JIANG Tao*

 

Abstract: It has become a worldwide consensus to oppose doping in sports. Since its establishment in 1999, the World Anti-Doping Agency has made unremitting efforts over the past 20-plus years and established an anti-doping governance system with global influence and high efficiency. But whether this governance system seeks to realize human rights while maintaining order value is a proposition that attracts more attention. An in-depth examination of the anti-doping system shows that the pursuit and protection of human rights values are also an essential basis for the legitimacy of its system. At the operational level, all aspects of anti-doping governance, including inspections, testing, investigations, and exemptions for therapeutic use, are related to human rights protection. The current rule system based on the World Anti-Doping Code also covers these issues. China’s anti-doping cause has made comprehensive progress in recent years in that it meets the general requirements of the world’s anti-doping governance and has made institutional innovations in many aspects, contributing Chinese wisdom and experience to the protection of human rights in this regard.

 

Keywords: anti-doping · micro-governance · athlete rights · human rights increment

 

The worldwide anti-doping governance was initiated by the International Olympic Committee (IOC), but it has gradually become independent. The course of that indicates that the cause of anti-doping in sports is of great significance and is of great importance for the fate of the Olympics. As it is recognized by the Olympic Charter that the practice of sport is a human right,¹ the issue of human rights in anti-doping governance is invoking increasing reflective thinking in the public in this regard. The United Nations Guiding Principles on Business and Human Rights, which was adopted in the 17/4 resolution of the UN Human Rights Council on June 16, 2011, stated in the Commentary to the first foundational principle under the Corporate Responsibility to Respect Human Rights: “The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate.” The mentioned enterprises include international sports organizations running the sports industry worldwide, which anti-doping organizations are a part of.² These two important documents demonstrate that the subject of human rights has been directly linked with sports judging from within the world of sports and from a vaster outer world. Naturally, with anti-doping being one of the most important aspects of governance in sports, the exploration of how to treat and improve human rights cannot be shunned. It is worth noting that China has advanced marvelously and secured extraordinary results in anti-doping governance, clearing a path of Chinese characteristics that has global attention. By attending to anti-doping governance, China has also made remarkable achievements in human rights protection. Just as China’s efforts were incorporated into the drafting of the Universal Declaration of Human Rights over 70 years ago,³ China has also contributed to anti-doping governance.

 

 

In the context of political philosophy, the word “desirable” is often used to describe that certain social order or principle is worth longing and pursuing. Only when such a social order or principle is longed for and pursued by people of the same community, its institutional legitimacy can be convincing. Though modern society is vastly different from the ancient one, in a multi-culture social environment, cultures and sub-cultures all share different values, which gives rise to “seemingly incommensurable needs and evaluation criteria” on what people “want and do not want”⁴; nonetheless, sports is a common exception. Modern sports, represented by the Olympics, continuously call for “common ground” while maintaining a high level of globalization. The slogan “One World, One Dream” of the 2008 Beijing Olympics is still refreshingly near. Recently, the IOC included “Together” in its motto, changing “Faster, Higher, Stronger”⁵ which has been used for over a hundred years to “Faster, Higher, Stronger — Together.”⁶ Hence people have more reasons to believe that common ground on “desirable” goals is more likely to be achieved, at least in the world of sports.

 

Is it possible to infer from the desirability of anti-doping governance that such governance is also desirable in the human rights aspect and thus be given institutional legitimacy? To answer this question, research and analysis can be conducted on the explicit rules and implicit reasoning.

 

 

Describing individual rights protected by the principle of the rule of law, John Rawls states that, “A legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation. When these rules are just, they establish a basis for legitimate expectations.”⁷ This legitimate expectation suffices to make people trust each other as well as common rules and orders. By applying such a criterion to increasingly globalized anti-doping governance, the “legitimate expectation” carrying justice can be found within, with the human rights factor being solidified during the course of system evolution. 

 

Despite numerous disputes about how to treat doping in the past Olympics, a consensus was finally achieved after almost half a century’s argument. The modern Olympics has changed its attitude towards doping several times from being numb and indulging to the commonly agreed “anti-doping.” It has not been an easy process. The death of the Danish racing cyclist Knud Jenson at the 1960 Rome Olympics which was incurred by him taking amphetamine spurred the IOC to launch the sanction on doping. Since then, the anti-doping endeavor rounded has been ramped up.⁸ Doping control testing was made official in the 1968 Mexico City Olympics; the World Anti-Doping Agency was founded in 1999 and then issued the first World Anti-Doping Code in 2003, marking historical progress of in the anti-doping cause with new rules and new organization; in 2007, the International Convention Against Doping in Sport of the UNESCO became officially effective, signaling that many states’ governments had been participating in the anti-doping effort. 

 

The World Anti-Doping Code (the “Code” for short) developed by WADA is the underlying document that is generally accepted as the foundation or the anti-doping system today.⁹ To ensure high consistency and the best implementation between the global anti-doping system and that of different states, WADA has built up a three-tier system on the basis of rules, with the first tier being the “Code,” the second tier being a series of international documents and the third being the best implementation and guidance.¹⁰ It can be seen as a milestone that the Code was revised in 2015 to include the principle of proportionality and human rights for the first time. “The principle of respecting human rights is embodied by the respect for the human rights and human dignity of athletes, including their rights to privacy protection, appeal, and information.”¹¹ The revised edition of the Code in 2021 continued to adopt such a description and concrete it through the change of particular terms and clauses, being an enhancement of the human rights protection in law.

 

Over the 20 years since its establishment, the world anti-doping system has continuously improved and it plays a fundamental role in safeguarding a fair sports environment worldwide. Objectively speaking, this normative system has been complete with the elements in the rule of law and provided the ground of legitimate expectations for sports industry practitioners who are largely represented by athletes.

 

 

Anti-doping governance is a grand and integrated system, of which human rights values in general, are believed to derive from the universal conception of the harm of doping. Simply put, the two greatest hazards of doping are the harm to fair play and health.¹² The value of an anti-doping system is essentially about protecting the order of fair play and keeping people who participate in sports out of harm’s way. 

