If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:
Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!
On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar
on the recent award of the Court of Arbitration for Sport (CAS) in the
case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency
(RUSADA), delivered on 17 December 2020.
In its 186 pages decision
the CAS concluded that RUSADA was non-compliant with the World
Anti-Doping Code (WADC) in connection with its failure to procure the
delivery of the authentic LIMS data (Laboratory Information Management
System) and underlying analytical data of the former Moscow Laboratory
to WADA. However, the CAS panel did not endorse the entire range of
measures sought by WADA to sanction this non-compliance. It also reduced
the time frame of their application from four to two years. The award
has been subjected to a lot of public attention and criticisms, and some
have expressed the view that Russia benefited from a lenient
This edition of our Zoom in webinars will focus on assessing the
impact of the award on the world anti-doping system. More specifically,
we will touch upon the decision’s effect on the capacity of WADA to
police institutionalized doping systems put in place by certain states,
the ruling’s regard for the rights of athletes (Russian or not), and its
effect on the credibility of the world anti-doping system in the eyes
of the general public.
To discuss the case with us, we are very happy to welcome the following speakers:
Participation is free, register HERE.
Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.
The COVID-19 pandemic has shaken the manner
in which we approach human interactions that suppose close and prolonged physical
contact. Across the world, authorities are having to design ways to resume
essential activities without jeopardising participants’ health, all the while
guaranteeing that other fundamental rights are paid due respect. The fight
against doping is no exception. Anti-doping organizations – whether public or
private – have to be held to the same standards, including respect for physical
integrity and privacy, and considerate application of the cornerstone principle
Throughout this global crisis, the World
Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing
anti-doping organizations and athletes with updates and advice. On
6 May 2020, WADA issued the document called ‘ADO
Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19
‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s
website, and has been last updated on 25 May 2020. This article focuses on
these two latest documents, and analyses the solutions proposed therein, and
their impact on athletes.
Like many public or private recommendations
issued for other societal activities, the WADA COVID Guidance is primarily
aimed at conducting doping control while limiting the risk of transmission of
the virus and ensuing harm to individuals. More specifically, one can identify two
situations of interest for athletes that are notified for testing:
- The athlete has or suspects
that they may have been infected with COVID-19, or has come in close contact
with someone having COVID-19;
- The athlete fears to be in
touch with doping control personnel that may be infected with COVID-19.
Quite obviously, either situation has the
potential to create significant challenges when it comes to balancing the
interests of anti-doping, with individual rights and data protection concerns.
This article summarises how the latest WADA COVID Guidance and Athlete Q&A
address both situations. It explores how the solutions suggested fit in with
the WADA regulatory framework and how these might be assessed from a legal
The focus will be on the hypothesis in
which international sports federations – i.e. private entities usually
organised as associations or similar structures – are asked to implement the COVID
Guidance within their sport. National anti-doping organizations are strongly
embedded in their national legal system and their status and obligations as
public or semi-public organisations are likely to be much more dependent on the
legislative landscape put in place to deal with the COVID-19 pandemic in each
country. Nevertheless, the general principles described in this article would
apply to all anti-doping organizations alike, whether at international or
national level. More...
Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.
Since the spectre of the EU General Data
Protection Regulation (‘GDPR’) has loomed over the sports sector,
a new wind seems to be blowing on anti-doping, with a palpable growing interest
for stakes involved in data processing. Nothing that would quite qualify as a
wind of change yet, but a gentle breeze of awareness at the very least.
Though the GDPR does mention the fight
against doping in sport as a potential matter of public health in its recitals,
EU authorities have not gone so far as to create a standalone ground on which
anti-doping organisations could rely to legitimise their data processing.
Whether or not anti-doping organisations have a basis to process personal data –
and specifically sensitive data – as part of their anti-doping activities, thus
remains dependent on the peculiarities of each national law. Even anti-doping
organisations that are incorporated outside the EU are affected to the extent
they process data about athletes in the EU.
