Olympics 2018 was related to the doping scandal which broke out as a result of analysis of the drug tests, taken by Russian athletes during the Winter Olympics in 2014, and now Russia is actively seeking a way out of this predicament.

A complex of measures is being prepared in this relation, aimed at increasing legal liability for violation of anti-doping regulations.

Moreover, in our opinion, violation of anti-doping regulations should be recognized as a violation of athletes’ labour protection norms.

Labour protection is defined as a complex of measures aimed at protecting the life and health of athletes (as employees) in the process of their work activity. Anti-doping measures and prevention of banned substances, which can cause significant harm to an athlete’s health, can be fully recognized as labour protection measures.

For example, androgenic anabolic steroids (hormones which provide the growth and support of male sexual characteristics, promote the increase of muscle size and strength) can be the cause of such diseases as heart attacks, strokes, as well as increase the risk of tumor growth and mental health disorders. The human growth hormone (the metabolic hormone which takes part in protein and lipid exchange, used by the body for muscle growth and decreasing fat levels) can cause cardiac myopathy, heart disease and diabetes[1].

The basic anti-doping principles are stipulated in the Federal Law as of 04/12/2007 # 329-FZ “On physical culture and sports in the Russian Federation”[2]. According to cl.1 of art.26 of the Federal Law “On physical education and sports in the Russian Federation” doping in sports is defined as the violation of the anti-doping rule, including using or attempts at using a substance and (or) method, which are scheduled  in the lists of substances and (or) methods, prohibited for use in sports (hereinafter – banned substances and (or) banned methods). The violation of the anti-doping rule is one or several of the following violations (cl.3 art.26 of the Law):

1) using or attempt at using a banned substance and (or) a banned method by an athlete;

2) the presence of banned substances or their metabolites or markers in drug-tests, taken from the body of the athlete during competition season or off-season, as well as from the organism of an animal, taking part in a sports competition;

3) the refusal of an athlete to appear for a drug-test, the failure of athlete to appear for a drug-test without a reasonable excuse after receiving a notification in accordance with the anti-doping regulations, or evasion from a drug-test by an athlete by other means;

4) violation of the anti-doping regulations due to the athlete’s own unavailability for drug-testing during off-season, including failure to provide information on his whereabouts and his failure to arrive for drug-testing;

5) fabrication or attempt at fabrication of any doping-control elements;

6) unauthorized possession of banned substances and (or) unauthorized use of banned methods without a proper permit for their therapeutic use, issue in accordance with the International standard for therapeutic use of banned substances of the World anti-doping agency;

7) distribution of banned substances and (or) banned methods;

8) using or attempt at using a banned substance in relation to an athlete, or using or attempt at using a banned method in relation to an athlete, or proving other aid related to the violation or attempt at violation of anti-doping regulations.

The Federal Law “On physical education and sports in the Russian Federation” sets forth the means for doping prevention and control in sports (cl.8 art.36 of the Law) and imposes the obligation to develop national anti-doping rules on the Russian National Anti-doping Organization, which shall be affirmed by the federal executive body in the sphere of physical culture and sports (p.1 of cl.2 art.26 of the Law[3]).

The current Russian national anti-doping regulations were affirmed by the Ministry of Sports Order as of 18/06/2015 # 638[4]. These Regulations extend upon all athletes who are citizens or residents of the Russian Federation, license holders and members of sports-athletic organizations registered on the territory of Russia, including athletes who are not citizens or residents of Russia, but who are located on its territory, as well as those athletes who take part in sporting competitions organized by sport-athletic organizations registered on the territory of Russia.

If an athlete violates the anti-doping regulations the following consequences may be imposed: (a) annulment of his/her individual results; (b) disqualification. At the same time, in case of disqualification of an athlete, the employer is required to suspend the athlete from participating in sports competitions (p.1 of cl.1 art.348.5 of the Labour Code of Russia).

The annulment of individual results of an athlete, disqualification, as well as suspension from participation in sporting competitions are sanctions for violating anti-doping regulations by the athlete, and thus, are not recognized as disciplinary measures as stipulated in art.192 or the Labour Code, which are a warning, reprimand or dismissal on the relative grounds, as set forth by the legislator[5].

Thus, the legislation provides for non-disciplinary liability of athletes for violation of the anti-doping regulations. This liability is of a legal nature, and is not an entirely sporting liability, because it is stipulated by an acting law and conditioned by violation of the sporting regime by an athlete, i.e. his labor regulations (and not sports rules), and can cause negative legal consequences such as dismissal (art.348.11 of the Labour Code of Russia).

By aiming to protect the health of athletes from the consequences of taking banned substances the Russian legislation imposed administrative liability for coaches, sports medical specialists and other specialists in the sphere of physical culture and sports for violation of doping prevention and control rules, by means of using a banned substance and (or) method in relation to an athlete irrespective of the athlete’s consent, or by means of aiding an athlete in using a banned substance and (or) method, if such actions do not constitute a crime (art.6.18 of the Administrative Code of Russia)[6]. Such actions shall also entail the disqualification of the specialist for a period from one year up to two years, and if such actions have been committed in relation to an underage athlete the period is increased up to three years. Criminal liability for violation of anti-doping regulations can ensue in case the athlete suffered death or harm to his health as a result of violation of anti-doping regulations. (articles 105, 109, 111-115 of the Criminal Code of Russia[7]).

