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Scientific Constraints on Evidence in Anti-Doping

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Evidence in Anti-Doping at the Intersection of Science & Law

Part of the book series: ASSER International Sports Law Series ((ASSER))

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Abstract

This Chapter discusses the constraints that science exerts on evidentiary matters in anti-doping, starting with a description of the multiple roles that science plays in the fight against doping, as well as some reflections on the definition of “scientific” (Sect. 4.1). This Chapter then identifies the challenges that lawyers face in a science-based context, and presents the evidentiary mechanisms developed to reconcile the fields of science and law (Sect. 4.2). Due to the growing space for interaction that modern human society creates (e.g. genetic engineering, artificial procreation or bio-banks) science and law inevitably influence each other, to the point that one may truly speak of shaping of new contours for both fields. The mutual influences among the two fields raise novel questions and needs, especially when it comes to defining the interplay between the scientific expert and the judge (Sect. 4.3). The insights gained from our analysis will enable us to formulate some guidance for an assessment of the soundness of the WADC regime that combines both legal and scientific aspects and will lead over to Part II (Sect. 4.4). The topics addressed in this Chapter have engendered passionate debates among scholars in the fields of the philosophy of law, philosophy of science or ethics. Since this book investigates the practical interplay of science and law with respect to the 2015 WADC regime, this Chapter will only give a general insight, as necessary for setting the foundations of the analysis. This Chapter uses the generic term “judge” as referring to any judicial authority that may be called upon to adjudicate a dispute in a science-based context (e.g. state courts, internal “tribunals” of a sports federation or arbitral tribunals such as CAS panels).

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Notes

  1. 1.

    For an analysis and suggestions, see Loland and Hoppeler 2012; Tamburrini and Tännsjö 2011; see also Holm and McNamee 2011, p. 294/295, on the difficulties of defining performance enhancement.

  2. 2.

    For a brief overview of the arguments in favour of a limited legalising of doping in a German context, see Glocker 2009, p. 67 et seq.; similarly, Kuhn and Jeanneret 2012.

  3. 3.

    At the end of a thorough and well-documented analysis, Volker Soyez reaches the conclusion that the best manner of fighting doping may be to abolish the doping prohibition altogether (see Soyez 2002, p. 204 et seq.); from a non-legal perspective, see Kayser and Smith 2008, p. 85 et seq.

  4. 4.

    Kliemt 2010, p. 46 et seq.

  5. 5.

    Miah 2011, p. 266; Cooper, p. 228 et seq., however, concludes that legalising drugs may result in opening a Pandora box.

  6. 6.

    See the suggestions by Loland and Hoppeler 2012, for a redefinition of the “spirit of sport”, as a rationale for anti-doping that would combine the fair opportunity principle and an evolutionary understanding of athletic performance.

  7. 7.

    From a sociological perspective, see Bette 2010, p. 36/37; for the doping context in competitive sport, Brissonneau et al. 2008, specifically with respect to professional cycling.

  8. 8.

    Cooper, p. 235; Paul 2004a, p. 22.

  9. 9.

    Latty 2009b, p. 15. Thus, the WADC contains a clause whereby the Olympic Games may be attributed only to countries which have ratified and are in compliance with the UNESCO Anti-Doping Convention, which is an extraordinary example of private organisations being in a position to influence states in their international commitments.

  10. 10.

    For a broader perception on doping in society, see Glocker 2009, p. 67 et seq.; Höfling, p. 3/4.

  11. 11.

    On the use of prosthetic devices that may exceed the biological capacities of their biological counterparts, that could trigger the “end of biologically governed sports performance”, see Miah 2011, p. 269; on gene doping, Tamburrini and Tännsjö 2011, p. 275 et seq.

  12. 12.

    See Sect. 1.2.2 above.

  13. 13.

    See Sects. 4.2.1 and 7.1 below.

  14. 14.

    For the use of the expression “science-based law”, see Hermitte 2012, p. 108.

  15. 15.

    Both international conventions that specifically deal with doping in sport (see Sect. 2.1.1.3 above) stress that the fight against doping promotes ethics in sport and is rooted in considerations of fair play and health (Council of Europe Anti-Doping Convention, Preamble; UNESCO Anti-Doping Convention, Preamble).

  16. 16.

    The system maintained in the 2015 WADC in spite of some initial hesitations (see extensively Sect. 7.1.1.3 below)—is that a substance or method is considered for inclusion if WADA, in its sole discretion, determines that any two of the following three criteria are met: (i) potential to enhance or actual enhancement of sports performance, (ii) actual or potential health risk to the Athlete, or (iii) violation of the spirit of sport (Article 4.3 of the WADC).

  17. 17.

    Mazzoni et al. 2011, p. 610, whereby the two criteria “clearly have a scientific and medical basis”; for a more extensive analysis, see Sect. 7.1.1.3.3 below.

  18. 18.

    Rabin 2011, p. 10.

  19. 19.

    See, generally, Dvorak et al. 2006, p. 17.

  20. 20.

    See Sect. 2.3.1.1. above.

  21. 21.

    US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals (1993), Opinion of the Court (Blackmun): “arguably, there are no certainties in science”; see also, on uncertainty in science, Sect. 4.1.2.2 below.

  22. 22.

    Badoud et al. 2011, p. 49 et seq.

  23. 23.

    Sottas et al. 2008a, p. 198, for the Adaptive Model at the core of the Athlete Biological Passport.

  24. 24.

    Marclay et al. 2013, p. 133 et seq.

  25. 25.

    WADA ABP Guidelines, Definition of “Expert Panel”.

  26. 26.

    For a survey of the scientific background in the context of anti-doping and with a legal orientation, see Paul 2004a, p. 33 et seq.

  27. 27.

    Martinez et al. 2012.

  28. 28.

    Hohl 2012.

  29. 29.

    Viret 2014, p. 102/103; Sprumont and Viret 2013, n° 32 et seq.

  30. 30.

    See Sect. 2.3.3.1 above.

  31. 31.

