Background

 

On February 28, 2020, the Court of Arbitration for Sport (CAS) announced the arbitration result of the case between the World Anti-Doping Agency (WADA) and Chinese swimmer Sun Yang and the International Swimming Federation (FINA). Sun Yang will be banned for 8 years starting from the same day. Looking at the world, it is rare for an elite athlete to be sentenced to such a long ban while still at the peak of his career. Sun Yang and his team announced that they have appealed the arbitration result to the Swiss Federal Supreme Court. No matter what the process is, we hope that there will be a fair result for Sun Yang.

 

The outbreak of this incident has brought the topic of athletes and doping back into the public eye. China has always taken a tough stance on doping. General Secretary Xi Jinping pointed out during his inspection of the preparations for the Beijing Winter Olympics: "We must adhere to zero tolerance for doping and make the Winter Olympics as pure and flawless as ice and snow." China's "Sports Law" promulgated in 1995 (revised in 2016) and the "Anti-Doping Regulations" promulgated in 2004 (revised in 2014) stipulate corresponding penalties for doping-related issues, including criminal penalties. On November 12, 2019, the Adjudication Committee of the Supreme People's Court passed the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Smuggling, Illegal Business Operations, and Illegal Use of Doping Agents" (hereinafter referred to as the "Interpretation"). The "Interpretation" came into effect on January 1, 2020, clarifying the issue of criminalizing doping-related behaviors. Below, we will discuss the criminal regulation of doping-related behaviors by people with different identities.

 

[Criminal Regulation of Doping-Related Behaviors]

(1) Criminal Regulation of Smugglers and Operators 1. Article 1 of the "Interpretation": Athletes or athlete support personnel who smuggle substances listed in the doping list, or other personnel who smuggle substances listed in the doping list for the purpose of sports competitions, where the substances involved are goods or articles prohibited from import and export by the state, and one of the following circumstances exists, shall be convicted and punished as the crime of smuggling goods or articles prohibited from import and export by the state in accordance with the provisions of Article 151, Paragraph 3 of the Criminal Law: (1) Having been given administrative penalties for smuggling twice or more within one year and then smuggling again; (2) Used or intended to be used for minor athletes or disabled athletes; (3) Used or intended to be used for major domestic and international sports competitions; (4) Other circumstances that cause serious adverse social impact. If the behavior prescribed in the preceding paragraph is implemented, and the substances involved are not goods or articles prohibited from import and export by the state, but the amount of tax evaded is more than 10,000 yuan or having been given administrative penalties for smuggling twice or more within one year and then smuggling again, shall be convicted and punished as the crime of smuggling ordinary goods or articles in accordance with the provisions of Article 153 of the Criminal Law. For acts of smuggling substances listed in the doping list other than those stipulated in Paragraphs 1 and 2 of this Article, the standards for conviction and sentencing stipulated in the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Smuggling (Fa Shi [2014] No. 10) shall apply.

Analysis: This clause stipulates two types of smuggling crimes based on the different objects involved: one is the "crime of smuggling goods or articles prohibited from import and export by the state" as stipulated in Article 151, Paragraph 3 of the Criminal Law. In this case, the object of the case is not only within the scope of the doping list, but also the substance involved belongs to goods or articles prohibited from import and export by the state. The other is the crime of smuggling ordinary goods or articles as stipulated in Article 153 of the Criminal Law. In this case, the object of the case is not among the goods or articles prohibited from import and export by the state, but belongs to substances that must be declared and taxed when entering or leaving the customs. This interpretation is made to block the import and export of doping agents brought into and out of the country (border) during international sports competitions.

 

2. Article 2 of the "Interpretation": Violating national regulations, operating substances listed in the doping list without permission, where the substances involved are articles restricted from sale as stipulated by laws and administrative regulations, disrupting market order, and the circumstances are serious, shall be convicted and punished as the crime of illegal business operation in accordance with the provisions of Article 225 of the Criminal Law.

