The Application of Criminal Law on Doping Infractions and the 'Whereabouts Information' Rule: State Regulation V Self-Regulation

Introduction Much discussion has been generated with the introduction of a rule to combat the use of performance enhancing substances and methods in sport. This discussion has been initiated and subsequently became an integral part of the sporting public opinion, as a result of the application of this rule on high profile professional athletes, such as the Greek sprinters Kenteris and Thanou, the British 800m athlete Christine Ohuruogou, as well as FIFA's disagreement to incorporate the rule in its regulatory framework. The "Whereabouts Information" Rule [thereafter WIR] concerns the so-called "non-analytical finding" cases, which do not require a finding of a positive result of an anti-doping test for the application of sanctions on anti-doping rules violations. Instead, they require that the athlete fail to submit whereabouts information and/or fail to be present, for an anti-doping test, during the chosen time and place of his/her whereabouts information. The WIR, therefore, is a prerequisite for a "missed test"; before the sanction of an anti-doping violation could be applied on an athlete and during the analysis the reader must always keep the two together. (1) The consequences, for an athlete, of failing to adopt, apply and follow the WIR are immense. When an athlete fails to submit up to dated whereabouts information or is not where his information states he should be and an officer attempts to test the athlete unsuccessfully, the athlete, according to the World Anti-Doping Code [thereafter WADC], is deemed to have missed the test and he would be the subject of an evaluation of a missed test. Three missed tests in a consecutive period of eighteen [18] months constitute an anti-doping violation, which carries a sanction of ineligibility from all competitions. The historical framework The creation of the WIR dates back to June 2004. It was the International Association of Athletics Federation [thereafter IAAF], that first incorporated such rule into its regulatory framework. This rule came into force in June 2004 and all National Olympic Committees and National Governing Bodies had been notified as to the existence and application of this rule during the last week of June 2004. This was almost 7 weeks before the opening of the Athens Olympiad in August 2004. (2) This Rule came into force for one obvious and well documented reason: that is, to enhance the ability of the sporting governing bodies towards detection of those who attempt to refuse and/or avoid the anti-doping test. Applying the strict liability standard, the result, of the intended aim of the rule, is also obvious: to create an anti-doping violation [in a form of a positive test for performance enhancing substances] even where the athlete has not tested positive for the use of performance enhancing substances and/or methods of enhancing one's performance. Once the legality of such rule has been established, there is little question as to the ethics of its application. Despite the fact that there are concerns as to the serious detriment to an athlete's career if this rule is applied in an arbitrary and capricious way, the aim of its inception and application appears to be defeating all arguments against its use. Once a justification for the ban on doping practices has been established, all arguments on ethicality and morality tend to become weak in rebuttal. I would not argue as to the ethicality or morality of the existence of this rule. To do so, would require me to consider the highly subjective contention of "what is wrong with drugs and doping in sport." The justifications of the ban on doping in sport are well documented elsewhere and another analysis, here, to this effect, would simply leave me repeating the point. What is important, however, for the purposes of this work, is to examine and critically analyse the practicalities of the application of the WIR. It is not only important that gaps in knowledge must be filled, but it is equally important and thought provoking, to enhance practice in this area of sports law. …