Arbitration, Athletes, and Accountability in Global Sports: Is Arbitration in Doping Cases Really Fair To Athletes?

Vani Sharma

This article examines whether arbitration in anti-doping disputes truly ensures fairness for athletes, highlighting how strict liability and evidentiary burdens disproportionately disadvantage them. Through recent CAS cases, it shows that outcomes often hinge on access to resources and expert evidence. It argues for targeted reforms to address these structural inequities and make procedural fairness meaningful in practice.

Introduction

International sports bodies long ago adopted strict anti-doping rules to protect athletes’ rights to fair competition. The 2005 United Nations Educational, Scientific and Cultural Organization (UNESCO) International Convention against Doping in Sport instructs nations to harmonise anti-doping laws and create a level and safe playing environment for all athletes. The World Anti-Doping Code (‘WADA Code’) is a global treaty-like code that sets out prohibited substances, sanctions, and procedural rules. All major sports organisations and 191 countries now follow the Code. Any athlete who tests positive for a banned substance enters a formal dispute resolution process. In CAS 2011/A/2384 (UCI v. Alberto Contador), the panel emphasised that anti-doping proceedings must respect due process even within a strict liability regime. Similarly, in CAS 2009/A/1870 (WADA v. Hardy), the tribunal held that fairness requires not only procedural formality but also a meaningful opportunity to challenge scientific evidence. These cases were heard first by national anti-doping tribunals (often within a National Anti-Doping Organization, NADO, or sports federation) and can be appealed to the Court of Arbitration for Sport (‘CAS’), the supreme court of world sports whose decisions are final and binding (with very limited avenues for further appeal). The question to be discussed is whether the arbitration process is truly fair to athletes.

WADA Code, CAS, and the Promise of Procedural Fairness

The​‍​‌‍​‍‌ WADA Code and its related standards (for example, the International Standard for Results Management, ISRM) are designed to provide procedural safeguards to athletes and ensure that their rights to due process are respected. Article 8 of the WADA Code mandates that in anti-doping cases, the athletes shall be given a fair hearing by a fair, impartial, and operationally independent hearing panel within a reasonable time. CAS comments that athletes should get a fair and prompt hearing in their home country if they have a positive test. Signatories (countries and sports bodies) are required to establish a dispute-resolution system that comprises domestic tribunals and appellate panels that reflect these minimum standards. An athlete, under the Code, has only one right of appeal to CAS (and subsequently, only in very rare cases, to the Swiss Federal Tribunal). World Anti-Doping Agency ('WADA') also has the right in law to appeal to CAS if it believes that a national decision is contrary to the ​‍​‌‍​‍‌Code.

The CAS, established in 1984, serves as the primary forum for resolving international sports disputes. It operates with a global pool of arbitrators and follows a streamlined process, making it faster and more cost-effective than traditional courts. Cases are decided by panels appointed by the parties or through the International Council of Arbitration for Sport ('ICAS'), which also administers legal aid to support financially constrained athletes. Alongside CAS, WADA oversees the global anti-doping framework through the WADA Code. While most doping disputes are resolved at the initial stage, CAS functions as the appellate body, though financial barriers often limit athletes from pursuing appeals.

WADA is backed by the UNESCO Convention that binds countries to enforce anti-doping laws. The Convention (ratified by 192 States) explicitly aims to harmonise anti-doping Laws, guidelines, regulations, and rules internationally to ensure fairness for all athletes. The Code, the Convention, WADA’s regulatory oversight, and CAS appeals have to promote consistency so that athletes worldwide face the same rules and repercussions for doping. However, implementation and outcomes vary greatly across jurisdictions.

Access to Justice and the Resource Gap

Despite the goal of harmony, anti-doping procedures effectively impose an extraordinarily strict and austere process on athletes. The WADA Code applies a strict liability rule that if an athlete can be found guilty of doping, even if they had no intent, fault, or negligence. Article 2 of the Code makes clear that it is not necessary that intent, fault, negligence, or knowing use on the athlete’s part be demonstrated to establish a violation. The only mitigating factor is on sanction if an athlete can prove (by a relaxed balance of probabilities or comfortable satisfaction standard) that a positive test was due to contamination or another no-fault scenario, a reduced or zero sanction may apply. But even protected persons (like minors) who ingest a prohibited substance accidentally must usually serve some sanction.

Given these harsh rules, the WADA Code and CAS stress that minimum due process protections must be observed. The Code’s Article 8 and the ISRM list detailed procedural rights, e.g., the right to written notice of charges, to a timely hearing, to legal representation, to present evidence and witnesses (at one’s own expense), to translation if needed, and even the right to request a public hearing. CAS has acknowledged the fact that a fair process protects the fundamental right of athletes to participate in doping-free sport. Article 8.8(d) of the ISRM (2021) requires hearings to be accessible and affordable, recognising that poor or amateur athletes otherwise lack access to justice.