    For a short overview of the history in anti-doping detection, see Saugy 2012, p. 649 et seq.; for a more technical presentation of advances over the last decades, Georgakopoulos et al. 2012, 1549 et seq.

  32. 32.

    For a survey of analytical methods and the analytical process, see Badoud et al. 2011, p. 49 et seq.

  33. 33.

    Gas/liquid-chromatography coupled with mass spectrometry is the analytical method of choice (whenever possible) and, when introduced, brought anti-doping analyses to a whole new level of sensitivity and reliability (see Dvorak et al. 2006, p. 18; see also McLaren 2007, p. 7). For short descriptions of the functioning of the method, see Badoud et al. 2011, pp. 52–57.

  34. 34.

    For a description of Isotope Ratio Mass Spectrometry (“IRMS”), in connection with anabolic steroids, Saudan et al. 2011, p. i23.

  35. 35.

    For the different options explored for EPO detection, including the method currently applied under the Technical Document for the harmonization of analysis and reporting of ESAs by electrophoretic techniques (currently: TD2014EPO), see Lundby et al. 2012, p. 1310.

  36. 36.

    See WADA hGH Guidelines.

  37. 37.

    See Chap. 11 below.

  38. 38.

    For example, some may argue that there is a “science of law” (Leclerc 2012, p. 56).

  39. 39.

    Jasanoff 1995, p. 60.

  40. 40.

    Binet, in his study regarding law and scientific progress, Binet 2002, p. 1/2, glides very rapidly over this issue to determine that the term will be used in its “common” meaning, i.e. as referring to the empirical natural sciences.

  41. 41.

    Sibony 2012, p. 162. In this context, scientific evidence could be described as evidence that was produced by using—at least purportedly—scientific methods (observation, calculation or treatment of information), which may include disciplines from social sciences such as economics or psychology.

  42. 42.

    For a critical view on amalgams of philosophies, including Karl Popper’s, by the US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, see Haack 2005, especially p. 67.

  43. 43.

    US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun).

  44. 44.

    The Daubert v. Merrell Dow Pharmaceuticals decision overturned the previously used sole criterion of “general acceptance” (Frye criterion) to characterise a theory or methods as scientific, to propose a broader set of criteria. The decision was followed by two other decisions: in General Electric Co v. Joinder, 522 US 136, 15 December 1997, the US Supreme Court added as an additional criterion the reliability of the inferences drawn by the expert from the (scientifically valid) method to the circumstances of the case; in Kumho Tire Co v. Carmichael, 526 US 137 (1999), the US Supreme Court clarified that the criteria do not suppose a prior determination of the scientific or non-scientific character of a field, but should focus on verifying the reliability of the expert evidence in each particular case; for a short overview of their findings, see Champod and Vuille 2010, p. 100/101.

  45. 45.

    Champod and Vuille 2010, p. 81, show how the Daubert v. Merrell Dow Pharmaceuticals decision created an uproar by abandoning the sole “general acceptance” Frye criterion to combine it with the criteria of falsifiability, peer review, known or estimated rate of errors, existence of controls and standardized procedures.

  46. 46.

    For a critical assessment, Berger 2005; Haack 2005.

  47. 47.

    UK House of Commons Science and Technology Committee, Seventh Report of Session 2004–05, Forensic Science, para 172, and the recommendations of the Law Commission, summarised in Champod and Vuille 2010, p. 102.

  48. 48.

    Popper 2002, Preface to the 1959 English edition, p. XXII, as wells as the developments on the conventional character of methodological rules in p. 31 et seq.

  49. 49.

    Haack 2005, p. 68/69; see also, Sect. 4.3.1.2 below.

  50. 50.

    The requirement that the opinion must be made with respect to “scientific knowledge” is perceived as one of evidentiary reliability and forms the basis of Rule 702 of the US Federal Rules of Evidence; see Sect. 4.3.1.2 below.

  51. 51.

    For a comparative perspective, see Champod and Vuille 2010, pp. 97 & 103, who present the absence of separate admissibility control as a general trait of civil law jurisdictions when confronted with expert evidence.

  52. 52.

    For a description of the contours of the freedom of evidence with respect to expertise by the Swiss Supreme Court, see BGE/ATF 125 V 351, para 3a.: “Ausschlaggebend für den Beweiswert ist grundsätzlich somit weder die Herkunft eines Beweismittels noch die Bezeichnung der eingereichten oder in Auftrag gegebenen Stellungnahme als Bericht oder Gutachten” [Thus, in principle, neither the origin of a means of evidence nor the characterisation of a statement of position filed or requested as report or expert opinion is decisive for the probative value (author’s translation)]; however, from a Swiss judges’ perspective, the question may still be relevant to determine whether the court is required to ask for an expert opinion: see Kaufmann 2009, p. 158, whereby there are two requirements for asking for an expertise: (i) the judge lacks knowledge to establish or evaluate facts, (ii) existence of specialised knowledge in the field that is reliable and recognized. Idem, ibidem, considers the relevant US Federal Rules of Evidence should be transposed to the Swiss legal system.

  53. 53.

    For illustration of the issues on which expert evidence is typically given in doping cases before CAS, see Rigozzi and Quinn 2012, p. 11; see also Sect. 4.1.2.4 above & Sect. 8.3.3.1.1 below.

  54. 54.

    On this assessment, see Chaps. 5 and 6 below.

  55. 55.

    For one of the only domains in which the discussion might have arisen, i.e. the use of the polygraph examination for the Athlete’s defence, recent CAS awards have found that such evidence should be admitted based on the general principle of the freedom of the means of evidence, without closer assessment of its scientific validity (see Sect. 8.1.1.1.1.2 below).

  56. 56.

    See for the expression “all reliable means” in the WADC, see Sect. 8.1.1.1.1 below.

  57. 57.

    See Sect. 8.1.1.1.1.2 below.

  58. 58.

    See e.g. the “Budesonide theory” in CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 179.

  59. 59.

    Champod and Vuille 2010, p. 104, consider that the decision as to whether a field of knowledge is a “science” or not is in any event outside of the judge’s authority, and pertains to epistemology or philosophy of science.

