COSTA - Legal opinion 2019 (expert opinion) on the World Anti-Doping Code

1

Please note that the following is an English translation of the original French version.

Legal opinion 2019 (expert opinion) on the World Anti-Doping Code (26 September 2019) Jean-Paul Costa

Context for this opinion and historical background My name is Jean-Paul COSTA. I am a former President of the European Court of Human Rights, honorary member of the Council of State (France) and Arbitrator for the Court of Arbitration for Sport. I am expressing myself here as a consultant in my personal capacity, outside the scope of my past or current functions. In 2013, I was called on by WADA to provide a legal opinion on the draft World Anti-doping Code 2015. I was asked to answer several questions concerning the revised World Anti-Doping Code (the “2021 Code"). The initial version of the draft was dated 31 July 2019. However, in the interim, the draft has been finalized, and is in the form it will be presented on 5 - 7 November at the World Conference on Doping in Sport in Katowice. On several issues that I will identify below, modifications were made to the text of the draft Code because of or as a result of my opinion. The questions that were posed to me referred to the compatibility of the proposed new measures with international human rights norms1. My assignment was initially given to me by Mr Julien SIEVEKING, Director, Legal Affairs, WADA (World Anti-Doping Agency), in an email

1 One should not be surprised that reference is very often made below to the jurisprudence of the European Court of Human Rights (the "Court" or "the ECHR") to identify these international norms. This Court, whose judgements ("decisions") have the force of law, certainly only has competence with regard to disputes initiated against States which are parties to the European convention on human rights ("the Convention"), which are 47 in number; in other words, almost all the countries of "greater Europe". However, its seniority and its activity are a source of

initiated against States which are parties to the European convention on human rights ("the Convention"), which are 47 in number; in other words, almost all the countries of "greater Europe". However, its seniority and its activity are a source of inspiration worldwide, all the more so since the principal inspiration of the Convention was drawn from the Universal declaration of human rights. The principal international jurisdictions, e.g. the European Union Court of justice ("the ECJ") generally follows the relevant jurisprudence of the ECHR. In addition, as we will see, the Court has expressly declared itself competent, ratione loci, ratione materiae and ratione personae, for sentences handed down by the Court of Arbitration for Sport (the "CAS"), which is at the heart of the system for the fight against doping and which obviously occupies a significant place in the World Anti-Doping Code. Unless stated to the contrary, the decisions cited below are those of the ECHR.2

dated 15 May 2019. It was officially entrusted to me in a letter from WADA’s Director General, Mr Olivier NIGGLI, dated 19 June 2019, to which I replied on the same day. In 2013, I supplied my opinion on the 2015 Code2, firstly in writing and then in an oral presentation on 13 November 2013 during the fourth World Conference on Doping in Sport in Johannesburg. This opinion already covered the compatibility with the principles of international human rights law of several articles of the 2015 Code. It responded to eight questions (the opinion appears on WADA’s website under the heading Legal Documents). In this opinion, I expressed in particular that I considered that everything related to sanctions provided for by the Code was of a civil and not criminal nature, and I approved Article 10.2 of the draft Code (which entered into force from 1 January 2015) (this is the article which provides for the suspension of athletes in the event of the presence, use or attempted use or possession of a prohibited substance or a prohibited method).

and not criminal nature, and I approved Article 10.2 of the draft Code (which entered into force from 1 January 2015) (this is the article which provides for the suspension of athletes in the event of the presence, use or attempted use or possession of a prohibited substance or a prohibited method). I mention this because certain of the new questions relate to the very substance of these observations. In methodological terms, this new legal opinion was prepared by me independently and under my responsibility alone. I did however consult some documents and specialists, and in particular Professor Ulrich HAAS, Professor of Law at the University of Zurich. We had various oral discussions and written exchanges. [It is planned that both of us will participate on 5 November in Katowice during the fifth World Conference on Doping in Sport]. I would like to thank him for his help and for his expertise. This opinion is structured as follows, in five parts: - The new jurisprudential and doctrinal context - The executive summary of the responses to the questions posed - The analysis of the questions posed

