Introduction: The new WADA Code 2015
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note
Herman Ram is the Chief Executive Officer of the Anti-Doping Authority the Netherlands, which is the National Anti-Doping Organization of the country. He has held this position since 2006. After working twelve years as a librarian, Herman Ram started his career in sport management in 1992, when he became Secretary general of the Royal Netherlands Chess Federation. In 1994, he moved on to the same position at the Netherlands Badminton Federation. He was founder and first secretary of the Foundation for the Promotion of Elite Badminton that was instrumental in the advancement of Dutch badminton. In 2000 he was appointed Secretary general of the Netherlands Ski Federation, where he focused, among other things, on the organization of large snowsports events in the Netherlands. Since his appointment as CEO of the Anti-Doping Authority, he has developed a special interest in legal, ethical and managerial aspects of anti-doping policies, on which he has delivered numerous presentations and lectures. On top of that, he acts as Spokesperson for the Doping Authority. Herman Ram holds two Master’s degrees, in Law and in Sport Management.

Introduction
The 2015 World Anti-Doping Code is not a new Code, but a revision of the 2009 Code. In total, 2,269 changes have been made (see here for the redlined version). Quite a number of these changes are minor corrections, additions and reformulations with little or no impact on the work of NADOs. But the number of truly influential changes is still impressive, which makes it hard to choose.

Luckily, WADA has identified the – in their view – more significant changes in a separate document and I have used this document to bring some order in a number of comments that I want to make on the impact of those revisions on our daily work.

Part of what follows is based on our experiences with the implementation of the revised Code so far, but quite a bit of what follows cannot be based on any actual experience, because the revised Code has only been in place for seven months, and only a rather small number of disciplinary procedures in relatively simple cases have come to a final decision under the revised rules. As a result, and because I am not in the business of predicting the future, on this occasion I have decided to share some of my expectations with you. Only the future can tell whether I am right on those issues.

Theme 1: sanctions
Probably the most discussed aspect of the revision is the longer period of ineligibility that can be imposed on – as WADA formulates it – ‘real cheats’. In other cases, especially cases of unintentional violations, the revision should lead to more flexibility to impose lower sanctions. Due to the amendments in most cases it will be crucial to establish ‘intent’ – or the lack of it – in order to be able to determine the appropriate sanction. And because of the Strict liability principle that applies to the burden of proof in cases with Adverse Analytical Findings, NADOs have not focused very much on the establishment of ‘intent’, simply because under the previous Codes it was not relevant for the outcome of most cases.

In the case of non-specified substances, it is now up to the athlete to prove that the violation was not intentional, and in the case of specified substances it is up to the (N)ADO to prove intent. This is new, and our current practice shows that this kind of evidence is very hard to deliver for both parties. As a consequence, four year sanctions have been imposed rather matter-of-factly until now in cases where non-specified substances are involved. And such severe sanctions will remain common if non-specified substances are detected, but they will be quite rare in other cases. No doubt, jurisprudence will be developed that will help to assess specific situations, but for most cases the four year sanction will more or less automatically result from the simple fact that a non-specified substance is involved.

Some exploratory analysis of the sanctions imposed under the 2009 Code for specified substances has shown that panels have already established a practice with a lot of flexibility in those kind of cases under the 2003 and 2009 Codes, and I do not expect major changes there.

Quite interesting from our (NADO’s) point of view is Article 10.6.3, which introduces a role for both the (N)ADO with result management responsibility and WADA in cases where athletes or other persons promptly admit an anti-doping rule violation. If both the (N)ADO and WADA agree, a sanction reduction from four years to a minimum of two years is possible. We do not yet know what WADA’s position will be in this kind of cases, but I do know that many NADOs will be inclined to grant a reduction of the period of ineligibility, because we want to stimulate admissions as much as possible. Information given by athletes and other persons is most valuable, and (less important, but still…) we can spare ourselves a lot of costly work in the process.

Somewhat related to prompt admissions (not new, but amended and expanded in the revised Code) is the possibility to reduce sanctions based on substantial assistance (Article 10.6.1). Because of the growing importance of Investigations and Intelligence (see Theme 3 below) and the increased emphasis on Athlete Support Personnel (Theme 4) I think that we will see that this Article will become more important in the work of NADOs. It seems to me that the revisions will help us considerably in all cases where athletes or other persons need reassurance that an agreed-upon reduction of sanctions will be respected ‘no matter what’. At the same time, more information will become available that may help us in uncovering and prosecuting other anti-doping rule violations.

