1. “ The Fight against Doping between Efficiency and Proportionality: a role for action taken at EU level?” Jacob Kornbeck Willy Calewaert Chair Second Lecture VUB, Brussels, Thursday, 2 December 2010, 6.00-7.15 pm

4. 1.2. Why efficiency and why proportionality? "I have no problem with the drug testing part and I don't care how much I get tested. But having to fill out where you are every single day, this is not human. It would be easier if they just put a chip inside us," said Ms. Wickmayer." (Cohen, 2009) "The whereabouts rule is a cornerstone of our policy," said Stuart Miller, anti-doping manager for the International Tennis Federation, the sport's governing body. "The only way to have an effective anti-doping policy is to know where a player will be to conduct random testing." (Cohen, 2009) 1. Introduction

5. 1.2. Why efficiency and why proportionality? "You might consider it a large breach of privacy to have to pee into a cup in front of another person, but that's what we ask athletes to do," Mr. Howman said. "We have to look at all these things and get them into perspective." (Cohen, 2009) "If you have to be available every day of the year, it isn't vacation," said Wil van Megen, the head of FIFRPo's legal department. […] (Cohen, 2009) "Anti-doping rules are just private agreements, they are not law. They can restrict some freedoms, as long as it is proportionate to the objective," said Mr. Dupont. "The fight against doping is a priority, but you cannot go too far." (Cohen, 2009) 1. Introduction

15. 3.2. Why should performance-enhancing drugs be prohibited? “ [...] athletes caught using drugs are, to an increasing degree, exposed as deviant outsiders in the world of sport. In addition to the official penalty which is imposed on them on account of their offence, they are labelled as athletes of poor morals, who are spoiling the game for everyone else. Although the athletes usually claim that they have always competed drug free and that a mistake must have been made, this hardly ever supports their case. Even if they are later acquitted due to contradictory B - sample test results or legal quibbling, they are already labelled.” (Vest Christiansen, 2006, p. 168) 3. Why do we need a fight against doping?

16. 3.4. The presumption of innocence Sir William Blackstone (1723-1780) Commentaries on the Laws of England (1765-1769) "Better that ten guilty persons escape than that one innocent suffer." 3. Why do we need a fight against doping?

17. 3.4. The presumption of innocence “ There is a legal as well as an ethical definition to this case. DCU has got certain ethical standards and these will not be stretched. We do not wish to persecute Bo Hamburger. But if a rider makes mistakes or acts in a way that is in discrepancy with our code of conduct, that is the end.” (Vest Christiansen, 2006, p. 168) Discrepancies between the “spirit of sport” and the “essence of sport” … 3. Why do we need a fight against doping?

19. 3.6. Sport ethics “ Doping means cheating” – yes, but… 3. Why do we need a fight against doping?

20. 3.6. Sport ethics “ Doping means cheating” – yes, but… “ Wenn der formale Charakter eines Spiels – der nach Suits (1973, 49 ff.) aus seinen Regeln, Zielen, Mitteln und der Spielhaltung besteht – bedeutet, dass er die Spielwelt vollkommen abschliesst („einformt“): auf welche Weise kann das Täuschen oder umgekehrt die bewusste Spielregelbefolgung moralisch definiert werden?“ (Court, 1996, p. 235) In other words, by opting for the „specificity“ of sport, those in charge of anti-doping potentially invalidate their claims to the immoral nature of doping. 3. Why do we need a fight against doping?

21. 3.6. Sport ethics 2009 WADA Code, p. 14: The spirit of sport is the celebration of the human spirit, body and mind, and is characterized by the following values: • Ethics, fair play and honesty • Health • Excellence in performance • Character and education • Fun and joy • Teamwork • Dedication and commitment • Respect for rules and laws • Respect for self and other Participants • Courage • Community and solidarity (…) 3. Why do we need a fight against doping?

22. 3.7. Individual and public health Savulescu, Foddy & Clayton (2004) British Journal of Sports Medicine Leader Why we should allow performance enhancing drugs in sport Br J Sports Med 2004;38:666-670 “ The starkest example is the Finnish skier Eero Maentyranta. In 1964, he won three gold medals. Subsequently it was found he had a genetic mutation that meant that he “naturally” had 40–50% more red blood cells than average. Was it fair that he had significant advantage given to him by chance?” - Nevertheless, individual and public health remain very valid reasons to address the problem… and this approach makes the fight against doping very credible and very legitimate. 3. Why do we need a fight against doping?

23. 3.8. The protection of public, social and moral order “ […] Doping practices involving illegal substances pose a serious threat to social order, including criminal justice issues, and to the integrity of the sporting community. They rely on a generalised and systematic breach of law practised by persons acting within networks. Many substances used for doping are covered by national legislation on illicit drugs and/or international drug conventions. While the possession of these substances may be illegal, they are often easily available. In this respect, a remarkable enforcement deficit can be observed. For the criminal community, the trade in doping substances can offer an attractive mixture of low risk and high return on investments. Trade in doping substances is often not subject to severe punishment. ” (European Commission, White Paper on Sport, Staff Working Document, 2007, sec. 2.2) 3. Why do we need a fight against doping?

