COSTA - Opinion for the World Anti-Doping Agency (WADA), September-October 2017

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The original text of this legal opinion is in French (it is however to be noted that WADA sent its questions to Judge Costa in English). In the event of any conflict between the English and French versions, the French version will prevail. The first part of this document is the legal opinion written by Judge Costa based on the second draft of the International Standard for Code Compliance by Signatories (ISCCS). Following the adoption of the third and final draft of the ISCCS – which incorporated his comments – by WADA’s Executive Committee and Foundation Board on 15-16 November 2017, Judge Costa wrote the addendum at the bottom of this document. Opinion for the World Anti-Doping Agency (WADA), September-October 2017 Final Version Origin and subject of the opinion: this opinion was requested by Mr. Julien Sieveking, Director of Legal Affairs at WADA, by letter dated 21 August 2017. This opinion, which I accepted to draft, addresses the compatibility of the draft International Standard for Code Compliance by Signatories (ISCCS) with accepted international law and human rights principles.

Author of the legal opinion: My name is Jean-Paul Costa, former President of the European Court of Human Rights (ECHR) and current President of the René Cassin-IIDH Foundation, situated at 3 Impasse des Charpentiers, in Strasbourg, France. I provide this opinion in my personal capacity as a consultant and my opinions are only binding on myself.

WADA’s question of 2 September 2017 (original version)

1. Is the sanctioning regime set out in the draft International Standard for Code Compliance by Signatories (version 2.0, dated 1 September 2017), compatible with accepted principles of international law and human rights?

Without seeking to limit in any way the scope of your review in considering this question, your attention is respectfully directed, in particular, to the following points/features of the sanctioning regime in the Standard:

with accepted principles of international law and human rights? Without seeking to limit in any way the scope of your review in considering this question, your attention is respectfully directed, in particular, to the following points/features of the sanctioning regime in the Standard:  The fact that World Anti-Doping Code (Code) compliance by Signatories is so crucial to the objectives of the World Anti-Doping Program.2

 The fact that the draft International Standard for Code Compliance by Signatories offers Signatories the support and guidance of WADA in achieving full Code compliance (ISCCS Articles 7 and 8) and full and fair notice of and opportunity to cure any non-compliance before any formal action is taken (Articles 8 and 9), subject only to the fast track procedures where urgent action is required to protect a sport or event (Article 9.4).

 The fact that, in case of dispute, WADA cannot declare non-compliance and impose sanctions and reinstatement conditions unilaterally, but instead must refer the case to an independent arbitral tribunal for determination (the Court of Arbitration for Sport, or CAS), with WADA bearing the burden of proving the alleged non-compliance and the appropriateness of the proposed sanctions and reinstatement conditions, and with other Signatories who may be affected by the proposed sanctions having a right to intervene and participate in the proceedings (Article 10). Your attention is respectfully drawn, in this context, to:

 The potential types of sanction listed at ISCCS Article 11.1, including sanctions that, in protecting public confidence in the integrity of sport, may directly and adversely impact persons who were not responsible for the Signatory’s non-compliance. In particular:

o In cases of serious non-compliance by an International Federation, the athletes/athlete support personnel from its sport will be adversely impacted if the sport is excluded from editions of the Olympic Games/Paralympic Games/other events.

o In cases of serious non-compliance by an International Federation, the athletes/athlete support personnel from its sport will be adversely impacted if the sport is excluded from editions of the Olympic Games/Paralympic Games/other events.

o In cases of serious non-compliance by a National Anti-Doping Organization (NADO), representatives of the National Olympic Committee/National Paralympic Committee from that country, and/or athletes/athlete support personnel from that country, will be adversely impacted if that country is excluded from editions of the Olympic Games/Paralympic Games/other events.

