- As soon as a possible violation of the National Doping Regulations has been identified, the first step is an internal assessment. The Code refers to this as 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 stand 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. 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 Affairs 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 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 ISR or with the disciplinary committee of the sports association. Disciplinary proceedings begin when a charge is filed although it is still possible for a settlement proposal to be made during the course of those proceedings. As a rule, the association or the prosecutor will file the charge formally. Doping Authority Netherlands makes the substantive decision about whether a charge should be filed in a particular case.
Doping Authority Netherlands is also competent under the regulations to file a charge but it avails itself of that competence only 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.
- 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 submitted written arguments in three of the five doping cases heard in 2020, and additional written arguments in a number of cases (for example in response to additional statements of defence or questions from the disciplinary body). Doping Authority Netherlands did not submit written arguments only in those cases in which the athlete accepted a proposed sanction. Doping Authority Netherlands applies the ‘four eyes’ principle to all written arguments: all legal documents 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 nutrition 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 2020, 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 remit of Doping Authority Netherlands stated 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 testing 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. This new period of ineligibility may be reduced depending on the degree of fault of the person concerned and the other circumstances of the case. The determination of whether the athlete 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.
- 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 Dutch Advocate General in final appeal proceedings.