Analysis: Not all substances listed in the doping list are harmful. For example, some psychotropic drugs belong to daily medical supplies, and many people cannot do without them for treatment and medicinal purposes. However, the state implements strict control over the operation of such items, which is reflected in the fact that these items must be exclusively operated or restricted from sale. Unauthorized operation without permission, if the circumstances are serious, constitutes the crime of illegal business operation as stipulated in Article 225 of the Criminal Law. Strictly investigating and dealing with doping supply channels, strictly prohibiting the illegal circulation of doping agents, and managing doping problems from the source are the most critical, necessary, and effective links in the comprehensive anti-doping governance system.

 

(2) Criminal Regulation of Providers

1. Article 40 of the "Anti-Doping Regulations": If athlete support personnel organize, coerce, deceive, or instigate athletes to use doping agents in sports activities, the sports authorities under the State Council or the sports authorities of provinces, autonomous regions, and municipalities directly under the Central Government shall confiscate the illegally held doping agents; they shall not be engaged in athlete support work and sports management work for 4 years; if the circumstances are serious, they shall not be engaged in athlete support work and sports management work for life; if personal injury is caused to athletes, they shall bear civil liability for compensation in accordance with the law; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law. If athlete support personnel provide doping agents to athletes, or assist athletes in using doping agents in sports activities, or implement behaviors that affect sampling results, the sports authorities under the State Council or the sports authorities of provinces, autonomous regions, and municipalities directly under the Central Government shall confiscate the illegally held doping agents; they shall not be engaged in athlete support work and sports management work for 2 years; if the circumstances are serious, they shall not be engaged in athlete support work and sports management work for life; if personal injury is caused to athletes, they shall bear civil liability for compensation in accordance with the law; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.

Analysis: Personnel who assist and serve athletes are collectively referred to as athlete support personnel, including team leaders, coaches, doctors, trainers, masseurs, liaison personnel, etc. For these personnel, if they provide doping agents to athletes, they will be investigated for criminal responsibility in accordance with the law if a crime is constituted. The crimes involved may include the crime of illegally possessing drugs, the crime of illegal business operation, the crime of intentional injury, the crime of causing serious injury due to negligence, etc.

 

2. Article 3 of the "Interpretation": A person who has the duty of guardianship or care for a minor or disabled person who organizes a minor or disabled person to illegally use doping agents in sports activities, and one of the following circumstances exists, shall be identified as "serious circumstances" as stipulated in Article 260 of the Criminal Law and shall be convicted and punished as the crime of abuse of a person under guardianship or care: (1) Forcing a minor or disabled person to use it; (2) Inducing or deceiving a minor or disabled person to use it for a long time; (3) Other circumstances that seriously damage the physical and mental health of a minor or disabled person.

  Analysis: This is a "highlight" clause of this judicial interpretation. This provision is an expansive interpretation, that is, an interpretation that goes beyond the usual meaning and literal meaning of "abuse." The usual meaning of "abuse" refers to treating certain people or things with cruel and vicious means, such as physical abuse, emotional abuse, psychological abuse, and sexual abuse. Minors are specially protected by law because they lack the ability to recognize and protect themselves; guardians who have supervisory responsibilities for people with disabilities have a special responsibility to treat people with disabilities well. Therefore, those who have guardianship and care responsibilities for minors and people with disabilities, no matter what their motives are, even if ordinary people think their motives are "kind," are illegally using stimulants for minors and people with disabilities in sports, which is not only physical harm to minors and people with disabilities, but also violates the spirit of sports. As long as stimulants are continuously provided to minors and people with disabilities for a certain period of time, that is, this damage has a certain duration in time, it should be identified as "abuse" in the sense of the constituent elements of criminal law.

 

3. Article 4 of the "Interpretation": In sports and physical fitness tests involved in national examinations prescribed by law, such as college entrance examinations and civil servant recruitment, those who organize candidates to illegally use stimulants shall be convicted and punished for the crime of organizing examination cheating in accordance with the provisions of Article 284 of the Criminal Law. Anyone who knows that others are committing the crime in the preceding paragraph and provides stimulants for them shall be convicted and punished in accordance with the provisions of the preceding paragraph.