22 In November 2017, the WADA Foundation Board adopted some limited changes to the 2015 Code concerning compliance. These changes, which support the new International Standard for Code Compliance by Signatories (ISCCS), entered into force on 1 April 2018 (they appear on WADAwebsite).3

• The points on which the text has been modified because of or following my opinions - A brief conclusion

I An indispensable preamble: the new jurisprudential and doctrinal context The international norms in terms of human rights are not immutable; they change over time, based in particular on the jurisprudence of the competent jurisdictions, such as, at the top level (for historical reasons), the European Court of Human Rights

(ECHR) already cited3. The Court of Arbitration for Sport (CAS) for its part applies the Code of Sports-related Arbitration4 and, in the field of the fight

level (for historical reasons), the European Court of Human Rights (ECHR) already cited3. The Court of Arbitration for Sport (CAS) for its part applies the Code of Sports-related Arbitration4 and, in the field of the fight against doping, the World Anti-Doping Code5, and it makes every effort to take inspiration from international human rights norms. Reconciling these norms and the rules for sanctioning anti-doping rules violations set out in the draft 2021 Code is all the more necessary (and often complex) since the forms of doping in sport and the fight against doping have changed greatly over time. As compared to the period in which the legal opinion on the draft 2015 Code was drafted, significant legal changes have occurred. Firstly, the previous versions of the World Anti-Doping Code had not yet been much exposed to human rights-based claims. This is no longer the case. In this regard, it is necessary to point out the intervention of a significant decision of the ECHR dated 18 June 2018, FNASS and others vs. France6. It was much anticipated from the point of view of the compatibility of the lex sportiva with

3The ECHR was created by the Convention for the preservation of human rights and fundamental freedoms, signed on for November 1950 within the framework of the Council of Europe. Its purpose is to ensure that the States that are a party to the Convention comply with the commitments incumbent upon them as a result of the Convention and its Protocols. 4 Established by the International Council of Arbitration for Sport (ICAS) 5 Established by the World Anti-Doping Agency (WADA). 6The FNASS is the 'Fédération nationale des associations et syndicats de sportifs' (National Confederation of Sporting Associations and Syndicates). The petition emanated from this Federation, but also from Athletes acting on an individual basis, to which the decision recognised the capacity of victims, contrary to what the Government maintained. The demand was therefore ruled admissible (but not well-founded).4

Sporting Associations and Syndicates). The petition emanated from this Federation, but also from Athletes acting on an individual basis, to which the decision recognised the capacity of victims, contrary to what the Government maintained. The demand was therefore ruled admissible (but not well-founded).4

human rights. It should be noted that WADA made a third-party intervention in the case which the ECHR authorised it to do7. Since the European judicial protection system is based on individual recourse against Government defendants, it is only indirectly that the World Anti-Doping Code was criticised. It was mentioned to the extent that the defendant Government, France, which ratified the International Convention of the UNESCO against doping in sport dated 19 October 2005, adopted legislation which largely transposed into national law the provisions of the World Anti-Doping Code8. The claim essentially criticised the whereabouts obligations applicable to Athletes (for the purpose of random drug tests), considered by the petitioners to be an excessive infringement on their right to respect for private and family life, as protected by Article 8 of the European Convention on Human Rights. The analysis conducted by the ECHR was, however, of a much more general nature. It accepted that the objectives of the criticised whereabouts measures, and also of the fight against doping more generally, are twofold - on the one hand, the protection of health, which is a "legitimate goal" within the meaning of § 2 of Article 8; on the other hand, the fairness of sporting competitions, which affects the rights and freedoms of other people, another legitimate goal within the meaning of the same § 2, these goals both being able to justify an infringement of the right to respect for private life (subject to the infringement also being "provided for by the law" and "necessary in a democratic society"). In addition, the Court also considered that there is now a broad consensus, in Europe and outside Europe, in favour of the fight

the right to respect for private life (subject to the infringement also being "provided for by the law" and "necessary in a democratic society"). In addition, the Court also considered that there is now a broad consensus, in Europe and outside Europe, in favour of the fight against doping, of which the Code, relayed by the national laws, is the principal legal instrument9. Although the Court concludes in

