Proving doping: the ADRV enforcement process and the role of sporting tribunals (doping in sports pt. 3)

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Proving doping: the ADRV enforcement process and the role of sporting tribunals (doping in sports pt. 3)

Posted 11/04/2013 by Jaan Murphy

The previous FlagPost in this series explored what constitutes doping under the World Anti-Doping Code (the WADC) and the standard of proof required to prove Anti-Doping Rule Violations (ADRVs).
This FlagPost examines what happens once a possible ADRV is detected, either through evidence collected as part of an investigation or as a result of an adverse analytical finding (the detection of the presence of a substance or the use of a method on the Prohibited List in a sample provided by an athlete).

So how is an ADRV proved and prosecuted?

For all Australian sports that have adopted the WADC, ADRVs are primarily prosecuted in a sporting tribunal, which is administrative (rather than judicial) in nature. These sporting tribunals have jurisdiction to hear ADRV matters as athletes (by reason of their membership of the relevant sporting administration body (SAB) and/or by participation in events conducted by the SAB) agree to abide by the rules of the sport.

The Australian sporting tribunal system

Many of the professional sporting codes have their own tribunals. Examples are the AFL Tribunal, the NRL Judiciary and Anti-Doping Tribunal and the A-league (soccer) Disciplinary Committee and Anti-Doping Tribunal. Other sports refer ADRV matters to the Court of Arbitration for Sport (CAS)

Under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act), a potential ADRV must be referred to the Anti-Doping Rule Violation Panel (ADRVP) to determine whether an adverse analytical finding or a possible non-presence ADRV has occurred. The ADRVP is a decision-making body established under the ASADA Act, but independent from ASADA, whose members are appointed by the Minister for Sport.

Prior to the referral of the possible ADRV, ASADA puts formal allegations of a possible ADRV to the athlete or support person. The ADRVP reviews ASADA’s processes and evidence and considers any submissions made by the athlete or athlete support person. If the ADRVP confirms the finding on the evidence before it, the athlete or support person’s details are entered onto the Register of Findings (ADRVP finding).  ASADA then notifies the athlete or athlete support person of:
  • the details of the Register of Findings entry and
  • their right to appeal the decision to enter their name on the Register.

A person whose name is entered on the Register of Findings has 28 days to appeal to the Administrative Appeals Tribunal (AAT). In the absence of any appeal or any successful appeal to the AAT, the matter will be finally determined before the relevant sporting tribunal (such as CAS) in accordance with the sport’s anti-doping rules. The tables below outline the anti-doping processes from testing and investigation to possible final hearing.

The Hearing and Appeals Process arising from an Adverse Analytical Finding 

The Hearing and Appeals Process arising from an Adverse Analytical Finding

The Hearing and Appeals Process for non-Adverse Analytical Finding based ADRVs

The Hearing and Appeals Process for non-Adverse Analytical Finding based ADRVs

Administrative sanctions

The sporting tribunal is responsible for determining, on the evidence, whether an ADRV has been committed and for imposing any relevant administrative sanction including:
As part of this decision making process, the relevant sporting tribunal will consider a variety of factors, including whether the athlete or support person provided substantial assistance towards establishing ADRVs by others. The WADC strictly governs any reduction in sanction imposed for ADRVs. However, providing substantial assistance may result in up to a ¾ reduction in the applicable sanction imposed.
Subject to the appeal rights contained in the relevant Sporting Administration Body’s (SAB’s) anti-doping code, a sporting tribunal decision (the findings and/or sanction) may be appealed to the Appeals Division of the CAS by the athlete, support person, SAB, ASADA, WADA or relevant international federation.
The ADRV may only be publicly disclosed by ASADA once any appeal to the AAT is finalised, and if the athlete is sanctioned by the sport. Once this has occurred, the ADRV must be publicly disclosed no later than 20 days after the hearing. The matter must also be publicly reported within 20 days of any appeal decision.
In our next FlagPost, the dual use of evidence in both sporting tribunals and criminal proceedings will be examined.

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Flagpost is a blog on current issues of interest to members of the Australian Parliament

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