The above proves that the labour protection under Russian labor legislation includes not only measure aimed at protecting the life and health of athletes during their work activity, but also the specific non-disciplinary legal liability of athletes for violation of labour protection norms (specifically – anti-doping rules). Aside from that, the administrative liability of coaches and specialists for anti-doping violations is also aimed at protection the labour of athletes. These special characteristics of labour protection of athletes and its legal regulation distinguishes it from labour protection of other employee categories.

These matters are settled in a slightly different manner in foreign countries. For example, Germany does not have a special law to regulate the relations in sports as a whole and the labour relations of athletes in particular, which was noted in Russian legal literature[8]. Instead, the provisions of the Labour Protection Law of 1996 extend to German athletes. This is set in cl.2 of paragraph 1 of the Law, which is applied not only in relation to house workers in private households, but also to workers hired for work on sea vessels and production facilities regulated by the Federal Mountain Law, if there are proper grounds for applying such provisions. The Law obliges the employer to organize the work in such a way that any threat to the life and health of athletes is excluded and that danger factors are reduced to a minimum by affecting its sources. During development of measures for labour protection of athletes the latest advancements in technology, sports medicine and hygiene must be taken into account and applied.

The German legislation pays special attention to preventing athletes from using banned substances and pharmaceuticals in the process of labour protection regulation. Unlike Russia, where the anti-doping regulations are set in executive regulatory legal acts, Germany applies the Law Against Doping in Sports (the Anti-doping Law) as of December 10th, 2015. The purpose of anti-doping legislation is declared to be the resistance against using doping substances and methods in sports for the safety of the athletes’ health, providing fair play and equal chances for success in sporting events and thus keeping the integrity of sport as a whole. The Law prohibits production, transportation, distribution and prescription of substances, which are scheduled as banned or contain banned substances in their composition, which are scheduled in Annex I to the International Anti-doping Convention in Sports as of 19th of October, 2005.

The violation of anti-doping legislation stipulates legal liability (up to criminal liability). For example, a person who is guilty of production, transportation or distribution of banned substances may be punished by imprisonment for up to three years, and in case his actions related to the illegal production, trafficking and injection of banned substances: firstly, (a) caused a threat to the health of many people; (b) caused a threat to the life or serious bodily harm to another person; (c) were related to receiving profit in a large amount; secondly, were related to the distribution of banned substances among minors under the age of 18 and were committed more than once with the purpose of receiving profit or as part of a gang, then such actions are punished by imprisonment for a term of one to ten years.

The Law obliges pharmaceutical companies to mark their substances with a disclaimer: “Using of this pharmaceutical substance [name of substance] may cause positive results in a doping test”, in case such substances are scheduled as banned for use in sports.

To increase the effectiveness of anti-doping control the National Anti-Doping Agency of Germany is authorized to collect, process and use the following personal data of athletes, as well as data related to their health and analysis results.

Thus, the German legislation includes the protection of athletes from using banned substances (anti-doping regulations) as part of their labour protection, by applying general provisions on employee labour protection to athletes (as does the Russian legislation). However, if the Russian anti-doping regulations are set in regulatory legal acts, in Germany they are enforced as laws. Moreover, German legislation, unlike Russian, considers the violation of anti-doping regulations (irrespective of the consequences) as a crime and applies criminal liability for it. The Russian legislators considers the violation of anti-doping rules to be an administrative offence, and criminal liability is applied only in cases of severe consequences – causing death or harm to the athlete’s health.

In our opinion, the German approach to interpreting labour protection of athletes and its legal regulation deserves to be applied. The events related to the suspension of Russian athletes from participating in the Olympic games in South Korea demonstrate that mere administrative liability is not sufficient to prevent coaches and specialists from violating anti-doping rules and athletes from using banned substances. We believe it is reasonable, following Germany’s example, to make it a criminal offence the actual fact of violation of anti-doping regulations (i.e. the production, transportation, distribution and inducement of a person to use banned substances without any proper medical grounds to do so).

