Doping and Crime Against Public Health in Sports

Sports doping has in Spain a dual regime: (1) administrative sanction through Law 11/2021 and AEPSAD (Spanish Agency for Protection of Health in Sport), applicable to the athlete testing positive or breaching anti-doping regulation; (2) criminal offense of Art. 362 quinquies CP, applicable to those who supply, prescribe, facilitate or administer doping substances to athletes, endangering their health. The distinction is fundamental: the consumer athlete does not commit a crime for testing positive; those who supply them do.

Criminal Type of Art. 362 quinquies CP

Art. 362 quinquies CP punishes those who, without therapeutic justification, prescribe, provide, dispense, supply, administer, offer or facilitate to athletes —registered or not, competitors or not— prohibited substances or methods capable of endangering their life or health, with the aim of increasing their physical capacities or of modifying the result of a competition. The penalty is imprisonment of 6 months to 2 years, a fine and special disqualification for public employment or office, profession or sporting activity of 2 to 5 years. The protected legal interest is not the purity of the competition, but the health of the athlete; this is why the offense turns on the suitability of the substance and its form of administration to generate a danger.

Subjects: Physicians, Coaches, Personnel and Athletes

The criminal type points to: sports physicians prescribing outside legitimate indication, coaches and trainers recommending or facilitating, healthcare personnel administering without protocol, managers organizing systematic doping in clubs or federations, and traffickers distributing to the sports field. Multiple imputation is frequent, with criminal organization qualification when structure exists. The athlete who merely consumes remains, as a general rule, outside the criminal type and responds through the administrative route, unless they in turn facilitate or supply to others.

Difference Between Crime and Administrative Sanction

Two autonomous responses coexist. The administrative sanction of Law 11/2021, imposed by AEPSAD, pursues the breach of anti-doping rules (testing positive, evading a control, tampering with samples) and may reach a sporting suspension of 2 to 4 years for the first infraction, up to lifetime disqualification. The offense of Art. 362 quinquies CP punishes the supply or facilitation with danger to health. As they protect different legal interests —the integrity of the competition versus health— both responses may be accumulated without violating the non bis in idem principle. The defense must therefore be dual and coordinated: what is argued before the prosecution and what is argued before AEPSAD must be compatible with each other.

Toxicological and Pharmacological Expert Evidence

Defense of the imputed is largely fought on expert terrain: analysis of the specific substance, verifiable administration route, dose, foreseeable effects on athlete's health. The chain of custody of samples is critical: irregularities in the collection, transport or analysis may determine the exclusion of the evidence and the dismissal. An independent pharmacological expert report, commissioned from an expert with judicial experience, allows discussion of whether the substance and its dose were really apt to generate the danger to health that the type requires, or whether the prescription responded to a legitimate therapeutic indication.

Defense of the Contaminated Athlete

Not every positive is the fruit of deliberate doping. The contamination of mislabeled food supplements, accidental consumption, sabotage or laboratory error are real situations that the defense can establish. In the administrative route, the anti-doping regime contemplates the absence or reduction of liability when the athlete proves there was no fault or negligence (the standards known as no fault or no significant fault), for example by documentarily demonstrating the origin of the contamination. The aim is to clearly separate the athlete who has been the victim of a contamination from the one who has engaged in reprehensible conduct, and to carry that distinction into both the administrative file and, where appropriate, the criminal one.