This includes international sports federations, many of which are organised as private
associations under Swiss law. Moreover, the Swiss
Data Protection Act (‘DPA’) is currently
under review, and the revised legal
framework should largely mirror the GDPR, subject to a few Swiss peculiarities.
All anti-doping organisations undertake at a minimum to abide by the WADA International
Standard for Privacy and the Protection of Personal Information (‘ISPPPI’),
which has been adapted with effect to 1 June 2018 and enshrines requirements
similar to those of the GDPR. However, the ISPPPI stops short of actually
referring to the GDPR and leaves discretion for anti-doping organisations to
adapt to other legislative environments.
The purpose of this blog is not to offer a
detailed analysis of the requirements that anti-doping organisations must abide
by under data protection laws, but to highlight how issues around data
processing have come to crystallise key challenges that anti-doping
organisations face globally. Some of these challenges have been on the table since
the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but
are now exposed in the unforgiving light of data protection requirements. More...
Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...
Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.
the International Association of Athletics Federations (IAAF), the
International Paralympic Committee (IPC) was very much unaffected by the
Russian doping scandal until the publication of the first McLaren report in July
report highlighted that Russia’s doping scheme was way more comprehensive than
what was previously thought. It extended beyond athletics to other disciplines,
including Paralympic sports. Furthermore, unlike the International Olympic
Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio
Paralympic Games were due to start “only” in September.
the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled
and deeply saddened at the extent of the state sponsored doping programme
implemented in Russia”. He immediately announced the IPC’s intention to review
the report’s findings and to act strongly upon them. Shortly thereafter, on 22
July, the IPC decided to open suspension proceedings
against the National Paralympic Committee of Russia (NPC Russia) in light of
its apparent inability to fulfil its IPC membership responsibilities and
obligations. In particular, due to “the prevailing doping culture endemic
within Russian sport, at the very highest levels, NPC Russia appears unable or
unwilling to ensure compliance with and the enforcement of the IPC’s
Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7
August, the IPC Governing Board decided to suspend the Russian
Paralympic Committee with immediate effect “due to its inability to fulfil its
IPC membership responsibilities and obligations, in particular its obligation
to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which
it is also a signatory)”. Indeed, these “obligations are a fundamental
constitutional requirement for all National Paralympic Committees (NPCs), and
are vital to the IPC’s ability to ensure fair competition and to provide a
level playing field for all Para athletes around the world”. Consequently, the
Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically,
it was not entitled to enter athletes in competitions sanctioned by the IPC,
and/or to participate in IPC activities. Thus, “the Russian Paralympic
Committee will not be able to enter its athletes in the Rio 2016 Paralympic
Since the release of the earth-shattering
ARD documentary two years ago, the
athletics world has been in a permanent turmoil. The International Athletics
Association Federation (IAAF) is faced with both a never-ending corruption
scandal (playing out in front of the French police authorities) and the related systematic doping of Russian
athletes. The situation escalated in different phases led by the revelations of
Russian insiders. First, in December 2014 with the ARD documentary, which demonstrated
how widespread (and organized) the recourse to doping was in Russian athletics.
It triggered the Pound investigation financed by the World Anti-Doping Agency (WADA), which led to two
damaging reports (available here and here) for the Russian
anti-doping system and the IAAF itself. Thereafter, in November 2015, the IAAF
had no other choice but to provisionally suspend the Russian athletics
federation (ARAF then RusAF) and its members from IAAF competitions. Yet, this
was only the beginning as shortly after the former head of Moscow’s anti-doping
laboratory provided a
detailed sketch to the New York Times
of the operation of a general state-led doping scheme in Russia. The system was
designed to avert any positive doping tests for top-level Russian sportspeople and
was going way beyond athletics. These allegations were later largely confirmed
and reinforced by the McLaren investigation initiated by WADA in May 2016, and which published its first report in July 2016 shortly before the Rio Olympics. In June 2016, the IAAF anticipated
the conclusions of the report (it had received most of McLaren’s evidence beforehand) and decided to
maintain the ineligibility of Russian athletes for IAAF competitions, and for
the Rio Olympics. It did, however, foresee a narrow exception for Russian
athletes able to show that they were properly tested outside of Russia.
