French law brought into line with the World Anti-Doping Code
Published 23 January 2019 By: Marc Peltier
Following an audit carried out by the World Anti-Doping Agency (WADA) in May 2018, French legislation has recently been aligned with the World Anti-Doping Code (the Code).
This article explains how the law will be implemented and the main changes being made.
It was only in late September 2015 that the principles of the third version of the Code, which came into force on 1 January 2015, were transposed into French law. Despite this order of transposition, some domestic rules were still not in compliance with the Code. For example, the hearing process, which involves both national federations and the French National Anti-Doping Agency (AFLD), is arguably inconsistent with the principle of a timely hearing; and appeals involving international level athletes and international events could not be brought to the Court of Arbitration for Sport (CAS).
Article 25 of Law No 2018-202 (the “2024 Olympic and Paralympic Games” law) gave permission to the Government to take measures of a legislative nature that would improve the transposition of the principles of the WADA Code into French law. This is the goal of order No 2018-1178 of 19 December 2018.
The preliminary draft was prepared by the AFLD, which, as a signatory, has to comply with the rules of the Code. Since the entry into force of the International Standard for Code Compliance by Signatories (ISCCS), the signatory must correct non-conformities identified by WADA. According to Article 9.4.3 ISCCS, only an event of force majeure may be fully and fairly considered to explain the signatory’s non-conformities. Interference by or failure to provide support or other act by governmental and public authorities is not an acceptable excuse or a mitigating factor. As the Court of arbitration for sport ruled in Russian Paralympic Committee v. International Paralympic Committee1, a signatory has “a non-delegable responsibility with respect to implementing an anti-doping policy in conformity with the WADA Code” (Paragraph 86). A signatory remains fully liable for any violations even if they are due to the actions of other bodies it does not control. This is the reason why it was necessary to amend French law. The main thrusts of the order deal with the definition of anti-doping rules violations (ADRVs) and proceedings.
With regard to the former, the description of ADRVs is aligned with the Code. For instance, according to the new rules, a distinction is finally made between the presence and the use of a prohibited substance. The presence of a prohibited substance is the consequence of an adverse analytical finding. The use of a prohibited substance may be established by any reliable means (intelligence, investigation). As far as therapeutic use exemptions (TUEs) are concerned, the new rules on retroactive applications align with the wording of the Code and the International standard for therapeutic use exemptions. Under the previous rules, an athlete could avoid a sanction if they could provide “a duly justified medical reason”. According to the new rules, an athlete may be granted a retroactive TUE if emergency treatment is necessary or if there was insufficient time or opportunity to submit or consider an application for the TUE before the test.
The new rules also allow the establishment of an independent laboratory as a separate legal entity. The AFLD currently houses a WADA-accredited laboratory. It is likely that the future international standard for laboratories will make it clear that laboratories are to be administratively and operationally independent from anti-doping organisations. According to the latest draft version, “this is necessary in order to ensure full confidence in the laboratory’s competence, impartiality, judgment or operational integrity, in compliance with ISO/IEC 17025”.
As far as proceedings are concerned, the AFLD will now have direct jurisdiction in disciplinary matters. To date, this power has been exercised by national federations, and there have been concerns over lengthy procedures and impartiality issues. For example, in a recent case involving a famous boxer, the national boxing federation decided the athlete should serve a suspended sentence for whereabouts failures. There are concerns that the federation was reluctant to punish one of its most prestigious fighters.
As an alternative to sanction proceedings, the AFLD may offer a settlement procedure to any person who has committed an anti-doping rule violation. This new procedure is modelled on the procedure applied by the Autorité des Marchés Financiers (AMF), which is the French agency that regulates participants and products in France’s financial markets.
Pursuant to Article 13.2.1 of the World Anti-Doping Code, appeals involving international-level athletes or international events will be brought to the Court of arbitration for sport. Other appeals will be brought to the Conseil d’Etat, which is the highest administrative court in France.
The order is expected to enter into force by 1 March 2019 at the latest. It is late in coming, but better late than never. Some domestic rules remain in conflict with the Code. For instance, under French law testing an athlete between 11 PM and 6 AM requires either the consent of the athlete or an authorisation of the judge. A few months before the community of anti-doping convenes in Katowice to approve a fourth version of the Code, French law finally gets closer to a full compliance with the rules.
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Associate Professor of Law, University of Nice
Marc Peltier is currently Associate Professor of Law, University of Nice Sophia-Antipolis, teaching sports law and business law. Previously he was a member of the sports law team at a major law firm in Paris and for a time also worked as a players agent licensed by the French Football Federation. Marc is a member of the Athletics Integrity Unit Board and of the FIH Integrity Unit.