Organic Law 2/2021: Doping in Sport and Reform

Doping in sport operates on two levels that should not be confused: the level of the administrative sporting sanction, which reaches the athlete who breaches the anti-doping rules, and the level of criminal law, which is reserved for those who endanger athletes' health by supplying them with prohibited substances or methods. Organic Law 2/2021, of March 24, on measures to prevent and combat doping in sport (BOE-A-2021-4712) strengthened precisely that second, criminal level, taking the art. 362 quinquies CP as its reference. As criminal defence lawyers, we explain what the reform changed, its practical scope, what it means today for someone under investigation, an accused person or a victim, and the main lines of defence.

What the reform changed and why

Organic Law 2/2021 was created with a clear aim: to strengthen the prevention of and fight against doping and, in what concerns us here, to give greater firmness to the criminal response to the most serious conduct in this field. The point was not to criminalise the athlete who tests positive —whose liability is, as a general rule, channelled through the administrative route— but to reinforce the reproach against those who operate in the athlete's environment: those who dispense, supply, administer or provide prohibited substances or methods.

The reform responded to an underlying concern: doping not only distorts competition, it compromises the health of those who engage in it, often pressured by their sporting environment. That is why the legislator wished to refine the criminal response and reinforce the gravity of conduct affecting the most vulnerable groups, in particular minors and persons with a disability. You can place this amendment alongside the others on our criminal law reforms page.

Art. 362 quinquies CP and its practical scope

The reference provision is art. 362 quinquies CP, located among the offences against public health. Its logic is decisive for understanding the reform: the legal interest protected is not the cleanliness or purity of competition —which is safeguarded through the administrative and disciplinary route— but the athlete's health.

The offence essentially punishes anyone who, without therapeutic justification, dispenses, supplies, administers or provides athletes with prohibited substances or methods intended to increase their physical capacities or to alter the result of a competition, where they endanger their health. The practical scope is clear:

• The conduct that completes the offence is supplying or providing, not consuming for oneself.
• The requirement of danger to the athlete's health is essential: without that capacity to cause harm, the offence falls away.
• The absence of therapeutic justification is part of the core of the offence: administration with a legitimate medical purpose lies outside it.

Anyone wishing to place the provision within the overall body of articles can consult the Penal Code.

Who it falls on: the environment, not the athlete

This is the point most frequently misunderstood. The criminal reproach falls on those who supply or provide the substances —the athlete's environment— and not on the athlete who dopes himself. The typical subjects tend to be:

• Doctors and healthcare staff who prescribe or administer outside a legitimate indication.
• Coaches and physical trainers who recommend, provide or facilitate the substances.
• Officials and managers of clubs or federations who organise or shelter the supply.
• Distributors who channel the substances into the sporting sphere.

The athlete who merely consumes for himself remains, as a general rule, outside the offence: his liability is channelled through the administrative route of the anti-doping rules. He would only be criminally liable if he, in turn, supplied or provided substances to other athletes, thereby joining the side of the environment that the provision punishes.

Special gravity: minors and persons with a disability

One of the cornerstones of the strengthened criminal response is the special gravity where the conduct affects vulnerable groups. Supplying or providing prohibited substances or methods that are dangerous to health deserves a more intense reproach where the recipient is:

• A minor, which is especially relevant in grassroots sport and youth categories, where the pressure of the environment and the athlete's dependence on his technical staff are greater.
• A person with a disability, given their situation of greater vulnerability towards someone who has influence over them.

The rationale is consistent with the protected legal interest: where the danger to health falls on someone with less ability to decide freely or to protect themselves, the conduct is more serious. That is why the status of the recipient is an element the prosecution will seek to establish and one the defence must examine in detail.

Crime versus administrative sporting infringement

The distinction between the two regimes is probably the most important question in this whole area. Doping operates on a dual, autonomous level:

• The administrative sporting infringement, provided for in the anti-doping rules, which as a general rule reaches the athlete who breaches those rules or tests positive, with consequences such as suspension of the licence. This route does not require proof of danger to health: a breach of the sporting rule is enough.
• The crime under art. 362 quinquies CP, which falls on those who supply or provide the substances and requires danger to the athlete's health.

The two regimes are independent and can coexist over a single episode, falling on different subjects: the sporting sanction on the athlete who tested positive and the criminal proceedings on the person who supplied him. Correctly placing the client in one level or the other is the first step of the strategy, because conduct that is a sporting infringement is not, without more, a crime.

What it means today for an investigated person, accused or victim

For someone under investigation or accused —typically a physician, a trainer or an official— the reform means a firmer criminal response, but the offence retains demanding elements that delimit its application. The defence must work from the outset on whether the supply, the absence of therapeutic justification and the danger to health truly concurred.

For a potential victim —the athlete who was supplied with dangerous substances, especially if a minor or a person with a disability— the reform reinforces the protection of their health. It is worth understanding that the harmed athlete can be a victim of the crime without that, in itself, entailing his own criminal liability for mere consumption, without prejudice to any administrative liability.

In both cases, coordination between the criminal and the disciplinary-sporting strategy is key, because decisions on one level have repercussions on the other.

Lines of defence

A technical defence against a charge linked to art. 362 quinquies CP is built around several lines:

• Distinguishing crime from administrative infringement: placing the client's conduct on the level that corresponds to it. The existence of a sporting infringement does not mean that the offence is made out.
• Disputing the danger to health: with expert support, analysing whether the substance or method, by its content, dose or form of administration, was truly capable of endangering the athlete's health. Without that danger, the conduct lies outside the offence.
• Therapeutic justification: proving that the prescription or administration responded to a legitimate medical purpose, within indication, neutralises an essential element of the offence, which requires the absence of therapeutic justification.
• The question of authorship: drawing a precise line between who prescribed, who supplied and who merely consumed, avoiding generic attributions of liability.
• Toxicological and pharmacological expert evidence: the analysis of the substance, the route of administration, the foreseeable effects on health and the chain of custody of the samples is often decisive.
• Challenging the aggravation: where special gravity is invoked because the victim is a minor or a person with a disability, rigorously examining whether that status concurred and the defendant's knowledge of it.

To all of this are added the general safeguards of the criminal process: the presumption of innocence, the rigorous assessment of the evidence and the strict interpretation of an offence which, by its location among the offences against public health, requires proof of the danger and not the mere breach of the sporting rule.