National legislation concerning doping

The Danish Act on Promotion of Doping-Free Sport came into force on 1 January 2005. Under the Act, Anti Doping Den-mark was established as a self-governing institution with the task of promoting anti-doping measures in sports.

The legislation (the Act and the corresponding Executive Order) on doping control refers to the current rules for doping control and sanctions set out in the WADA Code (the World Anti-Doping Code), including testing procedures (see 4.3), analysis of doping samples (see 4.5) and sanctions for positive a test, etc.

Fitness centres under organised sport

The Act makes it compulsory for sports federations and associa-tions to introduce and uphold regulaassocia-tions regarding doping control and doping sanctions as a condition for receiving government subsidies in the form of lottery funds or other subsidies governed by legislation.

According to current legislation, sports associations under the main Danish sports organisations – the National Olympic Committee and Sports Confederation of Denmark (DIF), the Danish Gymnastics and Sports Associations (DGI) and the Danish Federation for Company Sports (DFIF) – are obliged to introduce and uphold rules for doping control and sanctions in accordance with the WADA Code.

The WADA Code permits national sports federations that carry out doping control within non-competition and recreational-level sports to establish special rules for doping control, for example in relation to members of the fitness centres operated by the federations. On that basis, the sports federations (DIF, DGI, DFIF as well as the Danish Shooting Association (DDS)¹ have drawn up common anti-doping regulations for recreation-al sports regarding the handling of doping cases among fitness members, not involving elite athletes.²

1 DDS is associated with the Danish Gymnastics and Sports Associations (DGI), which means, among other things, that DGI also safeguards the interests of DDS in relation to a number of authorities (www.skytten.dk)

2 All Danish elite athletes are subject to the “National Anti-Doping Rules”, which fully comply with the WADA Code.

The anti-doping regulations for recreational sports differ from the WADA Code as regards the rules on suspension and sanc-tion, among other matters. The differences are outline in the following:

Suspension

If the result of the analysis of the sample shows the presence of doping substances, or the doping secretariat becomes aware of another contravention of the doping regulations, the secretariat can suspend the person in question (see 4.3) without consulting the person in question. The suspension can be for a maximum of three months. All doping cases are handled by the secretariat.

DGI is responsible for the secretariat function. The secretariat’s tasks include the administrative handling of doping cases.

Sanction

The sanction for both a positive test and a refusal to take part in doping control is, in principle, two years’ exclusion from all training and competition activities, if applicable, within the organisations covered by the rules. However, the anti-doping regulations for recreational sports allow for both an extension and a reduction of the penalty for a positive test, in the latter case on account of the social circumstances of the individual, for example. The anti-doping regulations for recreational sports also permit the exemption of certain activities from the penalty of exclusion.

Commercial fitness centres

With a view to preventing the use of doping in sports outside the organised sports federations, the Act also stipulates that Anti Doping Denmark must endeavour to enter into anti-dop-ing agreements with fitness centres and other private or public institutions or companies that offer sports and related activities, as well as with associations and organisations not belonging to the above-mentioned sports federations. This primarily refers to commercial fitness centres. Anti Doping Denmark charges a fee for its services under such collaboration agreements.

Under the legislation in this area, these collaboration agree-ments aim to ensure that the parties to the agreement under-take doping control and impose sanctions in accordance with the guidelines that apply to Danish sports federations, i.e. in accordance with the WADA Code.

On that basis, Anti Doping Denmark and commercial fitness centres have entered into an agreement whereby a positive test or the refusal to participate in doping control is sanctioned with two years’ exclusion. It is nevertheless up to the individual centre to make the final decision and impose the sanction in each individual case. The standard contract between Anti Dop-ing Denmark and the commercial fitness centres is attached to the report as Appendix 1.

2. ANTI-DOPING LEGISLATION

Compulsory signage scheme for commercial fitness centres

With effect from 1 July 2008, the Danish Parliament adopted an amendment to the Act on Promotion of Doping-Free Sport which introduced a compulsory disclosure scheme for commer-cial fitness centres. The Act made it compulsory for commercommer-cial fitness centres to display clear signs indicating whether they have entered into a collaboration agreement with Anti Doping Denmark – the so-called “signage scheme”. According to the Act, commercial fitness centres must clearly indicate at their entrance and on their website, if applicable, by means of a happy or frowning smiley whether the centre has entered into a collaboration agreement with Anti Doping Denmark.

It is the responsibility of the police to check whether commer-cial fitness centres use correct signage and to impose sanctions on any centres that fail to comply with the rules.

The Act on Promotion of Doping-Free Sport is administered by the Ministry of Culture.

