Distinction Between Criminal Liability and Disciplinary Liability in Doping Cases

1. Introduction

One of the biggest ethical crises in sports is the use of doping, which disrupts fair competition.
Doping is not only a sporting offense but also a legal violation in terms of public health and the principle of fair competition.
Therefore, both disciplinary investigations (by the Turkish Football Federation, federations, and WADA) and criminal proceedings (under the Turkish Penal Code and Law No. 6222) come into play.

However, this situation calls into question the principle of " no double jeopardy (ne bis in idem) ": Can an athlete receive both a penalty and disciplinary action for the same offense?

This article examines in detail the legal nature of doping , the limits of criminal and disciplinary responsibility , and the line between the Court of Cassation and the Court of Arbitration for Sport (CAS)

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2. Legal Framework: Law No. 6222 and the Turkish Penal Code

2.1. Law No. 6222, Article 11/A – Doping Offence

Article 11/A of Law No. 6222 regulates the doping offense as follows:

"Anyone who knowingly provides, administers, or facilitates the use of prohibited substances or methods to athletes shall be sentenced to imprisonment for a period of two to five years."

The second paragraph of the article states that the penalty will be increased if these acts a doctor, pharmacist, coach, manager, or sports club official .

With this regulation, doping is now recognized as a separate type of crime in Turkish law

2.2. Relationship with the Turkish Penal Code

Doping offenses can also intersect with the following types of crimes:

• Turkish Penal Code Article 187: Supplying substances dangerous to health,

• Turkish Penal Code Article 194: Facilitating the use of narcotic substances,

• Turkish Penal Code Article 86: Intentional injury (harm to bodily integrity).

Therefore, in practice, courts consider "whether the act is directly related to sporting activity" when determining the nature of the crime.

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3. Disciplinary Law Aspect: WADA Code and TFF Regulations

3.1. WADA World Anti-Doping Code (2021)

The WADA Code links doping violations not only to the use of substances but also to acts such as negligence, aiding, concealment, and failure to report . According to the Code, the mere presence of a prohibited substance in the body, "without fault on the part of the athlete," constitutes a violation.

3.2. Application in Türkiye

Turkey incorporated the WADA Code into its domestic law through TÜRKADA (Turkish Anti-Doping Commission) . According to the TFF Anti-Doping Regulations:

• The presence of a banned substance in the athlete's sample,

• Failure to participate in the test or concealment of results,

• Possession of doping equipment
  is considered a disciplinary offense and a ban of 2–4 years .

While the disciplinary process is based on the principle of "responsibility," the penal process on the principle of intent .

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4. Elements of Criminal Liability

4.1. Fail

The perpetrator is not only the athlete;
the perpetrator can also be a doctor, physiotherapist, manager, coach, or club executive.

In the decision of the 19th Criminal Chamber of the Court of Cassation, numbered 2022/317 E., 2023/1049 K .:

"The club doctor who systematically injected a professional athlete with banned substances has been found to have directly committed a doping offense."

4.2. Verb

The crime knowingly giving, allowing the use of, or facilitating the use of a prohibited substance .
If the use remains at the attempt stage, Article 35 of the Turkish Penal Code apply.

4.3. Spiritual Element

According to Article 11/A of Law No. 6222, only direct intent is required.
The perpetrator must know that the substance is a doping agent and will be used in sporting activities.
Negligent acts are not punishable.

4.4. The Victim and the Protected Legal Value

Protected legal value:

• Fair play in sports,

• Public health,

• Economic security of sport.

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5. The "Double Sanction" Problem in Doping

5.1. The Principle of Ne Bis in Idem

In accordance with Article 38/5 of the Constitution and Article 4 of Protocol No. 7 to the ECHR:

"No one shall be tried or punished twice for the same offense."

However, in doping cases, there are usually two separate processes involved:

1. Disciplinary process (sports federation or TÜRKADA),

2. Criminal case (judicial proceedings).

5.2. Different Protected Values

These two types of sanctions belong to different legal domains:

Therefore, of ne bis in idem occurs.
Supreme Court 19th Criminal Chamber, Case No. 2020/315 E., Decision No. 2021/1685 K.:

"A ban imposed by the federation due to doping does not preclude a criminal penalty; it is evaluated under different legal systems."