However, many of these guarantees depend on fragile implementation at the national level. NADOs in different countries vary widely in how well they meet procedural requirements. Taking into consideration Galanter’s law, Galanter argues that parties who appear frequently in litigation, so-called repeat players, enjoy structural advantages as they possess greater resources, institutional experience, access to expert counsel, and the ability to shape procedures over time. In contrast, one-shooters, who engage with the system only occasionally, lack both familiarity and bargaining power. WADA and international sports federations function as repeat players. They operate with established legal teams, scientific expertise, and deep procedural knowledge. Athletes, by contrast, are typically one-shot participants, entering the system only when charged with a violation. Many, particularly those from less-resourced jurisdictions, lack access to specialised legal representation or the financial means to secure expert evidence.

Major Sporting Events and Ad Hoc Arbitration

The Summer Olympic and Paralympic Games, which were held in Paris, sparked various controversies that were resolved by the CAS Ad Hoc Division, including the widely reported Jordan Chiles dispute, which is still pending before the Swiss Federal Tribunal ('SFT') in Switzerland. Doping​‍​‌‍​‍‌ disputes kept getting the most attention at CAS in 2024, with several cases being appeals from the first-instance decisions or the reallocation of results after disqualifications. The case that got the most attention was the one that ended early in the year with Kamila Valieva.  The CAS panel applied the strict liability principle under the WADA Code and rejected the contamination defence on the grounds that it was insufficiently substantiated. Crucially, the reasoning did not rest solely on the presence of the prohibited substance, but on the athlete’s inability to provide a coherent and scientifically supported account of its origin. The imposition of a full four-year ban, despite her status as a minor, reflects how the burden of proof operates in practice; absent compelling evidence, the default sanction prevails.

By contrast, in the case of Simona Halep, the CAS panel accepted the contamination argument and significantly reduced the sanction. However, this conclusion was reached only after extensive expert testimony and technical analysis of the supplement in question. The divergence between these two cases is not simply doctrinal; it underscores how the ability to access scientific expertise and mount a detailed evidentiary defence can directly influence the tribunal’s assessment of no significant fault or negligence.

A similar pattern is visible across other decisions. In the cases of Norah Jeruto and Tobi Amusan, the CAS declined to impose sanctions due to insufficient evidence of anti-doping violations. Conversely, in the case of Florentina Iușco, the sanction was increased on the basis that the athlete had failed to demonstrate adequate diligence. These determinations hinge on the tribunal’s evaluation of the athlete’s conduct and the credibility of their explanation an assessment that is, in practice, shaped by the quality of legal argumentation and supporting evidence presented. Even in non-athletics cases, such as that of Paul Pogba, the reduction of sanction was grounded in a detailed examination of medical evidence and the absence of intentional ingestion. Once again, the outcome turned on the ability to substantiate claims through credible documentation and expert input.

Conclusion

The anti-doping system is fundamentally built on the WADA Code, with support and enforcement primarily provided by the Court of Arbitration for Sport, leading to the creation of a formally harmonious and strictly regulated anti-doping system. But the study of the latest court decisions shows that justice within this system doesn't rest only on law but also depends on how well the athletes can use the law. What this really shows is more than just a failure to carry out a plan; it's a basic mistake in the system. The adjudicatory model assumes that all parties are equally capable of meeting evidentiary burdens in a system where such equality is lacking. Usually, the key point in the deciding case is not the evidence of the violation but the athlete's capacity to prove their source, show that he or she took all the necessary steps, and back up his/her claims with scientific and expert evidence.

To fix this, a few changes will not be enough. Three specific measures are needed. Initially, the burden of proof in cases of contamination needs to be adjusted. When an athlete demonstrates a credible method of ingestion, the burden of proof should be partly transferred to the prosecuting authority to disprove the athlete's account. This change would steer the system away from the current asymmetrical model that penalizes the lack of evidence rather than the actual guilt.

Secondly, a pool of independent scientific experts, funded centrally and on a permanent basis, should be established officially within the framework of the World Anti-Doping Agency. An athlete's ability to pay should not determine their access to experts' evidence. Members of the panel should have the power to choose neutral experts whose reports are then shared with both sides, which will diminish the unfair advantage that long-standing institutional players currently have.

Thirdly, there is a need to allow procedural flexibility in a meaningful way even in the cases of expedited forums like the CAS Ad Hoc Division. If strict timelines are set, there should also be a small, good cause exception allowing delay, especially when delay is the result of no access to legal counsel or other logistical barriers. Without these types of safeguards, procedural efficiency might be at the expense of substantive justice. These reformations are not drastic changes from the present system; they are essential adjustments to the system that will help fulfil the promise of fairness in reality. A system that has strict liability should, in the same way, guarantee that the capacity to defend one's liability does not depend on the unequal availability of resources. As long as the anti-doping system does not deal with this inequity head-on, it will be producing results that are only on paper fair, but, in reality, uneven and contradictory to the commitment to fairness in global sports.