Theme 2: proportionality and human rights
I can be quite short here: I have not identified a single consequence of this Theme for the NADO that I work for, and I can hardly imagine that other developed NADOs will see this differently. This is not because this Theme is not important (quite the contrary) but because NADOs do not need extra encouragement in order to ensure that proportionality and human rights are taken into consideration on an everyday basis. And because – at least in Europe – data protection issues and the related issues of public disclosure and the protection of minors are primarily governed by legislation, not by the Code.

Theme 3: Investigations and intelligence
Indeed, the development of ‘Intelligence & Investigations’ is one of the major issues that quite a few NADOs are dealing with now. In less than two years’ time, more than a dozen NADOs have attracted new staff for this purpose, and cooperation between NADOs (and some IFs) in this field is gradually developing, at a pace that is primarily determined by taking care of the legal side of things. The Code revision has not initiated this development, but it certainly confirms and strengthens it. And we are well aware that Intelligence has played a major role in practically all cases (old and recent) where large-scale, organized, doping practices have been uncovered. Which does not mean that we are all prepared for this kind of thing…

First of all, it is necessary to develop and sign bilateral cooperation agreements in which the preconditions for sharing information between (N)ADOs are defined. I have signed several, and there are more to come. But it is also necessary to start and develop a cooperation with customs and law enforcement agencies, and this kind of cooperation needs even more legal preparation in order to be successful (or just possible). Indeed, information sharing with government agencies is just as logical as it is complicated in practice.

I do not know one NADO that does not feel the need for cooperation with law enforcement agencies. And that fact, supported by the revised Code, means that NADOs are slowly but surely getting better acquainted with government agencies. It is my opinion that several legislation proposals in various countries in Europe illustrate this development nicely. Countries which have done without specific anti-doping legislations for years – including my own country – are now working on legal measures that aim to facilitate a close(r) cooperation between governments and (N)ADOs (in line with the expansion of Article 22.2 in the 2015 Code).

The investigative powers of Intelligence Officers of NADOs on the one hand, and law enforcement agents on the other hand, are wide apart. In most countries, an Intelligence Officer has no other rights than any citizen, while there are elaborate laws that define and regulate what law enforcement officers may and may not do. The gap between the two has to be narrowed, in order to facilitate and stimulate further cooperation. Which means that Intelligence Officers will need to have specific authorizations that enable them to do their job within sport, but without becoming law enforcement officers themselves. The solutions will be different per country, but the common factor will be that NADOs will have more tools to fulfil their tasks.

Apart from these legislative and regulatory developments, which open doors that have been firmly closed until now in many countries, there are not many ’quick wins’ to be expected because of ‘Intelligence & Investigations’. In the long run, however, ‘Intelligence & Investigations’ will probably have a significant impact on the effectiveness of doping control programs, which will not really become ‘smarter’ (more brain power has been invested in the testing programs under the 2003 and 2009 Codes than most people can imagine), but certainly more ‘targeted’ and tailor-made. This may be an equally important effect of ‘Intelligence & Investigations’ as collecting evidence.

The extension of the statute of limitations (Article 17) to ten years will not make a big difference in numbers, but the cases where this extension pays off, will for a large part be the kind of cases that we find especially important to bring to justice. There is a downside to this as well, of course, and one of the aspects that I have not seen mentioned often is the fact that relevant samples will have to be stored for another two years, which will lead to additional costs. Few people realize how expensive the storing of samples – under the right conditions – is.

Theme 4: Athlete Support Personnel (ASP)
This Theme is closely connected to Theme 3, because anti-doping rule violations by Athlete Support Personnel cannot be proven by the traditional means of proof of ADOs, i.e. the analysis of urine and blood samples. There can be no doubt that catching those coaches and doctors that supply and administer doping to the athletes must be a high priority for NADOs. We are well aware that athletes do not function in a vacuum. As a consequence, NADOs will dedicate a considerable part of their ‘Intelligence & Investigations’ capacity to ASP. A rise in the number of cases where ASP is involved can be predicted, although – unfortunately – a huge effect is unlikely. Not only because these cases will always be hard to prove (no matter what) but also because large groups of ASP are not (properly) bound by anti-doping regulations. The seriousness of this problem varies per country and per sport (discipline), and the problem may – at least partly – be solved through legislation. But in my own country, I do not see how the Code revision will help the NADO in prosecuting ASP, unless and until we manage to find ways to sufficiently bind all relevant ASP to our rules.