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6. Standards of Evidence: Criminal Justice vs. Discipline

6.1. The Principle of "Responsibility" in Disciplinary Law

The WADA system operates on the principle of "strict liability . " This means that an athlete is responsible for the presence of a prohibited substance in their body, even if it was unintentional. This principle reflects a model of liability independent of fault

6.2. The Principle of "Proof" in Criminal Law

In criminal justice, the principle of "the benefit of the doubt goes to the accused" applies.
Therefore, the method of obtaining the doping substance and the perpetrator's knowledge and intent must be concretely proven.

Supreme Court of Appeals, 7th Criminal Chamber, Case No. 2021/1047 E., Decision No. 2021/2948 K.:

"Since it is understood that the athlete was not informed about the doping nature of the substance in the supplement product he/she used, the element of intent is absent."

This difference clearly explains why the two processes are considered separately.

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7. CAS and International Case Law

7.1. CAS 2006/A/1025 (Puerta Judgment)

The Court of Arbitration for Sport (CAS) reduced the sentence from eight years to two years, taking into account that the athlete was unaware that the medication contained a banned substance.
The decision emphasized the principle that "if the athlete's fault is minimal, the punishment should be proportionate."

7.2. CAS 2011/A/2384 (Contador Decision)

In cyclist Alberto Contador's defense, the claim that he obtained clenbuterol by eating meat was rejected; the CAS, of objective liability , imposed a two-year ban.

7.3. CAS 2019/A/6321 (Sun Yang Decision)

The athlete's act of destroying laboratory samples was deemed a "disciplinary breach"; criminal proceedings were also initiated for the same action. The CAS found no violation in the double process, citing a "difference in protected interests.".

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8. Current Issues in Turkish Implementation

8.1. Distinction Between Medical Treatment and Doping

Some athletes unknowingly use medications prescribed for medical treatment that contain doping substances.
Under the TÜRKADA system, this a Therapeutic Use Exemption (TUE) .
However, in criminal proceedings, the absence of a TUE document creates a presumption of intent.

8.2. Sample Chain Problems

Violations in the sample collection procedure invalidate the evidence.
According to Article 217 of the Turkish Code of Criminal Procedure, "evidence obtained unlawfully cannot be used as the basis for a judgment."
(CAS) also adopts this principle.

8.3. Press and Reputation Crimes

If a doping suspicion is published but no final decision has yet been made, the athlete violation of personal rights (Turkish Code of Obligations, Article 58; Turkish Civil Code, Article 24).

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9. Suggestions Regarding the Relationship Between Punishment and Discipline

1. Harmonizing Timelines:
   Criminal proceedings should not be initiated before the disciplinary process is completed; otherwise, conflicting decisions will arise.

2. Evidence Sharing Mechanism:
   A formal data sharing protocol should be established between TÜRKADA, the prosecutor's office, and the Turkish Football Federation (TFF).

3. Mandatory Expert Witness Testimony in Trials:
   Courts must obtain reports from experts specializing in doping chemistry.

4. Application of Effective Repentance:
   A person who reveals the crime or exposes other perpetrators should be granted a reduction in sentence (example: adaptation of Article 11/7 of Law No. 6222).

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10. Conclusion

Doping offenses are among the most serious violations that undermine the ethical foundations of sport. However, the legal system evaluates these offenses from two distinct perspectives :

• Disciplinary law protects sports.

• Criminal law protects society.

Therefore, both a ban and imprisonment can be applied for the same offense; this the prohibition against double jeopardy .

The Supreme Court and CAS base their approach on the principle of "difference in protected interests."
This ensures the integrity of sports while also guaranteeing criminal justice.

In conclusion, legal certainty, fair trial , and proportionality principles must be considered together in the fight against doping.
A balanced approach to criminal and disciplinary proceedings will protect the reputation of both sport and the law.