Doping and health protection: a review of the current situation in the Spanish legislation

Abstract

2013 has been a particularly relevant year for the detailed study of the legal implications that doping implies, especially because of the celebration of the Fourth World Conference on Doping in Sport focused on the World AntiDoping Code review process, as well as the Fourth World Anti-Doping Agency (WADA) Symposium on —the emerging issue— of gene and cell doping. I would like to report in particular about the legal implications of doping from the Spanish legislation perspective. Currently, this is an issue of great relevance and scope in Spain, and it is also having a major impact internationally with the famous so-called ‘‘Operacion Puerto trial’’, as everybody has read in the media. Looking at the national level, it results that: Spain has undertaken the relevant 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, which was published in the Official Gazette of the Government of Spain (named BOE) on the 21st of June, 2013. Therefore, the old regulation dated on 2006 has been totally replaced by this new Law. This marks an important milestone because of the unique legal and regulatory framework that this new law predicts: an integral protection of the athlete’s health beyond the matter of doping. It is noteworthy that this regulation came into force on the 11th of July 2013. Likewise, on the 30th of April 2013 the ‘‘Operacion Puerto trial’’0s resolution (headed by Dr. Eufemiano Fuentes, the doctor at the centre of the doping case) was made public (however, it is a provisional opinion). This resolution is generating a storm of controversy with significant differences and approaches from the legal and social world. The hearing is being 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. This provisional resolution has been criticized because of the leniency of the penalties and the choice to refuse to give the blood bags that were seized by the Spanish police during the raids, so as to avoid the consequent exposure of the name of the involved athlete. As a result of all this, WADA has carefully considered the decision ruled out by the Criminal Court in Madrid in relation with the ‘‘Operation Puerto’’. The decision to order the destruction of all the blood bags is particularly disappointing and unsatisfactory for WADA, and for the whole anti-doping community. The access to this evidence justified WADA’s involvement in this case. This would ensure appropriate sports sanction processes against the cheats, who used Dr. Fuentes’ services. The Court considered that Dr. Fuentes’s conduct was a crime against public health. However, at the moment WADA is fully reviewing the decision and is preparing any possible appeal or other action through its Spanish legal advisors, and the Spanish National Anti-Doping Organization (AEA). On the international scene, the celebration of the Fourth World Conference on Doping in Sport held last November in the South African city of Johannesburg was a key date. The agenda of the Conference was focused on the World Anti-Doping Code review process, which began in late 2011 with an intensive process of consultation with stakeholders, and the resulting draft version of the 2015 E. Atienza-Macias (&) Inter-University Chair in Law and the Human Genome, University of Deusto and University of the Basque Country UPV/EHU, Bilbao, Spain e-mail: elena.atienza@deusto.es