Should doping in sport be criminalised? A review of Germany's new Anti-Doping ActChristian Keidel, Nicolas Klein
This article reviews Germany’s new Anti-Doping Act, analyses its implications for athletes, and comments on whether criminalisation is the appropriate way to address doping in sports. It will be of particular interest to anti-doping practitioners.
Until recently, Germany did not have any anti-doping specific criminal laws designed for prosecuting athletes. If at all, prosecutors tried to prosecute doping-related activity of athletes under general norms of German criminal law, in particular Section 263 German Criminal Code (“StGB”) (fraud).
Other relevant criminal provisions included sections 6a and 95 Medicinal Products Act (“AMG”), which prohibit distributing, prescribing or administering of medicinal products to others for the purpose of doping as well as the purchase or possession of doping substances in quantities above a certain amount, and Section 29 para. 6 a), b) Federal Law on Narcotics (“BtMG”), prohibiting the prescription and administration of specified narcotics including cocaine, amphetamines etc.
In this regulatory context, it is unsurprising that to date there have been very few criminal proceedings in Germany against athletes for doping. The most famous case involved German cyclist Jan Ullrich, who was subject to a criminal investigation between 2006 and 2008 after he had obtained and used doping substances from Spanish sports medic, Eufemiano Fuentes.
The investigation was mainly concerned with the question of whether Ullrich acted fraudulently in relation to his former employer, Team Telekom, by undertaking doping despite an express provision in his employment contract not to do so. However, because the prosecution was not able to establish that Ullrich’s employer was in fact unaware of his conduct and the parties had reached a settlement in a parallel civil proceeding, the case was abandoned according to Section 153a Criminal Procedural Code before it went to trial.1
Because the above-mentioned legal framework was perceived to have failed in properly tackling the issue of doping in sport (mainly because the undertaking of doping as such was not subject to criminal liability), in 2014, the government introduced Germany’s first Anti-Doping Act (the “Act”), which came into force on 1 January 2016.2
The Act has been widely criticized by scholars, athletes and the German Olympic Sports Confederation (DOSB).3 Most importantly, the law raises questions with regard to its conformity with German constitutional law, with German and European data protection and privacy laws. It could also potentially have consequences for other aspects of general sports law, particularly because of its provision regarding sports arbitration.
As such, the remainder of this article will:
- First summarize the most important provisions of the Act and briefly highlight criticism that was raised with regard to the respective provisions;
- Then discuss what practical consequences the act has for international athletes taking part in competitions in Germany; and
- Finally, give a brief outlook of what can be expected of possible anti-doping investigations in Germany in the future.
Key points from the new German Anti-Doping Act
The new Act is a rather complex piece of legislation. Its most important aspects can be summarized as follows:
- The Act differentiates between illegal handling of doping substances /administration of doping methods (Section 2) and “self-doping” by athletes (Section 3).
- The Act qualifies a number of actions related to doping (e.g. production, trade, administration, possession of more than a minor quantity of doping substances) as punishable with prison sentences up to three years (Section 4 para. 1). Those who provide the substances can face sentences of up to 10 years when specific enumerated qualifications are present, which include, among others, causing the danger of bodily harm to a significant number of people,4 causing the threat of death or serious bodily harm to another person or acting out of crude self-interest for substantial monetary gain of oneself or another person (Section 4 para. 4).
- Athletes using or trying to use doping substances or methods with the aim to obtain an undue advantage in a competition (“self-doping”) are only punishable if they are “elite athletes of organized sport”5 (Section 4 para. 7 (1.) 1st Sentence) or if they generate directly or indirectly substantial income out of sporting events (Section 4 para 7 (2.)). “Elite athletes of organized sport” are defined as athletes that are members of an anti-doping testing pool, which provides mandatory tests also during training (Section 4 para. 7 (1.) 2.). In these cases the use of doping substances or methods with the aim to obtain an undue advantage in a competition is punishable with prison terms of up to three years (Section 4 para. 1). An athlete’s mere possession or purchase of performance-enhancing drugs with the aim to gain illicit advantages in a sporting competition can be punishable with a prison sentence of up to two years (Section 4 para. 4).
- Attempting any of the actions described above is also punishable under Section 4 para. 3, except for cases of athletes merely attempting to purchase doping substances.