7 WADA’s arguments are analysed in §§ 148 - 150 of the decision. A reading of these paragraphs shows that the ECHR, in coming to its decision, was sensitive to these arguments. 8 This legislation and the supplementary regulations are codified in the French Code of Sports. 9 See in particular §§ 178 - 184 of the decision, which are very explicit.5

this case10 that the constraints related to whereabouts obligations do not breach the Convention because they have created a fair balance (and are therefore "necessary in a democratic society"), it seems to me that it is going well beyond that. Its decision expresses a "benevolent" jurisprudential framework with regard to the World Anti-Doping Code. Secondly, I again questioned the legal nature of the sanctions pronounced by virtue of the World Anti-Doping Code in the event of anti-doping rules violations, given the changes in the international standards human rights norms, and the jurisprudence of the ECHR. This aspect is more complex. In my 2013 legal opinion, I concluded that allegations of a violation of the World Anti-Doping Code rules were not "criminal accusations" within the meaning of Article 6 of the European Convention on Human Rights ("the Convention") concerning the right to a fair trial and that therefore the sanctions imposed for these violations are not of a criminal nature. This conclusion was corroborated by another significant decision by the ECHR, also much anticipated, Mutu and Pechstein vs. Switzerland.11 That case concerned the problem of the applicability of Article 6 of the Convention to the claims presented by Mr

these violations are not of a criminal nature. This conclusion was corroborated by another significant decision by the ECHR, also much anticipated, Mutu and Pechstein vs. Switzerland.11 That case concerned the problem of the applicability of Article 6 of the Convention to the claims presented by Mr Adrian Mutu, a professional footballer of Romanian nationality, in a dispute with his club12; and especially (due to doping) to Ms Claudia Pechstein, a speed-skater of German nationality, suspended for doping by the disciplinary committee of the International Skating Federation13. In both cases, the Court considered that Article 6 was applicable, but in terms of the civil aspect of the article, since the disputes raised by both petitioners related, according to the Court, to rights and obligations of a civil nature. However, the Court set aside, implicitly but necessarily, the criminal aspect: the proof of this is that Ms Pechstein, sanctioned

10 As was done domestically, in a decision dated 24 February 2011, by the French State Council, which is the supreme administrative jurisdiction in France. 11Decision dated 2 October 2018, made definitive on 4 February 2019. In that case, the decision did not involve any third-party intervention by WADA. 12 Chelsea Football Club. 13 The ISU.6

with a suspension, had raised a complaint based on the presumption of innocence (Article 6 § 2 of the Convention), which is a guarantee 'par excellence' in criminal matters; however, the Court did not consider it necessary to issue this complaint to the defendant State for its observations, and it did not mention it in its decision. Moreover, and this is an essential element of the Court’s decision, the Court considers that recourse to arbitration in sporting matters is legitimate and appropriate, so long as Court of Arbitration for Sport (the CAS) provides for the guarantees of a fair trial: indeed, whether, in the case of Mme Pechstein, because it was a forced

the Court considers that recourse to arbitration in sporting matters is legitimate and appropriate, so long as Court of Arbitration for Sport (the CAS) provides for the guarantees of a fair trial: indeed, whether, in the case of Mme Pechstein, because it was a forced arbitration (§ 115 of the decision); or whether, in the case of Mr Mutu, it was a voluntary arbitration; the interested party had not unequivocally waived the right to the guarantees in Article 6 (§ 112 of the decision). Lastly, ruling in concreto, the ECHR ruled that the CAS was indeed, within the meaning of Article 6 of the Convention, a court established by law, independent and impartial, as the Swiss Federal Court had itself ruled, and it therefore dismissed the two petitions, except on one point raised by Ms Pechstein, the absence of a public hearing before the CAS. Its decision therefore on the whole gives the CAS a stamp of compatibility with the Convention, which was not a foregone conclusion. In summary, these two decisions from 2018, FNASS and others vs. France, and Mutu and Pechstein vs. Switzerland, are favourable both to the World Anti-Doping Code (former and future) and to the role of WADA and the CAS. The jurisprudential context is therefore new and different from that which prevailed in 201314. This new more benevolent jurisprudential environment is accompanied by a doctrinal approach which is also generally favourable.

