FAIR PLAY OR POWER PLAY? AFRICAN EQUITY IN THE GLOBAL ANTI-DOPING REGIME [Part I]

I. Introduction

Sport is often celebrated as a meritocracy, a realm where talent and dedication can overcome social and economic barriers. The international legal regime governing anti-doping is ostensibly designed to safeguard this ideal. Spearheaded by the World Anti-Doping Agency (WADA) and adjudicated by the Court of Arbitration for Sport (CAS), this framework seeks to harmonise rules across all sports and nations, ensuring that victory is a product of fair competition.  The World Anti-Doping Code (WADC), the regime’s foundational document, is presented as a universal charter for clean sport, binding over 700 sports organisations worldwide.  Its goal is uniformity; its promise is a level playing field.

However, this article posits that the pursuit of uniformity has preposterously resulted in substantive inequality, especially to African athletes. The anti-doping system has evolved into what many consider a form of private global governance, a lex sportiva that operates with significant autonomy from traditional state legal systems. Scholar Antoine Duval has compellingly argued that this creates a transnational legal construct for sport where athletes are subjected to a powerful regulatory apparatus without the traditional safeguards of public law.  While proponents like Richard McLaren defend the WADC as an essential, harmonised system necessary to combat a global problem, its application shows that there are deep flaws within its structures.  The core legal tenets of this regime, particularly the principle of strict liability, placesintense burden on athletes, forcing them to prove lack of intent

This reality transforms the anti-doping process from a simple scientific inquiry into a complex legal war of attrition. For an athlete from a well-resourced nation, a positive test triggers a well-oiled machine of legal and scientific defence. For third world countries like Asia and most ofAfrica, it marks the beginning of an often insurmountable battle against a global system they are ill-equipped to challenge. This disparity is an issue that strikes at the heart of the system’s legitimacy and raises questions about access to justice, due process and fairness.

In the spirit of promoting law to a more equitable African society, this article will deconstruct the anti-doping regime from an African perspective. It will, firstly, explore the structure of the lex sportiva and the power inequalities it creates. Secondly, it will critically analyse the doctrine of strict liability and its tension with the right to a fair hearing, drawing on both CAS jurisprudence and seminal human rights cases. Thirdly, it will discuss the practical and legal problems emanating from this regime, referencing cases involving African and other athletes, to illustrate the gap between procedural formality and substantive justice. Finally, it will move from critique to propose precise, concrete legal and institutional reforms on the national, continental and international planes, with a view to rebalancing the scales and creating a system where the commendable fight for clean sport does not eclipse the fundamental right to a fair fight.

II. The Architecture of Power: Lex Sportiva and the African Position

The global anti-doping regime does not function like a typical international legal system. It is a unique construct of private commands that are enforced through a number of contractual obligations. WADA, a private foundation under Swiss law, creates the rules.  Sporting bodies, from the International Olympic Committee (IOC) to International Federations (IFs) like World Athletics, mandate adherence to these rules as a condition of participation. Athletes, by signing agreements to compete, are deemed to have consented to this jurisdiction, including the mandatory arbitration of disputes at CAS.  This creates a closed legal loop, a self-regulating ecosystem that Duval terms the lex sportiva.  The critical feature of this system is its detachment from national legal orders; its authority is derived not from democratic legislation but from the private, contractual power of sports governing bodies.

This model was born of necessity. The Festina affair at the 1998 Tour de France exposed the inability of disparate national laws to handle organised, cross-border doping, making a harmonised global code seem essential. Scholars like Houlihan argue that this harmonized model was created to solve a problem that had been there for ages, where a “tangle of competing interests” across political, commercial and legal lines had previously prevented any effective, unified policy against doping.  However, this solution has created its own set of problems, particularly concerning accountability and power. WADA drafts the law, acts as the prosecutor and funds a significant portion of the anti-doping ecosystem, leading to what critics describe as an inherent conflict of interest.

For African nations, this system is all the more confusing. To play on the world sporting stage, they must enact the WADC and establish compliant National Anti-Doping Organisations (NADOs). Kenya’s Anti-Doping Act, was enacted primarily to effectuate this and avoid international sanction. Though necessary, this indicates that anti-doping laws and institutions in Africa are largely reactive imports rather than homegrown systems adapted to local environments. As a result, most African NADOs are perpetually short-funded and short-staffed. They have the legal mandate to test and penalize athletes but frequently lack the funds to discharge their corresponding responsibility to inform athletes about their intricate rights and obligations. This deficit of availability brings with it an inherent imbalance: African players are held to the same demanding international standards as European or American counterparts but lack an equivalent national support system of legal, scientific and educational aid.

