Where in the world is doping a crime? (doping in sports pt. 6)

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Where in the world is doping a crime? (doping in sports pt. 6)

Posted 24/04/2013 by Jaan Murphy

In the previous FlagPost in this series we examined actions related to doping in sport that can also be prosecuted as crimes in Australia. Do other countries criminalise doping in sport, or is Australia unique in having criminal offences that apply to conduct associated with Anti-Doping Rule Violations (ADRVs)?

The situation overseas

In Australia some actions related to doping in sports (e.g. trafficking, possession, use or administration of steroids) are also crimes under various Commonwealth, state or territory statutes. However, none of those laws are sports-specific but rather reflect a mixture of criminal, therapeutic goods or customs legislation that happen to cover conduct related to some ADRVs.

In contrast, some countries have enacted sports-specific laws that criminalise the use of a World Anti-Doping Code (WADC) Prohibited Substance (most notably Austria, France and Italy). In other words, they have criminalised doping as it is colloquially understood.

A larger number of countries have enacted sports-specific legislation that criminalises other ADRVs (other than the use of a WADC Prohibited Substance) including:
  • the possession of WADC Prohibited Substances or Methods
  • the supply or distribution of WADC Prohibited Substances or Methods (trafficking)
  • the administration or prescription of WADC Prohibited Substances or Methods to athletes, and
  • failing to cooperate with anti-doping investigations being conducted by a National Anti-Doping Organization (NADO) or other public authority.

Doping crimes in Europe

Austria has adopted a unique approach to criminalising doping in sports. Under section 147 of the Austrian StGB, any person who commits fraud (entailing more than ‘insignificant damage’) by using a substance or method prohibited under the European Anti-Doping Convention faces up to three years imprisonment. If the damage caused by the use of prohibited substance or method exceeds €50,000 the maximum sentence increases to ten years imprisonment.

As noted in the previous FlagPost, some commentators here in Australia have argued that the use of WADC Prohibited Substances or Methods by professional athletes or scholarship holders may be regarded as obtaining money, property, services, a benefit, or an advantage dishonestly or by deceit, and therefore could be prosecuted as fraud (and attract a term of imprisonment) under various state criminal statutes. What makes Austria different to Australia is that Austria has created a sports-specific fraud, rather than relying on existing criminal laws.

Austria’s laws aren’t just for show. There have been a number of notable prosecutions for criminal doping offences including:

  • Stefan Matschiner, a manager of Austria cyclist Bernhard Kohl was sentenced to 15 months in prison for assisting cyclists engage in blood doping and selling WADC Prohibited Substances and Methods
  • Mikhail Botvinov, an Austrian cross-country skier was given a suspended 4 month prison term for giving false testimony as a witness in a doping case against ex-Nordic coach Walter Mayer and
  • Walter Myer, a biathlon coach was given a partially suspended 15-month prison term for the trafficking of WADC Prohibited Substances and Methods, including EPO.

The situation in Italy is different again from Australia. In Italy the Disciplina della tutela sanitaria delle attivita’ sportive e della lotta contro il doping (Law number 376 of 2000) establishes three distinct types of criminal doping offences. 

The first two offences concern both athletes and support personnel procuring, administering, consuming (or even encouraging the use of) WADC Prohibited Substances or Methods, with the aim of improving an athlete’s competitive performance or to modify the results of an anti-doping test. Imprisonment from three months to three years and a fine from €2,580 to €51,645 are the sanctions for these offences.

The third offence (arguably the most innovative) aims to tackle illegal suppliers who trade in WADC Prohibited Substances outside official distribution channels. Imprisonment from two to six years and a fine from €5,164 to €77,468 are the sanctions for this offence. Notable prosecutions for criminal doping offences in Italy include:

  • Antonio Giraudo and Riccardo Agricola, the manager and chief sports physician respectively of the Juventus football (soccer) club were found guilty by Italy’s Supreme Court in 2007 of sporting fraud for purchasing and administering WADC Prohibited Substances and Methods, such as corticosteroids.
  • In 2011, Luciano Moggi the director general the Juventus football (soccer) club was found guilty of sports fraud and sentenced to five years and four months imprisonment, but the decision is currently subject to an appeal.
  • Michele Ferrari, a doctor and cycling coach was convicted in October 2004 of sporting fraud and sentenced to one year in prison (suspended) and fined €900.00, but this was later overturned on appeal.
In France, under the Code du sport, the use of a WADC Prohibited Substance or Method is criminal offence. In addition the Code du sport criminalises the supply and administration of a WADC Prohibited Substance or Method and failure to cooperate with anti-doping investigations.
Spain too has criminalised doping in sports. Under the Public General Act 7/2006, of 21st November, on the protection of health and the fight against doping in sport it is an offence to prescribe, provide, dispense, supply, administer, offer or make available banned substances or pharmacological groups, as well as non-authorised methods aimed at increasing athletes physical capacity or modifying the results of competitions.
However, Austria, Italy, France and Spain – whilst unique in criminalising the use of WADC Prohibited Substances and Methods – are not the only countries to have criminalised certain ADRVs.
Austria, Cyprus, Denmark, France, Greece, Hungary Iceland, Luxembourg, Norway, Portugal, Romania, San Marino, Serbia, Spain and Sweden have enacted sports specific legislation that criminalises the trafficking of WADC Prohibited Substances and Methods.
Whilst it might appear that criminalising doping in sport is a European concept, Europe isn’t alone in introducing laws that criminalise the trafficking of WADC Prohibited Substances and Methods (which is also an ADRV). China, the Democratic Republic of Congo, Mexico, New Zealand, Nicaragua and Tunisia have all enacted laws of various breadth and scope that deal with the trafficking of WADC Prohibited Substances and Methods.
In the next FlagPost, we will explore who is bound by the WADC and various anti-doping policies here in Australia.

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

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