14The European Union and the Court of Justice (the ECJ) are less concerned by sports law and by the prevention of doping than the Council of Europe and the ECHR (except in matters of competition law, as is shown by the decisions by the ECJ mentioned in my 2013 opinion). However, the three-year plan for the promotion of sport adopted by the Council of the EU (the current Plan, 2017-2020, was adopted on 23 May 2017) mentions the

decisions by the ECJ mentioned in my 2013 opinion). However, the three-year plan for the promotion of sport adopted by the Council of the EU (the current Plan, 2017-2020, was adopted on 23 May 2017) mentions the fight against doping as one of the objectives of the Plan. Furthermore, the European Commission is an active player in the process for the development of the World Anti-Doping Code.7

As a whole, the doctrine underlines that the ECHR takes pains to qualify the fight against doping as "convention-derived", in other words as compatible with the human rights norms arising from the 1950 European Convention15. Not to mention the importance of the guarantees to be granted to athletes, the dominant doctrine focusses on the great interest of the fight against doping in all its forms. However, despite the undeniable importance of the recent decisions by the Court of Strasbourg, and in particular the decision Mutu and Pechstein vs. Switzerland, the jurisprudential changes since 2013 also increasingly show that all sorts of administrative sanctions give rise to the applicability of Article 6 of the Convention, even if they are not strictly criminal sanctions. This was already the case for certain tax-related sanctions16. But that was extended by the jurisprudence to sanctions for violations of the stock market regulations handed down by the independent administrative authorities17, or to administrative violations, e.g. for participation in non-regulatory meetings or assemblies18. The jurisprudence of the ECJ is headed in the same direction19. The conclusion that one can draw from this information is as follows: It remains that the sanctions provided for by the Code are not stricto sensu criminal. But even though all the provisions of Article 6 of the European Convention do not therefore have to necessarily apply "in all their rigour"20, and even though for example the guarantees in §§ 2 and 3 of Article 6 – presumption of innocence, rights of the defence, etc. - are manifestly less applicable than for

6 of the European Convention do not therefore have to necessarily apply "in all their rigour"20, and even though for example the guarantees in §§ 2 and 3 of Article 6 – presumption of innocence, rights of the defence, etc. - are manifestly less applicable than for genuinely criminal sanctions, it appears important to find proportionate guarantees in the case of sporting sanctions. This is

15By way of example, see the comments – nuanced it is true, but generally favourable - by an excellent specialist, Professor Mathieu Maisonneuve, on the decision FNASS vs. France (Review of fundamental rights and freedoms, 2019, Chronicle no. 09), on the decision Mutu and Pechstein vs. Switzerland (Quarterly review of human rights, 1 July 2019, pages 687 sqq.) 16Decision Jussila vs. Finland dated 23 November 2006. 17Decision Grande Stevens vs. Italy dated 2 May 2014. 18Decision by the Great Chamber Navalnyy vs. Russia dated 15 November 2018. 19 See for example its decision dated 18 July 2013, ECJ, Schindler Holding. 20See the above-mentioned decision Jussila vs. Finland, at § 43.8

why in my opinion taken as a whole, I was guided by the search in the draft 2021 Code for stricter standards of protection than may appear to be strictly necessary.