  Analysis: In recent years, the use of stimulants has not been limited to sports competitions. In some colleges and universities, sports students, independent enrollment, and civil servant recruitment physical fitness tests, there have also been organizations that help others use stimulants, or knowingly provide stimulants for others to help them cheat on exams. Fairness is the lifeline of national examinations. The illegal use of stimulants is a direct challenge to the fairness of examinations and is a form of examination cheating. Therefore, this situation is essentially the crime of organizing examination cheating as stipulated in Article 284 of the Criminal Law.

 

(III) Criminal Law Regulation of Producers and Sellers

Article 5 of the "Interpretation": Producing or selling food containing substances listed in the stimulant catalog that meet the provisions of Articles 143 and 144 of the Criminal Law shall be convicted and punished for the crime of producing or selling food that does not meet safety standards or producing or selling toxic or harmful food.

Analysis: All kinds of food or drinks for human consumption are required to have certain requirements for ingredients, raw materials, and additives in accordance with relevant national laws, and it is absolutely forbidden to add substances involving stimulants. Therefore, adding stimulant substances to food produced or sold constitutes the above-mentioned crime.

 

(IV) Criminal Law Regulation of Managers

1. Article 37 of the "Anti-Doping Regulations": If sports authorities and other administrative organs and their staff fail to perform their duties, or harbor or connive at the illegal use or provision of stimulants, or commit other acts in violation of these Regulations, the persons in charge and other directly responsible persons shall be given administrative sanctions in accordance with the law; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.

2. Article 6 of the "Interpretation": State organ personnel who abuse their powers or neglect their duties while exercising anti-doping management powers, causing serious doping violations, seriously damaging national reputation or causing adverse social impact, shall be convicted and punished for the crime of abuse of power or neglect of duty in accordance with the provisions of Article 397 of the Criminal Law. Staff of units that exercise anti-doping management powers in accordance with the law or under entrustment who abuse their powers or neglect their duties while exercising anti-doping management powers shall be convicted and punished in accordance with the provisions of the preceding paragraph.

Analysis: The above two clauses are mainly aimed at the failure of state personnel who have anti-doping responsibilities to perform their duties and the harboring and conniving at others' use of stimulants in the process of stimulant testing.

 

(V) Criminal Law Regulation of Users

In fact, it is a difficult thing to use criminal penalties for the use of stimulants in sports. On the one hand, although taking stimulants causes harm to one's own body, it does not harm others, and athletes sometimes do not have complete autonomy over the use of stimulants. Therefore, countries around the world, including China, rarely include athletes' self-harm behaviors in criminal law regulations. Therefore, for athletes' own use of stimulants in sports, criminal law cannot be used, and only those around them, such as those who provide stimulants or help or abet the use of stimulants, can be criminally punished. On the other hand, from the perspective of the modesty of criminal law, the existing industry punishment is relatively severe (refer to the above "Sun Yang ban"), and it is appropriate not to add new crimes separately. However, since some stimulants also contain amphetamine (ice), amphetamine derivatives MDMA, MDA (ecstasy) and other drug ingredients, those who illegally possess these stimulants may be suspected of the crime of illegal possession of drugs. In this regard, Article 7 of the "Interpretation" also makes a provision similar to a catch-all clause: If the act stipulated in this Interpretation involves drugs, drug-making items, etc., and constitutes a relevant crime, it shall be convicted and punished in accordance with the corresponding crime.

 

[Conclusion]

Stimulants and anti-doping have become a prominent topic in modern sports competitions. In recent years, the international and domestic anti-doping situation has undergone profound changes, and some new situations and new problems have emerged. The doping ban targets of international sports organizations are no longer limited to individual athletes, but have been extended to the entire sports program. In addition, the problem of stimulants also presents the characteristics of being younger and spreading to other social fields such as food and medicine, education and examinations, which seriously endangers the health of the public. We firmly believe that China's severe crackdown on stimulant-related behaviors will be as consistent as ever and will spare no effort. Sports athletes will not only present us with higher, faster and stronger sports competitions, but also reflect a more fair and healthier sports spirit in these competitions.