Fixed sanction frameworks in the World Anti-Doping Codes 2015 and 2021: Can hearing panels go below the limits in the pursuit of proportionate punishments?

Abstract

In this paper, I argue that hearing panels have the discretion to impose ineligibility for anti-doping rule violations below the limits fixed by Code 2015 or Code 2021, if the otherwise applicable sanction would be excessive and disproportionate in the context of all objective criteria of the case and all subjective elements concerning the athlete or other person. Ideally for legal certainty, WADA should introduce a provision in the Code which would specify conditions of such flexibility to ensure that the pursuit of a proportionate punishment is in balance with other core anti-doping elements. In the absence of such a provision in both Code 2015 and Code 2021, I still believe that hearing panels have the discretion to impose ineligibility below the fixed limits. Code 2015 and Code 2021 limit the sanctioning flexibility of hearing panels by fixing the basic sanctions and their ranges as well as by exhaustive list of options for their elimination, reduction or suspension. Nevertheless, there inevitably were, are and will be cases where the solution contained in Code 2015 or Code 2021 does not work. In such cases, when Code 2015 or Code 2021 do not provide a proportionate sanction, hearing panels should patch such a loophole with general legal principles, including the principle of proportionate punishment. I believe that such sanctioning flexibility of hearing panels does not necessarily compromise the purpose of the Code to fight doping effectively, harmonize sanctions, ensure equality for athletes and other persons, secure legal certainty and other core anti-doping elements. On the contrary, such an approach enables hearing panels to fully adapt sanctions for doping to circumstances of particular cases and to fulfil the internationally recognized general principle of proportionate punishment.