  60. 60.

    US Supreme Court Kumho Tire Co v. Carmichael, 526 US 137 (1999), Opinion of the Court, Section II/A: “[…] it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between “scientific” knowledge and “technical” or “other specialized” knowledge. There is no clear line that divides the one from the others. […] And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert’s testimony often will rest “upon an experience confessedly foreign in kind to [the jury’s] own.” Ibid. The trial judge’s effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge”.

  61. 61.

    See Sect. 4.3.1.2.2 below.

  62. 62.

    On the use of scientific tools in doping disputes to facilitate the evaluation of evidence, see Chaps. 10 and 11.

  63. 63.

    On these criteria, see Sect. 4.3.2.1.2 below.

  64. 64.

    See Sect. 4.1.1.3 above.

  65. 65.

    Labrusse-Riou 2012, pp. 84 & 88.

  66. 66.

    Binet 2002, p. 2 et seq.

  67. 67.

    Ruch 2004, p. 2; Pestre 2012, p. 38.

  68. 68.

    Note that more ample work appears to have been done on scientific evidence in criminal, rather than in civil proceedings. See e.g. the comparative report at the European level, Champod and Vuille 2010.

  69. 69.

    On the difficulty of defining precisely what “special knowledge” constitutes and its fluctuating nature, Bettex 2006, p. 77/78, but finding that it should in any event exceed the knowledge of an average individual.

  70. 70.

    This view can find support in US Supreme Court Kumho Tire Co v. Carmichael, 526 US 137 (1999), Opinion of the Court, Section II/A, where the Court mentioned as a distinctive factor whether the evidence: “will rest “upon an experience confessedly foreign in kind to [the jury’s] own.”; on the duty for CAS panels to resort to expert evidence as part of their mission as an arbitral tribunal under the Swiss lex arbitrii, see Sect. 8.3.3.1.1 below.

  71. 71.

    Black 1988, p. 605: “The law’s contact with science almost always comes through expert witness testimony”.

  72. 72.

    For a classification of possible types of expert evidence, see Sect. 4.3.1.1.3 below.

  73. 73.

    See Sect. 8.1.1.2 below on the means of evidence before CAS panels and the lack of clear categories.

  74. 74.

    Born 2014, p. 2294.

  75. 75.

    In spite of its appellation, demonstrative evidence does not represent evidence stricto sensu, but a way of presenting evidence that has otherwise been properly submitted (see Born 2014, p. 2294).

  76. 76.

    Born 2014, p. 2294.

  77. 77.

    Fagot-Largeault 2013, p. 11.

  78. 78.

    See e.g. the Singapur Statement on Research Integrity.

  79. 79.

    For a short analysis of Popper’s views, casting a critical light onto the US Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, see Haack 2005.

  80. 80.

    Labrusse-Riou 2012, p. 84; Flückiger 2003, p. 111; Pestre 2012, p. 40.

  81. 81.

    For a useful presentation of epistemological constructivism, tailored for the purposes of expert evidence in judicial proceedings, see Dwyer 2008, p. 113 et seq.

  82. 82.

    This effect is a common tool used both in common law and civil law jurisdictions for putting an end to a matter from a legal viewpoint, see Dwyer 2008, p. 135; Soubelet 1997, p. 380, analyses how this concept present already in Roman law shows the “creating act” that the judicial decision represents.

  83. 83.

    See, on innovation in anti-doping, Sect. 6.3 below.

  84. 84.

    Flückiger 2003, p. 107; Soubelet 1997, p. 371/371: “Le discours scientifique comme descriptio mundi demeure très présent dans la vision juridique du réel” [the scientific speech as a descriptio mundi remains very present in the legal perception of reality (author’s translation)].

  85. 85.

    Labrusse-Riou 2012, p. 83 et seq.; Lebre de Freitas 2004, p. 1.

  86. 86.

    Vuille, Indices Scientifiques, 2014, p. 487, on the attitude of Swiss attorneys with respect to DNA evidence; Mehdi et al. 2012, p. 333.

  87. 87.

    Labrusse-Riou 2012, p. 85; Mehdi et al. 2012, p. 336.

  88. 88.

    Labrusse-Riou 2012, p. 86.

  89. 89.

    Flückiger 2003, p. 112.

  90. 90.

    Pestre 2012, p. 38; Allbeury 1997, p. 330, on science as a system of “self-evaluation” within the community of peers.

  91. 91.

    Labrusse-Riou 2012, p. 84; Soubelet 1997, pp. 366 & 371 et seq.

  92. 92.

    Soubelet 1997, p. 382.

  93. 93.

    Jasanoff 1995, p. 207.

  94. 94.

    Papaux 2012, p. 238.

  95. 95.

    See, for the example of “uncertain causality” and whether aggregate statistical “general causation” can establish “specific causation”, Jasanoff 1995, p. 121 et seq.

  96. 96.

    Hermitte 2012, p. 128.

  97. 97.

    For legal implications of these theories, see Puigelier 2003, p. 134.

  98. 98.

    Mehdi et al. 2012, p. 334.

  99. 99.

    Dwyer 2008, p. 138, cites four characteristics with which science is often associated in the legal context proposed by R. Merton: universalism, communism, disinterestedness and organised skepticism.

  100. 100.

    Jasanoff 1995, p. 10.

  101. 101.

    Aitken and Taroni 2004, p. 5: “Scientists and jurists have to abandon the idea of absolute certainty in order to approach the identification process in a fully objective manner”; Pestre 2012, p. 52.

  102. 102.

    House of Lords re B (Children) (FC) (2008), para 2; quoted in Murphy and Glover 2011, p. 70.

  103. 103.

    Kummer 1966, n° 20; see Sect. 3.1.2.2 above.

  104. 104.

    See e.g. Section 5.3.2 for procedural defects and Sect. 6.3.3 for the validity of analytical science.

  105. 105.

    Sibony 2012, p. 161.

  106. 106.

    Murphy and Glover 2011, p. 3.

  107. 107.

    See also Sect. 3.1.2.1.2 above.

  108. 108.

