确认体内违禁物质来源对兴奋剂违规非故意认定的意义——从阿德米诉欧洲足联案谈起

Significance of Confirming the Source of Prohibited Substance in Body towards the Proof of Unintentional Doping Violations: Taking the Case of Ademi v. UEFA C as an Example

世界反兴奋剂条例在"无过错和无重大过错"的定义中明确要求运动员要证明违禁物质如何进入体内,而关于"非故意"则无明文规定。在阿德米兴奋剂违规案中,国际体育仲裁院在运动员未能证实样本中违禁物质来源的前提下,运用优势证据认可其违规行为为非故意,将4年的禁赛期缩减为2年。通过对该案例的分析和对类似案件的对比,得出结论:运动员的举证责任和他获得的利益原则上成正比,运动员必须确立违禁物质如何进入体内以证明自己无过错或无重大过错,从而达到免除或缩减禁赛期的目的,参照上述规则,对于非故意可以减少一半的禁赛期这样巨大的利益也应当明确运动员的这一举证责任是必需的。

World Anti-Doping Code makes an express provision that the athlete must establish how the prohibited substance entered his or her system under the definition of ＂no fault or negligence＂ and ＂no significant fault or negligence＂, while there is not such a provision in regard of ＂unintentional＂. In the case of Ademi＇s doping violation, the Court of Arbitration for Sport accepted that his doping violation was unintentional with the standard of balance of probability under the premise of the player failed to confirm how the prohibited substance entered his system, therefore reduced the period of ineligibility on Ademi from four years to two years. Through the analysis of the case and the comparison between the similar cases, the conclusion is that the athlete＇s burden of proof is proportional to the benefit he obtained in principle. Referring to the provision that athletes must establish how the prohibited substance enter their body to prove that they have no fault or no significant fault so as to achieve the purpose of eliminating or reducing the period of ineligibility, it should also be clear that the athletes＇ burden of proof is necessary for such a huge benefit which the period of ineligibility could be cut by half in the case of ＂unintentional＂.