Contributions to doping proceedings
Doping Authority Netherlands is actively involved in all aspects of disciplinary proceedings in doping cases. Pursuant to the Dutch National Doping Regulations, the World Anti-Doping Code and the various International Standards associated with the Code, numerous other steps and procedures have to be completed before disciplinary proceedings begin.
Legal activities in a doping case usually begin as soon as a control result indicates the possible presence of a prohibited substance or method in an athlete's blood or urine sample. However, they may also be initiated if there is a suspicion of another anti-doping rule violation such as a refusal, an attempt to manipulate the doping control, the sample or the manipulation (in other words, falsification) of evidence.
The process that is initiated in cases of this kind is described as 'results management' in the Dutch National Doping Regulations. It begins with the observation of a possible anti-doping rule violation.
- As soon as a possible violation of the National Doping Regulations has been identified, the first step is what the Code calls an 'initial review'. This initial review looks at the facts and circumstances of the case as known to Doping Authority Netherlands and assesses them in the light of the doping regulations (in particular those relating to evidence) and International Standards such as the WADA Prohibited List, the International Standard for Testing and Investigations (ISTI) and the International Standard for Laboratories (ISL). The first step is to determine whether there may have been any procedural errors (for example with regard to conducting the doping control, including the way the sample has been collected, and the analysis or analyses of the athlete's sample by the WADA-accredited laboratory). The next step is to look at the nature and impact of any procedural errors and to determine whether they have any consequences for the possibility of initiating proceedings for an anti-doping rule violation.
Another important and mandatory component of the initial review is to determine whether the athlete in question has a therapeutic use exemption (permission to use a prohibited substance on medical grounds). If that is the case, and if it is relevant to a positive result, that positive result will be no longer be valid unless the athlete has not complied with the conditions of the exemption. This component is also included in the 'initial review'. A check is also made on whether the athlete is in the Registered Testing Pool (which is referred to in the Wuab as the 'elite sports group'). This is because, if an athlete is not in that group, the regulations provide for the option of applying for a therapeutic use exemption retroactively in the case of a positive result.
The 'initial review' is the first step in results management. A relevant factor for the legal activities of Doping Authority Netherlands is that results management includes the option of making a settlement proposal to athletes and coaches.
- Accepting a settlement proposal implies that a person accused of an anti-doping rule violation admits to that violation and accepts the consequences (in other words, a sanction that will usually be a period of ineligibility and the invalidation of competition results). The consequence of signing a settlement proposal is that the substantive disciplinary proceedings will be terminated immediately, without prejudice to the right of WADA and the relevant international federation to appeal against the settlement proposal. A settlement proposal will only be made after extensive consultations with the athlete/support person (and his/her legal representative and/or confidential advisor) and after Doping Authority Netherlands has verified the statements (for example by comparing the stated time of doping with the values reported by the laboratory for the prohibited substance that has been used). Before making a settlement proposal, the legal department always consults WADA (among other things by drafting a 'case summary') with the aim of ensuring that WADA will not later contest the settlement proposal pursuant to its right to appeal. There are also consultations relating to settlement proposals with the association (with respect to initiating proceedings), the Institute for Sports Law (ISR) in situations where proceedings have already been initiated, and with the relevant international federation.
- Another important component of results management that requires the attention of Legal Affairs is the imposition of a provisional suspension. A provisional suspension is not a disciplinary measure such as a period of ineligibility imposed by a disciplinary body, but a measure imposed by (or on behalf of) the board of a sports association. In doping cases, it is a measure that, in certain cases, has to be imposed on the athlete immediately after notification is given of the positive result. This is because the Dutch National Doping Regulations stipulate that, in the case of positive results relating to non-specific substances (in other words, the more serious substances on the WADA prohibited list), the athlete must be subjected to a provisional suspension immediately.
