Anti-doping rule violations & disciplinary law
In matters relating to possible anti-doping rule violations, 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 investigating and handling violations of this kind. If there is a possible anti-doping rule violation, Legal Affairs acts as a ‘public prosecutor’: it decides about settlements, closing 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 violations, the prosecution of violations, and the disciplinary handling of those violations. The steps and 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 test 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 tamper with the doping control, the sample or the tampering (in other words, falsification) with evidence.
If a possible anti-doping rule violation does not result in a settlement or the closing of the case, a charge will be filed. That step is followed by the statement of defence of the athlete or person concerned. Doping Authority Netherlands is entitled to state written arguments in response to a statement of defence. By submitting written arguments, Doping Authority Netherlands states its views on the case and discusses the relevant provisions from the Dutch National Doping Regulations, the defence of the athlete or other persons, the facts and circumstances of the case, and the relevant case law (particularly from the CAS).
A number of long-running complex proceedings were completed in 2021, either by a settlement, the closing of the case or a disciplinary decision. A few cases involved a settlement in combination with a disciplinary decision.
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 on the basis of Doping Authority Netherlands’ remit laid down in the Code, viz. the monitoring and supervision of the correct application of the doping regulations. This remit does not relate to national decisions alone. Decisions made by international sports federations or doping organisations from other countries relating to anti-doping rule violations by Dutch athletes or foreign athletes who play for a Dutch club are also shared with Doping Authority Netherlands so that these decisions can be reviewed in the light of the Code.
For the same reason, Doping Authority Netherlands is required to inform WADA, the relevant international federation and (if applicable) the relevant National Anti-Doping Organisation (NADO) in another country about all settlements, closed cases and disciplinary decisions, and even therapeutic use exemptions that have been granted. In turn, these organisations have the competence to assess decisions made in the Netherlands in the light of the global Code.
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 exclusion 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 NDR.
Dutch National Doping Regulations
The new World Anti-Doping Code entered into force on 1 January 2021. This meant, first of all, that the NDR had to be completely revised to bring it in line with the new Code (and International Standards). Secondly, it meant that sports and anti-doping organisations had to bring their doping regulations into line with the new NDR.
During the course of 2021, it became apparent that WADA felt that the amended NDR had not been drafted in full compliance with the Code in a number of respects. This meant that the NDR had to be substantially amended again and Doping Authority Netherlands proceeded to make those amendments. As a result, WADA has now agreed that the National Doping Regulations are in line with the 2021 Code.
Status during a period of ineligibility
Following the period of ineligibility imposed on Andre Onana (the Ajax goalkeeper), an overview has been drawn up describing the status of athletes who are serving a period of ineligibility or a provisional suspension. It explains which activities and athlete may or may not engage in during a period of ineligibility of this kind. This document, which was drafted in consultation with WADA, has been published on the website of Doping Authority Netherlands.
Legislative amendment
One of the respects in which WADA found that the Dutch regulations did not comply with the 2021 Code related to the position of the National Doping Regulations Appeals Committee (BND). To comply with the Code in full, WADA’s position was that this committee had to be positioned independently of Doping Authority Netherlands. Working with the Ministry of Health, Welfare and Sport, a regulatory amendment was made to the NDR, the Appeals Hearing Procedure of Doping Authority Netherlands and the BND Regulations.
To arrive at a solution that will be robust in the future, it was also decided to amend the Anti-Doping Policy Implementation Act (Wuab). The Legal Affairs Department worked with the Ministry of Health, Welfare and Sport on drafting the bill, as well as the accompanying explanatory memorandum, and participated in consultations with WADA about the bill. The Ministry of Health, Welfare and Sport has also asked Doping Authority Netherlands (Legal Affairs) to conduct an implementation review for the bill.
Review applications
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. Several athletes have already taken advantage of this regulatory opportunity in 2020 and requested a review of their sanction. One more review request was submitted to Doping Authority Netherlands in 2021.
Olympic Agreement
NOC*NSF draws up agreements for each Olympic Games for both elite athletes and support staff. These agreements also include an article that addresses doping specifically. Doping Authority Netherlands has amended the Elite Athlete Agreement and the Support Staff Agreement (for both the Olympic and Paralympic Games) to bring them in line with the 2021 Code.
Structural activities and operations
Our structural legal activities in 2021 also 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.
In addition, the structural activities in 2021 included education and advice for sports associations and, in various cases, athletes with respect to the content, operation and application of the Doping Regulations.
Government Information (Public Access) Act (Wob)
Doping Authority Netherlands receive one Wob request in 2021.
Objections and appeals under the General Administrative Law Act
One of the consequences of the establishment of Doping Authority Netherlands as an 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 2021, Doping Authority Netherlands received one objection under the terms of the Awb to a decision it made. No appeal has been lodged with the administrative courts against the decision of Doping Authority Netherlands relating to this objection.
Privacy
All documents drawn up pursuant to the General Data Protection Regulation (GDPR) (privacy policy, privacy regulations, privacy statement of Doping Authority Netherlands and the Regulation for the Rights of Persons Concerned) were evaluated and updated where necessary in 2021. Doping Authority Netherlands registered two data leaks in 2021. There was no obligation to notify the Dutch Personal Data Authority (AP) in either case.
Policies, rules and regulations associated with the status of an independent administrative body
Several rules and regulations have been revised.