II. Executive summary of my responses to the questions raised by the WADA: 1) The application of sanctions for prohibited association is compliant with international human rights norms. However, it would be necessary, in Article 2.10 to specify that the Athlete knew or should have known that he/she was involved in a case of prohibited association; mention in this article the existence, on WADA’s website, of the list (ASP list) of persons with a disqualified status; lastly, draft the disclaimer which accompanies this list in order to make clear that, without being

of prohibited association; mention in this article the existence, on WADA’s website, of the list (ASP list) of persons with a disqualified status; lastly, draft the disclaimer which accompanies this list in order to make clear that, without being exhaustive, it must be respected.

1. The punishment for acts aimed at discouraging the reporting of anti-doping rule violations committed by Athletes or carrying out reprisals against the authors of these reports (Article 2.11): this measure is compliant with the norms, but it should be specified in Article 2.11 (or failing this in a comment thereon) that the reports must be sent exclusively to the authorities cited in the article and must remain confidential.

1. The concept of protected person is compliant with the norms, but it should be specified in Article 10.6.1.3 (and/or in the

comment on this article) who these persons are:

• Athletes with an intellectual impairment - All Athletes under the age of 16 - Those aged from 16 to 18, with the exception of those participating in international competitions open to adults21.

21 This exception does not appear to be contrary to the principle of non-discrimination within the meaning of Article 2 of the Convention on the Rights of the Child.9

At this stage, the notion of non-significant faults or negligence does not create any problem and is compliant with the norms.

1. Aggravating circumstances which may increase the period of suspension: The new Article 10.4 is compliant with the norms, but this article needs a comment to give a list (non-restrictive) of examples of such circumstances, out of a concern for legal security (e.g. violations creating a prejudice for protected persons, the existence of a conspiracy or of deceitful or subversive conduct).

1. Multiple violations and 6) new concept for the calculation of periods of suspension These concepts and methods of calculation are compliant with

security (e.g. violations creating a prejudice for protected persons, the existence of a conspiracy or of deceitful or subversive conduct).

1. Multiple violations and 6) new concept for the calculation of periods of suspension These concepts and methods of calculation are compliant with the norms. However, it would be necessary to indicate in a comment that any retro-activity must be avoided, specifying that the second breach must have been committed after the entry into effect of the new Code, and explicitly defining the notion of non-significant faults or negligence.

1. "Widening the net" in terms of persons and entities subject to the Code. These provisions reflect a legitimate concern for equity and are compliant with the norms. However, it is necessary to specify in a general comment to the related article that these new obligations must be reconciled with several norms, i.e.: o with the rules of local employment law, for persons subject to employment law o with respect for personal freedom and the right to respect for private life, for the persons and entities concerned, and for the Athletes. o And, where governments are concerned (non-signatories of the Code), draft this comment in terms of recommendations rather than obligations, including regarding the necessity for10

independence of national anti-doping organisations, e.g. from the Ministry of Sport.

1. "Automatic recognition" of decisions and access to justice (new Article 15) The concept of automatic recognition is not satisfactory, and it would be preferable to refer to the erga omnes effect of the decisions (in other words the fact that they are binding on all).

In the latest draft, the document furthermore abandons this terminology. The erga omnes effect does not pose any problem and it is compliant with the norms. The same is true for access to justice, which is sufficiently guaranteed by the right of appeal and by the mechanisms and procedures of the CAS. That is particularly true since the recent jurisprudence of the ECHR

The erga omnes effect does not pose any problem and it is compliant with the norms. The same is true for access to justice, which is sufficiently guaranteed by the right of appeal and by the mechanisms and procedures of the CAS. That is particularly true since the recent jurisprudence of the ECHR which, whilst analyzing these procedures22, considered the CAS as a whole to be a Court compliant with the rule of law. A comment would clarify, concerning decisions taken during major events, that the Athlete ought to be able to dispute them in accordance with the emergency procedure.

9. Differences of standards between the internal bodies and/or first instance body and the CAS They do not pose any specific difficulties. The jurisprudence of the ECHR has for a long time accepted that a trial is fair within the meaning of Article 6 of the European Convention on Human Rights, even if the internal and/or first instance bodies are not completely independent and impartial, where the appeal is brought before a Court "with full jurisdiction", in other words competent to rule on all questions of fact and law relevant for the resolution of the dispute. This is indeed the case for the Court of Arbitration for Sport (the CAS).

