One of the foundations of natural or constitutional justice is that once an allegation affects an individual’s good name he/she is entitled to a complex, if undefined, set of procedural safe guards. An allegation of doping is an accusation which could profoundly affect the good name of the athlete involved. It characterises the individual in question as a dishonest person and compromises their integrity. This instalment will examine the merits of Article 7 of the World Anti Doping Code (Provisional Suspensions).
Article 7.2
‘A signatory may adopt rules, applicable to any event for which the signatory is the ruling body or for any team selection process for which the signatory is responsible, permitting provisional suspensions to be imposed after the review and notification but prior to a final hearing.’
The application of provisional suspensions is one of the primary areas where reform of the Code is needed. The Code empowers governing bodies to suspend athletes’ prior to any formal hearing. This action from governing bodies must be viewed against the backdrop of the severity of being accused of a doping offence. Imposing a period of suspension pending analysis of a ‘B’ sample is inherently wrong. At this stage only tentative evidence of any wrong doing exists. It is my respectful submission that the paramount issue in question relates to judging between two rights; balancing the rights of athletes’ to fair procedure against the right of WADA to advance its core objectives.
WADA, on the one hand, is endeavouring to eradicate drugs from sport, but in this instance, athletes’ rights are being compromised in the pursuit of utopia. WADA has decided that the consequences of allowing a suspected doper to continue competing, pending a formal hearing are too great. They have favoured a pre emptive suspension. In making this decision they have failed to fully appreciate the severity of the consequences that ensue for an athlete accused of doping.
The eradication of drugs from sport, especially cycling, is an uphill battle. The task is one which requires carefully formulated legislation; athletes’ rights are paramount in the battle against dopers. For authorities to compromise athletes’ rights in the pursuit of a clean sport (which is essentially vindicating athletes’ rights) is for them to lose sight of the rationale behind the anti-doping movement.
The introductory memorandum to the Code places heavy emphasis on the ‘spirit of sport’ and seeks to protect it. Surely, at the heart of the spirit of sport are the athletes’ and athletes’ rights, by implication. How can a Code which seeks to advance and preserve the spirit of sport also advance policies which fundamentally undermine the natural justice rights of athletes’? Although WADA is entitled to considerable credit for its work in the fight against doping, in this instance, they have failed to correctly access the merits of Article 7.
Posts
