Do Athletes Really Have the Right to a Fair Trial in “Non-Analytical Positive” Doping Cases? – Vol. 22 No. 2

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Authors: Jérôme de Montmollin* and Dmitry A. Pentsov**

Published: December 2011


Can the noble objective of a certain campaign and its intended benefits for the people at whom it is aimed justify disrespecting the human rights of a few individuals who are inadvertently or not caught in the middle of this campaign? Or, more specifically, could the noble objectives of the World Anti-Doping Program, namely protecting athletes’ fundamental right to participate in a dopingfree sport and thus promoting health, fairness and equality for athletes worldwide, justify disrespecting an athlete’s right to a fair trial? Such questions may be asked in light of a recent Court of Arbitration for Sport (“CAS”) award in a doping case involving seven female Russian track and field athletes, resulting in the imposition of sanctions by the CAS Panel of two years and nine months ineligibility to participate in all national and international competitions for a fraudulent substitution of their samples collected under the out-of-competition testing program of the International Association of Athletics Federations (“IAAF”) in Russia (the “case of the seven Russian athletes”).

This case first came to the spotlight of public attention on July 31, 2008, less than a week before the official opening of the 2008 Summer Olympic Games in Beijing, when the IAAF announced the provisional suspension of seven Russian athletes for alleged doping offences. All suspended athletes were charged under IAAF Competition Rules 32(2)(b) and 32(2)(e) with the fraudulent substitution of urine samples, which is both a prohibited method and also a form of tampering with the doping control process. The IAAF discovered the substitution of samples following a specific investigation instigated and carried out by the IAAF for more than a year, as it suspected that certain irregularities had arisen from its “out-ofcompetition” testing program conducted in Russia. In particular, the IAAF compared the DNA profiles of “out-of-competition” urine samples that had been collected from twenty-three Russian athletes in Russia with the DNA profiles of “in-competition” urine samples collected from the same athletes under conditions that could guarantee the origin of the samples. The DNA analyses revealed that, for the seven female athletes, the samples compared presented different genetic profiles, thereby excluding the possibility that the same person had provided both samples. Further DNA profile analysis of additional samples collected by the IAAF from six of the seven athletes in the form of a buccal swab confirmed these findings.

This case of seven Russian track and field athletes was certainly not the first instance where a CAS panel found athletes responsible for anti-doping rule violations, not on the basis of a positive finding of a prohibited substance in the athlete’s sample by a World-Anti-Doping Agency (“WADA”) accredited laboratory, but solely on the basis of circumstantial evidence (the so-called “nonanalytical positive” or “circumstantial evidence” doping cases).10 Neither was it …

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*Partner, Froriep Renggli (Geneva, Switzerland); Member of the Canton of Geneva Bar Association (Switzerland).
**Associate, Froriep Renggli (Geneva, Switzerland); Law Faculty of St. Petersburg State University, Diploma in Law (1993); Georgetown University Law Center, LLM (1995); Law Faculty of the University of Geneva, Master of Law (2008); Member of the New York State Bar Association and St. Petersburg City Bar Association (Russia). The responsibility for the opinions expressed in this publication rests solely with the authors. Readers are cautioned that this publication is intended for information purposes only and that if legal advice is required, a lawyer should be consulted.