Should doping in sport be criminalised? A review of Germany's new Anti-Doping Act

This article reviews Germany’s new Anti-Doping Act, analyses its implications for athletes, and comments on whether criminalisation is the appropriate way to address doping in sports. It will be of particular interest to anti-doping practitioners.

Regulatory context

Until recently, Germany did not have any anti-doping specific criminal laws designed for prosecuting athletes. If at all, prosecutors tried to prosecute doping-related activity of athletes under general norms of German criminal law, in particular Section 263 German Criminal Code (“StGB”) (fraud).

Other relevant criminal provisions included sections 6a and 95 Medicinal Products Act (“AMG”), which prohibit distributing, prescribing or administering of medicinal products to others for the purpose of doping as well as the purchase or possession of doping substances in quantities above a certain amount, and Section 29 para. 6 a), b) Federal Law on Narcotics (“BtMG”), prohibiting the prescription and administration of specified narcotics including cocaine, amphetamines etc.

In this regulatory context, it is unsurprising that to date there have been very few criminal proceedings in Germany against athletes for doping. The most famous case involved German cyclist Jan Ullrich, who was subject to a criminal investigation between 2006 and 2008 after he had obtained and used doping substances from Spanish sports medic, Eufemiano Fuentes.

The investigation was mainly concerned with the question of whether Ullrich acted fraudulently in relation to his former employer, Team Telekom, by undertaking doping despite an express provision in his employment contract not to do so. However, because the prosecution was not able to establish that Ullrich’s employer was in fact unaware of his conduct and the parties had reached a settlement in a parallel civil proceeding, the case was abandoned according to Section 153a Criminal Procedural Code before it went to trial.¹

Because the above-mentioned legal framework was perceived to have failed in properly tackling the issue of doping in sport (mainly because the undertaking of doping as such was not subject to criminal liability), in 2014, the government introduced Germany’s first Anti-Doping Act (the “Act”), which came into force on 1 January 2016.²

The Act has been widely criticized by scholars, athletes and the German Olympic Sports Confederation (DOSB).³ Most importantly, the law raises questions with regard to its conformity with German constitutional law, with German and European data protection and privacy laws. It could also potentially have consequences for other aspects of general sports law, particularly because of its provision regarding sports arbitration.

As such, the remainder of this article will:

1. First summarize the most important provisions of the Act and briefly highlight criticism that was raised with regard to the respective provisions;
2. Then discuss what practical consequences the act has for international athletes taking part in competitions in Germany; and
3. Finally, give a brief outlook of what can be expected of possible anti-doping investigations in Germany in the future.

Key points from the new German Anti-Doping Act

The new Act is a rather complex piece of legislation. Its most important aspects can be summarized as follows:

• The Act differentiates between illegal handling of doping substances /administration of doping methods (Section 2) and “self-doping” by athletes (Section 3).
• The Act qualifies a number of actions related to doping (e.g. production, trade, administration, possession of more than a minor quantity of doping substances) as punishable with prison sentences up to three years (Section 4 para. 1). Those who provide the substances can face sentences of up to 10 years when specific enumerated qualifications are present, which include, among others, causing the danger of bodily harm to a significant number of people,⁴ causing the threat of death or serious bodily harm to another person or acting out of crude self-interest for substantial monetary gain of oneself or another person (Section 4 para. 4).
• Athletes using or trying to use doping substances or methods with the aim to obtain an undue advantage in a competition (“self-doping”) are only punishable if they are “elite athletes of organized sport”⁵ (Section 4 para. 7 (1.) 1^st Sentence) or if they generate directly or indirectly substantial income out of sporting events (Section 4 para 7 (2.)). “Elite athletes of organized sport” are defined as athletes that are members of an anti-doping testing pool, which provides mandatory tests also during training (Section 4 para. 7 (1.) 2.). In these cases the use of doping substances or methods with the aim to obtain an undue advantage in a competition is punishable with prison terms of up to three years (Section 4 para. 1). An athlete’s mere possession or purchase of performance-enhancing drugs with the aim to gain illicit advantages in a sporting competition can be punishable with a prison sentence of up to two years (Section 4 para. 4).
• Attempting any of the actions described above is also punishable under Section 4 para. 3, except for cases of athletes merely attempting to purchase doping substances.

When the German Parliament passed the legislation, Justice Minister Heiko Maas promised that it would make German sports “cleaner, safer and more honest.” “In view of the current situation in Russia, the problem doesn't seem to be getting smaller, but seems to be growing,” he said, referring to the outcome of the independent commission appointed by the World Anti-Doping Agency to investigate Russia, which was released the same week.⁶

From a dogmatic constitutional and criminal law perspective, the fundamental innovation of the new law is that it aims at both:

1. protecting athletes from bodily harm; and
2. protecting the integrity of organized sport,⁷ which, in the opinion of the official parliamentary justification of the law includes, but is not limited to, the financial aspects of sporting competitions.⁸