The Sports Doping Offence (Article 362 quinquies of the Criminal Code)

Not all doping is a crime, nor does an athlete who tests positive automatically face criminal proceedings. The Spanish Criminal Code reserves the criminal reproach for those who supply or facilitate prohibited substances or methods that are dangerous to the athlete's health. Article 362 quinquies of the Spanish Criminal Code (CP) punishes this conduct with penalties of imprisonment of six months to two years, a fine and special disqualification. As criminal lawyers specialising in sports criminal law, we explain what the provision punishes, on whom it falls, how it differs from the administrative sanction and how the defence is built.

What Art. 362 quinquies CP Punishes

Art. 362 quinquies CP punishes those who, without therapeutic justification, prescribe, provide, dispense, supply, administer, offer or facilitate to athletes —non-competitive registered athletes, unregistered athletes practising sport for leisure, or those taking part in competitions organised in Spain by sporting bodies— prohibited substances or pharmacological groups, as well as non-regulatory methods, intended to increase their physical capacities or to alter the results of competitions, where they endanger their life or health. The penalty is imprisonment of six months to two years, a fine of six to eighteen months and special disqualification for public employment or office, profession or occupation of two to five years.

The provision belongs to the offences against public health, and that classification is decisive: the protected legal interest is not the fairness or purity of the competition —which is safeguarded through the administrative and disciplinary route— but the health of the athlete. This is why the offence turns on the suitability of the substance and its form of administration to generate a danger.

The Elements of the Offence

The conduct requires the presence of several elements that delimit an offence of strict application:

• An act of supply or facilitation: to prescribe, provide, dispense, supply, administer, offer or facilitate. The operative verb covers both the physical handover and the prescription or the offer.
• Prohibited substances or methods: prohibited substances or pharmacological groups, or non-regulatory methods, in accordance with the lists of the anti-doping rules.
• Absence of therapeutic justification: the conduct must be carried out without a legitimate medical purpose covering it.
• Performance aim: the substances or methods must be intended to increase the athlete's physical capacities or to alter the result of the competition.
• Danger to life or health: a decisive requirement. The substance or method must, by its content, by the repetition of its intake or by other circumstances, endanger the life or health of the athlete. Without that danger, the offence falls away.

It is an intentional offence: the offender must know that he is supplying a prohibited substance capable of endangering the athlete's health and must wish to do so. A mistake as to the nature of the substance or as to its dangerousness may exclude or mitigate liability.

On Whom It Falls: the Environment, not the Athlete

This is the point most often misunderstood. The offence under art. 362 quinquies CP falls on whoever supplies or facilitates the substances, that is, on the athlete's environment, and not on the athlete who dopes himself. The typical offenders are:

• Physicians and healthcare staff who prescribe or administer outside legitimate indication.
• Coaches and physical trainers who recommend, provide or facilitate the substances.
• Managers and officials of clubs or federations who organise or shield the supply.
• Distributors and traffickers who channel the substances into the sporting field.

The athlete who merely consumes the substance 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 facilitated substances to other athletes, in which case he would join the side of the environment that the provision punishes.

Criminal Offence versus Administrative Sanction

Doping in Spain operates under a dual regime that should not be confused:

• The administrative sanction, provided for in the anti-doping rules (Law 11/2021 and the action of the Spanish Agency for the Protection of Health in Sport, AEPSAD). This is the route that, as a general matter, reaches the athlete who tests positive or breaches the anti-doping regulations, with consequences such as suspension of the licence. It does not require proof of danger to health: the breach of the sporting rule is enough.
• The criminal offence under art. 362 quinquies CP, which reaches whoever supplies or facilitates the substances and requires danger to the athlete's health.

Both regimes are autonomous and may coexist over the same episode, falling on different persons: the sporting sanction on the athlete who tested positive and the criminal proceedings on whoever supplied him. Understanding on which of the two planes the client stands is the first step of the defence strategy.

Aggravating Circumstances

The penalties are imposed in their upper half where one of the following circumstances is present:

• That the victim is a minor, which is particularly relevant in grassroots sport and in youth and development categories.
• That deception or intimidation has been used to make the athlete consume the substance or submit to the method.
• That the offender has abused a relationship of labour or professional superiority over the athlete, a frequent scenario where the person supplying is the physician, the coach or a manager with ascendancy over him.

Lines of Defence

1. Therapeutic justification: showing that the prescription or administration responded to a legitimate medical purpose, within indication and in accordance with the lex artis, or that there was a therapeutic use exemption, neutralises an essential element of the offence, which requires the absence of therapeutic justification.
2. Absence of danger to health: contesting, with expert support, that the substance or method, by its content, dose or form of administration, was not capable of endangering the athlete's life or health. Without that danger, the conduct falls outside the offence.
3. Question of authorship: distinguishing who prescribed, who supplied and who merely consumed. The athlete's defence often consists in placing his conduct on the administrative plane rather than the criminal one.
4. Toxicological and pharmacological expert evidence: the analysis of the substance, of the route of administration, of the foreseeable effects on health and of the chain of custody of the samples is often decisive.
5. Absence of intent: a mistake as to the prohibited nature of the substance or as to its dangerousness may exclude or mitigate criminal liability.

In this area, the settled case law of the Supreme Court stresses that the offence is tied to the danger to health and not to the mere sporting breach, which leaves a technical margin for defence that should be worked on from the outset of the proceedings, in coordination with the client's disciplinary and sporting strategy.