Irregularities in doping controls that lead to the acquittal of the case file or the filing of sanctioning actions
As established by the current Anti-Doping Law (Organic Law 3/2013, of June 20), «within the main obligations that affect athletes, the obligation to submit to controls is included in an exhaustive manner. This obligation, however, is not exempt from rights». As the preamble to this regulation recalls, «these rights are a fundamental element of the system established in the Law and the Spanish Agency for the Protection of Health in Sport must ensure that in any case they are duly taken care of».
Thus, in order to strengthen our legal system in the fight against doping, Spain approved, on February 17, 2017, a Royal Decree-law (3/2017) that modified Organic Law 3/2013 and adapted to the modifications introduced by the 2015 World Anti-Doping Code. According to its explanatory memorandum, «this regulatory intervention avoids the immediate damages that the lack of incorporation of the Code would produce in the general interest (…) of athletes».
In this way, Spain came out of the situation of non-compliance that had been declared by the World Anti-Doping Agency in 2016, but what practical effects has this new Royal Decree had on the rights of athletes in sanctioning matters?
In order to try to offer an answer to this question, our Sports Law Team has analysed the legal background of two resolutions – one from the National Court and the other from the Administrative Court of Sport – relating to two doping controls carried out immediately after the entry into force of Royal Decree-Law 3/2017.
First case: irregularities in the transport and chain of custody of the athlete’s samples
Starting with the most recent event in this case, on October 7, 2019, the Contentious Chamber of the National High Court issued a ruling that finally recognised the irregularities alleged by the athlete, who had been sanctioned by the AEPSAD and later by the TAD (Administrative Court of Sport, in Spanish Tribunal Administrativo del Deporte) as a result of a positive control carried out on April 23, 2017.
According to the conclusion reached by the Magistrates of the National High Court, «the irregularities detected in the transport forms and chain of custody of the biological samples taken (…) are not mere formal irregularities when completing the aforementioned forms, but rather the irregularities detected imply that the certainty of the analytical results obtained in the samples taken from the appellant is questioned». For this reason, «the only proof of charge of the Administration (…) has essential flaws that prevent guaranteeing the reliability of the adverse analytical result».
What specifically were the essential vices that led to the acquittal of the athlete in this first case?
In the first place, the signature of the Control Agent was missing on the Transport and Chain of Custody Form for the samples obtained. Regarding the entity of this irregularity, the National High Court concluded that «the absence of said signature cannot be understood as a mere formal irregularity given the important purpose pursued, in such a way that there is no security or certainty that the samples analysed have actually been transported and packaged in a way that guarantees their complete conservation during transport».
Likewise, along with this deficiency, a second irregularity was found in the completion of the Transportation and Chain of Custody Form – also considered as “something more than mere formal irregularities”, since the control procedure «requires the laboratory recipient of the samples to fill in the aforementioned form (…) that the codes of the kits correspond to the coding of the samples referred to in the form and that the kits do not show signs of degradation and/or manipulation». These two additional verifications, which had to be recorded in the Transportation and Chain of Custody Form (Section 6), were not carried out in this case either.
Therefore, due to all these documentary-proven irregularities, the Chamber concluded that «then, and without the need for other considerations, the estimate of the appeal proceeds», thus absolving the athlete of the four-year suspension that he had been imposed.
An additional precedent: a single Agent in taking samples from the athlete
On June 17, 2017, AEPSAD carried out another collection of samples in which, this time, a single Control Agent participated, an objective circumstance that was verified in the Sample Control Form, as evidenced by the Resolution of the Administrative Court of Sport of September 27, 2019.
In this case, TAD’s decision implied the termination of the administrative procedure, thus definitively confirming the AEPSAD resolution of March 14, 2019, which agreed on the «filing of the proceedings (…), since in the Form of collection of samples (…) it is not verified that both the doping control officer and a second doping control agent were present in the sample collection process, (…), as stipulated in article 79 of Royal Decree 641/2009, of April 17».
Thus, on this occasion the definitive irregularity was not reflected in the Transportation and Chain of Custody Form, as occurred in the first case, but in the Control Form itself, which also led, without the need for other considerations, to the archive of sanctioning actions against the athlete due to the absence of an administrative offense.
Conclusions of interest for the right of defense of the filed athletes
As the precedents analysed show, relating to two of the first doping controls carried out after the approval of Royal Decree-Law 3/2017, certain irregularities may occur in anti-doping sampling procedures that, due to their material nature, lead to the safeguard of the right of presumption of innocence of athletes.
In this regard, in order to avoid possible damages to national athletes derived from the commission of the aforementioned irregularities by the Administration, the AEPSAD Doping Control Department, prior to the initiation of the proceedings disciplinary, carries out an exhaustive quality control by preparing a Review Form that includes a significant amount of verifications on the analytical-adverse results obtained, aimed at confirming the regularity of the sampling procedure based on the available data in the referred Control and Transport Forms and Chain of Custody.
Thus, as can be seen in the cases analysed, these Forms, which are included in the Athlete’s Administrative Record and which have a presumption of veracity, can become the most effective evidence of discharge in favor of the filed athlete, provided that these documents allow to prove some of the material irregularities that have already been recognised in the precedents analysed:
- Lack of verification in the Control Form of the presence of a second Control Agent who acted as deputy of the Officer.
- Lack of the signature of the Control Agent on the Transportation and Chain of Custody Form.
- Failure to complete Section 6 (Reception in the Laboratory) of the Transport and Chain of Custody Form.