The Legal Affairs department of Doping Authority Netherlands fulfils a role comparable to that of a public prosecutions service: it is responsible for all legal aspects of investigations into doping violations. In the case of a possible doping violation, Legal Affairs acts as the 'public prosecutor': it decides about settlements, the dismissal of cases, the filing of charges, provides evidence, and assesses the case and the appropriate sanction.
In that capacity, the Legal Affairs department of Doping Authority Netherlands is involved in all legal aspects of the investigation of doping violations, the prosecution of doping violations, and the disciplinary processing of those violations. The procedures relating to these activities and processes derive from the Dutch National Doping Regulations, the World Anti-Doping Code and the various International Standards associated with that Code.
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. This process, which is implemented by the Legal Affairs department of Doping Authority Netherlands, begins with the identification of a possible anti-doping rule violation. For a description of result management, see Annex 7.
Dutch National Doping Regulations
The new World Anti-Doping Code entered into force on 1 January 2021. As a result, sports and anti-doping organisations had to bring their doping rules into line with this Code before that date. This was done in two steps in the Netherlands. First of all, Doping Authority Netherlands drafted a completely revised version of National Doping Regulations (NDR) on the basis of the Code. Those regulations were then submitted to the elite sports associations for approval. In the case of the majority of the associations that are affiliated to the Institute for Sports Law (ISR), the ISR approves the NDR. Associations not affiliated to the ISR for doping purposes were required to approve the NDR individually in line with their own procedures. In addition to drafting the new NDR, the annexes and regulations associated with those NDR were amended and a range of new regulations were drafted. In addition, the NDR were translated into English and submitted to WADA.
The 2021 Code includes the option in a number of respects of imposing lower sanctions than those provided for under the current doping regulations. Athletes who would have been entitled to a milder sanction under the new Code have the option of applying for a review of the suspension imposed on them under the current Code. Doping Authority Netherlands has drawn up Regulations for Review Applications relating to the Transitional Provisions of the 2021 World Anti-Doping Code. Athletes were given the opportunity to submit a review application as early as 2020 so that they would know in January 2021 whether they would be allowed to return to competition.
A total of five athletes qualified to submit a review application and they were informed accordingly in writing by the Legal Affairs department. Three athletes availed themselves of this opportunity.
Explanation of disciplinary decision and doping sanction
The Legal Affairs department understands that disciplinary rulings are difficult to comprehend and that not all athletes are aware of their rights and obligations after a decision has been made in a doping case. It is important to inform athletes/support staff about what they can and cannot do after a suspension has been imposed on them pursuant to an anti-doping rule violation. Doping Authority Netherlands has therefore drafted a document containing information about the consequences of a sanction. In addition, this document includes an explanation of the disciplinary process, the various possible decisions and the roles of the various parties.
Disciplinary law in the Netherlands
The 2021 Code has built safeguards into the disciplinary process of handling anti-doping rule violations for the quality and independence of disciplinary proceedings. The requirements of the Code effectively mean that all elite sports associations that are not yet affiliated to the ISR will have to become so with respect to doping matters. In 2020, Doping Authority Netherlands, together with NOC*NSF, talked to almost all non-affiliated associations about affiliation.
Not all associations can complete the requisite procedures quickly. A number of associations will therefore not switch to the ISR until 2021.
Binding nature of Doping Authority Netherlands decisions for members
Members are in principle bound only by decisions of bodies of the association to which they are affiliated. However, they must also be bound by decisions made by Doping Authority Netherlands on the basis of the NDR (such as therapeutic use exemptions, decisions to select an athlete for a doping control, to add an athlete to the RTP, etc.). Ensuring that athletes are indeed bound by such decisions requires either a change to articles of association or specific arrangements at an association (such as licenses or other agreements). Establishing arrangements of this kind in sports is a long process, in part because of the complexity of the issue.
During the discussions with the associations about the switch to the ISR described above, the question of making decisions of Doping Authority Netherlands binding on members was also discussed. This has also proven to be a lengthy process.
Structural activities and operations
Our structural legal activities in 2020 included the provision of general legal services and support within the organisation. This involved drafting, assessing and/or revising contracts, letters, memoranda and policy memoranda, and regulations, as well as advice for the various departments of Doping Authority Netherlands and the CEO.
The structural activities in 2020 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 complex legal issues
The examination and study of complex legal issues is a structural activity. In 2020, the following legal questions were further examined and discussed with policy partners: (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. In addition, new issues arising from the new World Anti-Doping Code and the newly introduced International Standard for Results Management (ISRM) were examined in 2020. They include, for example, the requirements for institutional independence and the division of powers between Doping Authority Netherlands, the associations and the ISR.
Government Information (Public Access) Act (Wob)
Doping Authority Netherlands did not receive any Wob requests in 2020.
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 2020, Doping Authority Netherlands received one objection to a decision it made under the Awb. No appeal has been lodged with the administrative courts against the decision of Doping Authority Netherlands relating to this objection.
Policies, rules and regulations relating to the independent administrative body
Several rules and regulations have been revised.
Two legal processes were covered by the audit conducted by WADA at Doping Authority Netherlands: results management and privacy. Because of the legal nature and the privacy implications, the Legal Affairs department was also closely involved in the audit of the therapeutic use exemptions process.