The obligation to impose provisional suspensions must be supervised. On the one hand, the imposition of provisional suspensions by sports federations in doping cases has to be supervised because this is an obligation under the World Anti-Doping Code. On the other hand, it is in the interests of the athlete that this suspension should actually be imposed as quickly as possible because any period of ineligibility will begin on the day the provisional suspension is imposed. In other words, if the provisional suspension were not to be imposed or to be imposed too late, a period of ineligibility pursuant to an anti-doping rule violation will begin later and therefore end later. The timely imposition of a provisional suspension is therefore not only in the interests of proper procedure but also in the interests of the athlete. Finally: if it is unclear whether, and if so when, a provisional suspension has been imposed, a disciplinary body cannot determine in its decision the starting date of a period of ineligibility. Given the above, Doping Authority Netherlands considers it important to supervise the correct and timely imposition of provisional suspensions in doping cases.
- Results management ends when a charge of an anti-doping rule violation is filed with the Institute for Sports Law or with the disciplinary committee of the sports association. Disciplinary proceedings begin when a charge is filed although the possibility remains open that a settlement proposal can still be made during the course of those proceedings. As a rule, the association or the prosecutor files a charge. Doping Authority Netherlands is also competent under the regulations to file a charge but it only avails itself of that competence in exceptional cases involving the following situations: (i) the association has failed to file a charge, (ii) the case is not pursuant to a doping control but to an investigation conducted by Doping Authority Netherlands itself and/or (iii) the case is so complex or unusual that the association cannot reasonably be expected to file the charge itself.
In 2019, Doping Authority Netherlands filed a charge in a number of complex doping cases itself.
- The filing of the charge is followed by a substantive statement of defence, where appropriate in combination with a scientific contribution. Doping Authority Netherlands is entitled to state written arguments in response to a statement of defence. By submitting written arguments, Doping Authority Netherlands can state its views on the case and discuss the relevant provisions from the Dutch National Doping Regulations, the defence of the athlete or other persons, facts and circumstances of the case, and the relevant case law. Doping Authority Netherlands has submitted written arguments in all doping cases heard in 2019, and additional written arguments in the number of cases (for example in response to additional statements of defence or questions from the disciplinary body). Doping Authority Netherlands always ensures that arguments are reviewed and checked by a colleague/legal colleague.
In many cases, athletes' defence arguments result in discussions and/or consultation with WADA and the WADA-accredited laboratory that analysed the sample. It also regularly happens that there are discussions with the athlete in question about how the prohibited substance may have entered the athlete's body. That is because it is possible for an athlete to ingest a prohibited substance without being aware of doing so. Cases of this kind primarily involve nutritional supplements.
- The disciplinary hearing follows after the submission of the written arguments unless the athlete or the person in question has stated that he or she waives the right to a hearing. Doping Authority Netherlands is entitled to be present at the oral hearing of a doping case. Doping Authority Netherlands was present at the hearing in all doping cases heard orally by disciplinary bodies in 2019, including appeals.
- After the written decision of the competent disciplinary body has been received, Doping Authority Netherlands reviews it in order to determine whether the decision meets the requirements of the National Doping Regulations and the Code. This is done pursuant to the duty imposed on Doping Authority Netherlands in the National Doping Regulations to monitor and supervise the correct application of, and compliance with, those regulations and the World Anti-Doping Code, as well as, where necessary, to correct and intervene in this respect (for example by using its right to appeal). In this context, Doping Authority Netherlands not only looks at whether to use its right of appeal but also at whether any areas for improvement arise from a decision, for example with respect to the ISR, training for disciplinary judges, the sports association(s), NOC*NSF and Doping Authority Netherlands itself.
- Furthermore, WADA monitors all positive control results through the global ADAMS clearing house and, in this context, Doping Authority Netherlands is required to report all results in doping cases to WADA.
All the steps listed above will be completed in each doping case, unless there is an agreement about a settlement, in which case the disciplinary proceedings will not be initiated or will be terminated sooner.
- Finally, there is international coordination and cooperation with international federations and WADA in the context of the investigation and management of doping cases (whether actual or potential).