 

These two types of protected rights seem to resemble public orders rather than plain human rights. However, the fact tells different. As an integrated system, the international anti-doping governance offers value in human rights protection. The International Charter of Physical Education and Sport,revised by the UNESCO in 2015, extensively discusses honesty in sports, while doping is one of the factors that pertain to sports honesty and integrity.¹³ Suffice to say, the essence of all is whether the core value of “fair play” and “health” involves human rights, either as an “order” or “right.” 

 

First, the right to fair play.

 

The interpretation of the right to fair play as a human right might seem farfetched at first glance. Some may believe that sports are not related to life and death or to livelihood. Sports in essence are a game, where the consequence of doping in sports competitions would at most force “clean” athletes out of it, and hence the impetus to govern doping is to maintain fair play and prevent fine athletes from being driven out by athletes of misconducts. Such a view is almost plausible and but needs to be cautioned against. In reality, an ever-growing sports industry has emerged in the modern society, which is more than a layer of leisure in life but has an immediate influence on the interests of survival for people who live on sports; in particular, for athletes and coaches who find a career in competitive sports, fair play is all the more fundamental to their interests of survival. Imagine that a single sport is manipulated by users of performance-enhancing drugs in a sports school for amateurs that are tasked with training teenagers in China’s sports system, the kids who practice this sport across the entire region centered on this school would see their future lost and opportunities stolen by the cheat. In this circumstance, years of arduous efforts in professional training would be in vain. After all, in competitive sports, “only the name and result of the 

champion will be remembered in history, whereas a loser will be forgotten despite giving their all. This reverence for the winner characterizes the sports ranking systems worldwide.”¹⁴ This ranking is extremely cruel in the way that it labels and individual or team winner and all the others losers even when the results of two athletes are are indistinguishable to humans and can only be separated by electronic means. This is the charm but also the cruelty of competition sports.

 

In the area of competitive sports, the abuse of performance-enhancing drugs is fundamentally unfair. The “Purpose” of the Code expressly contains “to protect the Athletes’ fundamental right to participate in doping-free sport.” To achieve such a purpose and provide a fair level playing environment field for athletes, many countries and international sports organizations need to make ordeal and unremitting efforts to detect and deter doping. When under great pressure in the fiercely competitive environment of sports, athletes will have to violate the regulations in order to “cope with the doping behaviors of others” should sports organizations demonstrate “inaction and perfunctoriness.”¹⁵ Additionally, the emergence of doping scandals poses a huge blow to sports events. Given that modern competitive sports hinges on sports sponsorships to a large extent, doping will directly imperil fair play, which will in consequence, drastically jeopardize sports sponsorships and diminish the brand value of sports events.¹⁶

 

Second, the right to health. Doping not only undermines fair play but also causes irresistible damage to the health of athletes. In the world of competitive sports, athletes often have a strong dependency on coaches, which is even more potent in boarding sports schools, clubs, and sports teams. For athletes who are minors, their doping behaviors are often abetted or forced by adults.¹⁷ Under the authority of coaches, underage athletes are unable to show a lack of an independent mind and status. The consequence of such a relationship is there is little resistance from young athletes when encouraged or instructed to use banned drugs by coaches. Also, it is known that some coaches are willing to deceive their young charges, getting them to take banned performance-enhancing drugs by presenting them as protein powder or nutritional supplements without telling the truth. Nonetheless, there are still a fair amount of coaches who straightforwardly administer metandienone and testosterone to athletes informing them of what they are. There are indeed numerous cases where athletes suffer damage to their health from doping. 

 

If performance-enhancing drugs become abused, then not just competitive sports, but also the rights to health of common people will also likely take a toll. Every year when students specializing in sports take exams, advertisements promoting performance-enhancing drugs will appear near the premise of colleges and on the internet.¹⁸ A significant number of these students will choose to take the risk to collude with coaches who consent to the use of performance-enhancing drugs or buy performance-enhancing drugs by themselves in a bid to beat other students with unfair advantages and go to college. Many students who cheat their way into college and stop taking drugs afterwards often find their performance taking a nosedive, causing damage to the sports education and development of the college as well. It is worth further reflection that the PE examination may assume a greater weight in the senior high school entrance examination during the course of education reform in China. If doping is not checked at this stage, there is every reason to worry that the sports testing field where the senior high school entrance examination is held would be threatened by performance-enhancing drugs abuse. Students who fare poorly in PE examinations may seek to bridge the gap with drugs; those who fare well may take drugs for a full score. Aside from the entrance examinations of junior/senior high schools, many operators and trainers in the bodybuilding circle are also inveigling gym-goers into doping, as part of a grey marketing paradigm. If performance-enhancing drugs become acceptable to gym-goers, these people’s rights to health will also be at risk.

 

The Code (2021) shows unequivocal attention to the right to health by relocating the value and spirit of sports and prioritizing health on top of the list of sports value.¹⁹ At the same time, the right to health is also included in the Athlete’s Anti-doping Rights Act of WADA.²⁰

 

Fair play and health issues not only pertain to the human rights protection of a single athlete or other stakeholders in the micro-control and management of doping, but also concern the human rights values embedded in the anti-doping system in general. Such human rights seem to resemble the concept of collective human rights,²¹which is where the key function of the systematic anti-doping governance resides.

 

 

By accepting the desirability of anti-doping governance from the aspect of human rights, it serves to establish the legitimacy of anti-doping in the context of systematic value and ethics. On such a basis, it remains to be discussed whether anti-doping governance is feasible in regard to the aspect of human rights. Generally, anti-doping governance at the operation level or micro level presents a stringent system that endows athletes with many obligations. During anti-doping examinations, testing, and investigations, athletes tend to tread on thin ice and react passively. That is widely perceived as being due to the authority of sports organizations rather than the warm care for their human rights. For example, the article in relation to the “strict liability”²² that forms the underlying foundation of anti-doping rule violation is often commented on in the human rights dimension of whether it infringes human rights²³ But upon micro-level observation of multiple sectors of anti-doping governance, this governance system in sports that arose in the early 21st century is the one that has absorbed the experience of mankind regarding rule of law and institutional rationality in modern and contemporary times. As a result, it showcases vast considerations for athletes’ human rights in specific governance, directs its reform and evolution towards human rights protection, and sheds light on future anti-doping governance practice. From a micro perspective, the anti-doping governance system has put in place many specific arrangements for the human rights of athletes or other personnel who are under its administration and governance.

