On legal definition of doping drugs in sports concept

M.V. Degtyarev
State Duma Committee on Physical Culture, Sports, Tourism and Youth Affairs, Moscow

Keywords: doping agents in sports, national sport sector control policies, doping controls in sports, administrative law

Background. As things now stand, national doping control policies and practices in sports – as far as their design and management paradigm and concepts are concerned - are limited by the administrative frameworks and toolkits, with the relevant restrictive and preventive legal provisions being not always efficient and effective enough – and this is the case for every sporting nation including Russia. It does not mean that the priority doping control/ prevention/ prohibition policies and practices should be abandoned, but it becomes clear that the extensive progress options within the existing analytical paradigm will unlikely secure further progress in the nearest future. Modern sports with their fair play policies, integral competitive rules and relevant legal and regulatory provisions – face multiple challenges nowadays due to the new biotechnologies, intellectual neural networks and computerized systems, including the so-called "genetic doping" technologies geared to bread sooner or later "genetically modified athletes" [6], technical doping etc.; with all these challengers further complicated by the growing political interference in the global sports [1].

We believe that one of the reasons for the growing inefficiency of the national doping control/ prevention/ prohibition policies and practices is the need for a clear legal definition of doping agents in sports that should be theoretically sound and extensive and practically relevant. Since the relevant legal issues still remain underexplored by the national legal science, the key ideas, notions, terms and definitions are largely copied from the foreign doping control and regulatory provisions and legal practices [4, 5, 7].

Objective of the study was to develop a theoretical foundation for the homologated legal definition of the doping agents in sports to meet the new challenges and requirements, and offer the definition for practical application.

Methods and structure of the study. We analyzed for the purposes of the study 48 relevant legal and regulatory provisions of 33 nations including Australia, Austria, Argentina, Brazil, Bulgaria, Hungary, Germany, Denmark, Egypt, Israel, Ireland, Spain, Italy, Canada, Kenya, China, Colombia, Luxembourg, Morocco, Mexico, New Zealand, Norway, Peru, Poland, Portugal, Romania, Tunisia, Uruguay, France, Chile, Switzerland, Ecuador and South Africa. An empirical basis for the study was formed by analyses of 16 relevant national judicial practices (as documented by the constitutional, supreme and administrative courts and courts of appeal) in Australia, Austria, Argentina, United Kingdom, Germany, Ireland, Spain, Kenya, China, Colombia, Mexico, Netherlands, New Zealand, France, Switzerland, Chile. Subject to analysis were also the relevant rulings of the European Court of Justice.

Results and discussion. Most of the foreign doping control/ prevention/ prohibition) provisions in sports relevant for the definition of doping agents in sports refer to those prohibited by some specific doping classifier/ list. See, for example, Law of Bulgaria of 10/18/2018 "On Physical Education and Sports", Art. 90, paragraph "c"; Law of Argentina No. 26.912 of November 13, 2013 "On the legal and regulatory provisions for doping control and prevention in sports", Art. 8, paragraph "a"; and German Law No. 26.912 of 10.12.2015 (amended version of April 13, 2017) "On doping controls in sports"), Clause 1, paragraph 2. It should be mentioned that the foreign doping control legislation is very diverse within the specific area of convergence as determined by the relevant international covenants and WADA statute.

We found, however, a few foreign legal and regulatory provisions that may be used directly or indirectly for the relevant basic interpretations applicable as a “construction material” for the purposes of the study i.e. to lay a conceptual basis for the above definition. They are the following: Organic Law of Spain No. 3/2013 of 06/21/2013 “On the athlete’s health protection and doping control in sports” (amended version of 02/18/2017) paragraph 1 of the preamble and Art. 3; Italian Law No. 376 of 12.14.2000 "On the health protection and doping control in sports”" Article 1, paragraphs 2 and 3; Government of Hungary Decree No. 43/2011 (III. 23) dated 03.23.2011 (amended version of 12.27.2016) “On the Anti-Doping Rules”; Australian Law No. 6  dated 09.02.2006 "On the doping control in sports" Article 2, part 2; Art. 4; General Law of Mexico dated 06/07/2013 (amended version of 01/19/2018) "On PE and sports", Art. 151 paragraph I; etc.

Thus the above Italian Law No. 376 of 12.14.2000 "On the health protection and doping control in sports” Article 1, paragraphs 2 and 3 give the following fairly extensive definition:

“2. Doping means the administration or intake of the biologically or pharmacologically active drugs or agents and/or the relevant medical procedures other than required to cure some pathological conditions that may be intended to change the natural psychophysical or biological conditions to modify the athlete’s competitive performance. 3. For the purposes of this Law, any administration or intake of the biologically or pharmacologically active drugs or agents and/or the relevant medical procedures other than required to cure some bodily pathological conditions – that are designed or otherwise applicable to change results of the drug use controls – shall be qualified equivalent to the doping agents and practices as specified by paragraph 2".

