Monday, March 5, 2012

Fridman on "Contador, Cows and Strict Liability"

Saul Fridman of the University of Sydney Law Faculty has just posted a working paper on SSRN (here), which falls into the sweet spot of this blog, a legal analysis of the doping regime for professional cycling. Here is the abstract:
The World Anti Doping Code imposes a regime of strict liability for athletes whose sample return a positive result to a Prohibited Substance Since 2007 The Code has contained provisions that mitigate the seeming harshness of this regime in circumstances where an athlete is able to provide an explanation for the positive test result and can establish either no or no significant fault or negligence on his or her part. There have been a number of cases in the Court of Arbitration for Sport where athletes have attempted to rely on this "defence." The recent Contador decison is the latest in this line and contains a clear and exhaustive review of a selection of seemingly plausible explanations for the presence of traces of a banned anabolic agent in a cyclist's system. This article canvasses the case law, culminating in the Contador decision and looks at the question of the burden of proof faced by an athlete offering alternative explanations for the test result in the attempt to demonstrate lack of culpability. Given the high stakes involved for the athlete, whose test results were revealed following his victory in the 2010 Tour de France, this is the most thorough treatment of the applicable standards of proof and evidence required of the athlete in such cases.

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