The new anti-doping rule violation ‘Prohibited Association’ brings us some serious new challenges, I think. One of them being the burden of proof, which often will not be easy to discharge. Here again, ‘Intelligence & Investigations’ will play a crucial role. But even if it can be proven that an athlete is working with an ineligible coach, trainer or doctor, there may be several legal challenges if the ineligible person has a private practice outside organized sport, and working with athletes is the livelihood of that person.

Theme 5: Smart testing and analyzing
As I mentioned above (see Theme 3) ‘Intelligence & Investigations’ will probably have a significant positive impact on the effectiveness of doping control programs. However, it remains to be seen whether this effectiveness will show in terms of the detection of more anti-doping rule violations, or in a better deterrence. Whichever it will be, a consequence of the development towards more targeted and tailor-made testing and analyzing, is that the price of testing will go up. Tailor-made testing means more individual testing, on odd hours, in (sometimes) strange places. This is – no surprise – considerably more expensive than testing a number of players at random after a training session of a team.

On top of that, the Technical Document for Sport Specific Analysis (TDSSA, https://wada-main-prod.s3.amazonaws.com/resources/files/wada-tdssa-v2.2-en.pdf) that has been developed after the implementation of the revised Code (based on Article 6.4 of that Code), prescribes a minimum percentage of additional analyses per sport discipline, with even more cost increase as a consequence. Some NADOs have managed to get additional funding in relation to these new requirements, but most of us have not (and not many of us foresee a budget increase in the near future). So the global number of tests performed by NADOs will in all likelihood decrease.

Whether this decrease in numbers will be acceptable, depends on the value added by the additional analyses that are now performed. If less tests bring more proof, then it is a good development. However, for the time being, there is no way to tell. And it is predictable that decreasing numbers of tests (the number of tests performed being the most commonly used measuring stick to assess the performance of a NADO) will generate critical questions about how serious we take the fight against doping in sport.

While I am writing this contribution, we are in the middle of the ‘IAAF controversy’, following the leakage of confidential information to the media, and the subsequent publication of sensitive data. I am not in the position to comment on what exactly is right and wrong in this case (I simply do not know) but I do know that the IAAF anti-doping program is ‘smarter’ than most, and that it can show results that few IFs can. Nonetheless, the public discussion is focusing on what has not been accomplished with all these data. So the large amounts of data that become available through ‘smart’ testing and elaborate biological passport programs, may become a burden instead of a blessing if the burden of proof is not reached in too many cases. Which – I fear – may be the case.

Theme 6: International Federations and NADOs
Another development that is not initiated by the Code revision – but certainly is supported and accelerated by it – is the improvement of NADO-IF cooperation. The revised Code clarifies and solves several of the problems that we have experienced with the 2009 Code. Examples are the control of therapeutic use exemptions (Article 4.4), the testing authority during international events (Articles 5.3, 5.2.6 and 7.1.1), and the coordination of whereabouts failures (Article 7.1.2). All these changes are improvements.

However, cooperation is more in the soul than it is in the rules, and we must acknowledge and accept that there are relevant differences between NADOs on the one hand and IFs on the other hand, in terms of culture, position and tradition. WADA has created Ad Hoc Working Groups of NADOs and IFs separately, and these groups have made inventories of existing problems that are subsequently brought to the table in joint meetings. The Articles in the Revised Code that underline the need for better cooperation will have no meaning if we stay separated in two worlds. But the impact will be huge, if and when we benefit from each other’s knowledge and experience. And although I am not an optimist by nature, I am pretty sure that this will work out fine.

Theme 7: A clearer and shorter Code
I think it is obvious that this Theme is quite ambitious, and I can only regretfully conclude that the revised Code is neither clearer, nor shorter than the 2009 version. The Code is the most important legal tool in the anti-doping world, and both lawyers and administrators may (and do) delight in the fact that the Code has proven to be an indispensable tool in our toolkit. It is, however, not a tool for athletes (except for those who are also lawyer or administrator) and it will never be. Clarity about the rules is delivered by the Education departments of NADOs, in the form of numerous publications, leaflets, manuals and (more and more) digital tools. And it is my personal opinion that there is not much wrong with accepting that the Code is not meant to educate athletes, but to protect them.