10. Article 20 of the draft 2021 Code

22 For example, in its Pechstein decision by sanctioning the absence of any public hearing when the petitioner had requested it.11

The fact that the anti-doping organisations, which are authorised to delegate the anti-doping controls to service providers (non-signatories), may conclude with them agreements by which they undertake to comply with the World Anti-Doping Code and with the international standards does not seem to create any difficulties. Indeed, the responsibility imposed on these organisations requires them to submit their service providers to the same obligations, and the latter, for their part, are never obliged to accept the proposed delegation, which preserves their third-party rights.

III Analysis of each of the issues raised

imposed on these organisations requires them to submit their service providers to the same obligations, and the latter, for their part, are never obliged to accept the proposed delegation, which preserves their third-party rights.

III Analysis of each of the issues raised

1. Article 2.10

The issue relates to prohibited association, which constitutes an anti-doping rule violation and therefore leads to sanctions under the terms of Article 10 of the Code ("sanctions against individuals"). In the 2015 Code, Article 2.10.3 provides that, in order for these provisions to apply, the Athlete (or other person) must have been informed in advance in writing by the competent antidoping organisation or by WADA, of both the disqualifying status of the member of the management personnel and the potential consequences of association with the latter, and also of the fact that this association should therefore reasonably be avoided. In the draft 2021 Code, this provision is abrogated and is replaced by Article 2.10.2, which provides that, in order to establish a violation of Article 2.10 (prohibited association constituting an anti-doping rule violation), the anti-doping organisation must establish that the Athlete or other person was aware of the disqualifying status of the support personnel. And the article also provides that the burden of proof is on the Athlete, who must establish that this association could not reasonably have been avoided.12

The question is to determine whether this guarantee is proportionate, but also whether it is appropriate or necessary. It should be noted that the list of the members of support personnel (athlete support personnel), who were sanctioned and therefore disqualified ("ASP list") is published by WADA on its website in order to inform the anti-doping organisations and Athletes. The current list, available in English, is dated 11 April 2019, four updates to this list are planned on a yearly basis (10

and therefore disqualified ("ASP list") is published by WADA on its website in order to inform the anti-doping organisations and Athletes. The current list, available in English, is dated 11 April 2019, four updates to this list are planned on a yearly basis (10 April, 10 July, 10 November and 10 January). The list indicates the identity and the nationality of the persons concerned, the start date and the end date for their disqualification (sometimes, it is for life). It is however accompanied by a "disclaimer" from the WADA (disclaimer of liability). WADA – which, it should be recalled, does not itself have the power to sanction Athletes or support personnel –bases the list on information supplied by anti-doping organisations, and thereby highlights the fact that its list is not exhaustive. The problem is therefore twofold. It is a question of determining whether, on the one hand, we are not imposing on the Athlete (or other person) an excessive burden of proof and, on the other hand, whether the anti-doping organisation is not paradoxically in a situation where it has to meet an impossible burden of proof, in accordance with the proposed Article 2.10.3. In fact, it would be necessary for it to prove that the Athlete knew that the person with whom he/she was associating was disqualified. In my opinion, it would be better to maintain what was provided for in the first two drafts - the organisation must establish that the Athlete knew or ought to have known that the support personnel was disqualified. However, could we not also consider that even though no one can claim to be ignorant of the law ("nemo censetur ignorare legem"), we cannot oblige an Athlete (or other person) to consult WADA’s website, especially if it is only indicative? In France, for instance, the French Anti-Doping Agency (the "AFLD"), on its own website, has inserted a link to the WADA

legem"), we cannot oblige an Athlete (or other person) to consult WADA’s website, especially if it is only indicative? In France, for instance, the French Anti-Doping Agency (the "AFLD"), on its own website, has inserted a link to the WADA list. One need only click on this link to access the list; and yet,13

according to Article L 232-9-1 of the French Code of Sports, if the AFLD considers that the