References

  1. Kodeks Rossiyskoy Federatsii ob administrativnykh pravonarusheniyakh: prinyat Federalnyim zakonom ot 30.12.2001 # 195-FZ [Code of the Russian Federation on Administrative Offenses: adopted by Federal Law of December 30, 2001 No. 195-FL]. Sobranie zakonodatelstva RF, 2002, no.1 (ch. 1). St. 1.
  2. Negativnye posledstviya primeneniya dopinga [Negative consequences of doping] // http://yablor.ru/blogs/negativnie-posledstviya-primeneniya/4612483: Kakie fizicheskie posledstviya vozmozhnyi iz-za upotrebleniya dopinga? [What physical consequences are possible due to the use of doping?] // http://aris37.ru/stat/529-kakie-fizicheskie-posledstviya-vozmozhny-iz-za....
  3. Prikaz Minsporta Rossii ot 18.06.2015 # 638 'Ob utverzhdenii Obshcherossiyskikh antidopingovykh pravil' [Order of the Ministry of Sports of Russia dated 06.06.2015 No. 638 “On approval of the national anti-doping rules”]. Reference legal system "Consultant Plus.
  4. Ugolovny kodeks Rossiyskoy Federatsii [Criminal Code of the Russian Federation]. Adopted by the Federal Law of June 13, 1996 No. 63-FL. Legislative Acts of the Russian Federation, 1996, no. 25, St. 2954.
  5. Federalny zakon ot 04.12.2007 # 329-FZ 'O fizicheskoy kulture i sporte v Rossiyskoy Federatsii' [Federal Law dated 04.12.2007 No. 329-FL 'On Physical Education and Sports in the Russian Federation']. Legislative Acts of the Russian Federation, 2007, no. 50, St. 6242.
  6. Federalny zakon ot 07.05.2010 # 82-FZ 'O vnesenii izmeneniy v Federalny zakon 'O fizicheskoy kulture i sporte v Rossiyskoy Federatsii'' [Federal Law dated 07.05.2010 No. 82-FL 'On Amendments to the Federal Law 'On Physical Education and Sports in the Russian Federation'']. Legislative Acts of the Russian Federation, 2010, no. 19 St. 2290.
  7. Federalny zakon ot 27.12.2006 # 240-FZ [Federal law dated 27.12.2006 No. 240-FL]. Legislative Acts of the Russian Federation, 2007, no. 1 (1 ch.). St. 3.
  8. Shevchenko O.A. Mezhdunarodnoe i sravnitelnoe trudovoe pravo v sfere professionalnogo sporta [International and comparative labor law in the field of professional sports]. Moscow, Prospekt publ., 2014, 104 p.
  9. Gesetz gegen Doping im Sport (Anti-Doping-Gesetz) vom 10. Dezember 2015. BGBl. 2015. IS. 2210.

Corresponding author: fizzkult@teoriya.ru

Abstract

The article analyzes the sport discipline qualification requirements of the Winter World Universiade for the optional sport quotas; outlines the current progress and benefits of the modern ski orienteering disciplines; offers the frame program of competitions that has been tested in the past world university championships; and analyzes the public appeal related benefits of the modern ski orienteering disciplines for the mass media companies.

For the purposes of the study, we run a questionnaire survey and interviews of the ski orienteering experts from 22 countries of the International Orienteering Federation, made a comparative/ ranking analysis of the output data, and offered an action plan for the ski orienteering disciplines qualification for the Winter World Universiade -2019.

Having analyzed the International University Sports Federation (FISU) operations and regulatory framework, we found a new window of opportunities for the ski orienteering progress on the global arenas with good prospects for the ski orienteering disciplines qualification for the nearest Winter World Universiade. As required by the valid FISU regulations, a sport discipline may qualify for the World Universiade when it is listed in among the optional disciplines by at least three successive Winter World Universiade. This means that the ski orienteering disciplines may qualify for the 2012 Winter World Universiade in Switzerland and 2023 Winter World Universiade in the US, with the sport community supported by the International Orienteering Federation management encouraged to take persistent efforts to make this happen.


[1]See.: Negative consequences of doping // http://yablor.ru/blogs/negativnie-posledstviya-primeneniya/4612483: What physical consequences may be cause by doping? // http://aris37.ru/stat/529-kakie-fizicheskie-posledstviya-vozmozhny-iz-za....

[2]Official gazette of the Russian Federation. 2007. # 50. Page 6242,

[3]This legal norm was introduced by the Federal Law as of 07.05.2010 # 82-FL // «On amendment to the Federal Law «On Physical Culture and Sports» // Official gazette of the Russian Federation. 2010. # 19. Page 2290.

[4]Order of the Ministry of Sports of RF as of 18.06.2015 # 638 «On affirmation of Russian National Anti-doping Regulations » // Legal information database «ConsultantPlus».

[5]It must be noted that applying such sanctions to an athlete does not exclude the following administering of disciplinary measures, such as dismissal, which directly ensues from art.348.11 of the Labour Code of Russia.

[6]Russian Administrative Code as of 30.12.2001 # 195-ФЗ // Official gazette of the Russian Federation. 2002, # 1 (part 1). Page 1.

[7]Criminal Code of the Russian Federation as of 13.06.1996 # 63-FZ // Official gazette of the Russian Federation. 1996. # 25. Page 2954.

[8]See: Shevchenko O.A. International and comparative labour law in the sphere of professional sports. Part2. М., 2014; GovorovP.S. Differentiotion in the legal regulation of labour of athletes: comparative-legal analysis of international, Russian and foreign legal provisions: Diss... PhD. М., 2015. Page 139.