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Anti-Doping Regulations: An Imperfect System

March 25, 2021

History of Anti-Doping Regulations

The World Anti-Doping Agency (“WADA”) was established in 1999 in attempt to tackle the worldwide problem of drug use in sport. Five years later, the first World Anti-Doping Code (the “Code”) was introduced in order to protect health, fairness and equal opportunity for athletes worldwide.

Interestingly, FIFA was one the last Olympic federations to adopt the Code. FIFA only amended its regulations in 2006 to conform to the Code. The reason behind its apparently  slow adoption of the WADA Code was the strict liability rule. Under the Code, the two year ban is automatically imposed upon an athlete if a prohibited substance is found in his/her body, regardless of the intention.

Why is the current system arguably imperfect?

While it is clear that the Code and anti-doping rules intend to facilitate equality of opportunity for athletes, and the right to be free from any pressure that jeopardises their health, it is not clear where the border might lie between the promotion of such equality and the infringement of athletes’ legal rights.

Under Article 6 of FIFA’s Anti Doping Regulations 2021 (the “Regulations”), it is the player’s personal duty to ensure that no prohibited substance enters his/her body. Players are responsible for any such substance found to be present in their samples. As a result, it is not necessary that intent, fault, negligence or knowing use on the player’s part be demonstrated to establish an anti-doping rule violation.

In practice, however, players cannot “ensure” that no prohibited substance enters their bodies as they cannot examine every substance they are given. Most employment contracts provide that the player may be fined and/or otherwise sanctioned for non-compliance with a club’s nutrition programmes and internal professional regulations. Some professional regulations similarly provide that the club has a right to terminate the employment contract with the player prematurely, in circumstances where the player refuses to follow the club’s doctor or nutritionist recommendations with regard to food supplements.

Even if a player stays at a club’s facilities (which is often the case with international players) and consumes food and food supplements prescribed by the club’s nutritionist and/or the doctor, there is still a risk that the player is given contaminated supplements. Clearly, it is nobody’s intention to cause the disqualification of a player, but unfortunately it does occur from time to time. According to statistics, at least 12 doping positive tests per year are due to supplement contamination.

In accordance with Article 30 of the Regulations, the player will be disqualified almost immediately from participating in matches or training sessions throughout nearly the whole period of disqualification (which may take at least 2 years).

The player’s fault will be presumed and the Regulations place the burden of proof to rebut the presumptions on the Player. The player will have to establish:

  1. the source where the doping came from, which is not always easy to track and to prove;
  2. the lack of intention to consume a prohibited substance, which is even harder to prove.

It may therefore take years for the player to prove his/her innocence, and if lucky, to continue with his/her career as a professional footballer.

Why is this important?

Anti-doping rules violation may result in termination of the player’s contract of employment. To avoid contractual disputes in the future and minimise risks, it is essential for players to seek professional legal advice before entering into employment contracts with their intended club.

For legal advice on risks or drafting of the contract of employment, please contact Madina Tatraeva at madina.tatraeva@iaw.co.uk

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