[PODCAST] For the Love of the Game — Liability and Sanctions in Anti-Doping Regulation: In Conversation with Dr Jan Exner

‘Indirect intent is the situation in which there is a risk that you could be doping, but for some reason you disregarded that risk, so in this regard the World Anti-Doping Code tries to work with your level of fault, such that the less fault there is on your part, the less suspension there will be.’

Sports shares a distinctive and evolving relationship with the law. From the boundaries of implied consent in contact sports, to athletes’ employment status and antitrust disputes in collegiate sports, legal rules both shape and respond to sporting practice. Bonnie Yeo, a Podcast Editor of the Oxford University Undergraduate Law Journal, had the opportunity to sit down with Dr Jan Exner to consider anti-doping regulation and the role the law plays in influencing the frameworks that guide liability and sanctions under the World Anti-Doping Code.

An Assistant Professor in EU and Sports Law at the Law Faculty of Charles University and a partner at Fairzone, a sports-law firm, Dr Exner contributes to the development of sports regulation, particularly in the areas of compliance, the proportionality of sanctions, and the impact of EU Law on sports regulation. Most recently, his commentary on doping sanctions has been recognised in the draft 2027 World Anti-Doping Code.

In this episode, Dr Exner discusses the substantive and procedural framework behind doping regulations. He evaluates the proportionality of anti-doping sanctions and whether current mechanisms adequately strike the balance between protecting the rights of the athletes and enforcing the rules of the game. Mechanisms for the reduction of ineligibility sanctions include the ‘No Fault Finding’ and ‘No Significant Fault Finding’. ‘No Fault Finding’ occurs when athletes test positive for banned substances through no fault of their own. Athletes given a ‘No Fault Finding’ will not be subject to a ban, whilst athletes given a ‘No Significant Fault Finding’ will receive a reduced ban, indicating a system that adjusts according to the athlete’s level of fault. Dr Exner considers that existing arrangements are insufficient and advocates for even greater improvements to ensure proportionality in anti-doping sanctions and to reduce the harshness of certain sanctions. Softening these measures are critical when we consider that a sanction of just a few years could effectively crush an athlete’s career. Going beyond sanctions, Dr Exner shares on the public disclosure aspect of findings and their compliance with human rights and general data protection regulations in the EU. 

However, Dr Exner emphasises that achieving the right balance goes beyond an evaluation of athlete sanctions. Procedural aspects matter as well, such as the role of arbitration bodies like the Court of Arbitration for Sport, and national athletes’ rights of appeal before national tribunals. Ultimately, Dr Exner emphasises that achieving the right balance between athlete rights and ensuring the integrity of the competition requires a comprehensive approach, and involvement of all stakeholders in the sporting community.

‘The World Anti-Doping Code tries to find a balance between protecting athletes and protecting the integrity of the competition. If there is some fault, there will be a publication, there will be some sanctions, and there will be ... a public disclosure of the sanctions. But in cases where there is no fault, there is no publication, because the system prioritises the reputational damage that could be done to the athlete.’

The Spotify link to the episode is available here.

A transcript of the episode is available here.