Challenges to anti-doping regimes before the Code

Before the advent and adoption of the Code, legal challenges were made, from time to time, by athletes, to the enforceability of doping rules and regulations before national courts and before supranational tribunals and courts, such as the European Court of Justice. The challenges sought to invoke a range of arguments, which are united by the contention that the anti-doping rules in issue should not be enforced because they were contrary to the fundamental individual rights and freedoms which were protected by national or international constitutional provisions or by general principles of national and international law.

Fundamental rights such as the rights of the individual to work, to privacy, not to be punished without fault, and the right to equal treatment and not to be subjected to discrimination, protected by national legal rules, were relied on to challenge the enforceability of the strict liability ‘no fault’ regime common in anti-doping rules. Principles of competition law protecting individuals from anti-competitive conduct and agreements, and from restrictions on the freedom to work and provide services, and common law contractual principles protecting individuals from restrictions in restraint of trade, were also relied on to contend that periods of ineligibility should be set aside. Such challenges go beyond questions concerning the interpretation of the anti-doping rules in question (or, indeed, challenges to the fairness of the hearing process) and seek to set aside the provisions of rules on the ground that, while their terms may be clear and be the subject of agreement, they infringe overriding fundamental rights and should not, as a result, have legal effect.