    Murphy and Glover 2011, p. 3.

  109. 109.

    Murphy and Glover 2011, p. 3.

  110. 110.

    See Sect. 10.3 below, for suggestions to formalise the evaluation of scientific evidence.

  111. 111.

    See Sect. 8.2 below, on the access to scientific evidence for Athletes.

  112. 112.

    Verde 2004, p. 270.

  113. 113.

    Jasanoff 1995, p. 10.

  114. 114.

    From a comparative perspective for scientific evidence in criminal proceedings in Europe, Champod and Vuille 2010, p. 96; see also Sect. 3.3.2.2 above, on unlawfully obtained evidence in CAS proceedings.

  115. 115.

    Labrusse-Riou 2012, p. 89; Flückiger 2003, p. 109.

  116. 116.

    Viret 2014, p. 101/102.

  117. 117.

    See e.g. Section 3.1.2.2.1 above, the various considerations that can determine the distribution of the burden of proof; Hermitte 2012, p. 102.

  118. 118.

    Jasanoff 1995, p. 11, refers to the concept of “social wisdom”; Soubelet 1997, p. 380, on the danger that law would integrate scientific proof into legal proof without discernment, thereby losing its proper capacity to make societal choices.

  119. 119.

    Vergès 2012, p. 160.

  120. 120.

    Dumoulin 2012, p. 299; in the context of liability for environmental prejudice, see Boutonnet 2012, p. 191.

  121. 121.

    Brulhart 2011, p. 38, uses the expression “tension field”.

  122. 122.

    For recent examples in Swiss law where the question arose as to whether law-making has become an expert’s business, Brulhart 2011, p. 37.

  123. 123.

    Vuille 2011, p. 60; see also Sect. 4.3.1.1 below.

  124. 124.

    On the fact that expert may also be required to select for the judge the facts relevant for the disputes, see Mayr 2004, p. 57.

  125. 125.

    Dumoulin 2012, p. 312.

  126. 126.

    Dumoulin 2012, p. 314 et seq.

  127. 127.

    The evolution towards a principial state of uncertainty in modern technologies reinforces the importance of educating lawyers to view expert views merely as indicia to guide judges to make a legal determination. For example, the absence of proof of a scientific fact does not amount to a proof of absence of that same scientific fact, but such errors of logic need to be articulated in order to be integrated into the judicial process (see Papaux 2012, p. 244).

  128. 128.

    Vuille 2014, p. 485 et seq., on the differences of culture between Swiss and US attorneys in their approach of “scientific evidence”, specifically with respect to DNA proof.

  129. 129.

    Jasanoff 1995, p. 205.

  130. 130.

    Wiprächtiger 2005, p. 199.

  131. 131.

    Labrusse-Riou 2012, p. 92; Soubelet 1997, p. 367.

  132. 132.

    Labrusse-Riou 2012, p. 83 (“méthodologie du doute”).

  133. 133.

    Pestre 2012, p. 38.

  134. 134.

    Jasanoff 1995, p. 48; Mehdi et al. 2012, p. 338; Allbeury 1997, p. 332, who points at the possibility that experts consulted, precisely because of their position within their establishment, may evidence a bias in favour of the “established” solution and be reluctant to question these positions in favour of new theories.

  135. 135.

    Dumoulin 2012, p. 322.

  136. 136.

    The term évitement [avoidance] to characterise legal mechanisms dealing with difficult scientific issues has been used in French by Sibony 2012, 161 et seq.

  137. 137.

    Citing the principle of precaution, Sibony 2012, p. 161; Soubelet 1997, p. 384.

  138. 138.

    Sibony 2012, p. 167.

  139. 139.

    See the prohibition under French law for a man who consented to his wife’s insemination with a third party donor to challenge his paternity through DNA evidence, Hermitte 2012, p. 101; on legal fictions resulting from scientifically non-determinable causality links in tort law, see Vergès 2012, p. 147 et seq.

  140. 140.

    Mehdi et al. 2012, p. 342.

  141. 141.

    Sibony 2012, p. 170.

  142. 142.

    Flückiger 2003, pp. 109 & 119.

  143. 143.

    See Sect. 7.1.2.1 below.

  144. 144.

    See Sect. 7.3.2 below.

  145. 145.

    See Sect. 7.2.1 below.

  146. 146.

    Importantly, this task belongs exclusively to the judge and thus precludes the fears often expressed that the expert might usurp the competences of the judge, see Sect. 4.3.1.1 below.

  147. 147.

    Papaux 2012, p. 239; Mehdi et al. 2012, p. 332/333.

  148. 148.

    Vergès 2012, p. 158, whereby the legal characterisation of what constitutes a prejudice in tort law may allow for indirectly repairing damages when the causes cannot scientifically be established with certainty.

  149. 149.

    See Sect. 7.1.2 below.

  150. 150.

    See Sect. 4.2.1.2 above.

  151. 151.

    Hermitte 2012, p. 102, on the allocation of the legal burden of proof as a manner of distilling legal fairness into health law.

  152. 152.

    Sibony 2012, p. 176; on the use of legal presumptions in connection with the beginning and end of life, see Puigelier 2003, p. 136/137.

  153. 153.

    Flückiger 2003, pp. 109 & 118/119.

  154. 154.

    Sibony 2012, p. 177/178; Mehdi et al. 2012, p. 342, whereby a presumption is a shift in the object of the proof rather than a shift in the burden of proof.

  155. 155.

    Sibony 2012, p. 176: “une forme de proportionnalité entre l’erreur commise par le droit et l’utilité juridique de l’énoncé scientifiquement approximatif”.

  156. 156.

    Vergès 2012, p. 138/189, for the proof of the causality link in situations of scientific uncertainty.

  157. 157.

    Most notably, the théorie de la perte d’une chance in French tort law represents one such attempt to introduce probabilistic reasoning into legal decisions (see in this respect Vergès 2012, p. 138 et seq.); a similar solution can be seen in the market-share approach applied by US courts when the producer of a particular defective good cannot be identified with certainty (idem, ibidem, p. 150).

  158. 158.

