Doping as a Criminal Offence under Swiss
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.
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
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
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 anti-doping 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) and the Italian MotoGP rider Andrea Iannone (CAS 2020/A/6978 & CAS 2020/A/7068).
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
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 his or her 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 himself or herself 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 his or her 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).
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.
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Originally Published by Chambers Guide "Sports Law 2021" on 31stof March, 2021.
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.