A copy of the Act on Promotion of Doping-Free Sport is at-tached as Appendix 2.

The Netherlands

2.1. National legislation concerning doping

No specific legislation exists in the Netherlands for carrying out doping controls amongst fitness centre members (see Chapter 4 for further information) either by government or by the Doping Authority. One way of carrying out doping controls in fitness centres is for the fitness centre to include this in the terms and conditions to which its visitors must agree.

Organised sport does have doping rules which are based on the World Anti-Doping Code and which apply to almost all mem-bers in organised sport. This is covered by the National Doping Regulations. In principle, doping controls can be carried out by almost all members of organised sport. However, in practice this is almost always done only at the highest levels. If a doping control is positive, this only leads to sanctions within organised sport. Fitness members who train in fitness centres and are not included in organised sport can therefore not be checked by the Doping Authority.

Despite the lack of a doping law, there are however several laws which share common ground with doping.

First there is the Medicines Act. Many doping-designated substances, such as AAS or growth hormones, are regular medicines. The Medicines Act contains provisions to promote the safe use of medicines. The production, trade, prescription and supply of medicines are subject to strict rules. For example, possession of AAS for personal use is not, in principle, a pun-ishable offence. However, if it can be demonstrated that they are intended for sale, this is a punishable offence.

As a result of a study into the illegal doping trade (Koert & Van Kleij, 1998), the law was amended in 2001. Since 2001, illegal dealing in medicines has been covered by the Economic Crimes Act. Prior to 2001, illegal trade in medicines was regarded as a breach of the rules. Following the change in the law, it is now seen as a crime bearing the maximum sanctions in terms of cus-todial sentences and fines. Previously the maximum penalty was a six-month prison sentence and a maximum fine of €4,540.

This is now a maximum six-year prison sentence and a €45,400

fine. Due to the stricter prison sentence, investigative powers have also been widened.

Another law which applies to a number of types of doping-designated substances is the Opium Act. This covers various types of drugs such as cannabis, cocaine, ecstasy, etc. In the Netherlands a distinction is made between List I (hard drugs, such as amphetamines and cocaine) and List II (soft drugs such as cannabis). According to the Opium Act, substances which appear on Lists I and II:

• may not be transported into or out of the territory of the Netherlands,

• may not be cultivated, packaged, processed, sold, delivered, supplied or transported,

• may not be possessed and/or

• manufactured

Infringements of this law may lead to punishments ranging from a six-month prison sentence to a maximum twelve-year prison sentence.

Thirdly there is the Penal Code. This contains various provi-sions which can be applied to doping use. A clear example of this is article 174, which states:

1. Anyone selling, offering for sale, delivering or distribut-ing goods which he knows to be harmful to life or health, whilst not disclosing that harmful nature, shall be punished by a custodial sentence of a maximum of fifteen years or a category five fine.

2. In the event that death occurs, the guilty party shall be pun-ished by life imprisonment or temporary imprisonment with a maximum of thirty years or a category five fine.

The Medicines Act is the most important law for tackling the trade and use of anabolic steroids. This is principally a task which is carried out by the Healthcare Inspectorate (IGZ).

Sweden

2.1. National legislation concerning doping

In Sweden, doping controls can be carried out by the Swed-ish Sports Confederation or the SwedSwed-ish Police Authority. The Swedish Sports Confederation (RF) carries out controls involv-ing active members in accordance with the regulations and doping rules of the Swedish Sports Confederation, WADC, and the Council of Europe Convention against Doping (Swedish Sports Confederation, 2011). The police can carry out doping controls at training facilities pursuant to the preliminary in-vestigation with associated legal rules as stipulated in the Code of Judicial Procedure (rättegångsbalken, RB). However, under Swedish law the police are not allowed to carry out doping

controls on children aged under 15 without the permission of their parents. Children reach the age of criminal responsibil-ity at the age of 15 in Sweden. Anyone younger than 15 who has committed a crime will be dealt with by the authorities.

The courts in Sweden regard criminals up to the age of 21 as young people. Hence, people aged under 21 will receive lesser penalties than people aged over 21. Another way of carrying out doping controls at privately owned and municipal training facilities is to use a clinic or occupational health service which takes urine samples and analyses them as medical samples. This procedure is applicable mainly to employees of training facili-ties, not people who work out there (SOU 2011:10).

The Swedish Sports Confederation’s regulations form the legal foundation for the implementation of doping controls at the training facilities affiliated to the Confederation. These regula-tions prescribe that doping controls may be carried out on all members within the sports movement. For training facilities not affiliated to the Swedish Sports Confederation (the major-ity of the training facilities in Sweden), the legal foundation is formed by the Swedish Act on Prohibition of Certain Doping Agents (SFS 1991:1969) (Swedish National Institute of Public Health, 2009).

