Armstronglivs wrote:
"Rules 2.1 and 2.2 violations do not require establishing fault, intent, negligence of knowledge, in order to establish a violation. This cannot ensure consistent justice".(quote).
- Justice is consistent, on the basis that the same rules apply to all. Fault is inferred from testing positive for a banned substance, which in almost all instances, bar very few, will result from an athlete choosing to dope. Intent is not necessary to prove. The athletes have a defence available if they are permitted to take the drug or can show they were not negligent. A repeated failure to be available for tests allows for an inference that they are doping or that they are negligent of their obligations. Most athletes can comply with these obligations. The few who don't have earned their penalty. That looks like a fair and thus just system. No system will be perfect but good enough is still good enough.
"Then "strict liability" means the athlete must establish that which may not be possible to establish, particularly if the primary evidence is long gone, in order to qualify for their fair penalty". (quote).
The standard imposes obligations of care upon the athlete. If they observe these the chances of accidental doping are slim. The cases that you refer to that have resulted in the wrong outcome appear to be very much in the exception. No system of justice produces fault-free results. That does not mean the system is flawed, only that it is as fair as it can be made to be. The alternatives may not be better but worse. Strict liability is so far the best we have to try to control doping in sport; to try to impose criminal standards of proof and process would fail to do that. The dopers could defeat anti-doping at every turn.
You are essentially arguing that the WADA rules are just, because the WADA rules are just.
In cases like these of potential accidental ingestion of a small quantity of a banned substance, there are three possibilities:
1) the guilty intentional doper gets convicted as presumed
2) the innocent athlete can prove it, and gets convicted (this is unconditional), and the sanction is reduced (non-negligence) or eliminated (no-fault)
3) the innocent athlete who cannot prove it (e.g. the supplement/medicine/meat/etc. is no longer availble for test), will be treated like the guilty intentional doper.
With respect to justice, #1 is just; #2 is partly just (the verdict is still guilty); and #3 is unjust.
The question not resolved by the CAS, because WADA Code doesn't require it, is whether Houlihan falls under #3 or #1.