(Your attention is respectfully drawn, in this context, to the CAS decisions in BWF v IWF, CAS 2016/A/4319; ROC v IAAF, 2016/O/4684; and RPC v IPC, CAS 2016/A/4745 (copies of which are attached).

o The provision contemplating that athletes whose country has been excluded from an event may be permitted to participate in that event as ‘neutral’ athletes, if they can demonstrate that they are not tainted by the NADO’s failure (e.g., because they have been subject to a credible testing program) and therefore can participate without undermining public confidence in the integrity of the event (ISCCS Article 11.2.4). See IAAF Competition Rule 22.1A.

 The principles relevant to the determination of the consequences to be applied in a particular case, as set out at ISCCS Article 11.2, including:3

o The stated role of impact of non-compliance in determining consequences, including the categorization of instances in non-compliance, in descending order of gravity, as ‘Critical’, ‘High Priority’, and ‘Other’. o The stated role of fault in determining consequences. In particular, the role of Aggravating Factors, which (only in cases of noncompliance with Critical requirements) would likely lead to an increase in consequences, and possibly even imposition of a fine.

o The stated role of fault in determining consequences. In particular, the role of Aggravating Factors, which (only in cases of noncompliance with Critical requirements) would likely lead to an increase in consequences, and possibly even imposition of a fine.

 The inclusion in Annex B, as a guide and as an aid to consistency and predictability, of ‘starting point’ consequences for different types of case (involving non-compliance with Critical, High Priority, or Other requirements), with the express acknowledgment that it may be appropriate to vary within or even depart from the consequences specified in Annex B when the facts of the particular case so warrant (Art 11.2.9 and Annex B).

 The fact that in serious cases, certain of the sanctions specified in Annex B may continue after the Signatory has satisfied all of the reinstatement conditions and been reinstated as a fully compliant Signatory (the purpose being to punish the previous non-compliance and to educate and deter that and all other Signatories from such serious non-compliance).

Additional questions from WADA dated 3 October 2017 (original version)

2. Is it compatible with accepted principles of international law and human rights to provide that in the event that WADA's assertion of non-compliance and/or its proposed consequences and/or reinstatement conditions are disputed by the Signatory, the dispute shall be heard and determined by a single instance CAS proceeding, with the only right of appeal/challenge therefrom being the right to challenge the arbitral award before the Swiss Federal Tribunal on the grounds set out in Article 190(2) of the Swiss Federal Private International Law (see Code Article 23.5.6 to 23.5.8)?

3. Given the provision that WADA and the Signatory each choose one arbitrator to sit on the CAS Panel hearing their dispute, with those two arbitrators then choosing a third to chair the Panel, is it compatible with accepted principles of international law and human rights (a) to recommend that the parties select the

3. Given the provision that WADA and the Signatory each choose one arbitrator to sit on the CAS Panel hearing their dispute, with those two arbitrators then choosing a third to chair the Panel, is it compatible with accepted principles of international law and human rights (a) to recommend that the parties select the arbitrator from a list of anti-doping specialist arbitrators designated by the CAS; and (b) to require the two arbitrators selected by the parties to choose the chair from that list of anti-doping specialist arbitrators designated by the CAS? If use of such a list is permitted, is there a minimum number of arbitrators that should appear on that list?

4. Is the fact that WADA has to prove the non-compliance it has asserted, and the appropriateness of the consequences and/or reinstatement conditions it has proposed, on the balance of probabilities, rather than to the 'comfortable satisfaction' of the CAS Panel (see Code Article 23.5.6), compatible with accepted principles of international law and human rights?4

We note in this regard that Code Article 3.1 requires an Anti-Doping Organization to prove its assertion that an athlete has committed an anti-doping rule violation 'to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt'. It originates from the decision of the CAS Panel in Korneev and Gouliev v IOC, CAS (Atlanta) no 003-4L, award dated 4 August 1996, which was based at least in part on the fact that 'the nature of the offence is one of strict liability if a prohibited substance is used'. The Swiss Federal Tribunal upheld the application of this standard in a doping case against an individual athlete (rather than the criminal standard of beyond reasonable doubt) in 4A_612/2009, 10 February 2010, para 6.3.2; and other CAS Panels have adopted