Furthermore, we found multiple court rulings on doping issues in sports. However, the legal positions relevant for our purposes were not found in most of these court documents. European courts (e.g. in Switzerland, Austria, the Netherlands) often make references to the relevant regulations of WADA and national anti-doping agencies and verdicts of the Court of Arbitration for Sports in Lausanne; albeit they mostly do not provide their own interpretations and positions on doping, its risks and the relevant doping control/ prevention/ prohibition issues in sports. We have still found a few court decisions that provided the useful basic materials, including the Australian Federal Court Decision No. FCA 1019 of 19.09.2014 in case of Essendon Football Club v. Chief Executive Officer of the Australian Sports Anti-Doping Authority. Thus, the Western District Court in Seattle (Washington) Ruling No. 679 F. Supp. 997 dated 02.25.1988 in case of O’Halloran v. University of Washington – qualifies doping agents in sports as the “agents geared to directly enhance the individual physiological and/or psychological abilities, remove psychological limitations on the physiological abilities, and secure physical  or psychological benefits in the unethical and dangerous attempts to change the bodily capacities”.

It should be mentioned that our interpretation of the meaning of a pharmaceutical agent was governed by the well-known publications on pharmaceutical law [2, 3]; and we have not considered the notion of “technical doping in sport” herein.

Conclusion. We would offer the following definition of doping agents in sports: doping agents in sports means the substance (regardless of its manmade or natural, organic/ non-organic chemical, biological, physiological origin/ nature) or pharmacological group or method of a specific pharmacological, immunological, metabolic or genetic effect due to its active ingredients/ procedures – that facilitates/ secures intervention (permanent or temporary) into the normal physiological function/ bodily organ/ system; with such intervention resulting in termination, restoration, reduction, correction, postponement, increase, acceleration or other modification of such function; with the such modification intended to directly or indirectly enhance the athlete’s physical, physiological and/or mental abilities, including the physical endurance, speed, strength, psychological concentration, response rate, or reduce/ totally remove the sport-specific psychological limitations on the homologated physiological resources and performance; change the physical/ biological/ genetic resources, and/ or disguise the above effects by a variety of means including the metabolism acceleration ones – and thereby secure the unfair physical, psychological and other advantages in competitions for an unfair competitive success.

References

  1. State administration in sport sector. Textbook. Kutafin MSLU. M.: Buki Vedi publ., 2017. 485 p.
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  3. Ponkin I.V., Ponkina A.A. Pharmaceutical Law. M.: GEOTAR-Media publ., 2017. 144 p.
  4. Ponkin I.V., Redkina A.I. Anti-doping tools in sport in foreign law. Sport: ekonomika, pravo, upravlenie. 2017. no. 4. pp. 27-1.
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  6. Körner S., Schardien S.etc. Gene Doping –The Future of Doping?  Frankfurt am Main, 2016.
  7. Krüger M., Becker C., Nielsen S. German sports, doping, and politics: A history of performance enhancement. Lanham (Maryland, USA): Rowman & Littlefield, 2015. xliii; 223 p.
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Corresponding author: degtyarev@duma.gov.ru

Public administration and policy in the field of prevention and interdiction of illegal use of doping drugs in sports within the framework of the modern paradigmatic approach are characterized by exhaustibility of their administrative potential, limits to growth of law enforcement efficiency, administration effectiveness and effectiveness of restrictive measures.

The present article is devoted to the study of the possibilities to develop conceptual approaches to a legal definition of the concept of "doping drugs in sports".

The author explains that the public administration in the field of prevention and interdiction of illegal use of doping drugs in sports within the framework of the modern paradigmatic approach is characterized by exhaustibility of its administrative potential, limits to growth of law enforcement efficiency, administration effectiveness and effectiveness of restrictive measures. The article describes the author’s range of the regulatory and empiric materials necessary for the development of a theoretical foundation for a homologated (for new challenges and requirements) legal definition of the concept of "doping drugs in sports" and the author’s legal definition of this concept. The legal framework for the study was created by the legislation of 33 foreign countries. The empirical framework of the study was created by the judicial practice of 16 foreign countries. Based on the above legal and empirical frameworks and using the methods indicated at the beginning of the article, the author defined a creator-owned conceptual and in-depth legal definition of the concept of "doping drugs in sports", which can significantly improve the public administration in this area.