When the German Parliament passed the legislation, Justice Minister Heiko Maas promised that it would make German sports “cleaner, safer and more honest.” “In view of the current situation in Russia, the problem doesn't seem to be getting smaller, but seems to be growing,” he said, referring to the outcome of the independent commission appointed by the World Anti-Doping Agency to investigate Russia, which was released the same week.6
From a dogmatic constitutional and criminal law perspective, the fundamental innovation of the new law is that it aims at both:
- protecting athletes from bodily harm; and
- protecting the integrity of organized sport,7 which, in the opinion of the official parliamentary justification of the law includes, but is not limited to, the financial aspects of sporting competitions.8
The need of criminal laws punishing doping has, however, been called into question.9 Critics have called the law unconstitutional because it fails to identify a legitimate governmental interest for criminal sanctions and its regulations violate the principle of proportionality.10 It, thus, remains to be seen whether the new law will survive its first challenge before the German Constitutional Court (BVerfG), which is very likely to occur as soon as the first person is punished on the basis of the Act.11
Apart from its regulations directly connected to doping, the Act is interesting for a number of its other provision that are not directly connected to acts of doping. It also includes in Section 8 a provision for the transfer of information between public prosecutors, courts and the National Anti-Doping Agency (NADA), which has prompted criticism that the new law may violate existing regulations on data protection.12 Moreover, Section 11 includes a seemingly declaratory provision that stipulates that athletes and sporting federations can agree, as a requirement for participation in organized sporting events, to subject participation in the event to the signing of an arbitration agreement.13
Normally a provision such as Section 11 of the Act would hardly raise an eyebrow. However, in the context of the recent judgment of the Munich Higher Regional Court in the Pechstein case,14 which challenged the validity of arbitration agreements of athletes as requirement for the participation in sporting events on competition law grounds,15 one could argue that this provision - at least - is evidence of a clear parliamentary will to accept the current system of sports arbitration in anti-doping proceedings as lawful and thereby indirectly undermining the arguments raised by the Munich Higher Regional Court against the validity of mandatory sports arbitration agreements in its judgment of 15 January 2015.16
Implications for Athletes taking part in Competitions in Germany
Another important question that was given little attention during the law-making process is how the jurisdiction of German courts and prosecutors will be exercised towards athletes of foreign nationality taking part in competitions on German soil or simply being in Germany for training or other purposes.
German academics have criticized the Act because – in most cases – it is not capable of establishing fair competitions because pursuant to the general principle that German criminal law only applies to acts committed on German territory.17 By contrast, the Act will not be applicable in international sporting events taking place outside of Germany.18
From the drafting history, however, it is clear that the Act is intended to apply to all athletes irrespective of their nationality and thus also applies when athletes of foreign nationality participate in competitions in Germany.19 Therefore, in the future it is advisable for all athletes to be even more careful about compliance with all German anti-doping regulations when participating in competitions in Germany.
Potentially, all positive doping tests in competitions or training in Germany could result in subsequent criminal investigations on the grounds of the Act. Moreover, all criminal offenses based on possession and use of specified substances can also be applied when an athlete is in Germany purely for training or any other purpose. Whether this will lead to the consequence that some athletes may rather choose to avoid Germany as training or travel location remains to be seen.
Although the new Act can be criticized on a number of grounds, and there are even reasons to challenge its constitutionality, one consequence of the law will inevitably be that German sports lawyers will have to get used to and familiar with the involvement of public prosecutors and criminal courts in doping proceedings. It is very likely that in the future we will see a growth in cases and judgements relating to doping from criminal courts in Germany. The authors, however, have strong doubts that the criminalization of doping offenses will bear any long term fruit.
While a strong stance against doping is to be welcomed, the additional threat of criminal proceedings against athletes who generally are under immense pressure to perform and often heavily and exclusively rely on the expertise and judgements of doctors and trainers must raise serious questions as to whether the criminal liability of athletes as envisioned by the Act is proportionate and the best way to tackle the issue in sports. In more sophisticated doping operations, it is often the athlete who is the weakest link.
Interestingly enough, the Act indicates what the authors understand to be the best way forward in the fight against doping: the improvement and further strengthening of the existing anti-doping procedures and mechanisms already in place in organized sport. Section 11 of the Act and its acknowledgment of sports arbitration must be understood as an integral part of the Act and should be construed to constitute a parliamentary acceptance of the anti-doping mechanisms of organized sports including the international system of sports arbitration within its current framework.
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- Tags: Anti-Doping | Criminal Law | Deutsche Olympische Sportbund (DOSB) | German Anti-Doping Act | German Criminal Code | German Criminal Procedural Code | German Federal Law on Narcotics | German Medicinal Products Act | Germany | Munich Higher Regional Court (Oberlandesgericht München) | National Anti-Doping Agency (NADA) | Russia | WADA Independant Commission | World Anti-Doping Agency (WADA)
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About the Author
Christian Keidel is a salary partner at Martens Lawyers in Munich, Germany. He joined Martens Lawyers as part of the initial spin-off team from Beiten Burkhardt, an international commercial law practice. Christian holds a legal degree from the University of Munich and has also studied at the University of Seville.
Nicolas Klein is currently a Trainee Lawyer at Martens Rechtsanwälte in Munich. He holds a LL.M. degree from Columbia Law School and is admitted to practice law in the State of New York. Prior to joining Martens Rechtsanwälte he was a Research Fellow and Doctoral Candidate at the Chair of Public International Law of Justice Andreas L. Paulus of the German Federal Constitutional Court at the University of Göttingen.