A decision of the Council of State (May 11, 2015, n ° 374386) provides an update on the procedure to be followed by the French Agency for the Fight against Doping (AFLD) in the context of the sanctions it pronounces at the 'against athletes who are no longer licensed with a Federation.
Two positive doping controls for EPO
An athlete, then licensed to the French Athletics Federation, was subject to two doping controls on August 3 and 5, 2012 which highlighted the EPO presence.
Having seized ex officio pursuant toArticle L.232-22 of the Sports Code, the Agence Française de Lutte contre le Dopage (AFLD), by a decision of March 28, 2013, pronounces against it the sanction of the ban on participating for two years in competitions and sports events organized or authorized by French sports federations .
The athlete requests that this decision be quashed.
On the competence of AFLD
The Council of State first recalls that a "sports federation is not empowered to pronounce a disciplinary sanction on account of facts which, whatever the date on which they were committed, were it by a person who, on the date on which it is ruled by the body of the federation, no longer has the quality of licensee of this federation".
Also, in application of the provisions of article L.232.22 of the Sports Code, it is up to the AFLD to exercise disciplinary power with regard to this athlete.
The athlete not having renewed his license, the AFLD is well qualified to rule.
On the right of access to the judge
The High Administrative Court specifies that the aforementioned provisions of the Sports Code "do not disregard the right of access to a judge enshrined in the stipulations of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms".
Indeed, the sanctions pronounced by the disciplinary body of first instance of a Federation can be the subject of an appeal before being challenged before the Administrative Tribunal. For their part, the decisions of the AFLD can be referred to the Council of State, ruling as a judge of full litigation.
The athlete having exercised this remedy, his right to access the judge is not ignored.
On the consultation of the file and the rights of the defense
The athlete was informed by AFLD of the possibility of consulting "to the agency's secretariat the entire file"and obtain a copy as provided for inArticle R.232-91 of the Sports Code.
The Council of State indicates that the athlete was "recipient of the results of the two analyzes mentioning the presence of erythropoietin in his urine and the complaints against him"And also"been able to consult the entire file on which the agency based its decision"
Yet, "in the absence of specific circumstances which would have made it impossible for him and his lawyer to carry out such a consultation", the judges consider that the sportsman"is not justified in maintaining that the AFLD, failing to have sent him a copy to his home, because he resides 300 kilometers from Paris, would have disregarded the rights of the defense".
On the communication of the rapporteur's report and the principle of equality of arms
The Council of State recalls that the rapporteur confines himself to setting out the facts and the course of the procedure and takes no position on the guilt of the person concerned or on the sanction likely to be imposed on him.
In addition, the applicant has "the possibility of presenting observations last during the disciplinary training session".
Thus, according to the judges, "these provisions do not imply that the rapporteur's report must be communicated to the person concerned before the AFLD disciplinary training session and that the rapporteur does not participate in the deliberations".
The failure to communicate the report to the applicant before the session therefore did not infringe the principle of equality of arms.
On the materiality of the doping facts
The judges specify "that apart from the case where proof of a medical prescription for justified therapeutic purposes is provided, the existence of a violation of the legislative and regulatory provisions relating to doping is established by the presence, in a urine sample, of the '' one of the substances mentioned in the list annexed to the decree of 11 January 2007 relating to the list of prohibited substances".
As the athlete does not provide proof of a medical prescription, the person concerned is not justified in maintaining that the material element of the use of prohibited substances has not been established.