    See Sect. 5.2.2 below.

  159. 159.

    See Sect. 6.3.3 below.

  160. 160.

    See Sect. 7.3.3 below.

  161. 161.

    See Sect. 10.2 below.

  162. 162.

    On the control of scientific evidence by the judge, see Sect. 4.3.2.1 below.

  163. 163.

    Mehdi et al. 2012, p. 341.

  164. 164.

    Labrusse-Riou 2012, p. 93.

  165. 165.

    See Sect. 3.3.2.2 above.

  166. 166.

    Labrusse-Riou 2012, p. 94; on the judicial review of analytical science in anti-doping, see Sect. 6.3 below.

  167. 167.

    Labrusse-Riou 2012, p. 91.

  168. 168.

    Dumoulin 2012, p. 308.

  169. 169.

    Mehdi et al. 2012, p. 347.

  170. 170.

    Mehdi et al. 2012, p. 339.

  171. 171.

    See Sect. 8.3.2 below.

  172. 172.

    See Sect. 8.3.1.1 below.

  173. 173.

    For criminal law, see Vuille 2011, p. 81; for civil law, see Bühler 2007, n° 24-26.

  174. 174.

    See Sect. 3.1.2.1.1 above.

  175. 175.

    Labrusse-Riou 2012, p. 90.

  176. 176.

    See Sect. 3.1.4.2 above.

  177. 177.

    Dwyer 2008, p. 96; traditionally there is still a duty for the expert to distinguish: Section 56 of the UK Justice Council “Guidance for the instruction of experts in civil claims”, December 2014: “When addressing questions of fact and opinion, experts should keep the two separate”.

  178. 178.

    For similar examples from other domains and a more ample analysis, Dwyer 2008, p. 90.

  179. 179.

    Vuille 2011, p. 55, notes that materially a laboratory report for a DNA analysis is already expert evidence, even if it is regularly not treated as such in the proceedings; on the analytical report as expert evidence, see also Sect. 6.2.3.1.4 below.

  180. 180.

    Dwyer 2008, p. 96.

  181. 181.

    For a more ample reflection, see Dwyer 2008, p. 94.

  182. 182.

    On the role of the judge to conduct legal characterisation in scientific domains, see Binet 2002, pp. 23 & 233.

  183. 183.

    Flückiger 2003, p. 108.

  184. 184.

    Dwyer 2008, p. 94; for example of such legal abstract facts, for which only the judge can decide whether these are fulfilled in the particular matter, see Groner 2011, p. 10, with case law references: for example, whether an accused has a reduced capacity of understanding, within the legal meaning of this concept, is an issue of law that the judge must decide based on an medical expertise; whether the accused regrets his or her deeds is an issue of fact, but whether the disposition of the accused meets the requirements for the corresponding attenuating factor in criminal law, is an issue of law.

  185. 185.

    Papaux 2012, p. 248/249.

  186. 186.

    [Proving means obtaining approval (author’s translation)], by Lévy-Brühl Henri, quoted in Flückiger 2003, p. 109; Soubelet 1997, p. 380, citing Domat: “On appelle preuve ce qui persuade l’esprit d’une vérité” [One calls “evidence” what convinces the mind of a truth (author’s translation)].

  187. 187.

    See Sect. 4.3.1.1.1 above and Sect. 8.1.1.1 below.

  188. 188.

    See Sect. 3.1.4.2 above on the generalisations underlying the inferences drawn when evaluating evidence.

  189. 189.

    Laukkanen 2004, p. 129; Kaufmann 2009, p. 157 (example where a fact can only be established through an MRI). Kaufmann further distinguishes the hypothesis where the MRI must be performed, or the MRI data is already existent but must be submitted to an expert for a diagnosis (evaluate the fact).

  190. 190.

    Or—and this restriction is important—those facts of the file provided to the expert, see Sect. 4.3.1.2.3 below.

  191. 191.

    On the most frequent types of topics asking for expert evidence in anti-doping, see Sect. 8.3.3.1.1 below.

  192. 192.

    See Sect. 4.3.1.2 below.

  193. 193.

    Anderson et al. 2005, p. 280.

  194. 194.

    Anderson et al. 2005, p. 283.

  195. 195.

    Bovey 2010, p. 96.

  196. 196.

    Dumoulin 2012, p. 304/305; Champod and Vuille 2011, p. 228.

  197. 197.

    Vuille 2011, p. 60; for Swiss civil proceedings, see Bohnet et al. 2011 (Philippe Schweizer), ad Article 157, n° 19; in Belgium, see Mougenot 2004, p. 104, on the need for motivation of the court that decides to depart from the expert’s opinion; on the fact that in scientific matters the judge will normally not depart from a court-appointed expert’s opinion, unless some factors seriously put in doubt the reliability of the evidence in the particular matter; see also Groner 2011, p. 303.

  198. 198.

    See e.g. for psychiatric expertise, Wiprächtiger 2005, p. 207; Brulhart 2011, p. 38; in fact, certain commentators question whether the evaluation of expert evidence can be objectivised at all or whether it depends largely on “non-espistemological determinants” (see Jasanoff 1995, p. 54).

  199. 199.

    Groner 2011, calls it a general principle in all areas of law in Switzerland for the evaluation of expert evidence that the judge should not depart from the findings of the expert without stringent justification, p. 134; for a critical review of the Swiss Supreme Court criminal case law in this respect, Vuille 2011, p. 100; for Swiss Supreme Court case law on medical expertises in social insurances, see BGE/ATF 125 V 351, para 3b, on the admissibility of setting instructions to guide the judge in the evaluation of the evidence; pleading in favour of the judge’s freedom of evaluation of evidence (including expert evidence) in Swiss civil proceedings, see Bühler 2007, n° 3.

  200. 200.

    For international arbitration, see Schlaepfer and Bärtsch 2010, p. 218, whereby arbitrators do not easily depart from the findings of an expert.

  201. 201.

    For similar concerns, Bühler 2007, n° 3; Vuille 2011, p. 99 et seq.; see also Sect. 3.1.4.1 above.