upheld the application of this standard in a doping case against an individual athlete (rather than the criminal standard of beyond reasonable doubt) in 4A_612/2009, 10 February 2010, para 6.3.2; and other CAS Panels have adopted it in other sports corruption cases, where the rules did not specify the applicable standard of proof: see, e.g., Oriekhov v UEFA, CAS 2010/A/2172, award dated 18 January 2011, para 53. On the other hand, the public interest in preserving the integrity of sport requires that the standard of proof not be set too high. The CAS Panel in Kollerer v ATP, CAS 2011/A/2490, award dated 23 March 2012, paras 85, 87, ruled that it was not incompatible with international public policy to impose a contractual sanction on an athlete for match-fixing based on 'the preponderance of the evidence' (equivalent to the balance of probabilities). By way of analogy, the regulators of the English legal profession are currently moving to the view that it is contrary to the public interest to require misconduct charges against English lawyers to be proven to any stricter standard than 'balance of probabilities'. See Bar Standards Board, Review of the Standard of Proof Applied in Professional Misconduct Proceedings (https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_pap er.pdf).

Consultant’s opinion

I. Preliminary comments It should be recalled that the World Anti-Doping Code has hundreds of Signatories. The Signatory entities are described in Article 23.1.1 of the Code.

The fact of being a Signatory to the Code has several implications, listed in Code Article 23: - Acceptance of the Code; - Obligation to implement its provisions; - For many articles of the Code, this obligation of implementation must be implemented without any substantial change; - Obligation to dedicate sufficient resources to implement anti-doping

Code Article 23: - Acceptance of the Code; - Obligation to implement its provisions; - For many articles of the Code, this obligation of implementation must be implemented without any substantial change; - Obligation to dedicate sufficient resources to implement anti-doping programs that comply with the Code and the relevant International Standards;5

• Obligation to comply with the Code and with the UNESCO Convention of 2005 (International Convention against Doping in Sport, dated 19 October 2005).

Moreover, any non-comliance has consequences for the signatory, which are indicated in Articles 20.1.8, 20.3.11, 20.6.6 and 23.6 of the Code. WADA, for its part, is responsible under Article 23.5 of the Code for monitoring compliance with the Code and with the UNESCO Convention. In other words, the International Standard for Code Compliance by Signatories (ISCCS) must be read and, where appropriate, assessed in the light of the relevant provisions of the Code (which the signatories have accepted). It must be noted that Code amendments are being made in parallel to the development of the ISCCS. These changes should be accepted by the Signatories at the same time as the ISCCS. These changes affect several provisions of the Code, in particular Articles 12.1, 12.2, 20.3.7, 20.6.2, 20.7.2 and 23.5.1 to 23.5.9. These provisions will enter into force at the same date as the ISCCS.

II. Procedure for monitoring compliance and consequences of noncompliance 1) Article 9 of the ISCC provides Signatories with the opportunity to correct any non-conformity. At least that is what the heading states, as the aim is more general. a) Provisions of Article 9: If the Signatory has any rules that are identified as not in line with the Code, WADA informs the Signatory in writing and gives it three

any non-conformity. At least that is what the heading states, as the aim is more general. a) Provisions of Article 9: If the Signatory has any rules that are identified as not in line with the Code, WADA informs the Signatory in writing and gives it three months to correct them, or to provide draft corrections, with a schedule for the adoption thereof. If non-conformities result from other elements identified by WADA, it sends the signatory a corrective action report. The timeline provided differs depending on the seriousness of the non-conformities: not more than three months for the “critical” category, not more than six months for the “high priority” category, and not more than nine months in other cases of non-conformity. In the case of a Major Event Organizer, a fast track procedure may be adopted. Dialogue between WADA and the Signatory is provided for. The latter will have to draw up a corrective action plan (not compulsory, but highly recommended). If the Signatory fails to make the corrections within the specified periods, or fails to respond to the WADA questionnaire, WADA informs the signatory thereof in writing and grants it a further period of three months, which may not be extended, except in exceptional cases in the event of force majeure.6