- The legal activities described here are conducted in the context of the doping control process, which is defined by the Wuab as the process of determining a possible violation of doping regulations (in other words, not only the Dutch National Doping Regulations). There are also legal activities that are conducted for the purposes of the doping control process, without actually being part of that process, or that are conducted after the completion of the doping control process. An example of the first category is informing athletes that a period of ineligibility has been imposed upon a member of their support staff (trainer, coach, doctor, etc.). That is because, in cases of this kind, athletes are not permitted to work with that person. Doing so constitutes an anti-doping rule violation. An example of the latter legal activity is a failure by an athlete or other person to comply with the conditions of a period of ineligibility imposed pursuant to a violation of the National Doping Regulations. If an ineligible athlete participates in an unauthorised activity and/or capacity during the period of ineligibility imposed on him or her, a new period of ineligibility will be imposed that is equal to the original period of ineligibility. The new period of ineligibility may be reduced based on the person concerned's degree of fault and other circumstances of the case. The determination of whether the athlete concerned has failed to comply with the ineligibility sanction, and whether the athlete concerned qualifies for any reduction in the new period of ineligibility, will be made by Doping Authority Netherlands. This decision may be appealed under the provisions of the Dutch National Doping Regulations.
Structural activities and operations
Our structural legal activities in 2019 included the provision of general legal services and support within the organisation. This involved preparing and reviewing contracts, letters, memoranda and policy memoranda, and advice for the various departments of Doping Authority Netherlands and the CEO. The structural activities in 2019 also included education and advice for sports associations and, in various cases, athletes with respect to the content, operation and application of the Doping Regulations.
Research and advice relating to legal issues
Various studies were conducted in 2019 that were related to the introduction of the Wuab. The legal issues addressed included: (1) the role and position of Doping Authority Netherlands as a non-statutory body under public law of a sports association to which a significant number of tasks and competences are assigned pursuant to the World Anti-Doping Code and the National Doping Regulations, (2) the overlapping of public law (the Wuab) and private law (association law; in the form of statutes and the National Doping Regulations), and (3) the implementation of the legal duties and principles for the processing of personal data on the one hand and the duties pursuant to the National Doping Regulations on the other. Some of these studies were conducted independently by Doping Authority Netherlands, and some in collaboration with NOC*NSF, the federations or external experts, including the Dutch Attorney General.
Government Information (Public Access) Act (Wob)
The ADAN foundation had already taken into account the possibility of public information requests, mainly from the media, prior to the creation of the independent administrative body in 2019. The number of public information requests, and their impact, has forced Doping Authority Netherlands to develop specific policies in this area. For example, consultations are arranged as quickly as possible with the applicant after a public information request has been received, media policy has been drafted, and both public information requests and the answers to them are published immediately at a specific location on the website of Doping Authority Netherlands.
Doping Authority Netherlands processed five public information requests in 2019.
Objections and appeals under the General Administrative Law Act
One of the consequences of the establishment of the independent administrative body is that, under the Dutch General Administrative Law Act (Awb), interested parties have the right to lodge administrative objections to decisions made by Doping Authority Netherlands. If desired, there is also the option of lodging appeals with the administrative court.
In 2019, Doping Authority Netherlands processed four objections to its decisions in accordance with the Awb, including an objection to a decision relating to a public information request. The parties concerned did not exercise their right of appeal against Doping Authority Netherlands's decision on the objection in any of these cases.
In 2019, Doping Authority Netherlands registered a total of seven data leaks, for example as a result of the incorrect delivery of letters. None of these cases involved personal data of a sensitive nature. Nor was there any risk of adverse consequences for the privacy of the persons concerned. There was therefore no obligation to notify the Dutch Personal Data Authority (AP) in any of these cases.
Policies, rules and regulations relating to the independent administrative body
Various rules and regulations have been drawn up, namely those concerning the objection procedure and complaints in the event of undesirable conduct. In addition, the general terms and conditions have been revised in line with the status as an independent administrative body, a procurement and tendering policy has been adopted and a complaints procedure has been drawn up.
Non-compliance with doping sanction conditions
In 2019, an athlete was tested at an event who was not entitled to compete at that event because it was during a period of ineligibility pursuant to an anti-doping rule violation. In accordance with the Dutch National Doping Regulations, this case was referred to the Doping Sanctions Compliance Committee (CND) of Doping Authority Netherlands. Both the CND and, on appeal, the Appeals Committee for Compliance with Doping Sanctions (BND) of Doping Authority Netherlands found that the athlete in question had indeed breached the conditions of the doping sanction.
- In the case of the associations who use the services of the prosecutor of the ISR.
- The option pursuant to the regulations of submitting written arguments is based on the system adopted by the Advocate General in final appeal proceedings.