 

 

In circumstances including sample collection where athletes or other athlete support personnel²⁴ are directly interacted with, their personal, personality, and other legitimate rights should be respected. Among those circumstances, examinations are the most common and most frequently reported scenarios where conflicts and confrontations between the rights of anti-doping agencies and individual’s rights arise. In this regard, the anti-doping governance system primarily based on the current Code, by reasonable designs, has successfully struck a balance between those rights as in:

 

1. Availability of escort. An athlete may be accompanied through the doping control testing by one representative who may be an interpreter when necessary.

 

2. Right to challenge. During doping control testing, an athlete may raise a challenge if he/she has objections to the process of the testing. The doping control officer (DCO) should provide the athlete with the opportunity to have the challenge recorded.

 

3. Doping control testing should be conducted other than at night time and before dawn when possible. One precondition that must be underlined is that, though anti-doping organizations, under the current global anti-doping system, have the right to require athletes to provide a sample at any time and any place, they will typically respect the athletes’ right to rest by avoiding to conduct testing overnight (i.e., between 11 p.m. and 6 a.m.).²⁵ On the other hand, the anti-doping organization may conduct testing overnight if it has sufficient and valid ground to suspect the athlete is doping or the athlete stipulates a time slot for testing overnight.

 

4. Flexibility in case of a medical emergency. An athlete may be injured and require emergency medical treatment while in-competition testing is underway. In such a case, the doping control testing should make necessary changes by demonstrating humanitarian concern. The typical handling method should be that if the athlete is severely injured to the extent that he/she is deemed no longer fit for testing after being accompanied by the doping control staff to the end of emergency medical treatment, this process should be documented and signed by staff on site; if the athlete is fit for testing following emergency medical treatment, he/she shall take the testing afterwards.

 

5. Right to postpone the check-in for just causes. When an athlete is summoned to take doping control testing, the athlete may request to postpone the check-in at the testing site if there is just cause. For example, the athlete may postpone the check-in if there is a just cause, including the need to attend a news conference, accept necessary medical treatment, finish due training, locate the registration card, find an escort or interpreter, etc..

 

6. Proper termination of blood sample collection. In collecting blood samples, if the amount of blood that can be removed from the athlete during the first attempt is insufficient, the blood collection officer (BCO) should repeat the procedure up to a maximum of three times in total. Should all three times fail to produce a sufficient amount of blood, then the BCO shall inform the DCO and have the blood sample collection terminated.

 

7. Right to informed consent. Before doping control testing, the sample collection organization and the DCO shall deliver necessary notifications to the athlete, which include the following four aspects: the athlete is required to provide a sample; the type of sample to be provided; requirements the athlete shall comply with for sample collection; and the rights and duties of the athlete during sample collection. After the completion of doping control testing, the DCO shall provide the athlete with a signed digital or another form of copy of the sample collection record.

 

8. Special rights of athletes who are minors and disabled athletes. When athletes who are minors are involved, modifications will be made to the urine sample collection procedures, which generally include: athletes who are minors must be accompanied by an adult representative throughout the sample collection session; the adult representative must supervise the DCO who is responsible for overseeing the sample collection.²⁶ The design of such procedures is created out of special care to the physical and mental health of minors. The protection for athletes who are minors that is laid out in the anti-doping governance rules is also present in other aspects. When athletes who are minors are involved in anti-doping rule violations, the anti-doping organization will leave out the given name of the athlete and only show the family name. When an athlete who is a minor is under investigations for doping, an adult must accompany him/her at the same time. An athlete with intellectual,physical or sensorial impairment may be assisted by the athlete’s representative or sample collection personnel during the sample collection session.²⁷

 

 

Compared to sample collection, sample analysis, which is carried out in the laboratory, is a process that involves fewer interactions with athletes. Nonetheless, athletes’ rights may still be interfered with during this procedure, which leads to the following stipulations of athletes’ rights in the Code.

 

1. Athletes’ influence over additional analysis. “There shall be no limitation on the authority of a laboratory to conduct repeat or additional analysis on a sample prior to the time an anti-doping organization notifies an athlete that the sample analysis turns out positive, because currently the analysis result is not seen as the basis of charge and is not legally effective. If after such notification the anti-doping organization wishes to conduct additional analysis on that sample, it may do so with the consent of the athlete or approval from a hearing body.”²⁸

 

2. Right to request the analysis of sample B. The sample of the athlete is generally split into sample A and sample B. If sample A tests positive, the athlete still has the right to request further analysis of sample B.²⁹ In reality, athletes largely waive this right because of an extremely low error rate of laboratory analysis. However, this right is granted to provide the opportunity for the athlete to attest to their innocence in case an error occurs in the analysis.

 

3. The analysis of samples must be conducted for legitimate anti-doping purposes. Related analytical data or doping control information shall be only analyzed to detect prohibited substances and for other legitimate anti-doping purposes.³⁰

 

 

It is difficult for athletes to avoid use of medicine in competitive sports to treat both sports-related injuries and common illnesses. Considering the possibility of prohibited substances in therapeutic medicines entering the body of the athletes which results in the athlete’s violation of anti-doping rules, WADA has put in place the procedure called the therapeutic use exemption (“TUE”),³¹ which allows athletes to use prohibited substances or prohibited methods out of medical needs.

 

TUE can only be obtained upon application. “Athletes who are international-level athletes shall apply to their international federation.³² Athletes who are not international-level athletes shall apply to their national anti-doping organization for a TUE.³³ A major event organization may require athletes to apply to it for a TUE if they wish to use a prohibited substance or a prohibited method in connection with the event. Where the athlete already has a TUE granted by the athlete’s national anti-doping organization or international federation, if that TUE meets the criteria set out in the International Standard for Therapeutic Use Exemptions, the major event organization must recognize it.” “If the major event organization decides the TUE does not meet those criteria and so refuses to recognize it, it must notify the athlete promptly, explaining its reasons. A decision by a major event organization not to recognize or not to grant a TUE may be appealed by the athlete exclusively to an independent body established or appointed by the major event organization for that purpose.”³⁴ These rules also applied to the Beijing 2022 Winter Olympics.

