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' life or health by supplying them with prohibited substances or methods. The offence is art. 362 quinquies CP and its wording in force comes from Organic Law 1/2015, of 30 March. As criminal defence lawyers, we explain exactly what that provision punishes, who it falls on, how it is distinguished from the sporting infringement, and the main lines of defence.

Which statute governs criminal doping: a necessary clarification

A reference to a supposed "Organic Law 2/2021, of 24 March, on measures to prevent and combat doping in sport" circulates frequently. That statute does not exist: it is not published in the Official State Gazette, and the European Legislation Identifier for an organic law of that date and number returns no document at all. We say so at the outset because the citation is repeated and misleads anyone trying to check the applicable regime.

What does exist is Organic Law 11/2021, of 28 December, on combating doping in sport, which is the anti-doping statute in force. Its content, however, is administrative and sporting: it repealed Organic Law 3/2013 and amended Law 10/1990 on Sport. It did not amend the Criminal Code, so none of the penalties explained here comes from it.

The sports doping offence has a different lineage. It was born as art. 361 bis CP under Organic Law 7/2006, of 21 November, on the protection of health and the fight against doping in sport. Organic Law 1/2015 repealed that art. 361 bis and moved the offence to art. 362 quinquies CP, with effect from 1 July 2015: that is the wording in force and it has not been amended since. Today's art. 361 bis CP governs an entirely different matter —the online distribution of content promoting eating disorders among minors and persons with a disability— and comes from Organic Law 8/2021. You can place these statutes in context on our criminal law reforms page.

What art. 362 quinquies CP punishes, and with what penalties

The provision sits among the offences against public health. That location is decisive: 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 life and health.

The offence punishes anyone who, without therapeutic justification, prescribes, provides, dispenses, supplies, administers, offers or facilitates prohibited substances or pharmacological groups, as well as non-regulation methods, intended to increase the athlete's physical capacities or to alter the result of competitions, where by their content, the repeated intake or other concurrent circumstances they endanger the athlete's life or health.

The provision contemplates three categories of recipient: non-competitive federated athletes, non-federated athletes who practise sport recreationally, and athletes taking part in competitions organised in Spain by sporting bodies. Establishing which of those categories the athlete in the case falls into —or does not— is an elementary check worth making at the outset.

The penalty for the basic offence is six months to two years' imprisonment, a fine of six to eighteen months and special disqualification from public employment or office, profession or trade for two to five years. For a physician or a sports technician, the disqualification is often the most burdensome consequence of all.

The elements the prosecution must establish are therefore three:

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

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.

The three aggravating circumstances of section 2

Section 2 of art. 362 quinquies CP imposes the penalties in their upper half where one of these circumstances concurs, and only these:

• That the victim is a minor. This is the most relevant one in grassroots sport and youth categories, where the pressure of the environment and dependence on the technical staff are greater.
• That deception or intimidation was used, that is, that the athlete did not know what was being administered or agreed under threat.
• That the offender took advantage of a position of employment or professional superiority, a common situation in the relationship between a club or coaching staff and a contracted athlete.

One point is often cited wrongly and is worth stating precisely: art. 362 quinquies CP contains no specific aggravating circumstance based on disability. The victim's particular vulnerability may weigh in the individualisation of the sentence, or fit —depending on the case— within deception or abuse of superiority, but it is not a free-standing circumstance of this provision.

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 life or 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 for an investigated person, defendant or victim

For someone under investigation or charged —typically a physician, a trainer or an official— 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 life or health truly concurred.

For a potential victim —the athlete who was supplied with dangerous substances, especially a minor— the provision protects their health against whoever put it at risk. 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 life or health: with expert support, analysing whether the substance or method, by its content, the repeated intake or the form of administration, was truly capable of endangering the athlete. 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 precisely its absence.
• The recipient's status: checking whether the athlete falls within one of the three categories the provision contemplates, because the offence does not apply indiscriminately.
• 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 the upper half is invoked, rigorously examining whether the victim's minority, the deception or intimidation, or the abuse of employment or professional superiority truly 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.