Nonetheless, the athletes using this exception were to compete under a neutral
flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar
(and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee
decided to challenge this decision in front of the Court of Arbitration for
Sport (CAS). Interestingly, while the decision was rendered on 21 July 2016, the
full text of the award was publically released only on 10 October 2016. In September,
I analysed the Rio
CAS Ad Hoc Decisions involving Russian athletes aiming to participate to the
Olympics. I will now turn to the IAAF
decision, which is of great importance to the future of the anti-doping system.
Indeed, it lays out the fundamental legal boundaries of the capacity of
international federations to impose sanctions on their members (and their
members) in order to support the world anti-doping fight. More...
Editor’s note: This
report compiles all relevant news, events and materials on International and
European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are
invited to complete this survey via the comments section below, feel free to
add links to important cases, documents and articles we might have
The Russian State Doping Scandal and the
crisis of the World Anti-Doping System
doping and the state of the Anti-Doping System has been the dominant international
sports law story in November and December. This is mainly due to the release of
of the McLaren’s investigation on 9 December 2016. The
outcome of McLaren’s work showed a “well-oiled systemic cheating scheme” that
reached to the highest level of Russian sports and government, involving the striking
figure of 30 sports and more than 1000 athletes in doping practices over four
years and two Olympic Games. The report detailed tampering with samples to swap
out athletes’ dirty urine with clean urine.More...
“One day Alice came to a fork in the road and saw a Cheshire cat in a
tree. ‘Which road do I take?’ she asked. ‘Where do you want to go?’ was his
response. ‘I don’t know,’ Alice answered. ‘Then,’ said the cat, ‘it doesn’t
Tomorrow the Foundation Board
of the World Anti-Doping Agency (WADA) will gather in Glasgow for
its most important meeting since the creation of the Agency. Since the
broadcasting of a documentary alleging systematic doping in
Russian athletics by the German public broadcaster in December 2014, the
anti-doping world has been in disarray. The various independent investigations
(the Pound Report and the McLaren Report) ordered by WADA into doping allegations
against Russian athletes have confirmed the findings of the documentary and the
truth of the accusations brought forward by Russian whistle-blowers.
Undeniably, there is something very rotten in the world anti-doping system. The
current system failed to register a widespread, and apparently relatively open,
state-sponsored scheme aimed at manipulating any doping test conducted in
Russian territory. Moreover, it was not WADA that uncovered it, but an
independent journalist supported by courageous whistle-blowers. More...
Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code. Her latest book Evidence in Anti-Doping at
the Intersection of Science & Law was published in 2016 in the International Sports Law Book Series of T.M.C. ASSER Press.
On 30 September 2016, a panel of the Court
of Arbitration for Sport (“CAS”) rendered its award
in the matter opposing high-profile tennis player Maria Sharapova to the
International Tennis Federation (“ITF”). Maria Sharapova was appealing the
two-year ban imposed on
her by the ITF Tribunal in June 2016 for her use of Meldonium, a substance
newly added to the WADA Prohibited List 2016.
Since neither the ITF nor WADA had chosen to challenge the Tribunal’s decision,
the stakes of the case were rather simple: would the player convince the CAS
panel that she should benefit from a finding of “No Significant Fault or
thereby allowing for a reduction of the sanction down to a minimum of one year,
or should the decision of the Tribunal be upheld? In its award, the CAS panel
decided to grant such finding and reduced the sanction to 15 months.
This blog does not purport to be a ‘comment’
on the CAS award. Rather, it seeks to place the Sharapova matter into a broader
context with respect to a specific issue: the expectations on Athletes when it
comes to their awareness of the prohibited character of a substance,
specifically when taking a medication.
In July 2016, I presented at the T.M.C Asser Institute in The Hague various current
challenges of anti-doping that the Meldonium cases exposed (see the video here). One of these
challenges concerned the modalities for including new substances onto the
Prohibited List. This blog represents a follow-up on my presentation, in the
light of the findings contained in the CAS award. More...