 

 

In anti-doping governance, the Whereabouts rules for athletes are a system that directly involves their human rights, which has seen a large number of violations and challenges in real-life practice, be it intentional or unintentional. It has been given lasting attention because of its special influence on the protection of athletes’ privacy and personal information.

 

According to regulations of the Code and the International Standard for Testing and Investigations (ISTI), international federations and national anti-doping organizations shall establish a registered testing pool to include the athletes that are subject to testing and regulation in the first place. Athletes in the registered testing pool must accept strict in-competition and out-of-competition testing.³⁵ A testing pool receives less stringent supervision than a registered testing pool. In practice, athletes who are included in a registered testing pool and a testing pool are often called “two-pool” athletes. Two-pool athletes shall report their whereabouts according to respective regulatory requirements of the two pools to make sure they can be accessed by the DCO to conduct testing with.

 

Athletes in the registered testing pool shall report the whereabouts information below: (1) daily living address; (2) specific addresses and time of regular activities every day; (3) schedule of competition; (4) recommended time and place where the athlete can schedule a 60-minute time slot to take a test between 6 a.m. and 23 p.m.; (5) details of vacations and trips. Athletes included in the testing pool are not required to report the said (4) and (5), but only the first three.³⁶

 

The requirement to report whereabouts information at such a scale indeed surprises people with the great amount and extensive scope of athletes’ personal information being released in competitive sports. Since the introduction of WADA Whereabouts Rule in 2003, the strongest outcry has come from athletes in Europe. In 2009, 65 Belgian athletes initiated a challenge towards the Whereabouts rules, stating that it is in violation of Article 8 of the European Convention on Human Rights. Subsequently, the well-known Fédération Nationale des Syndicats Sportifs (FNASS) and Others v. France (FNASS and Other v. France) took place in France, which was escalated to the European Court of Human Rights in the same light that Article 8 of the European Convention on Human Rights may be violated by the Whereabouts rules. On January 18, 2018, the European Court of Human Rights delivered the verdict on “FNASS and Other v. France” which ruled that the “Whereabouts rules” in anti-doping governance were not in breach of Article 8 of the European Convention on Human Rights Right on the right to respect for private and family life.³⁷

 

The personal information acquired in anti-doping governance is regulated and stipulated by WADA in the International Standard for the Protection of Privacy and Personal Information (“ISPPPI”). After multiple amendments were made to the first edition of the ISPPPI that took effect in 2009, the 2021 edition of the ISPPPI remains in effect now. It explicitly expresses its purpose in the “Introduction and Scope” as “to ensure that anti-doping organizations apply appropriate, sufficient and effective privacy protections to the personal information they process when conducting anti-doping programs.”

 

 

There are primarily tow aspects to the procedural rights of athletes and athlete support personnel: first, the procedural participation in the sports industry; second, external procedure, i.e. judicial remedy. The latter in particular, represents only a potential availability to a large extent where substantive remediation is hard to be delivered. For example, the Pechstein case where the German speed skater filed a complaint against her being banned from competition “was presented before the Court of Arbitration for Sport (CAS), Federal Supreme Court of Switzerland, regional courts of Germany, higher regional courts of Germany, and German Federal Supreme Court. The case reached out to almost any and all remedial procedures available and was protracted for nine years”;³⁸ similarly, the doping case involving Chinese swimmer Sun Yang was also presented before the Federal Supreme Court of Switzerland after the swimmer lost the suit.³⁹ Only a small fraction of doping cases are able to enter judicial procedures; even in judicial procedures, the athlete would pay an enormous price in terms of time, money, and energy in the prolonged legal procedures. As a result, the general judicial remedy is at most treated as an alternative whereas the principal path to offer remedies to athletes and support personnel is to work within the industry’s dispute resolution mechanism from.

 

The dispute resolution procedure of the industry can be categorized, in a broad sense, as having two aspects. The first is the internal procedures with which sports organizations work to resolve doping cases. The second is the sports arbitration that can be initiated by the person who appeals against the decision of such internal procedures.

 

The internal procedures that aim to resolve doping cases differ from those in other sports disputes and can be interpreted as a procedural mechanism that simulates criminal litigations. Japanese scholar Masato Dogauchi once classified the methods of Japanese arbitral institutions to resolve sports disputes into three types, namely by comparing civil and commercial disputes in sports (e.g. disputes arising from sports product trading and sports events broadcasting) to “civil litigation,” comparing disputes arising from athletes’ appealing against sports organizations (e.g. eligibility to event and competition agenda) to “administrative litigation,” and comparing doping disputes to “criminal litigation.”⁴⁰ Theoretically, if demarcated according to the status of plaintiff and defendant, civil, administrative, and criminal litigations can be viewed as “people vs people,” “people vs authority,” and “authority vs people” respectively, where the litigants of sports disputes can be characterized likewise on the whole. The demarcation is both very vivid and accurate.

 

Among these, the doping dispute is the litigation of “authority vs people” where anti-doping organizations accuse athletes and others of doping violations, and thus it can be constructed based on the criminal litigation mechanism.⁴¹ Any litigant alleged of anti-doping rule violations is entitled to a fair hearing and notice of the decision of any hearing; any litigant may represent himself/herself, present evidence, defend himself/herself, and confront evidence to a hearing; to defend against the powerful professionals from anti-doping organizations as the accuser, the litigant may assign an agent to the hearing on his/her behalf. Since the punishment for anti-doping rule violations is similar to that in a criminal context, a principle that resembles in dubio pro reoin criminal cases shall be adopted when disputes are caused by vague or ill-defined rules.⁴² Meanwhile, it is without a doubt that doping cases are part of sports disputes that are not subject to the judgment of national judicial authorities, and hence the consequences faced by an anti-doping rule violator who loses the litigation would not be criminal. The level of human rights protection and the strictness of evidence admission requirements are different in sports disputes and criminal cases.