However, there are overlaps between the sports rules and the Doping Act. One example which illustrates the problems with overlap is when a person who works out spends time at a training facility and has to undergo a doping control. If a person who is not affiliated to any sports association within the Swedish Sports Confederation returns a positive result, the case is assessed in accordance with the Doping Act. If the person is a registered member of a sports association within the Swedish Sports Confederation, the rules of the sport are applicable in the first instance and the sanctions will be in accordance with those rules, although the provisions of the Doping Act may also be applicable (SOU 2011:10).

Poland

2.1. National legislation concerning doping

Under the Polish system of anti-doping law, and specifically un-der the Act of 25 June 2010 (Dz.U. [Journal of Laws] No 127, item 857 as amended) it is possible to carry out doping control on persons who participate in sports competitions or prepare for sports competitions, which could lead to the conclusion that in some situations such control could also be carried out in fitness centres and gyms. However, the provisions of the law are not clear about this. In each case of doping control carried out in fitness centres, the controlling agency would have to prove that a person identified for doping control who is not an athlete practising sport professionally meets the criteria of the statutory definition, namely that the person in question is preparing for sports competitions (the statutory definition is discussed

further below). Consequently, it is not practical to apply this provision to doping control in fitness centres where amateurs not engaged in competition are involved, as it is not possible to objectively define their status.

The legal basis for doping control is stipulated in Article 44(5) (2) of the Act on Sport of 25 June 2010 (Dz.U. No 127, item 857 as amended), which provides that the Polish Commission Against Doping in Sport is particularly responsible for doping control both within and outside sports competitions. The defi-nition of doping given in Article 43(1) of the Act on Sport lists the categories of athletes who can be identified for doping con-trol. It follows from this article that a person participating in sports competitions or preparing for sports competitions can be found guilty of violating anti-doping rules. The definition also describes the categories of people who can be subject to doping control when it is likely that there could be violation of the anti-doping rules defined in the Act on Sport. These categories include the athlete’s support personnel as well as a coach, physi-cian, massage therapist or other person assisting the athlete. In Poland there are no regulations under which doping control could be directly carried out in fitness centres and gyms.

Under the Pharmaceutical Law of 6 September 2011 (Dz.U.

No 126, item 1381 as amended) it is possible to control fitness centres and gyms with respect to the distribution of illegal pharmaceuticals, in particular AAS. The Law regulates the dis-tribution of medicinal products on the territory of the Republic of Poland. It also provides for sanctions for illegal distribution of medicinal products, including AAS (Article 124 Pharma-ceutical Law). Under this provision, it is possible to combat illegal distribution of such medicinal products. The authorities eligible to act under the provisions of the Pharmaceutical Law include the police, prosecutors, and state sanitary inspection and customs authorities. However, it must be remembered that any control in fitness centres and gyms with the aim of detect-ing illegal AAS can only be carried out when the police or the prosecutor have information which corroborates their suspi-cions that a crime has been committed.

It is currently difficult to pass on our experience in the applica-tion of the criminal provisions of the Act on Sport since it has only been in force for a short time. No criminal proceedings under Article 50(1) and (2) of the Act, i.e. administration of prohibited substances to an athlete or use of prohibited methods, have been instituted so far. The situation is entirely different in the case of the Act on Counteracting Drug Addic-tion, which serves as the basis for starting criminal proceedings.

But we do not have any detailed data on the basis of which we could give an exact number of detainees. Criminal provisions of the Pharmaceutical Law apply in cases of illegal distribution of AAS.

Cyprus

2.1. National legislation concerning doping

Cyprus ratified the Anti-Doping Convention of the Council of Europe in 1993, the Additional Protocol to the Anti-Doping Convention of the Council of Europe in 2004 and the UNESCO International Convention against Doping in Sport in 2009.

The Ratifying Law for the International (UNESCO) Conven-tion against Doping in Sport (hereinafter referred to as the

“Law”) came into effect on 15 May 2009. This Law determines that doping in sport and other related actions are criminal offences and specifies the appropriate sanctions. By Ministerial Decree issued by virtue of the Law, the Cyprus Anti-Doping Authority (CyADA) was established on 29 May 2009 as the competent authority responsible for the implementation and management of anti-doping policies in Cyprus. Other Ministe-rial Decrees issued by virtue of the Law define doping in sport, regulate the functioning of the CyADA including doping controls and the analysis of samples, regulate the functioning of the relevant disciplinary panels and specify the consequences in the case of doping.

Denmark