Drugs, sport and the law : legal solutions and the need for an international arbitral court : an Australian perspective
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NO FULL TEXT AVAILABLE. This thesis contains 3rd party copyright material. ----- Some athletes take drugs to enhance their sporting performance. Sports organisations and the countries whom the athletes represent have adopted anti-doping policies which, when breached, attract sanctions in the form of a ban from competition. The sports organisations have adopted by-laws, recognising the procedures for drug-testing and enacting a system of appropriate sanctions for breaches. Governments have introduced statutes to reflect their obligations. The Olympic movement has imposed upon its federations a philosophical commitment to drug-free sport. All are trying to protect the integrity of both the anti-doping regime of the sport and simultaneously trying to ensure just and fair process for athletes. So, we have a juxtaposition of ideologies. On the one hand, the utilitarian approach aims to protect the sport and the event, while on the other, the proper demand for the application of natural justice principles to any challenge by an athlete in a doping dispute, ensures that the rights of the individual are paramount. There has been international recognition of a “list” of banned substances as the first step in recognising the need to internationalise the anti-doping rules. The procedures for the compilation of this List, under the auspices of the IOC Medical Commission, must be refined. The effect of the bans from competition created the need for sporting tribunals to hear doping disputes. The ad hoc operation of these tribunals revealed the need for the application of legal standards to their considerations. Their independence, the privilege that attaches to their decisions and their powers have required legal interpretation. Issues such as defining the offence of doping, the application of natural justice principles, the implications of restraint of trade rules and the right to an athlete’s privacy arose through the case law. With no harmonisation of testing procedures or sanctions, there was further judicial intervention. There was a need for an independent appeal forum to review the findings of these tribunals because many doping disputes went to various civil and domestic courts. There is now hope that an international lex specialis will develop, especially in doping disputes, through the reconstitution by the sporting establishment of the Court of Arbitration for Sport (CAS). An examination of the Court’s present structure and procedures illustrates further need to refine the processes for hearing appeals in doping disputes. For this Court to have international recognition, its operation must be recognised in the sports organisation’s by-laws, and its procedures must be flexible, expeditious and inexpensive. Its arbitrators should have specialist knowledge. Only then will it be a just and independent Court of Arbitration for Sport.
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