 

The litigant may appeal the decision of an anti-doping organization. The appeal can be presented to the appellate body in the anti-doping system where the athlete is governed (if any) to have the case heard and tried. If there is no such an appellate body in the athlete’s anti-doping system, the litigant may have the right to appeal to the CAS, which shall be the exclusive appellate body for decisions involving international-level athletes or international events.⁴³ For the procedural rights, though underpinned by holistic systems primarily represented by the Code, the real practices of anti-doping organizations still vary. In recent years, WADA has made visible improvements in terms of procedural justice by promoting the institutional independence of the hearing panel and other steps,⁴⁴ but the procedural participation of litigants needs to be scaled up without impeding the overall system efficiency by gradually letting athletes participate in jury trials and arbitration⁴⁵ to give more fairness and legitimacy to dispute resolution procedures.

 

 

China has made highlighted progress in anti-doping governance. The progress is not only present in cracking down on doping, ensuring fair play in large events and establishing “zero tolerance” approach to doping, but also prominent in human rights protection, attending to the value of efficiency and justice in anti-doping governance. In relation to the work of national anti-doping bodies, China moves proactively to implement the provisions of the Code and relevant international standards to substantively advance the independence of the anti-doping hearing committee in 2020.⁴⁶ These efforts are of far-reaching significance for the human rights protection in doping control. Except in implementing and conforming to international rules, the anti-doping cause of China has cleared new paths in human rights protection and provided increments in human rights mainly in the following aspects.

 

 

China has concreted “doping sentencing” through judicial interpretation and amendment to the Criminal Law of the Republic of China in 2019 and 2020, respectively. The fact that doping is included in the jurisdiction of the criminal law signifies that the right to health and right to fair play are well protected, which is of institutional significance. The sentencing mode is also more conducive to implementing human rights protection.

 

In December 2019, the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Smuggling, Illegal Operation, and Illegal Use of Stimulants was officially promulgated, providing support to the protection of minors in the field of anti-doping from the criminal law perspective. As provided in Article 3 of the Criminal Law, where persons, who have the duty to support a minor, force the use of performance-enhancing drugs on minors in sports events and the circumstances are flagrant, they shall be convicted of the “crime of abusing persons under custody and care.” Therefore, forcing, inducing, and deceiving minors to use doping have become criminal acts regulated in China through the Criminal Law.

 

Whereas athletes were not classified as one of the subjects of crime when the “crime of impeding doping control” was established in the Amendment (XI) to the Criminal Law of the People’s Republic of China adopted in 2020, some other countries have included athletes into the criminal regulation in their practices of doping sentencing. In these countries, the criminal laws not only target the provider of performance-enhancing drugs, but also the users.⁴⁷ China does not adopt this sentencing mode but excludes athletes out of the perimeter of the national criminal jurisdiction. As a matter of fact, China has implemented stringent anti-doping governance regardless of institutional building and practical execution, or in major events including the Olympics or in daily control, and has succeeded with remarkable achievements. Under such a context, China refrains from taking a radical criminal sentencing mode which incorporates athletes’ use of doping, but limits the criminal punishments to coaches, support personnel including team doctors, and persons who benefit illegally from the doping business. It is fair to say such a legislative policy not only demonstrates the restrictive mindset of the Criminal Law, but also promotes human rights protection. After all, China now needs to see increased protection of athletes’ rights in the field of sports. Regarding the doping acts, in many cases, athletes are coerced and forced to take performance-enhancing drugs by “manipulators behind the scene.” Therefore, it is justifiable for the Criminal Law to take a stand on prosecuting those “higher in the doping chain.”

 

 

The anti-doping rules have not reached perfection given the complexity of the anti-doping system. While it is difficult to put to the proof that some rules are posing injustice to athletes, it is even harder to push WADA to change these rules. In order to protect athletes’ rights, the anti-doping organizations in China have made proactive and solid efforts in case representation and forensics to succeed in pushing for changes of rules. These efforts have made contributions to the human rights protection in anti-doping governance in China and the rest of the world in the following aspects.

 

 

Higenamine is a common alkaloid in traditional Chinese medicine materials, traditional Chinese medicine, and food materials in China. Though it was not defined in the Prohibited List issued by WADA in 2016, it was defined in “Other substances with a similar chemical structure or similar biological effect(s),” specifically in beta2 agonists. Subsequently, the 2017 Prohibited List defined higenamine as a controlled substance which greatly concerned athletes at that time, as it resulted in a series of positive tests for higenamine. Athletes have a higher chance to be administered this substance without knowing given its widespread presence in medicine, nutrition supplements, food, and even cosmetics. According to the report of China Anti-doping Agency (CADA), “higenamine can be found in many kinds of plaster, lotus seed, tropical fruit, sugar apple, even a blueberry whitening body lotion produced by a famous British skincare brand. Athletes need to be extra cautious when taking medicine, nutrition supplements or eating food that contain tinospora crispa, monkshood, aconite, Lindera aggregata, and as arum.”⁴⁸ In September of 2016, Jia Cheng, a basketball player of Shandong Basketball Club tested positive for higenamine after using musk balm.⁴⁹ More discussion was stirred up when famous Chinese race walking athlete Liu Hong tested positive for higenamine for using a type of massage lotion. Thankfully, the IAAF (International Association of Athletics Federations) concluded based on the evidence presented by Liu Hong that she had fulfilled her due obligations and was not held liable for a serious fault or gross negligence on the basis of the positive result. Eventually, the IAAF gave Liu Hong a one-month ban after confirming her unintentional use of the prohibited substance because of the extremely low level of higenamine. Liu Hong stated in public afterwards that she accepted the penalty but said that “there has been no precedent where athletes benefit from using this substance nor received a ban before.”⁵⁰

 

Despite that WADA’s control of higenamine being indisputable, it has posed risks which are too high to athletes because of the wide variety of traditional Chinese medicine materials and food materials in China. In response, CADA conducted investigations and research and exchanged views back and forth with the Legal Affairs Department and Science and Medicine Department of WADA to recommend WADA to reconsider the necessity of including higenamine in the Prohibited List or define the minimum concentration of higenamine above which a positive testing result must be reported. After hearing China’s proposal, WADA organized a special discussion in the laboratory expert panel meeting and it was decided to modify the relevant technical documents. In the end, WADA stated that higenamine with a concentration lower than 10ng/mL will be not reported as positive. Given that none of the previous positive results of higenamine of Chinese athletes were above 5ng/mL, this amendment significantly lowered the risk of athletes testing positive for unintentional use.