25. Asser study: implementation of WADA Code In a doping act = light blue In a sports act = red In other acts = green In rules of NF’s = purple No implementation = turquoise 4. A role for the EU (?): harmonisation

26. Asser study: implementation of WADA Code Unrestricted use of ADAMS = light blue Restricted use of ADAMS = red In the process of implementing ADAMS = green No use of ADAMS = purple (Anti-Doping Administration & Management System) 4. A role for the EU (?): harmonisation

27. Asser study: criminalisation of trade in doping substances Criminal Code = light blue Drugs laws = red Sports Act = green No existing laws and regulations relating to trade and distribution of doping products = purple 4. A role for the EU (?): harmonisation

28. “ The present status is that approx. half of the EU’s Member States now criminally sanction trade in doping substances in one way or another. Evidence seems to suggest that the fight against doping on the supply side is indeed facilitated when trade in illicit doping substances has been criminalised. For this reason, the trend among Member States is clearly toward criminalisation. Based on these developments, it would seem appropriate to call upon the other half of the Member States to join the trend and criminalise also.” (European Commission, 2009, p. 3) 4. A role for the EU (?): harmonisation

29. Article 81 (1) TFEU = possible Article 81 (2) TFEU = possible "After all, the promise is also to create an area of freedom and justice. In spite of this, it seems that the Lisbon Treaty offers a more attractive framework, in terms of competences and protection of the individual, than the current regime." (Herlin-Karnell, 2009, p. 242) 4. A role for the EU (?): harmonisation

31. 6.1. Introduction Size of RTP’s Country RTP size [1] NTP size [2] Population [3] Austria +/- 350 +/- 500 8.3 Belgium (VL) 682 6.6 [4] Bulgaria n/a [5] 7.6 Czech Republic 450 10.5 Cyprus n/a [6] 0.8 Germany +/- 500 +/- 1,200 82 Denmark +/- 65 5.5 Estonia 133 1.3 Finland 64 5.3 6. A role for the EU (?): cooperation for more inspiration

35. 7.2. Normality 2009 WADA Code (p. 18): “ These sport-specific rules and procedures aimed at enforcing anti- doping rules in a global and harmonized way are distinct in nature from and are, therefore, not intended to be subject to or limited by any national requirements and legal standards applicable to criminal proceedings or employment matters. When reviewing the facts and the law of a given case, all courts, arbitral hearing panels and other adjudicating bodies should be aware and respect the distinct nature of the anti-doping rules in the Code and the fact that those rules represent the consensus of a broad spectrum of stakeholders around the world with an interest in fair sport.” 7. Conclusion

36. 7.2. Normality 2009 WADA Code (p. 18): “ These sport-specific rules and procedures aimed at enforcing anti- doping rules in a global and harmonized way are distinct in nature from and are, therefore, not intended to be subject to or limited by any national requirements and legal standards applicable to criminal proceedings or employment matters. When reviewing the facts and the law of a given case, all courts, arbitral hearing panels and other adjudicating bodies should be aware and respect the distinct nature of the anti-doping rules in the Code and the fact that those rules represent the consensus of a broad spectrum of stakeholders around the world with an interest in fair sport.” 7. Conclusion

37. 7.2. Normality 2007 Olympic Charter (Bye-law to Rule 45, pp. 84-85): “ "6. Any participant in the Olympic Games in whatever capacity must sign the following declaration: (…) I also agree that any dispute arising on the occasion of or in connection with my participation in the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration (Rule 59)." 7. Conclusion

41. 7.4. Testing proportionality 3. The proportionality test: Is this a reasonable measure, as much as necessary and as little as possible? Is it appropriate to reach its objective, or is it more like cracking a nut with a steam hammer? 7. Conclusion

42. Thu 27 January 2011 (6-7.30 pm) Gianluca Monte: Sport and the media which role does the EU play? Thu 10 February 2011 (6-7.30 pm) Bart Ooijen : EU perspective on Education and Training Qualifications in Sport Thu 17 February 2011 (6-7.30 pm) Gianluca Monte : Transfers, licensing systems and players agents: the EU as a gatekeeper of the integrity of sport competitions? Thu 3 March 2011 (6-7.30 pm) Jacob Kornbeck: Play, not therapy: the EU’s role in promoting health-enhancing physical activity (HEPA) Thu 31 March 2011 (6-7.30 pm) Jacob Kornbeck: Looking into the future: the implementation of the Lisbon Treaty in the field of sport Happy Holidays and All the Best in 2011