If the Signatory does not correct the non-conformities within the provided timeline, or fails to respond, WADA applies to the “CRC” (Compliance Review Committee, established by WADA in 2015) as soon as possible. WADA informs the Signatory thereof and advises it that it may provide explanations or comments, which WADA forwards to the CRC. The CRC can determine that the alleged non-conformities are properly characterized as critical, high priority or other, and examines the Signatory’s explanations and comments fairly (including the possible excuse of force majeure). The CRC may advise WADA that the non-conformities are excusable. In accordance with CAS case

properly characterized as critical, high priority or other, and examines the Signatory’s explanations and comments fairly (including the possible excuse of force majeure). The CRC may advise WADA that the non-conformities are excusable. In accordance with CAS case law however, the Signatory may not be exempted from liability on account of third party negligence. If the CRC considers that the Signatory’s non-conformity has novalid reason, it recommends that the WADA Executive Committee formally notify the Signatory of these shortcomings, inform it of the consequences thereof proposed by WADA under Article 11 of the ISCC, and of the conditions of reinstatement proposed by WADA within the meaning of Article 12. If, within the scope of a corrective action plan, the Signatory fails to correct the non-conformities within the specified timeline provided (normally 4 months), WADA may notify it, without requiring a further decision of the Executive Committee (Article 9.3.5 of the ISCC). Conversely, if the corrections have been properly made, no action will be taken against the Signatory. The fast track procedure (Article 9.4 of the ISCC) applies in case of urgency or if Major Event Organization is involved. In these cases, WADA may apply to the CRC to consider the case as a matter of urgency, while giving the Signatory the possibility of providing the CRC with explanations or comments.

b) Is this procedure satisfactory? The answer is yes. In fact, care is taken under Article 9 to provide the Signatory with the information required, to give it periods that are not too short (except in the case of fast track procedure) and, finally, allows it to provide explanations. WADA Management cannot decide itself on the existence and seriousness of non-conformities1, and is not therefore both “judge and party” as it is the CRC that decides, and ultimately refers to the WADA Executive Committee.

explanations. WADA Management cannot decide itself on the existence and seriousness of non-conformities1, and is not therefore both “judge and party” as it is the CRC that decides, and ultimately refers to the WADA Executive Committee.

1 In fact, the timelines of three, six or nine months are fixed by the WADA management, based on how serious it considers the non-conformities to be (Article 9.2.2 of the ISCSS. The CRC can correct the WADA classification by classifying non-conformities into the three categories (Article 9.3.3) but can it correct the timelines as well? This is not stated, and probably should be.7

From the point of view of the principles of non-litigation administrative proceedings, which are less demanding that those of judicial proceedings, one may therefore conclude that the provisions of Article 9 are compatible, within the meaning of the questions posed in the request for an opinion. Consequently, the fact that WADA Management, the CRC and the WADA Executive Committee all belong to the structure of this same organization may not be deemed to be a major problem. This conclusion is based in particular on the independent nature of the supervisory body, namely the CRC. In particular, the fact that a further judicial procedure exists (see Article 10 below) allows doubts to be removed from the point of view of impartiality, or at the very least the appearance of bias. In fact, such a procedure is of such a nature as to remedy, if necessary, any defects in the non-litigation proceedings, as has been frequently judged by the ECHR2.

1. Article 10 of the ISCC: This relates to confirmation of the non-conformity and imposition of consequences. a) Provisions of Article 10: This is the litigation or judicial stage of the proceedings.

The CRC sends the WADA Executive Committee a recommendation containing its decision. The Executive Committee decides to publish