 

 

Similar to higenamine, China has also given sufficient consideration to athletes’ rights on the issue of clenbuterol which promoted WADA to make reasonable amendments. Several years ago, there were many reports of athletes testing positive after eating meat contaminated by clenbuterol (commonly known as “lean meat powder”).⁵¹ Sixty positive tests for clenbuterol were reported in China,⁵² with most of them connected to contaminated meat.⁵³ These resulting doping violations, though substantiated by rules, did put excessively dangerous pressure on athletes.⁵⁴ With the CADA taking the lead, WADA finally made favorable amendments to the rules for athletes. It decided to amend Article 7.4 of the Code to WADA-accredited laboratories to report Atypical Findings (ATFs) for the Prohibited Substance clenbuterol.⁵⁵ This also means if athletes test with clenbuterol with a low concentration level because of meat contamination, they may be entitled to the investigation and source tracking to be conducted by anti-doping organizations, instead of simply being determined to have committed a doping rule violation. Though such an institutional arrangement adds to the burden of anti-doping organizations, it is apparently favorable to athletes and does not deviate from the original intention of the anti-doping governance. After all, the anti-doping efforts do not seek to incite paranoia or fear among people, but to try to make rules reasonable and operable to the maximum.

 

 

In the investigations into positive cases of EPO in recent years by CADA, it was discovered that the positive result may have been caused by genetic variations based on evidence including investigation results, genetic testing results of athletes, and scientific research results from the National Anti-Doping Laboratory in Beijing. WADA confirmed the above conclusion, identifying that the testing results of several Chinese athletes carrying a genetic variation that may lead to positive testing results for EPO should be considered negative and these athletes shall be exempted from doping rule violations and punishments.⁵⁶ According to WADA’s technical documents, this type of genetic variation was never found except in East Asian people. Furthermore, from January 1, 2022, in such circumstances, EPO gene sequencing and analysis would be required to determine the presence of the genetic variation.⁵⁷ Objectively, there are over 10,000 doping tests carried out in China each year which put laboratories and anti-doping organizations under immense pressure. Under such pressure, it is appropriate to follow the norm and handle the positive test results by anti-doping rule violations. But the development of the anti-doping cause of China has demonstrated many times the sense of responsibility towards equity, justice, and the legitimate rights of athletes, both technically and ethically, which is adequately validated by the amendment of the anti-doping rules for EPO.

 

 

The anti-doping cause of China has made rapid development in recent years by scoring breakthrough progress by relying on scientific and technological innovations, contributing to the improvement of human rights protection in anti-doping governance.

 

 

Dried Blood Spot (“DBS”) is a program launched in 2019 by WADA, the IOC, international testing agencies, CADA, USADA (United States Anti-Doping Agency) and other organizations, as well as a program dedicated to developing an innovative and revolutionary anti-doping technology.⁵⁸ As a new blood sample analysis method compared to traditional blood testing methods, DBS is cheaper and less invasive. With it, samples can be transported without temperature control. For athletes, it has the advantage that the collected blood is only 1 percent of the amount collected using existing methods and the wound is small, which is most favorable to athletes who are subject to frequent testing. Anti-doping organizations are free to utilize the DBS testing from September 1, 2021, as the WADA’s Technical Document on DBS comes into force.⁵⁹ The Beijing 2022 Winter Olympics is the first international comprehensive event where DBS inspection and testing were rolled out. As an important initiator and developer of this technology, CADA officially adopted DBS in preparing for the Tokyo Olympics and the National Games of China in Shaanxi Province, and continued to utilize this technology while overseeing the Beijing 2022 Winter Olympics.⁶⁰

 

 

In light of the International Standard of Prohibited List issued by WADA, CADA has created a “Safe drug use query system for athletes” in conjunction with the drug database of the National Medical Products Administration of China and the information of medicines commonly used by athletes.⁶¹ This query system immensely facilitates the treatment during daily training and in competition for athletes and their support personnel. Even the public can make queries in the same system for reference in regular sports and exercises.

 

 

Having started fro, nothing, the anti-doping cause of China has become sound and strong, China has built the National Anti-Doping Laboratory in Beijing, one of the laboratories accredited by WADA. It is also planning to build another anti-doping lab in Shanghai to satisfy the needs for sample testing and analysis. In addition, China is making proactive efforts in institutional innovations by setting up the Food and Drug Anti-Doping Laboratory in 2009. This laboratory has put in place the testing methods of liquid and gas samples for over 300 prohibited drugs, which cover the drugs included in the WADA Prohibited List and non-WADA prohibited lists.⁶³ And this laboratory has taken the initiative to serve athletes and sports teams to ensure the safety of meat and nutritional supplements and provide professional defense for athletes against food-induced doping.⁶⁴ Such an attempt is unprecedented and is a referential innovation for other countries.

 

It can be said that during the preparation for the 2008 Beijing Olympics, China seized the opportunity to advance its anti-doping cause by leaps and bounds. In September 2007, after his visit to China, then WADA President Richard Pound said that “China is the role model of anti-doping in the world.” In August 2008, then WADA President John Fahey publicly praised China, “Apparently, they are committed to the anti-doping fight.”⁶⁵ The all-round advancement of China’s anti-doping cause in recent years has made many breakthroughs and is expected to usher in a new chapter where China participates and leads the formulation of international rules.

 

 

The protection of human rights in today’s world order is still largely facilitated by state obligations. The anti-doping governance system, on the other hand, is essentially contract-based and is not to be disconnected from the people and government. However, within the highly internationalized field of modern sports, represented by the Olympic Games, many international sports organizations are exerting a de facto regulatory or directive function over global sports matters within their jurisdiction. While the IOC’s influence on Olympic affairs fits this description, WADA’s influence on global anti-doping governance is even greater. In a sense, an international sports organization such as WADA is in possession of “public power” over relevant subjects and matters. Consequently, by the logic of governance, what goes in parallel with this public or quasi-public power is inevitably its human rights obligations.