  202. 202.

    See Sect. 4.1.2 above.

  203. 203.

    Twining 2006, p. 441; for some fundamentals of substance-blind approach to evidence, see Anderson et al. 2005, p. 71 et seq.

  204. 204.

    We adopt here an approach broadly equivalent to the one suggested by Dwyer 2008, pp. 98–109.

  205. 205.

    Dwyer 2008, p. 49.

  206. 206.

    See the definition adopted by the US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun): “any body of known facts or to any body of ideas inferred for such facts or accepted as truth on good grounds”.

  207. 207.

    Twining 2006, p. 101: Reliability can be roughly represented by a continuum of common sense, horse sense, specialist expertise, and scientific knowledge, all of which belong to a shared stock of beliefs.

  208. 208.

    Dwyer 2008, p. 101.

  209. 209.

    Groner 2011, p. 302, whereby already for procedural efficiency reasons rooted in Article 6 of the ECHR, the judge cannot be expected to acquire him- or herself the expert’s knowledge nor assess the value of the expertise in a manner that only an expert could deliver; for tolerable limits in which the judge may defer to the expert’s view, which are often rather subtle, see also Bühler 2007, n° 15.

  210. 210.

    Dwyer 2008, p. 107.

  211. 211.

    See Sect. 4.3.1.2.3 below.

  212. 212.

    Vuille 2014, p. 486: Swiss attorneys thus generally believe that they are capable of forming their own views on a psychiatric expertise, whereas they do not feel entitled to do so for a scientific expertise such as a DNA result.

  213. 213.

    See Vuille 2014, p. 486, for a comparison of the Swiss and US attorneys when faced with scientific evidence. While US attorneys see DNA evidence as the results of an interpretation by an analyst, i.e. a human being that can err or be biased, Swiss attorneys tend to perceive DNA evidence as “absolute”, establishing the “truth” in an undisputable manner; on psychiatric expertise, see Wiprächtiger 2005, p. 208.

  214. 214.

    Vuille et al. 2013, p. 1095.

  215. 215.

    See e.g. Black 1988, p. 603/604 and the quotes; on the necessary scientific education of lawyers and judges, see Haack 2005, p. 70/71; on the situation in the UK with respect to forensic sciences, see UK House of Commons Science and Technology Committee, Seventh Report of Session 2004–05, Forensic Science, p. 78 et seq.

  216. 216.

    Vuille 2011, p. 436/437.

  217. 217.

    Champod and Vuille 2010, p. 104; thus, Vuille 2011, p. 442, similarly refers to the opportunity of judges specialising in the evaluation of scientific evidence.

  218. 218.

    See Vuille 2011, p. 60, cites the question of guilt, as well as the legal characterisation of an act or a damage; if a scientist can estimate the probability related to a DNA profile, only the judge is competent to apply onto this probability the legal characterisation, e.g. a finding of paternity (see Papaux 2012, p. 240); similarly, the Swiss Supreme Court has found that no expertise can be given with respect to the “adequate causality” (causalité adéquate) link, which is an issue of law under Swiss law (Swiss Supreme Court, 4P.72/2002, para 2.1).

  219. 219.

    Rule 704 of the US Federal Rules of Evidence, Notes of Advisory Committee on Proposed Rules. For criminal law matters, the rule has been maintained in some limited hypotheses, such as the mental state or condition of the defendant (see Rule 704(b)).

  220. 220.

    Article S14 of the CAS Code makes the composition of the list of CAS arbitrators depend on qualifications that include “recognized competence with regard to sports law and/or international arbitration [and] a good knowledge of sport in general”.

  221. 221.

    See Sects. 8.1.1.2 and 8.3.3.1 below.

  222. 222.

    Expert opinion on an issue of law is by definition deprived of probative value, since an issue of law cannot be proven.

  223. 223.

    See Sect. 8.3.3.2 below.

  224. 224.

    Wagenaar 1988, p. 500.

  225. 225.

    These concepts are explained extensively in Chap. 10.

  226. 226.

    Or more precisely the relative manner in which the evidence observed influences the degree of belief in either of two hypotheses (Vuille 2011, p. 146).

  227. 227.

    Wagenaar 1988, p. 500.

  228. 228.

    Vuille 2011, p. 191: “toute affirmation portant sur la véracité d’une hypothèse est fallacieuse, car l’expert scientifique examine seulement la probabilité d’observer la trace sous différentes hypothèses” [Any statement directed at the truth of a hypothesis is fallacious, as the scientific expert can only assess the likelihood to observe the trace under various hypotheses (author’s translation)].

  229. 229.

    Wagenaar 1988, p. 501.

  230. 230.

    Vuille 2011, p. 183, points out that one of the most frequent causes of errors in forensic sciences is that the correct question is not identified or the wrong question is answered.

  231. 231.

    Vuille 2011, p. 185/186.

  232. 232.

    For an anecdotal but representative account of how experts can feel pressured to take the judge’s responsibilities on them, see Wagenaar 1988, p. 503.

  233. 233.

    For an overview of various approaches in a comparative perspective, Champod and Vuille 2010, p. 99 et seq.; for some examples, in addition to his own model, Black 1988, p. 642; for DNA evidence, a checklist that attorneys for the defence should consider, Vuille 2014, p. 489.

  234. 234.

    Wiprächtiger 2005, p. 207.

  235. 235.

    Vuille 2011, p. 254 et seq., describes studies showing to what extent heuristic effects can affect the perception and assessment of expert evidence.

  236. 236.

    Champod and Vuille 2010, p. 97.

  237. 237.

    See Sect. 4.3.1.1.3 above.

  238. 238.

    Rigozzi and Quinn 2012, p. 11, point at the importance of formalising what constitutes an expert report before CAS, as a basis for the classification of the author as an expert in the particular field.

  239. 239.

    Vuille 2014, p. 489/490: are there procedures in place for the interpretation of the results, is scientific literature unanimous on the manner with which to carry out these interpretations?; Groner 2011, p. 305 (“Fachliche Standards”); Kaufmann 2009, p. 158.

  240. 240.

