ARTICLE: AN OVERVIEW OF NON-ANALYTICAL POSITIVE & CIRCUMSTANTIAL EVIDENCE CASES IN SPORTS Skip over navigation
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Copyright (c) 2006 Marquette University
Marquette Sports Law Review

ARTICLE: AN OVERVIEW OF NON-ANALYTICAL POSITIVE & CIRCUMSTANTIAL EVIDENCE CASES IN SPORTS

Spring, 2006

16 Marq. Sports L. Rev. 193

Author

Richard H. McLaren*

Excerpt



I. INTRODUCTION

As new technologies for detecting drug violations in sport struggle to keep up with the creation of new doping substances and methods, 1 non-analytical positive cases have become a more prominent tool in the fight against doping. Although doping offenses are most commonly established by direct evidence, where a positive analytical result from an accredited laboratory directly shows that an athlete had a prohibited substance in his or her body, situations will arise where only circumstantial evidence points to the commission of a doping offense. The challenge in such cases will be to prove the use of prohibited substances or techniques without direct evidence.

A circumstantial evidence case can be troublesome because the benefit from the concept of strict liability is eliminated. 2 Strict liability has evolved in the jurisprudence of the Court of Arbitration for Sport (CAS) 3 and has been adopted in the World Anti-Doping Agency Code (WADA Code). 4 Strict liability means that a doping violation occurs when a banned substance is found in an athlete's body. The conclusion that an infraction occurred is not based upon intent or lack thereof. The assessment is then analyzed in the context of the active duty on the athlete to prove that exceptional circumstances existed to avoid the full doping infraction and to obliterate or reduce the sanction. Because non-analytical positive charges do not involve results from a positive analytical laboratory-doping test, they must be proven without the benefit of the presumption embodied in the ...
 
 
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