 

Comments on the WADA-led anti-doping governance system have been mixed, with the most derogatory arguments focusing on rights-related issues to the extent that some even claim that “the World Anti-Doping Code does not offer significant health protection; and that it does not protect fairness and equality for athletes worldwide.”⁶⁶ In general, in over 20 years of anti-doping governance, WADA on the one hand, has upheld its stance on strict doping control, continuously built up its authority by resolving challenges, maintained the anti-doping order, and constructed or facilitated a global anti-doping governance system that extends to numerous international sports organizations and even sovereign states; and on the other hand, WADA has delivered 

basic protection to the human rights of athletes and other support personnel while applying control over them. It may be too soon to determine the economic, social, and cultural value that the practices in the aspect of human rights in the global anti-doping governance can offer in the context of globalization, but at least they can be used as a reference for other international sports organizations.

 

The fact that China has secured extraordinary success in its anti-doping cause over the last decade or so, which is not only attributable to its prudent arrangements and high efficiency but also to its firm compliance with WADA’s regulations based on the Code. These have resulted in an order of robust governance within the world of sports that serves as the role model of abiding by international rules and effectively connects to China’s domestic law. The protection of athletes’ rights in China’s anti-doping system is already at the forefront international standards in several ways. With an eye to the future, China’s anti-doping efforts should maintain its edge in the protection of athletes’ rights while ensuring the efficiency of governance and creating a pure sporting environment, with a view to fully establishing China as a role model in the world’s anti-doping efforts.

 

(Translated by HU Genfu)

 

* JIANG Tao ( 姜涛 ), Associate Professor and Doctor of laws of the Sports Law Research Center of China University of Political Science and Law. This thesis is a phased work of “Research on the anti-doping rule of law and control & prevention mechanism” (20&ZD337), a major project under the National Social Science Fund of China.

 

1. Article 4 of the Fundamental Principles of Olympism in the Olympic Charter, “The practice of sport is a human right”.

 

2. Yuan Gang, “A Study of Lex Sportiva’s Justice from the Perspective of International Sports Organizations for Respecting and Guaranteeing Athletes’ Human Rights,” Journal of Capital University of Physical Education and Sports 2 (2019).

 

3. When the Universal Declaration of Human Rights was being drafted in 1948, the Chinese delegation led by Mr. Zhang Pengchun made a historical and remarkable contribution on behalf of China to the global human rights culture by facilitating the inclusion of “conscience” into Article 1 of the Declaration, striking a consensus among contradictory ideologies. Zhu Liyu, “The Universal Declaration of Human Rights Is the Paradigm of Diverse Cultural Intermediation,” Modern Law Science 5 (2018).

 

4. Zhao Tingyang, “On the Best Possible Solution of the Golden Rule,” Social Sciences in China 3 (2005).

 

5. Xu Guoqi, “Olympic Dreams: China and Sports, 1895-2008,” trans. Cui Zhaoyu (Guangzhou: Guangdong People’s Publishing House, 2019), 27.

 

6. Ji Ye and Su Bin, “Confirmed! ‘Together’ Is Adopted into the Olympic Motto on Top of ‘Faster, Higher, Stronger’,” Xinhua News Agency, July 20, 2021.

 

7. John Rawls, A Theory of Justice, trans. He Huaihong et al. (Beijing: China Social Science Press, 1988), 233.

 

8. Fran?ois Thomazeau, Histoire secrète du sport, trans. Sun Qi (Beijing: Social Sciences Academy Press, 2021), 671.

 

9. WADA has published four editions of the World Anti-doping Code respectively in 2003, 2009, 2015, and 2021, and the 2021 edition is currently in effect. If not otherwise stated, the “Code” mentioned in the text refers to the 2021 edition.

 

10. “Purpose, Scope and Organization of the World Anti-Doping Program and the Code” of the Code (2021).

 

11. Wang Jixia, On the Legal Issues of Anti Doping (Beijing: China University of Political Science and Law Press, 2020), 127.

 

12. Bei Enbo and Jiang Yuyue, “Ethical and Philosophical Ponders on Doping in the World of Sports,” Journal of Wuhan Institute of Physical Education 5 (2002).

 

13. Jiang Shibo, “On Right to Sports as a New Human Right,” Journal of Wuhan Institute of Physical Education 4 (2018).

 

14. Karl-Heinrich Bette, Studien zum sport der modernen gesellschaft, trans. Chen Yan (Beijing: Beijing Sport University Press, 2020), 101.

 

15. Ibid.

 

16. Floyd Landis, champion of the 2006 Tour de France, tested positive. 

 

17. Song Binling, “Research on Juvenile Right Protection in the Doping Test,” China Sport Science 1 (2014).

 

18. the China Anti-doping Agency (CADA) of the General Administration of Sport of China (GASC), Anti-doping Q&A (Beijing: People’s Sports Press, 2019), 67.

 

19. Luo Xiaoshuang, “Latest Changes and Improvements of World Anti-Doping Code and China’s Response,”China Sport Science 5 (2020).

 

20. Though the Act “is not officially a legal instrument yet,” it is worth promulgating because it is written primarily by the Athlete Committee of WADA. See Qiu Yun, “Reflections on the Athletes’ Anti-Doping Rights Act,” Sport Science Research 2 (2020).

 

21. Collective human rights is an important manifestation of the pursuit and realization of human rights. The emergence of the concept of collective human rights marks a milestone in human rights development and has come to be gradually recognized and accepted by the majority of countries. Li Buyun, “On Individual Rights and Collective Rights,” Journal of Graduate School of Chinese Academy of Social Sciences 6 (1994).

 

22. Article 2.1.1 of the Code, “It is the Athletes’ personal duty to ensure that no prohibited substance enters their bodies… it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation”.

 

23. WADA once consulted with the Court of Arbitration for Sport regarding the legitimacy of strict liability. The latter replied in the comment that strict liability is not against generally-accepted legal principles in the world and is not in infringement of human rights. Jessica K. Foschi, “A Constant Battle: The Evolving Challenges in The International Fight Against Doping in Sport,” Duke Journal of Comparative & International Law 2 (2006).