Miscellaneous
It is difficult to choose what other aspects of the revised Code are worth mentioning here. Let me name only a few.
The new possibility for an athlete to return to training during the last part of the period of ineligibility imposed on him (Art. 10.12.2), is – in my opinion – a balanced compromise between the need to fully execute sanctions, and the interests of team members that have not been sanctioned themselves. However, this refinement of the sanction regime further complicates the task that has been a burden for many NADOs for years already: how to monitor that sanctions are observed correctly and fully. This monitoring task usually cannot be fulfilled without the help of sport federations and clubs, and – to a certain extent – fellow athletes. Publicly known elite athletes will hardly have an opportunity to violate their sanction without being ‘caught’, but for lesser gods the situation is different, which fact collides with the Level playing field that we want to achieve.

Article 6.5 of the revised Code addresses the storing of samples for further analysis. It is good that these rules are now clarified, because it is to be expected that the percentage of samples that are stored for future analysis will rise over the years. The revised rules are meant to do justice to both the athlete and the (N)ADO and I think they actually do that, although I am sure that both NADOs and athletes will disagree in any particular case they are involved in.

The importance of the explicit wording of the Articles 20.4.3 and 22.6 that address the need for NADOs to be free from interference in our operational decisions, cannot be overestimated. Anti-doping issues can get a lot of attention in the media, and that may or may not lead to unleashing certain political powers. In my country, parliamentary questions have been asked about specific doping cases on several occasions. Thankfully, in no case this has led to actual interference in our work, but it is very good that the Revised Code is there to ward off such interference in countries where this may be necessary.

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note

Howard Jacobs is solo practitioner in the Los Angeles suburb of Westlake Village, California. Mr. Jacobs has been identified by various national newspapers and publications as one of the leading sports lawyers in the world. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of athletes charged with doping offenses.Mr. Jacobs has represented numerous professional athletes, Olympic athletes, world record holders,  and amateur athletes in disputes involving doping, endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters.  He is at the forefront of many cutting edge legal issues that affect athletes, winning cases that have set precedents that have benefited the athlete community. More information is available at www.athleteslawyer.com.

Introduction

Historically, under the anti-doping rules of most organizations (including the World Anti-Doping Code), the concept of “strict liability” has meant that the proof of intent (or lack thereof) was irrelevant to the issue of whether or not the athlete has violated the anti-doping rules. However, so long as the rules provide for sanction ranges instead of a set sanction for all offenses, the issue of intent to dope has always been somewhat relevant to the issue of sanction length. The 2015 World Anti-Doping Code, with its potential four-year sanctions for a first violation based on whether or not the anti-doping rule violation was intentional, will make the question of intent an important issue in virtually every anti-doping case. This article analyzes these new rules allowing for four-year sanctions for a first violation, in the context of how intent (or lack of intent) will be proven.

I.         Why Intent Matters under the 2015 World Anti-Doping Code

It should be remembered that under the 2015 World Anti-Doping Code (“WADC”). intent is still irrelevant to the issue of whether or not an athlete has committed an anti-doping rule violation.  This is clear from the Comment to Article 2.1.1: “An anti-doping rule violation is committed under this Article without regard to
an Athlete’s Fault. This rule has been referred to in various CAS decisions as “Strict Liability”. An Athlete’s Fault is taken into consideration in determining the Consequences of this anti-doping rule violation under Article 10. This principle has consistently been upheld by CAS.”

Article 10 of the WADC – dealing with length of sanction, has always taken “intent” into account in determining whether or not a sanction should be reduced[1]. In other words, a sanction that would ordinarily be 2 years could be reduced to no sanction where the athlete had no fault or negligence whatsoever, or could be reduced to some degree if the athlete was not significantly at fault or negligent. In this way, intent is indirectly relevant to the issue of how much, if at all, an otherwise applicable sanction (sometimes referred to as the “default sanction”) could be eliminated or reduced. This is because an athlete who can prove that he or she did not intend to violate the anti-doping rules would be much more likely to establish a lack of significant fault or negligence in committing the violation in the first place.

Now, however, the 2015 WADC makes the issue of intent directly relevant to the first issue of the length of the default sanction itself. Therefore, intent is now not only relevant to the issue of reducing the default sanction, but is also relevant to the threshold issue of what the default sanction is in the first place.

Specifically, Art. 10.2.1 of the 2015 WADC provides: 

“The period of Ineligibility shall be four years where:

10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the athlete or other Person can establish that the anti-doping rule violation was not intentional.

