04.07.17

Anti-Doping in Sports

Helen Liu
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Anti-Doping in Sports

In recent years, a number of Jamaican athletes have found themselves facing disciplinary hearings with the possibility of sanctions against them. In some instances, the language used in relation to hearings includes words such as “acquittal” and “conviction” which may give the perception of proceedings related to criminal law. The process of determining if a doping violation has occurred is in fact a civil process which contains elements of natural justice. Under local law, the control and prevention of doping in sport is governed by the Anti-Doping in Sport Act, 2014 (“the Act”).

The Act established the Jamaica Anti-Doping Commission (“JADCO”), which is empowered to facilitate the control and prevention of doping in sport. Under the Act, JADCO is authorised to carry out various activities including:

  1. doing all things as are necessary to comply with and implement the World Anti-Doping Code, The International Standards adopted by World Anti-Doping Agency (“WADA”) and the Anti-Doping Rules, 2015 (“the Anti-Doping Rules”) established under the Act
  2. directing the anti-doping programme of the government specific to sport, including conducting testing of athletes, planning, coordinating, and implementing the collection of samples and the management of test results in keeping with the International Standards
  3. testing any athlete, whether or not the athlete is a citizen of or resident in Jamaica
  4. pursuing potential anti-doping rule violations and activities that facilitate doping, including investigations into whether athletes, athlete support personnel or other persons are or may have been involved in doping; and
  5. ensuring proper enforcement of the prescribed consequences.

The Commission is appointed by the Minister of Culture, Gender, Entertainment and Sport and at any time must have at least nine, but no more than thirteen members. The constitution of the Commission must include an individual who has experience in pharmacology or sports medicine; an individual who is a former athlete, coach or sports administrator; a person with a proven academic background in sport; a person with experience in marketing or public relations; a person with experience in financial accounting; a person with experience in human resource management or general management and an attorney-at-law.

Under the Anti-Doping Rules, Anti-Doping Rule Violations include:

  • the presence of a prohibited substance or its metabolites or markers in an athlete’s sample;
  • use or attempted use by an athlete of a prohibited substance or a prohibited method; evading, refusing or failing to submit to sample collection;
  • whereabouts failure; tampering or attempted tampering with any part of doping control; possession of a prohibited substance or a prohibited method
  • trafficking or attempted trafficking in any prohibited substance or prohibited method;
  • administration or attempted administration to any athlete of any prohibited substance or prohibited method;
  • complicity; and
  • prohibited association

In the proceedings to determine if an Anti-Doping Rule Violation has occurred, evidence is submitted. JADCO has the burden of proof of establishing that an Anti-Doping Rule Violation has occurred and the standard of proof is greater than a balance of probability but less than proof beyond a reasonable doubt. In criminal proceedings generally, the prosecution has to establish proof beyond a reasonable doubt.

Under the Act, prescribed consequences are:

  1. disqualification, whereby the athlete’s results in a competition or event are invalidated, this includes the forfeiture of any medals, points and prizes;
  2. ineligibility, whereby the athlete is barred on account of an Anti-Doping Rule Violation for a specified period of time from participating in any competition or from receiving funding;
  3. provisional suspension, whereby the athlete is barred temporarily from participating in any competition or activity prior to a final decision of hearing which is to take place within a reasonable time by a fair and impartial hearing panel;
  4. financial consequences whereby a financial sanction is imposed for the Anti-Doping Rule Violation or to recover the costs associated with an Anti-Doping Rule Violation.

The Act also established the Independent Anti-Doping Disciplinary Panel (“the Disciplinary Panel”). The Disciplinary Panel is appointed by the Minister and must consist of not more than nine members with three of them being attorneys-at-law practicing for a minimum of ten years; three registered medical practitioners who have been qualified for a minimum of ten years and three additional members who have been athletes or sports administrator.

The Disciplinary Panel is empowered to receive, examine and hear evidence relating to Anti-Doping Violations; conduct disciplinary hearings relating to Anti-Doping Rule Violation referred to it by JADCO and to determine whether an Anti-Doping Rule Violation has occurred and impose one of the prescribed consequences that it considers appropriate in accordance with the Anti-Doping Rules.

Under the Act, subject to the Supreme Court of Jamaica’s powers of judicial review, no final decision of, or consequence imposed by the Disciplinary Panel can be quashed, carried or held invalid unless this is done by the Appeal Tribunal or the Court of Arbitration for Sport. Every aggrieved person has a right to a fair hearing in front of a fair and impartial panel.

The Anti-Doping Appeal Tribunal is established by the Act and is empowered to hear appeals of the decisions from the Disciplinary Panel. The Appeal Tribunal must consist of seven members including two members who have previously served as Judges of the Court of Appeal or Supreme Court of Jamaica; the Director of Public Prosecution or a Deputy; two medical practitioners with a minimum of ten years experience; a former athlete and a former sports administrator.

These appeals may made by any athlete who is the subject of the decision being appealed; JADCO; the relevant National Federation; the relevant International Federation; the International Olympic Committee; or the International Paralympic Committee; the Jamaica Olympic Association and WADA. Subject to the Supreme Court of Jamaica’s power of judicial review, no final decision of, or consequence imposed by the Appeal Tribunal can be quashed, varied or held invalid except by the Court of Arbitration for Sport.

Appeals from the Disciplinary Panel and the Anti-Doping Appeal Tribunal are heard by the Court of Arbitration for Sport. An athlete or any other aggrieved party may lodge an appeal only if it has exhausted all of the internal remedies of the sports organisation concerned.

The process in Jamaica to handle allegations of anti-doping violations has implemented the guidelines as set out in the World Anti-Doping Code. This implementation helps ensure that the reputation of sports in Jamaica is maintained. Additionally, any aggrieved party can seek to have their case heard and has a right to a fair hearing in front of an impartial panel and has the right to legal representation.

Helen Liu is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Helen may be contacted via helen.liu@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.