Elena Atienza-Macías, University of Deusto, Researcher**, at the Inter-University Chair in Law and the Human Genome, University of Deusto and University of the Basque Country UPV/EHU. Bilbao, Spain
2013 has been a particularly relevant year for the study of legal considerations on doping. Not least because of the celebration of the Fourth World Conference on Doping in Sport that focused on the World Anti-Doping Code review process. This legislative issue has also been of great relevance in Spain. In fact, Spain has undertaken the task of developing and enacting a long-awaited regulation: the Organic Law 3/2013, enacted on the 20th of June, protecting athlete’s health and fighting against doping in sports. This law was published on the 21st of June, 2013.
Moreover, on the 30th of April 2013 the Operation Puerto trial’s resolution (having the doctor Eufemiano Fuentes at the center of this doping scandal) was made public. This resolution is still generating a storm of controversy with significant differences and approaches from the legal and social world. The hearing has been conducted under the Spanish Criminal Law regarding the illicit administration of medication, and not under the anti-doping legislation that exists in Spain today but did not exist in 2006. The judgment for the Operation Puerto doping case has been criticized because of the leniency of the penalties and the decision to refuse to give the details of blood bags that were seized by the Spanish police during the raids, so as to avoid the exposure of names of the involved athletes. All in all, this is a “provisional” decision since at the moment WADA is fully reviewing it and is preparing any possible appeal or other action through its Spanish legal advisors in conjunction with the Spanish National Anti-Doping Organization (AEA) and with the Spanish Prosecution.
The new Spanish regulation: The Organic Law[1] 3/2013, of June 20th, protecting athlete’s health and fighting against doping in sports
Spain is currently facing a period of legislative reversal scenarios, which has led to a new policy. The result has been the repeal of the Organic Law of 2006 and the entry into force of a new law, with a unique legal framework (since it opts for a comprehensive protection of the athlete’s health beyond the issue of doping). We refer to the Organic Law 3/2013 protecting athlete’s health and fighting against doping in sports. This new legislation incorporates a new law that re-establishes the entire legal framework for the protection of health and the fight against doping in sport. It is thus not limited to reforming the existing one.
The purpose is to introduce a powerful system of health protection for sport. Overall, the new regulation attempts to differentiate the measures that effect athletes in general (and these are positive measures of health risk prevention associated with sport), and the specific measures to fight doping that have a more restricted scope. Concerning the field of application, the law refers to athletes having an approved state-license that allows them to participate in official competitions at the state level, as well as to foreign athletes staying or competing in Spain.
However, as was also the case in the former law, doping is not a cardinal element of this new law, since it is only one element in a long list aimed at the protection of athlete’s health. Consequently, the reform needs to be taken a step further forward if one wants to protect the health of athletes. For the sake of protecting the athletes´ health, the existing measures are strengthened, such as (a) in the case of medical examinations that become more intense according to the physical activity, or (b) in the case of the requirements that sports facilities should have in order to combat any acute cardiopulmonary disease, or (c) in the hypothesis of the establishment of a health care system for high-level athletes or professionals. All these measures are complemented by the establishment of a “Health Support Plan” in the field of sport that identifies risks and prevention measures, among the other issues.
Regarding the fight against doping, the policy is focused on standardizing the Spanish regulation to the provisions of the international law and especially to the 2009 World Anti-Doping Code currently in force, with a full respect for the athletes’ fundamental rights. In this sense, doping has raised alarm in particular with regards to its involvement of the right to privacy. With the new law, it is stated that the anti-doping controls are not allowed between 23.00 pm and 6.00 am, apart from exceptional cases; such exceptional cases must be motivated and be explained to the athlete. In the case of the failure to follow this procedure, the affected party may apply to the court for not being informed.
All in all, the current modifications to the Spanish legislation are aimed at being in line with the international and European framework, and they represent a first, even if still to be implemented, response to the problem of doping in Spain. The reforms of the Spanish legal system on anti-doping and the protection of athletes’ health have just begun, and the topic will receive more attention in the years to come.
Main references
Atienza-Macías, E., «Doping and health protection: a review of the current situation in the Spanish legislation», The International Sports Law Journal, ASSER International Sports Law Centre ASSER PRESS — Editorial Springer, Berlin-Heidelberg, Germany. Published online: 23 April 2014. DOI 10.1007/s40318-014-0044-6. Available at link.springer.com.
Gleaves, J., «Exploring New Avenues to the Doping Debate in Sports: A Test-Relevant Approach», Fair Play. Revista de Filosofía, Ética y Derecho del Deporte, Vol. 1, No. 2, Universitat Pompeu Fabra, Spain, Oct. 2013.
Pérez Triviño, J.L., The Challenges of Modern Sport to Ethics From Doping to Cyborgs, Lexington Books, New York, 2013.
Doping and Anti-Doping Policy in Sport: Ethical, Legal and Social Perspectives, McNamee, M. / Møller, V. (Eds.), Routledge, London, 2011.
* An extended version of this comment is available at link.springer.com (published online: 23 April 2014 at The International Sports Law Journal) with the title “Doping and health protection: a review of the current situation in the Spanish legislation”.
**Currently enrolled in the “Research Training Grant Programme” from the Agency for Research Promotion and Management-DEIKER, at the University of Deusto.
[1] Under the current Spanish Constitution of 1978, an “Organic Law” has an intermediate status between that of an ordinary law and of the constitution itself. It must be passed by an absolute majority of the Congress of Deputies. The Spanish Constitution specifies that some areas of law must be regulated by this procedure, such as the laws developing fundamental rights (in this case, Public health is the fundamental right protected by this law) and freedoms recognized in the first section of Chapter Two of Title I of the Constitution, as well as the laws that approve the Statutes of Autonomy of the autonomous communities of Spain, among others.