10.2.1.2 The anti-doping rule violation involves a Specified Substance and the anti-doping organization can establish that the anti- doping rule violation was intentional.”

Art. 10.2.2 of the 2015 WADC goes on to state that “if Article 10.2.1 does not apply, the period of Ineligibility shall be two years.” Therefore, under the 2015 WADC, the default sanction is determined as follows: 

1.        where the violation does not involve a “Specified Substance,” the default sanction is four years unless the athlete can prove that the violation was “not intentional;” if the athlete meets this burden of proving “lack of intent,” then the default sanction is two years.

2.        where the violation involves a “Specified Substance,” the default sanction is two years unless the National Anti-Doping Organization (“NADO”) or the International Federation (“IF”) can prove that the violation was “intentional;” if the NADO or IF meets this burden of proving “intent,” then the default sanction is four years.

In either case, “intent” is now directly relevant to the length of the default sanction; the only difference is who bears the burden of proving “intent” or “lack of intent,” depending on whether or not the substance involved is a Specified Substance.

II.        How will the NADO / IF prove “intent” in cases involving “Specified Substances”?

Many older CAS cases have discussed the difficulty that a NADO or IF faces in proving that an athlete “intended” to use a prohibited substance, in their discussions of the justification of the “strict liability” rule.[2]

While this difficulty in proving that an athlete “intended” to use a prohibited substance to enhance their sport performance has not changed in theory, it has changed in practice with the definitions that WADA provided for proving “intent” within the meaning of Art. 10.2.1 of the 2015 WADC.  Specifically, Art. 10.2.3 now provides the following definition of “intent:” 

“As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those athletes who cheat. The term, therefore, requires that the athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall be rebuttably presumed to be not “intentional” if the substance is a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.”

Therefore, for the purpose of proving “intent” within the meaning of WADC Art. 10.2.1, in the case of Specified Substances, the NADO / IF can meet its burden by proving simply that the athlete engaged in conduct where the athlete “knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk.” However, practical realities of this “proof” must be considered against the following questions:

(i)             How will this definition of “intent” contained in WADC Art. 10.2.3 be read in connection with the seemingly contradictory comment to 2015 WADC Art. 4.2.2 that specified substances are “substances which are more likely to have been consumed by an Athlete for a purpose other than the enhancement of sport performance”?

(ii)           How will an athlete who knowingly takes a “risky supplement” without knowing that the supplement contained a banned “Specified Substance” be viewed in connection with this definition of “intent” contained in WADC Art. 10.2.3?

Furthermore, in cases where an athlete intentionally used a supplement, but the athlete did not know that the supplement contained a prohibited substance (and where the lack of knowledge was reasonable, such as in cases involving misleading ingredient lists), what will the NADO /IF be required to prove? Will the burden be to prove that the athlete knew or should have known that the supplement contained a prohibited substance, or will it be sufficient to prove that the type of supplement or the supplement manufacturer itself could be viewed as risky, such that the athlete’s use of the supplement could be considered as a manifest disregard of a significant risk, for which the athlete should receive a four-year sanction? The manner in which CAS tribunals resolve this use could dramatically impact the applicable “default sanction” in cases involving nutritional supplements.

III.       How does the athlete prove “no intent” in cases not involving “Specified Substances”?

In cases that do not involve “Specified Substances,” the athlete carries the burden of proving “no intent” to avoid the application of a four-year default sanction. In many cases, therefore, this burden of proof will mean the difference between a career-ending sanction and one from which an athlete could potentially return. Therefore, the manner in which this burden of proof is applied by the arbitral tribunals will be critical.

As mentioned above, Art. 10.2.3 of the 2015 WADC provides that “an anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.” Therefore, in cases involving non-specified stimulants, an athlete can avoid a “default sanction” of four years by proving that the stimulant was used out-of-Competition in a context unrelated to sport performance. This raises a number of important issues:

            a)         will arbitral tribunals accept a low concentration level of the prohibited stimulant in the anti-doping test, which low levels would be inconsistent with the purposeful use of the stimulant “in Competition,” as sufficient proof of out-of-Competition use?

            b)        will arbitral tribunals accept a polygraph finding that the athlete was truthful in stating that he did not use the prohibited substance at issue on the day of the competition at issue as sufficient proof of out-of-Competition use ? [3]

            c)         how will arbitral tribunals analyze the issue of whether the out-of-Competition use of the stimulant was “in a context unrelated to sport performance?”  As has been seen in past cases, arguments can be made that virtually any substance that an athlete consumes, including food, is done in a context related to sport performance.  Therefore, in order to avoid an analysis that renders this phrase meaningless, arbitral tribunals must apply a common-sense and realistic meaning to the issue of when something is consumed in a context that is actually related to sport performance, as opposed (for example) to consuming a product for general health purposes.

