Strict Liability: Controversies over Anti-Doping Laws in International Sport
About the author: Sherry Shi (J.D. Candidate, Class of 2024) is a Travaux Contributor. Her interests include securities law, international trade law, and international political economy. Sherry holds B.A. degrees in Government and Economics from The College of William & Mary. Before law school, she interned at The Asia Foundation and Carnegie-Tsinghua Center for Global Policy. She is a native speaker of Mandarin and conversational in Japanese.
Photo available here.
The Olympic Doping Case
An artistic closing ceremony held in Beijing on February 20 marked the end of the 2022 Winter Olympics, but controversies over a doping scandal continued to raise international law concerns. Just one day after Kamila Valieva, a talented 15-year-old figure skater from Russia, landed the first woman quadruple jump in history, a doping record in December put her gold medal for the team game in doubt. After a revelation that Valieva’s blood test on December 25, 2021 returned positive for a prohibited substance, the Russian Anti-Doping Association suspended her from subsequent competitions but then quickly overturned their decision. Despite the appeal from the International Olympic Committee (IOC) and the World Anti-Doping Agency (WADA), two major regulators of the Games, the Court of Arbitration for Sport (CAS) found that “none of this is the fault of the athlete” and allowed the young skater to compete in the following women’s single game.
The way that major institutional players dealt with the case failed to meet the expectations of many parties. Due to pending investigation results, the IOC could not award the medal to any athlete if Valieva reached the podium. Although Valieva eventually finished in fourth place, all athletes had to compete without knowing if their opponent was clean or if the competition would be fair. With their silver medal suspended because of the case, United States figure skaters actively advocated for strict anti-doping measures to ensure equity in the Games. They filed an application requesting a medal ceremony for the team competition, which was rejected by CAS. WADA also expressed disappointment toward CAS’s decision to loosen the standard for Valieva. While Russia argued that Valieva unknowingly ingested the substance, which was her grandfather’s medication, many were skeptical of the claim due to Russia’s record of noncompliance with international anti-doping rules. In addition to debates over these factual ambiguities, the case itself revealed many confusions within international sport laws and enforcement mechanisms.
The Legal and Institutional Framework
International sports law has received relatively less scholarly scrutiny in comparison to other fields of law. However, its established mechanisms of administration and dispute resolution are growing and changing. Regulating the “fundamental human activity” of athletic competition, international sports law and relevant transnational organizations have significant implications on human rights and justice for individuals, while shedding light on the opportunities and limitations of global cooperation. The IOC, which supervises the Olympic Games, stands out as a major nongovernmental player in this area. The IOC collaborates with WADA, which was created by the Lausanne Declaration on Doping in Sport, to ensure fair competitions with a “zero tolerance” policy on doping. WADA initiated the World Anti-Doping Code (Code) in 2004 and has been reviewing and amending the Code in order to adjust to recent developments in the anti-doping effort. To ensure the effectiveness of the Code, which is a non-governmental invention, 191 countries ratified the International Convention against Doping in Sport: a UNESCO treaty that holds countries responsible for aligning their legislative interests with the Code. In 1984, the IOC established CAS as an independent tribunal to provide dispute resolution measures that bind all major international sports organizations. According to Article 13 of the anti-doping Code, CAS is the appeals body adjudicating all international doping related-disputes.
Concerns about the Strict Liability Rule
The CAS order, which permitted Valieva to compete during the investigation, triggered backlash because of the strict liability tradition of the Code. Article 2 of the Code states that “it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation.” Evidence of unintentional doping, including an athlete’s mental status, their age, and the way they consume a substance may be considered by CAS in sanctioning a violation. Meanwhile, in Article 10, the Code specifies that protected persons, including minors, enjoy special protections in the assessment of their faults, due to “their age or the lack of legal capacity.”
In Valieva’s case, CAS agreed with the Russian Anti-Doping Agency that the 15-year-old qualifies for a loosened standard for proving the lack of knowledge as a protected person. The Court decided that Valieva had established at the “reasonable possibility” level that her positive test resulted from drinking water that was contaminated by her grandfather’s heart medication. While there were factual disputes, WADA expressed concern over the court’s lenient interpretation of the Code, arguing that exceptions for the “protected persons” do not extend to mandatory provisional suspensions. WADA insisted that the CAS ruling was a “re-writing of the Code,” which “risks undermining the integrity of sporting competition.”
Prior to Valieva’s case, there have been various debates on the reasonableness and scope of the strict liability tradition. At the core of the debates is athletes’ mental state for consuming the prohibited substance. In the 2006 CAS case Mariano Puerta v. International Tennis Federation, the appellant Puerta, a tennis player, unknowingly ingested a prohibited substance through drinking water from the same glass that his wife used for taking medicine. Despite reasons to believe that Puerta did not intentionally use the performance enhancer, the Court applied the Code and charged him with doping. Given this precedent with highly similar facts to Valieva’s case, it is not hard to see that the “protected persons” provision might be the only leeway for Valieva. However, considering various factors outside of athletes’ control, the strict liability rule might end up punishing the innocent in a grossly unjust way.
Strict liability in the Code is based on rationales that an athlete’s intent is hard to prove and all doping is inherently harmful for all players involved in a game. Nevertheless, international sport authorities should balance these rationales with the complicated realities of Olympic competition. First, minors like Valieva are especially vulnerable to abusing prohibited substances. Given the power differential between young athletes and their organizational supervisors, minors are more likely to be induced and forced to consume performance enhancers. Their immature cognitive capacity might also prevent them from understanding regulations and discerning the substances that they are taking. In fact, Valieva’s coach has already manifested disturbing attitudes toward the 15-year-old. WADA recognized this concern and initiated investigations on Valieva’s support personnel, but it is unclear how CAS will factor the coach’s potential influence on Valieva into their judgment. The possible forced doping scheme does not only apply to minors. In 2019, former Russian athlete Yuliya Stepanova revealed the extent of Russian doping schemes to the UN Human Rights Committee. According to her revelation, she was forced to take prohibited substances without knowing any adverse health consequences. Given that athletes can be victims of forced abuse, the idea of strict liability might be too harsh and arbitrary.
In addition, given that there are flaws in the international mechanism of enforcing anti-doping laws, it seems unfair to shift all legal burdens to the athletes. In its ruling, CAS concluded that “athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively.” According to April Henning, an expert in international doping cases, the rulemaking process of international sport laws fails to include the voices of athletes. Weak domestic governance on the use of prohibited substances could also contribute to failures of the international regulatory system, given the corruption issues underlying state-sponsored doping schemes.
To conclude, given the systemic flaws in anti-doping governance, it is arguable whether authorities should hold individuals strictly liable for doping without considering important external factors such as pressure from coaches and governments, athletes’ ages and disabilities, and pure accidents. Applying these nuanced considerations will further the prevention of doping without impeding on the rights and futures of young athletes. This will help ensure that the Olympic Games and other sporting competitions will continue to be safe and fair forums for all.