The Strict Liability Principle and the Human Rights of the Athlete in Doping Cases

Athletes who achieve extraordinary feats on the pitch stir up the imagination and enjoy a unique position within society. However, laurels received one day, may be just as quickly snatched back the next if it becomes known that the athlete achieved his or her exceptional performance with the aid of doping. Manipulating the body by the use of substances and methods that unnaturally enhance athletic performance is considered a violation of several fundamental principles related to sport. The arguments by which sports organisations have sought to justify their fight against doping have been discussed in Chapter 1. Doping is considered a health risk, but also a threat to both athletes@ integrity and that of sport as a whole, and consequently, given the position in society occupied by sport, of that of society itself. None of these arguments, however, is entirely convincing. Perhaps this is why many sports organisations have declined to state reasons for their anti-doping policies in their anti-doping regulations. The fight against doping in sport is considered self-evident and the arguments which are advanced in its favour merely serve to illustrate this fact. It was only a relatively short time ago that the systematic fight against doping in sport through legal rules began. As a separate body of disciplinary law besides their regular disciplinary rules the sports organisations established special anti-doping regulations for the prosecution and punishment of doping offences. As opposed to under general disciplinary law where unwritten minimum standards usually apply, the disciplinary law of doping uses detailed material rules which define the act of doping and the way in which it is to be punished. As such, the disciplinary law concerning doping resembles the statutory disciplinary rules that exist for certain professions, but is also comparable to public punitive law. What sets disciplinary doping law apart however is that the material rules do not aim to regulate the actual exercise of a profession, but are based on the ideological aspects which prevail in the environment where an athlete's activities take place. In disciplinary doping law, for example, there are hardly any examples of professional error, but rather of acts which undermine the image and ethics of the sport. This is an aspect which it has in common with criminal law. Disciplinary doping law which mainly aims to regulate the relevant offences and their prosecution and punishment should therefore be organised along the same lines as criminal law and entitle athletes to certain rights to counter the demands of the collective. This is necessary, as in sport the interests of the collective are often valued above those of the individual.