In the current dictionary of the Turkish Language Association, doping is defined as a stimulant drug taken during a competition in order to give the body additional energy. Resorting to substances that artificially enhance performance during a competition removes the balance between the competing athletes and damages the fair basis of the contest. Conduct of this nature is treated as a doping violation; a regime of penalties extending from ineligibility to financial sanctions is applied to those responsible.
In practice the dispute usually arises not from the substance itself but from the manner in which the process has been conducted. The conditions under which and the authority on which the sample was taken, by whom and to what degree of persuasion the violation is to be established, and before which body and within what period the resulting decision may be reviewed all bear directly on the outcome.
In this briefing note we address, in turn, the basis of doping controls, the regime of proof governing the establishment of a violation, the sanctions provided for the athlete and for the team, and the avenues of recourse available against a disciplinary decision.
The Basis of Doping Control and the Establishment of a Violation
Sample collection and investigation procedures are conducted within the framework of the rules laid down in the International Standard for Testing and Investigations and the protocols determined by the Turkish Anti-Doping Commission to supplement that standard. The World Anti-Doping Code, subject to certain limitations of competence, confers on anti-doping organisations exclusive authority to carry out in-competition and out-of-competition testing of athletes. The Commission may likewise call an athlete falling within its testing authority to a doping control in order to provide a sample, without limitation of time or place.
For a comprehensive view of the legislative framework on this subject, the study entitled Legal Regulations on the Use of Doping may also be consulted.
Establishing the Violation and the Standard of Proof Required
The burden of showing that an anti-doping rule has been breached rests with the Turkish Anti-Doping Commission. The standard required here is that, having regard to the seriousness of the allegation, the adjudicating body be comfortably satisfied that the violation has occurred.
By contrast, the Anti-Doping Directive leaves it in certain cases to the athlete or other person alleged to have committed the violation to prove the contrary. In that event the standard regarded as sufficient is lower and is met by a balance of probability.
Nor is there any closed list of evidence for the establishment of the underlying facts. The facts relating to a violation may be established by any means regarded as reliable, including an admission by the person concerned.
Individual Sanctions Imposed on the Athlete
While doping adjudication is conducted worldwide by WADA, in Türkiye this task has been entrusted to the independent Anti-Doping Disciplinary Board constituted by the Turkish Anti-Doping Commission.
The role of the Commission’s Board of Directors in this field is confined to the constitution of that board. The Anti-Doping Disciplinary Board is independent and impartial in its operation; it is required to conduct its proceedings in accordance with the procedural rules set out in Article 8 of the Directive.
Once the proceedings are concluded, the basis for the individual sanctions to be imposed on an athlete found to have used doping is Art. 10 of the Turkish Anti-Doping Directive. That provision prescribes the following consequences:
- As regards ineligibility, the Directive draws a twofold distinction in Article 10.2.1, headed "Use, Attempted Use or Possession of a Prohibited Substance or Prohibited Method". Where the anti-doping organisation is able to establish that an athlete who used, attempted to use or possessed "specified substances" did so intentionally or negligently, the sanction is four years of ineligibility; in cases falling outside that description the period applied is two years.
- The results obtained by the athlete cease to be valid; all of the athlete’s gains, including medals, prizes and points, are withdrawn.
- The athlete may be automatically disqualified from the competitions concerned.
- In addition to the foregoing, anti-doping organisations are also permitted to impose sanctions of a financial nature. That power is, however, limited by the principle of proportionality, and its exercise requires that all periods of ineligibility have first been ordered.
Sanctions Directed at the Athlete’s Team
Consequences at team level are dealt with in Article 11 of the Directive. The provision allows a separate penalty to be imposed on teams more than two of whose players are found to have committed an anti-doping rule violation during a tournament period. In such a situation the body organising the tournament does not confine itself to sanctions against the athletes in breach; it also imposes the necessary penalties on the team. In practice the penalties ordered against a team most often take the form of the deduction of points or of disqualification from the competition or the tournament.
Which Body May an Appeal Against the Decision Be Brought Before?
A decision of the Disciplinary Board may not be unreasoned. The period of ineligibility ordered, all of the grounds relied upon and the reason why the maximum possible sanction was not applied in the particular case must be set out clearly in the decision. The decision must also be drawn up in writing, dated and signed. The views of board members remaining in the minority or entering a dissenting opinion are likewise reflected in the written reasons. The decision itself and the contents of the file are notified by the Board simultaneously to the anti-doping organisations, to the Turkish Anti-Doping Commission and to the athlete or other person against whom the decision was rendered.
Decisions are not beyond review. An appeal may be brought under Article 13 of the Anti-Doping Directive and the other relevant provisions of the World Anti-Doping Rules, the Anti-Doping Directive or the International Standards. Which body is seised varies according to the level of the person against whom the decision was rendered and the nature of the tournament.
Cases of an International Character
In cases arising from participation in an international tournament, or concerning athletes at international level, a period of 21 (twenty-one) days for appeal begins to run once the written and reasoned decision has been issued. In such cases the body to which the application is made is the Anti-Doping Appeal Board. Against a decision of the Appeal Board, recourse may be had, within the framework of Article 13.2.3 of the Directive, only to the Court of Arbitration for Sport (CAS). The decision rendered by CAS on appeal is final.
Cases Falling Outside That Scope
In cases that do not fall within the scope described above, an application may be made to the Anti-Doping Appeal Board within 21 (twenty-one) days of the date of notification of the written and reasoned decision. In that event the decision rendered by the Appeal Board is final.
Independent Legal Assessment
In doping files the decisive factor is often, before any debate on the merits of the violation, whether the process has been conducted in accordance with the applicable procedure. A departure from the standards at any of the stages between the taking of the sample and the notification of the decision can create a ground capable of taking precedence over a defence on the merits. Appeal periods, by contrast, are short and cannot be remedied once missed; a legal assessment must therefore be commenced as soon as the decision is notified.
The level of the athlete likewise has a direct bearing on the strategy to be followed. Whereas a two-tier review extending as far as CAS is available in a file of an international character, in disputes falling outside that scope the process closes with the decision of the Appeal Board. Determining correctly at the outset which regime governs the file also determines the stage at which the defence should be concentrated.
In a concrete doping file, priority should be given to the following matters:
- Verifying from the documentation that the sample collection and chain of custody comply with the International Standard
- Clarifying which party bears the burden of proof and which standard of proof is to apply in the case
- Examining whether intent or negligence has been established, by reference to the criterion that separates the four-year period from the two-year period
- Checking whether the decision satisfies the requirements of being in writing, dated, signed and reasoned
- Documenting the date of notification and calendaring the 21-day appeal period
- Assessing together with the club whether a separate risk of sanction arises for the team
Independent Legal advises on sports law disputes, from the preparation of the defence in doping investigations through to the conduct of proceedings before the disciplinary and appeal boards and before CAS.