The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code

Abstract

This chapter examines the role of the Council of Europe (CoE) and the European Union (EU) in shaping the proportionality of ineligibility for doping in the World Anti-Doping Code (WADC). It employs an empirical study of the transnational law-making process leading up to the current version of the WADC in force from 2021 (WADC 2021). The CoE and the EU belong to the stakeholders of the World Anti-Doping Agency (WADA) that submitted comments and proposals on drafts of WADC 2021, including those on the proportionality of ineligibility. This chapter analyses whether the CoE and the EU emphasised proportionality of ineligibility and whether WADC 2021 reflects their comments. It shows that the CoE attempted to influence the proportionality of ineligibility considerably more than the EU. The representatives of the CoE submitted 15, while those of the EU and its Member States only had two sets of comments in this regard. In terms of quality, the representatives of the CoE pleaded for milder ineligibility in one third of their comments but also for harsher punishment in another third. The final text of WADC 2021 fully reflects on one third of their comments, partially the second third, but disregards the final third. Regarding the EU, the WADC 2021 reflects both comments recommending milder and more flexible sanctions for protected persons.