    It is often difficult to distinguish generalisations from the inference and conclusions drawn therefrom, especially when the inferences themselves call upon new extrapolations, which may themselves have to be tested for the scientific foundations. See the findings of the US Supreme Court, General Electric Co v. Joinder, 522 US 136, 15 December 1997, Opinion of the Court (Rehnquist), Section III: “But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered”.

  241. 241.

    Vuille 2014, p. 490 (e.g. were the procedures for interpretation applied in a coherent manner?, what measures were taken to minimise the risk of errors and fallacies?).

  242. 242.

    Groner 2011, p. 304.

  243. 243.

    Bovey 2010, p. 111: “le rapport sera convaincant si la conclusion présentée est la résultante logique et dépourvue de toute contradiction des investigations de l’expert” [the report will be convincing if the conclusion presented is the logical consequence, free of contradictions, of the expert’s investigations (author’s translation)]; Kaufmann 2009, p. 158.

  244. 244.

    Champod and Vuille 2010, p. 97.

  245. 245.

    Wiprächtiger 2005, p. 209: “Transparenz, Nachvollziehbarkeit und Begründungspflicht” [transparency, reproducibility and duty to substantiate (author’s translation)], who notes that the first two principles already derive from the duties inherent to empirical sciences.

  246. 246.

    These requirements could be inspired from scientific expertise applied in forensics. See e.g. Champod and Vuille 2011, p. 230, footnote 9.

  247. 247.

    See Sect. 8.3.3.1.4 below.

  248. 248.

    Section 57 of the UK Justice Council “Guidance for the instruction of experts in civil claims”, December 2014: “Experts must distinguish clearly between those facts that they know to be true and those facts which they assume”; Bühler 2007, n° 7; for criminal law expertises, Donatsch 2007, n° 45.

  249. 249.

    Section 56 of the UK Justice Council “Guidance for the instruction of experts in civil claims”, December 2014: “Where tests of a scientific or technical nature have been carried out, experts should state: (a) the methodology used; and (b) by whom the tests were undertaken and under whose supervision, summarising their respective qualifications and experience”.

  250. 250.

    Section 13 of the UK Justice Council “Guidance for the instruction of experts in civil claims”, December 2014: “Their reports should set out those facts and any literature or material on which they have relied in forming their opinions”; Wiprächtiger 2005, p. 209, notes that literature must be included at least when an issue is scientifically debated, and that the court should deal with the literature submitted.

  251. 251.

    Bühler 2007, n° 9; Donatsch 2007, n° 45.

  252. 252.

    On the danger that this fundamental mission of the judge be neglected in systems of tribunal-appointed experts, in which the expert appointed by the judge is not subjected to an admissibility test and benefits from a superior credibility, see Champod and Vuille 2010, p. 104.

  253. 253.

    Bühler 2007, n° 22/23.

  254. 254.

    Bühler 2007, n° 22, whereby this type of “formal motivation” is a breach of due process.

  255. 255.

    In general, see Dwyer 2008, p. 178; for Swiss law, Bovey 2010, p. 110.

  256. 256.

    See Sect. 8.3.3.1 below.

  257. 257.

    Champod and Vuille 2010, p. 99 (“validité” et “fiabilité”); cpre for example US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun), footnote 9 with Black 1988, p. 599, who defends a slightly different notion of these concepts. In the context of anti-doping, commentators tend to use either the concept of “reliability” or “validity” (see McLaren 2007, uses both at p. 24), or the ISL concept of “Fit-for-purpose” with respect to analytical methods (see e.g. Lewis and Taylor 2014, C2.75/C2.76). CAS practice is equally diverse: see e.g. CAS 2002/A/370, Latuzina v. IOC, para 61, whereby the method was “scientifically sound” and produces “reliable” results.

  258. 258.

    This is true even if the specialised knowledge necessary for this assessment will usually lie with the scientist, Labrusse-Riou 2012, p. 82.

  259. 259.

    On the fact-finding process as inferential reasoning, see Sect. 3.1.4.2 above.

  260. 260.

    See Sect. 3.2.2 above for the limitations to anti-doping regulations with a focus on Swiss law.

  261. 261.

    Black 1988, p. 605.

  262. 262.

    Champod and Vuille 2010, p. 99, consider that the validity of method refer to its capacity of producing accurate results (i.e. results that are close to the “true” value). The term of “validation” of an analytical method has a yet more specialised meaning within the WADC regime, and describes broadly speaking all steps necessary for a laboratory to make sure that a method is Fit-for-purpose under the ISL (which includes the reliability of the method).

  263. 263.

    US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun), footnote 9; .

  264. 264.

    Black 1988, p. 599; Champod and Vuille 2010, p. 99, consider that a reliable method (“technique fiable”) must offer an appropriate degree of precision and accuracy.

  265. 265.

    The term of “evidentiary reliability” has an established meaning and role before US courts as one of the criteria for the gatekeeping functions of the judge to prevent evidence from being presented to the jury, but is given an extensive interpretation, acting more as a general marker of trustworthiness, and thus on the general scientific validity of the evidence (which, in turn might also include aspects related to the scientific reliability of the methods used, US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun), footnotes 9 & 12). Since such separate test is inexistent in CAS arbitration, where the assessment of the reliability of the evidence is integral part of its evaluation, the concept would be of little practical use.

  266. 266.

    US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun), footnotes 9 & 12.

  267. 267.

    A term coined by Dwyer 2008.

  268. 268.

    In its case law regarding social invalidity insurance, the Swiss Supreme Court appears to adopt the “general acceptance” criterion as the primary factor to assess the probative value of a scientific method, see BGE/ATF 134 V 231, para 5.1: “Die Frage des Beweiswertes stellt sich auch bei den anzuwendenden medizinisch-diagnostischen Methoden. Diese müssen wissenschaftlich anerkannt sein, damit der mit ihnen erhobene Befund eine zuverlässige Beurteilungsgrundlage zu bieten vermag. Als wissenschaftlich anerkannt gilt eine Untersuchungsart, wenn sie von Forschern und Praktikern der medizinischen Wissenschaft auf breiter Basis anerkannt ist” [The issue of the probative value arises also with respect to the applicable medical-diagnostic methods. Those methods must be scientifically accepted, if the finding arising from them is to constitute a reliable basis of evaluation. A method of investigation is regarded as scientifically accepted, if it is recognised on a large scale by researchers and practitioners of medical sciences (author’s translation)].