This relates to confirmation of the non-conformity and imposition of consequences. a) Provisions of Article 10: This is the litigation or judicial stage of the proceedings. The CRC sends the WADA Executive Committee a recommendation containing its decision. The Executive Committee decides to publish the CRC’s decision within ten days. If it does not accept it, however, in full or in part, it cannot replace the CRC’s decision but returns the matter or part of the matter to the CRC for reconsideration. When the Executive Committee accepts the CRC’s decision, it sends the Signatory formal notification of assertion of non-compliance with the Code. This information is published, including on the WADA website, and provided to the International Olympic Committee (IOC) and the International Paralympic Committee (IPC). If the signatory fails to contest the assertion within ten days, it is deemed to have accepted it. The non-compliance becomes final and immediately enforceable, pursuant to Article 23.5.5 of the new version of the Code. WADA then publishes the decision. If the Signatory contests the assertion, it must apply to CAS (with a copy to WADA) within 21 days of notification. CAS rules as a panel (ordinary arbitration division), in Lausanne, based on Swiss law, in principle in English (unless the parties agree to another language of the proceedings). The case must be dealt with quickly (within three months), except in the event of exceptional circumstances.

2 See Bryan judgment against the United Kingdom of 22 November 1995, confirmed several times in various fields (see Alatulkkila et al. vs Finland, 28 July 2005, Crompton vs United Kingdom, 27 October 2009, or Sigma Radio Television vs Cyprus, 21 February 2011).8

WADA and the Signatory each nominate an arbitrator to sit on the panel who must examine the dispute and settle it, preferably from a list of arbitrators specifically designated by CAS for anti-doping cases.

Radio Television vs Cyprus, 21 February 2011).8

WADA and the Signatory each nominate an arbitrator to sit on the panel who must examine the dispute and settle it, preferably from a list of arbitrators specifically designated by CAS for anti-doping cases. The two arbitrators must, by common consent, select the person to chair the panel from that same list. One has to insist on the fact that the burden of proof falls upon WADA, which has to prove non-compliance to the Code by the Signatory in question. If CAS rules in favour of WADA, it shall also determine the consequences of the non-compliance to be imposed on the Signatory (and/or inform it of the conditions for reinstatement, within the meaning of Article 12 of the ISCC). In urgent cases, WADA may ask CAS to pronounce provisional measures, to maintain the integrity of an event, for example. If CAS pronounces such measures, the Signatory may not appeal, but it does entitle it to a fast judgment on the merits. CAS’s final decision has universal effect in accordance with Article 23.5.9 of the new version of the Code. It must be recognized and applied by all Signatories. A symmetrical procedure exists for reinstatement decisions. That is why I will only insist on the consequences of non-compliance, so as not to burden my opinion unnecessarily.

b) Is this procedure satisfactory? It raises a number of questions and reservations, precisely on account of the increased requirements, in respect of the international law on human rights, in the case of judicial proceedings (one must clearly think of Article 6 of the European Convention on Human Rights with regard to a fair trial, as that standard has become universal). The draft Standard contains provisions that provide significant guarantees for the Signatories, such as: - A period for contesting the decision; - Recourse to CAS, an independent and impartial international court, which over its 18 years of existence has acquired indisputable and hardly contested prestige;

The draft Standard contains provisions that provide significant guarantees for the Signatories, such as: - A period for contesting the decision; - Recourse to CAS, an independent and impartial international court, which over its 18 years of existence has acquired indisputable and hardly contested prestige; - The burden of proof devolves upon WADA, while in the normal procedural rules it devolves upon the applicant (in this particular case, the Signatory) based on the adage actori incumbit probation. The draft Standard thus favours a quasi-criminal design of sanctions, which implies observance of the presumption of innocence and the rights of defence; - Observance of a reasonable period granted to CAS to rule (normally three months). This also allows us to consider that the period of 21 days9

required by the Signatory to apply to CAS is not too short, and does not therefore constitute too much of an obstacle to the right of access to a court, as it is explained by the need for diligence in handling the case. These two short periods are mutually justified. Moreover, it is a normal period before CAS (see Article R. 49 of the Code of Sport-related Arbitration).

