Some have gone so far as to claim that sportspeople are ordinary individuals who are born and trained to be elite. These writers acknowledge that figure and other corporeal structural traits favor performance in specific sports modalities; however, they emphasize that physical training attendance is a significant element that can outweigh any genetic impact (Dias, 2011). Nonetheless, it is unlikely that this hypothesis correlates to the fact because humanistic physical performance is known as a multifactorial Phenotype, meaning that it is influenced by the interaction of different environmental circumstances and depends on hereditary elements (Dias, 2011).

In the third millennium, genetic engineering technologies provided notable contributions to sports' reality. They were involved in supporting the expansion of sports-related domains (Shen & Liang, 2021). In contrast, gene doping indicates the non-curative employment of gene treatment by intact athletes to boost somatic performance in sporting contests. Gene doping could have serious, even deadly consequences, as the knowledge of gene remedy remains in its infancy (Ginevičienė et al., 2022).

Legally speaking, acts of doping and gene doping in sports violate national legislation just as they do with provisions of the World Anti-Doping Code. However, doping acts of taking and giving prohibited substances in their traditional forms leave metabolic and notable traces in the blood and urine of athletes who use them; thus, proving their occurrence is not difficult (AL-Dafrawi et al., 2019). In contrast, nothing enters the bloodstream or is left in the urine with Gene Doping (AL-Dafrawi et al., 2019).

This is particularly the case for the current, imprecise, and uncertain genetic modification screening procedures in place by the World Anti-Doping Agency to establish cases of this type of doping, which often fail to demonstrate it.

In short, if something cannot be materially shown to have occurred, no one may be held ethically or legally responsible for its effects (AL-Dafrawi, 2018).

The general rule of proof in criminal cases is that evidence should be established in crimes by all means of proof, and the judge shall rule according to his emotional conviction (Ahmad, 2012). The principle of presumption of innocence prevails in the context of proof in criminal matters; the principle of doubt is interpreted in the interest of the accused; and the principle of the burden of proving the occurrence of the crime falls on the Public Prosecution (Ahmad, 2012). Notwithstanding, we find that the evidence system in civil matters accepts the idea of ​​defining the means of proof, the idea of ​​assuming error and assuming the person's responsibility for the error of others, and accepts the idea of ​​shifting the burden of proof (Ahmad, 2012).

I am writing this editorial letter because I am concerned about two problems. First, in the vast majority of situations, gene doping-derivative proteins produced in the body of the athlete would be undetectable from internal proteins (de Boer et al., 2019). There is an objective difficulty in distinguishing between two proteins, the first produced by genetically modified cells and the second by cells not subject to genetic modification or manipulation. This is exactly what can be concluded according to the opinion of experts in the field of Biomedical Ethics.

And second, World Anti-Doping Agency applies a legal criterion characterized by looseness and weakness to prove gene doping cases, which is the criterion of “Comfortable satisfaction” that is much lighter than the “Without Reasonable Doubt” Criterion. The Article No. 3.1 of the Agency’s code states the following:

“The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, except as provided in Articles 3.2.2 and 3.2.3, the standard of proof shall be by a balance of probability,” (World Anti-Doping Code 2021, 2021). Notwithstanding, in Iraq, the legislator chose to remain silent, as there is not even a single legislative text in the Iraqi Penal Code No. 111 of 1969 and its amendments that criminalizes or punishes gene doping actions (Ahmad, 2012).

Now, this editorial letter contains the concept of two principles:

• Balance of probability

• Preuve hors de tout doute raisonnable or beyond a reasonable doubt

The ‘benefit of the doubt’ is a fundamental precept in every common law structure. It is wielded in its everyday sense, that is, to suppose something positive about an individual rather than something negative when there is no hard or clear evidence either way. However, the idea should be comprehended in relevance to three other exceptional special legal connotations: standard of proof, the burden of proof, and credibility. In criminal contexts, the "benefit of the doubt" resides in the connection of the bilateral opposition to the concept of "reasonable suspicion" (Good, 2016).

Finally, it must be emphasized that genetic testing examples in sports are infrequent, yet they do exist (Patel & Varley, 2019). Not to mention that proving gene doping cases, for the time being, is a figment of the imagination (AL-Dafrawi et al., 2019).

References

Ahmad, A. S. (2012). Criminal Responsibility of Taking Physical Steroids in Sports and Its Effects in Jordanian and Iraqi Law: (A Comparative Study) [Middle East University]. https://meu.edu.jo/libraryTheses/58d7708cc3ea2_1.pdf

AL-Dafrawi, A. S. A. (2018). Taking Physical Steroids in Sport Competitions: (From an Ethical-Legal Perspective). Journal of Political Science and Law, 2(9), 188–206.

AL-Dafrawi, A. S. A., Abdullah, M. A., Zawawi, M., & Ismail, Z. (2019). Taking steroids in the sports field: (Islamic and Conventional Law perspective). International Journal of Muslim World Studies, 17(1), 318–355.

de Boer, E. N., van der Wouden, P. E., Johansson, L. F., van Diemen, C. C., & Haisma, H. J. (2019). A next-generation sequencing method for gene doping detection that distinguishes low levels of plasmid DNA against a background of genomic DNA. Gene Therapy, 26(7), 338–346. https://doi.org/10.1038/s41434-019-0091-6

Dias, R. G. (2011). Genetics, human physical performance and gene doping: The common sense versus the scientific reality. Revista Brasileira de Medicina Do Esporte, 17(1), 62–70. https://doi.org/10.1590/S1517-86922011000100012

Ginevičienė, V., Utkus, A., Pranckevičienė, E., Semenova, E. A., Hall, E. C. R., & Ahmetov, I. I. (2022). Perspectives in Sports Genomics. Biomedicines, 10(2), Article 2. https://doi.org/10.3390/biomedicines10020298

Good, A. (2016). “The Benefit of the Doubt” in British Asylum Claims and International Cricket. In D. Berti, A. Good, & G. Tarabout (Eds.), Of Doubt and Proof: Ritual and Legal Practices of Judgment (1st ed., pp. 119–140). Routledge.

Patel, S., & Varley, I. (2019). Exploring the Regulation of Genetic Testing in Sport. Entertainment and Sports Law Journal, 17(1), Article 1. https://doi.org/10.16997/eslj.223

Shen, W., & Liang, X. (2021). PHYSICAL EXERCISE IN THE PROMOTION OF GENE THERAPY AUXILIARY EFFECT. Revista Brasileira de Medicina Do Esporte, 27, 779–782. https://doi.org/10.1590/1517-8692202127082021_0360

World Anti-Doping Agency. (2021).World Anti-Doping Code 2021. https://www.wada-ama.org/sites/default/files/resources/files/2021_code.pdf

Notes