'Strict Liability' and legal rights: Nutritional Supplements, 'Intent' and 'Risk' in the Parallel world of WADA

Abstract

First paragraph: Much of the discussion about the legal relationship between athletes and anti-doping regimes has focussed on the application of what is invariably, although somewhat loosely, referred to as the ‘strict liability principle’, and this paper is concerned with the application of this principle in the context of nutritional supplement use (for more general discussion of its application see Charlish, 2012; Anderson, 2013). The principle’s significance lie in the fact that domestic courts worldwide (for example those of England and Wales in Korda v ITF, The Times 4 February 1999), the Court of Justice of the European Union (Meca-Medina v Commission [2006] 5 CMLR 18) and the Court of Arbitration for Sport (USA Shooting and Quigley v Union Internationale de Tir CAS 94/129) have accepted that the relationship between an athlete and the governing body is contractual and that even if there is no written agreement between the parties, the existence of that contract can be discerned from the parties’ dealings with one another. As part of this contractual relationship, athletes are deemed to have accepted the provisions of the WADA Code, both in terms of the substantive provisions of what substances are banned and the sanctions that can be imposed for violation of the rules. The procedural provisions that deal with the conduct of anti-doping tribunals and the potential right of appeal to the CAS are also incorporated into this contract.