  269. 269.

    Champod and Vuille 2010, p. 101, footnote 150, mention an US study that revealed that judges have a much better understanding of the “social” criteria from Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, than they have of the “veristic” ones.

  270. 270.

    Berger 2005, p. 61.

  271. 271.

    See the references to Black/Ayala/Saffran-Bricks, cited by Champod and Vuille 2010, p. 98.

  272. 272.

    Champod and Vuille 2010, p. 104.

  273. 273.

    See Sect. 4.3.1.2.4 below.

  274. 274.

    See the findings of the US Supreme Court, General Electric Co v. Joinder, 522 US 136, 15 December 1997, Opinion of the Court (Rehnquist), Section III : “But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert”.

  275. 275.

    US Supreme Court Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun).

  276. 276.

    McGarity and Wagner 2008, p. 54.

  277. 277.

    Champod and Vuille 2010, p. 99, stress that the criterion relies on the idea that the community is a neutral group with no other ambition than the search for truth, and point out at the risk involved in inquiring for the opinion of the very community that has an interest in the admissibility of the method.

  278. 278.

    US Supreme Court Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun): “submission to the scrutiny of the scientific community is a component of ‘good science’, in part because it increases the likelihood that substantive flaws in methodology will be detected”.

  279. 279.

    McGarity and Wagner 2008, p. 46.

  280. 280.

    Berger 2005, p. 61.

  281. 281.

    See for more details, McGarity and Wagner 2008, specifically p. 46 et seq., and 142.

  282. 282.

    Champod and Vuille 2010, p. 103.

  283. 283.

    In US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun), footnote 11, the court noted that “theories that are so firmly established as to have attained the status of a scientific law, such as the law of thermodynamics, properly are subject to judicial notice”; on the concept of judicial notice, see Sect. 3.1.2.1.3 above.

  284. 284.

    See, for a description of the “ideal” process of scientific research and its screening by the scientific community for compliance with good research practices, McGarity and Wagner 2008, p. 3.

  285. 285.

    See Sect. 8.3.3.1.3 below.

  286. 286.

    See Sect. 4.3.1.1.3 above.

  287. 287.

    Dwyer 2008, p. 139/140.

  288. 288.

    Disagreements on the application of generalisation to the facts can have several origins: (i) disagreement in interpretation is accepted in the relevant discipline, (ii) the question asked to the expert relevant to the legal context is not normally relevant in his discipline, require types of reasoning or assessment that experts have no experience carrying out in their field (e.g. legal causation, or having to draw inferences from the general to the particular when the discipline is versed in producing generalisations from a mass of specific data) (see Dwyer 2008, p. 146/147).

  289. 289.

    These may include interpreter effect, observer effect, fallacy of verification (see Dwyer 2008, p. 173 et seq.); biases (conscious or unconscious) have been observed even in contexts in which experts operate for public authorities, such as in criminal proceedings (see Vuille 2014, p. 488/489, mentions in this context the risk of contextual bias and fallacy of verification).

  290. 290.

    Dwyer 2008, p. 173.

  291. 291.

    Dwyer 2008, p. 174.

  292. 292.

    On the dangers of preconceived opinions and result-oriented research, with or without intervention by policy-makers, see McGarity and Wagner 2008, p. 8 et seq.

  293. 293.

    See, for similar distinctions for experts from a Swiss law perspective, Brulhart 2011, p. 40/41.

  294. 294.

    Haack 2005, p. 71.

  295. 295.

    For CAS arbitration, see Sects. 8.3.1 and 8.4 below.

  296. 296.

    See e.g. the analysis by Dwyer 2008.

  297. 297.

    US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579, 28 June 1993, Opinion of the Court (Blackmun), acknowledging this argument, but considering that it was an inevitable consequence of the nature of the judicial process: “designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes”.

  298. 298.

    Jasanoff 1995, p. 134, for the example of the rejection of “clinical ecology” before US courts: Courts “adopt and refract back into society the scientific community’s perceptions of its own cognitive and social credibility”.

  299. 299.

    Jasanoff 1995, p. 209.

  300. 300.

    Papaux 2012, p. 238; Leclerc 2007, p. 2.

  301. 301.

    Jasanoff 1995, p. 137.

  302. 302.

    Jasanoff 1995, p. 45.

  303. 303.

    Jasanoff 1995, p. 50.

  304. 304.

    With respect to expert evidence in CAS arbitration, see Sect. 8.3 below.

  305. 305.

    For an analysis on the manner in which legal interests shape science, sometimes in a delusive and illegitimate manner, with a focus on US public health law, see McGarity and Wagner 2008.

  306. 306.

    See Chap. 11 below.

  307. 307.

    Jasanoff 1995, p. 50.

  308. 308.

    See Sect. 6.2.3.4 below.

  309. 309.

    Pestre 2012, p. 36.

  310. 310.

    Dwyer 2008, p. 146.

  311. 311.

    See Sect. 3.2.2 above.

  312. 312.

    See Sect. 3.2.3.2 above.

  313. 313.

    For more details, see Sect. 3.2.3 above.

  314. 314.

    For this reasoning applied to the principe de précaution, see Flückiger 2003, p. 114.

  315. 315.

    Flückiger 2003, p. 114, for the requirement of a basis in law. Transposed to consensual anti-doping regulations, this requirement is guaranteed through informed consent and sufficient predictability for Athletes.

  316. 316.

    Flückiger 2003, p. 115, makes this feature a separate, additional, requirement in the context of the principe de précaution.

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    Marjolaine Viret

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Viret, M. (2016). Scientific Constraints on Evidence in Anti-Doping. In: Evidence in Anti-Doping at the Intersection of Science & Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-084-8_4

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