Conversely, however, other provisions are more problematic: - It is impossible for the Signatory to appeal against provisional measures granted by CAS (Article 10.4.3 of the ISCCS). We completely understand the rationale (the urgency, or major importance of the event to be protected, such as the Olympic or Paralympic Games, or a world championship, for example) but this may prove penalizing, and contrary in principle to the presumption of innocence. Certainly the possibility of reinstatement measures exists, but they do not have a retroactive effect. This being said, it seems that even if the provisional measures cannot be contested by appeal once imposed, before they are imposed by CAS, WADA will have to prove, in addition to the urgency, the prima facie irreparable harm and the Signatories will have the possibility to contest

This being said, it seems that even if the provisional measures cannot be contested by appeal once imposed, before they are imposed by CAS, WADA will have to prove, in addition to the urgency, the prima facie irreparable harm and the Signatories will have the possibility to contest WADA’s position. Therefore, before a decision is taken, the Signatories will benefit from a number of guarantees. Further, if provisional measures are imposed, Signatories will have the right to an expedited procedure. - The procedure for the selection of arbitrators (Article 10.4.1 of the ISCCS) is also delicate; firstly because the arbitrators designated by each of the parties must designate an arbitrator by common consent, called to chair the panel. No provision is made in the event that they are unable to reach an agreement. The system prevailing before CAS (designation by the chairman of the Chamber of the chair of the panel, following consultation of the two arbitrators, without veto rights), appears to be simpler and more correct. Secondly, the fact that it is preferable for the parties to select their arbitrators (and mandatory for the choice of chair of the panel) from a list of arbitrators specifically designated by CAS for doping cases may be criticized. There is a long, public list of CAS arbitrators (several hundred)3, and we fail to see why the parties’ choice should be limited, particularly when one of the parties is WADA itself, which could designate arbitrators that appear “convenient” to it. Ultimately, this provision appears to be contrary to two aspects of a fair trial: the court must be impartial and “established by law”. This being said, to address – at least partly – this issue, I suggest that CAS creates a list of arbitrators (in sufficient number) who are especially competent in doping matters. CAS would choose the chair of the panel from this list,

3 At present, the general list available on the CAS website includes almost 370 arbitrators. A shorter list, the

list of arbitrators (in sufficient number) who are especially competent in doping matters. CAS would choose the chair of the panel from this list,

3 At present, the general list available on the CAS website includes almost 370 arbitrators. A shorter list, the only one that exists, of football arbitrators, has just under 100 arbitrators. But it is only an indication. The parties to a football dispute may choose arbitrators that are only included in the general list.10

and the parties would keep their freedom to designate their respective arbitrator from the general list. The universal effect (erga omnes) of CAS’s final decisions (Article 10.5.1 of the ISCCS) may also pose a problem. Normally, in international matters, judicial decisions take effect between the parties (inter partes) – here WADA and the Signatory of the Code4. However, the consultant notes on that particular matter that if the Signatories accept the proposed amendments to the Code, and in particular Article 23.5.9, they will have accepted this erga omnes effect. The doubt is therefore cleared, and the consistency of both the Code and the ISCCS is safeguarded. - One question raised with me on 3 October 2017 was that of recourse to a court, CAS, which is fundamentally the court in the first and last instance. Is this not incompatible with a principle of the international law on human rights, namely the two-stage procedure, recalled for example in Article 2 of Protocol 7 to the European Convention on Human Rights5? In my opinion, the answer is no. It should first be pointed out that this is not true at all: the Swiss Federal Court may be appealed to under Article 190 (2) of the Swiss law on private international law. Moreover, several cases pending before the ECHR6 raise questions that are not yet resolved on the competence of the ECHR and, prior to that, the scope of judicial control exercised by the Federal Court. In particular, even if the control of the Federal Court is only deemed to be minimal, the two-stage

several cases pending before the ECHR6 raise questions that are not yet resolved on the competence of the ECHR and, prior to that, the scope of judicial control exercised by the Federal Court. In particular, even if the control of the Federal Court is only deemed to be minimal, the two-stage procedure only applies in criminal matters; and even in this case, the ECHR case law is complex and qualified. - The last question raised with the consultant on 3 October 2017 does not appear to raise problems of real compatibility, but rather another problem. The test of evidence, or the standard of evidence (“more likely that not”; in other words, the preponderance of probabilities, “depending on the comfortable satisfaction of the pa