ARTICLE
8 May 2023
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Sports Law 2023

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Bär & Karrer

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Under Swiss law, using or applying prohibited substances per se is not a criminal offence for the athlete using or applying the substances.
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1. Regulatory

1.1 Anti-doping

Doping as a Criminal Offence under Swiss Law

Under Swiss law, using or applying prohibited substances per se is not a criminal offence for the athlete using or applying the substances. However, certain actions in connection with doping are subject to criminal sanctions under the Federal Act on the Promotion of Sport and Exercise ("Sport Promotion Act", SPA).

A custodial sentence up to five years may be imposed on anyone who, for doping purposes, manufactures, acquires, imports, exports, transports, distributes, sells, prescribes, markets, administers or possesses doping substances, or applies prohibited methods to other persons. The sanction applies to professional as well as amateur sports, such as bodybuilding and fitness, without any connection to competitive or professional sports.

Prohibited Substances

The prohibited substances and methods are enumerated in the Ordinance to the Sport Promotion Act in an exhaustive list. While there are considerable overlaps, the list does not fully correspond with the Prohibited List of WADA.

Further Anti-Doping Regulations/National Anti-Doping Organisation

In addition, Swiss athletes are subject to the anti-doping regulations of sports governing bodies and WADA and may be sanctioned for doping offences in accordance with the applicable sanctioning regime established in the World Anti-Doping Code (and the corresponding regulations implementing the Code).

Antidoping Switzerland is officially recognised by the Swiss authorities and by WADA as the national anti-doping agency. Its mission is to combat doping in sports by means of testing, investigations, prevention work and collaboration, the latter including working together with law enforcement.

Implementation of the World Anti-Doping Code

In Switzerland, the World Anti-Doping Code is implemented in the form of the so-called Doping Statute of the National Olympic Committee of Switzerland, Swiss Olympic, with binding effects to all its member associations. The Doping Statute is accessible here: Antidoping Switzerland.

Recent Case Law

Most recent cases in which criminal sanctions were handed down under the SPA concern the illegal production and distribution of doping substances in the bodybuilding scene. Often, the cases are interlinked with other violations of other state laws – for example, the Federal Act on Medicinal Products and Medical Devices. Cases have already been brought before the Swiss Federal Tribunal, and sanctions that were handed down included custodial sentences, monetary penalties and the confiscation of considerable amounts of cash.

On an international sporting level, it can be noted that the Court of Arbitration for Sports (CAS), with its seat in Lausanne, Switzerland, regularly renders awards concerning violations of antidoping rules. These proceedings normally concern appeals against sanctions handed down for anti-doping rule violations. Recent examples involve, for example, the Australian swimmer Shayna Jack (CAS A1/2020), the Italian MotoGP rider Andrea Iannone (CAS 2020/A/6978 & CAS 2020/A/7068) and the Russian figure skater Kamila Valieva (CAS 2023/A/9451-55-56).

1.2 Integrity

Under Swiss law, a distinction is made between misconduct, which directly manipulates sports competitions ("match-fixing" in the more classical sense), and an illicit behaviour, which does not directly manipulate the outcome of a sports competition but that otherwise affects the integrity of sports governing bodies (notably acts of bribery concerning sports officials in connection with bidding procedures).

Manipulation of Sports Competitions (Match-Fixing)

In cases concerning the manipulation of sports competitions, the regulatory framework is provided by the Sports Promotion Act (SPA) together with its implementing ordinance.

Under the SPA, anyone who offers, promises or grants an undue advantage to a person who exercises a function in a sports competition (which includes athletes, trainers and referees) on which sports betting is offered, for the purpose of distorting the course of this sports competition in their favour or in favour of a third person may be sanctioned. Vice versa, if such person exercising a function in a sports competition demands, accepts or allows themselves to be promised an undue advantage, this may be sanctioned as well.

Both active and passive sports competition manipulation is punishable with a custodial sentence up to five years and/or a monetary penalty.

Other Illicit Behaviour

Misconduct, which does not directly manipulate sports competition but nevertheless is damaging to the integrity of sports, such as the bribery of sports officials, is mainly governed by the Swiss Criminal Code.

Both active and passive bribery is prohibited and may be penalised with a custodial sentence up to three years or a monetary penalty.

In this respect, sanctions may not only apply to the offending person but also to their employer. An undertaking such as a sports governing body may be liable to a fine up to CHF5 million in case it has failed to take all the reasonable organisational measures that are required in order to prevent such misconduct (ie, liability for organisational fault).

Reporting Obligations

Swiss sports governing bodies are required to file a report to the competent authority, in case there is suspicion of manipulation of a competition, which is either taking place in Switzerland or on which sports betting is offered in Switzerland.

Restriction on Federal Funding

Sport organisations may only receive governmental funding from the Federal Office of Sport (FOSPO) if they prohibit their members from placing sports bets on their own competitions and from misusing or disseminating inside information.

Measures Taken by Sports Governing Bodies

In addition, sports governing bodies have taken a variety of measures to combat behaviour affecting the integrity of sports competitions, ranging from reporting obligations to sanctioning and monitoring regimes.

In football, for example, UEFA (in co-operation with the company Sportradar) has implemented a betting fraud detection system, which detects irregular betting movements both pre-match and live in all the core betting markets. Moreover, most international sports federations domiciled in Switzerland have implemented rules of conduct, codes of ethics, or similar rules to protect the integrity of their respective sports. Violations of such rules are generally sanctioned very severely.

Case Law

In a recent decision, an Albanian football club, Skënderbeu, has been sanctioned by UEFA with a ten-year ban from UEFA competitions and a fine of EUR1 million for match-fixing. The sanctions have been upheld both by CAS and the Swiss Federal Tribunal (4A_462/2019).

1.3 Betting

Under the newly enacted Federal Gaming Act, betting is in principle permitted but subject to strict regulation and licensing requirements.

Regulatory Regime of Sports Governing Bodies

A large number of international (sports) federations (IFs) with a seat in Switzerland have a specific regulatory regime, including rules against illegal betting. This regulatory regime is then handed down to the national level and thus implemented by national sports governing bodies.

Typically, those bound by an international code of ethics – namely, officials, referees, players, etc, are prohibited from betting both directly and indirectly on games of their own sports and Olympic competitions in general. Furthermore, they are not allowed to share any insider information (such as team tactics or injuries) and must always report any suspicious behaviour.

Sanctions may include disciplinary measures such as a fine or a suspension, and may range up to a life ban. Notable examples of ethics codes of Swiss-based IFs are the FIFA Code of Ethics, the IIHF Code of Conduct and the IOC's Code on the Prevention of the Manipulation of Competitions.

Co-operation

Sports governing bodies often enter into cooperation agreements to protect the integrity of their sport. For example, UEFA signed a memorandum of understanding with the European Union's law enforcement agency (Europol) for mutual support, exchange of information and education programmes.

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Originally Published by Chambers Global Practice Guides.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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