III. The Collision of Principles: Strict Liability and the Elusive Right to a Fair Hearing

The most contentious legal principle within the WADC is strict liability, articulated in Article 2.1. It holds that an athlete is responsible for any prohibited substance found in their body, irrespective of intent, fault, negligence or knowledge thereof.  The anti-doping organisation must simply prove the presence of the substance; the burden then shifts entirely to the athlete to establish, on a balance of probabilities, how it got there and that they bear ‘No Fault or Negligence'.  This reversal of the conventional onus of proof is justified by WADA as a practical necessity to effectively combat doping.  However, it places athletes in an extraordinarily difficult position and has been the subject of sustained critique from both legal scholars and human rights bodies.

The German speed skater Claudia Pechstein’s long legal battle challenged the very foundation of this system.  In 2009, she was banned for two years due to irregularities in her blood profile, as indicated in her Athlete Biological Passport, despite no direct evidence of a banned substance. Her claim that a congenital blood condition caused the anomalies failed under strict liability. She later challenged the mandatory CAS arbitration clause at the European Court of Human Rights, arguing it denied her a public hearing before an independent tribunal., as guaranteed by Article 6(1) of the European Convention on Human Rights.  The ECtHR judgement was an important split decision. While the Court narrowly found (by a 5-2 vote) that the structure of the CAS was adequately independent,  it delivered a landmark victory for Pechstein by unanimously ruling that the denial of a public hearing in her disciplinary case constituted a clear violation of her rights under Article 6(1).  This is significant for strict liability, showing that athletes may challenge the fairness of enforcement procedures even if they cannot contest the substance of the rules. The Court focused on the fact that arbitration was “compulsory,” and not freely consented to, thus establishing that CAS must operate under the authority of human rights law.

For an African athlete, the challenge of discharging the strict liability burden is monumental. Consider the defence of supplement contamination. To succeed, an athlete must not only prove the supplement was contaminated but also that they took all reasonable precautions, such as researching the product, checking batch numbers and keeping records. This often requires expensive laboratory testing of the supplement container. The case of American long-jumper Jarrion Lawson illustrates the immense evidential burden athletes can face to prove their innocence. In a high-profile decision, Lawson was exonerated from a potential four-year ban when a CAS panel annulled his suspension for testing positive for epitrenbolone.  The Panel accepted that it was “more likely than not that the origin of the prohibited substance was contaminated beef” and found that Lawson had successfully established he bore “no fault or negligence” for the violation, resulting in the elimination of his sanction.  While the official summary does not detail the athlete’s investigative efforts or costs, the case still shows the challenge for athletes who must provide extensive evidence to overcome the presumption of guilt.

Similarly, in World Athletics & WADA v. Alex Wilson, this problem is more than clear. Wilsontested positive for the drug trenbolone. He claimed that the drug came from contaminated beef he ate at a restaurant. A Swiss disciplinary body first lifted his suspension.  However, World Athletics and WADA appealed the decision. At the new hearing, Wilson told the court he had problems. He said he had “limited time...to prepare his case” and worried about the “costs associated with having to present his case”. Ultimately, the CAS panel suspended him again by holidng that he was unable to prove his story about the contaminated meat  This case shows that proving innocence costs a lot of money. An emerging Kenyan athlete from a rural background has little hope. Without a wealthy sponsor or an expert team, they cannot mount such an expensive defence.

Legal scholar Jack Anderson agrees with this view. In his experience as an arbitrator, he identifies a major problem with “access to justice” in sports.  He argues that the high cost of legal help can break the system for athletes who are not rich. Anderson notes that athletes need “equality of arguing power” to face large sports bodies.  Effective participation requires “equality of arguing power,” yet this often depends on access to lawyers. Without such support, athletes face an unfair process shaped by a “thicket of rules” accessible only to insiders. As a result, the strict liability principle disproportionately punishes the uninformed and the poor rather than solely the guilty.

Authored by: Raphael Okochil and Khayran Noor