 

24. According to “Annex 1 DEFINITIONS ,” athlete support personnel refer to “Any coach, trainer, manager, agent, team staff, official, medical, paramedical personnel, parent orany other person working with, treating or assisting an athlete participating in or preparing for sports competition.”

 

25. Article 4.5.5 of the International Standard for Testing and Investigations (ISTI).

 

26. Annex B of ISTI.

 

27. Annex A of ISTI.

 

28. Article 6.5 of the Code.

 

29. Article 6.7 of the Code.

 

30. Article 6.2 of the Code.

 

31. Article 4.4 of the Code “Therapeutic Use Exemptions” and the International Standard for Therapeutic Use Exemptions 2021 are the main sources of normative regulations.

 

32. Article 4.4.3 of the Code.

 

33. Article 4.4.2 of the Code.

 

34. Article 4.4.4 of the Code.

 

35. Article 5.5 of the Code and Article 4.8 of the ISTI.

 

36. Article 43 and Article 44 of Anti-doping Rules of the GASC.

 

37. Jiang Xi, “Legitimacy of Anti-doping of ‘Whereabouts Rule’: A Study of Case of Fédération Nationale des Syndicats Sportifs (FNASS) and Others vs. France,”Journal of Tianjin University of Sport 2 (2020).

 

38. Ma Hongjun, Introduction to Sports Law (Beijing: China University of Political Science and Law Press, 2021), 301.

 

39. Zhang Chunliang and Hou Zhongmin, “Reflection on WADA v. Sun Yang and FINA During the Post-award Period: Examining the Way Forward Based on ISTI Article 5.3.3,”Journal of Beijing Sport University 8 (2021).

 

40. Masato Dogauchi, Detailed explanation of the Basic Law of Sports, Chapter 5 Dispute Resolution, Chapter 1 Sports Arbitration, edited by the Japan Sports Law Society, (Tokyo: Seibundoh Press, 2011).

 

41. Articles 8, 10, and 13 of the Code.

 

42. Han Yong, “An Analysis of the Legal Arguments in WADA v. Sun Yang & FINA,” Sports and Science 1 (2020).

 

43. Article 13.2 of the Code.

 

44. Requirement of “institutional independence” of the hearing panel was added to the Code (2021), which stipulates that the panel be independent institutionally from departments responsible for the investigation, change of punishment decision, arbitration, and litigation of the case with a view to fully protecting the procedural rights of athletes. Xu Weikang, “On the Revision of the 2021 World Anti-Doping Code(WADC) ,”Journal of Xi’an Physical Education University 4 (2020).

 

45. Ren Huitao, “Athlete Participation in Global Anti-Doping Governance,”Journal of Chengdu Sport University 4 (2020).

 

46. report at the official website of the Chinese Olympic Committee on April 15, 2020,“The Third Hearing Committee of the Anti-doping Agency Is Officially Founded.” According to the name list within, 18 committee members are all comprised of experts in law, medicine, sports, and anti-doping areas with no personnel from the CADA involved.

 

47. Italy and Germany are among these countries. Song Binling, “Research of Typification of the Anti-doping Criminal Legislation,”Journal of Xi’an Physical Education University 2 (2018).

 

48. Ma Xiangfei, “CADA Warns Positive Result from Use of Higenamine: Caution with Drugs and Body Lotion,” Xinhua News Agency, Beijing, November 11, 2016.

 

49. Article on Qilu Evening News, December 21, 2016, “Pseudo professionals Laid Bare by ‘Doping’ Suspicion”.

 

50. China News Service, August 1, 2016, “Liu Hong Fights for Justice in Rio and Responds with Eight Statements”.

 

51. Zhang Jianli, “The Research on Distinguishing the Sources of Clenbuterol in Doping Testing and on the Human Urine Metabolite of Methasterone,” (PhD diss., Peking Union Medical College, 2018).

 

52. In comparison, the significance of this number may be perceived if compared with the number of positive violations in other years. According to the Annual Report of China Anti-doping Agency, 66, 47, and 23 doping violations were reported in 2018, 2019, and 2020 respectively. In inference to the above statistics, if the number of positive violations of a certain substance is more than a dozen, it is never a regional doping issue but one that should be fully reviewed. The significance of resolving the food-induced risks of clenbuterol can be reflected therein.

 

53. “Announcement of China Anti-doping Agency on Enhancing the Control and Prevention of Clenbuterol Risks in Meat”.

 

54. Scholar Song Binling believes, “… after all, the public food security is guaranteed by the government on which athletes place their trust while having food. It is rather a burdensome duty if athletes have to worry about their basic everyday diets”. Song Binling, “Discussion on the Identification of the Extent of Wrongdoing in Doping Violations,”China Sport Science 7 (2012).

 

55. Stakeholder Notice regarding meat contamination.

 

56. report at the CADA official website, “Announcement of Some EPO Positive Results Not to Be Handled As Anti-doping Rule Violations,” November 24, 2021.

 

57. World Anti-doping Agency, TD2022EPO.

 

58. the official website of the CADA under the GASC, “CADA Officially Launches DBS Doping Testing”.

 

59. Sports Integrity Briefs — 1 September 2021.

 

60. Ma Xiangfei, “A Close Look to the Winter Olympics | Final Anti-doping Preparation for the Beijing Winter Olympics,” Xinhua News Agency, Beijing, October 27, 2021.

 

61. the “2020 Annual Report of China Anti-doping Agency”.

 

62. In China’s anti-doping work, “food, drugs and nutrition supplements” are commonly referred to as “three products.”

 

63. China Anti-doping Agency.

 

64. report at the official website of the CADA on January 26, 2015, “The Food & Drug Anti-Doping Laboratory of CADA Is Awarded As a Key Laboratory by the GASC”.

 

65. Ma Xiangfei, “WADA President Commends China on the ‘Commitment to Anti-doping Fight’,” Xinhua News Agency, Beijing, August 7, 2008.

 

66. MOLLER V., “The road to hell is paved with good intentions: A critical evaluation of WADA’s anti-doping campaign,” Performance Enhancement &Health 4 (2016): 111-115.