For substances that are banned at all times, such as anabolic agents, the analysis of “in-competition” vs. “out-of-Competition’ use will be unnecessary. In these cases, in order to avoid a “default sanction” of four years, the athlete will be required to prove that he or she did not take the substance intentionally. It is therefore critical to consider what will happen to the athlete who has no idea what caused his or her positive test, and who, despite investigation, is unable to prove the source of the prohibited substance. For these athletes, how will arbitral tribunals analyze this issue, which could mean the difference between a career-ending four-year sanction and a “default sanction” of two years?  Some important questions arise:

            a)         Will the athlete’s failure to prove how the prohibited substance entered his or her system (within the meaning of 2015 WADC Art. 10.4 and Art. 10.5.2) automatically result in a 4-year default sanction? Arbitral tribunals should recognize the difference between (i) proving the source of the prohibited substance as a pre-condition to receiving a reduction in the “default sanction,” and (ii) the requirement of proving “no intent” in order to avoid the application of a “default sanction” of four years. An athlete should be able to prove “no intent” without proving the source of the prohibited substance, at least in the abstract.

            b)        Assuming that the failure to prove how the prohibited substance entered the athlete’s system is not automatically equated with intent to use the prohibited substance, how will the athlete who cannot prove the source of the prohibited substance prove lack of intent? Will it be sufficient, for example, for an athlete to submit a polygraph finding that the he was truthful in stating that he did not knowingly use the prohibited substance at issue, as sufficient proof of lack of intent, such that the applicable “default sanction” is two years instead of four? Or, even in the absence of a polygraph exam, could an athlete establish “no intent” within the meaning of 2015 WADC Art. 10.2.1.1 solely through her own credible testimony that she did not knowingly ingest the prohibited substance at issue? These will be important evidentiary issues for arbitral tribunals to consider, and the manner in which they are determined will have a significant impact on the sanction length for many athletes under the 2015 WADC.

IV.       Conclusion

The concept of giving longer sanctions to athletes who intend to cheat, and shorter sanctions to those athletes who do not have such an intent, is certainly laudable, and the 2015 WADC has introduced a number of new legal and evidentiary issues in an effort to further differentiate between intentional and non-intentional “dopers.” However, as is often the case, the 2015 WADC has provided very broad concepts, which the arbitral tribunals will have to interpret and apply to real-world situations. How these general concepts are applied in reality will – for many athletes – mean the difference between a two-year sanction that is “merely” devastating and a four-year sanction that is career ending. In those cases where an athlete has no idea where the prohibited substance came from, the arbitral tribunals must be very careful in how they apply these new concepts.

 These new concepts related to “intent” will change the manner in which arbitral tribunals address the preliminary issue of the applicable “default sanction”. They will not materially affect the manner in which these tribunals address the issues related to the reduction in the “default sanction.” However, because of the limitations in how much the “default sanction can be reduced (in cases of no significant fault, the maximum reduction in the “default sanction” is 50 percent), the determination of this new “intent” issue as related to the “default sanction” will be doubly important in cases where the older “exceptional circumstances” rules are being asserted as a basis for sanction reduction.

[1] See, e.g., 2015 WADC Art. 10.4: “if an athlete or other Person establishes in an individual case that he or she bears no fault or negligence, then the otherwise applicable period of Ineligibility shall be eliminated”; and Art. 10.5 on the Reduction of the Period of Ineligibility based on No Significant Fault or Negligence.

[2] See, e.g., C. v. FINA (CAS 95/141) Digest of CAS Awards, Vol. 1, at p. 220, par. 13: “Indeed, if for each case the sports federations had to prove the intentional nature of the act (desire to dope to enhance one’s performance) in order to be able to give it the force of an offence, the fight against doping would become practically impossible”.

[3] Prior arbitral tribunals have already accepted that polygraph test results are admissible in anti-doping proceedings. See, e.g., UCI v. Contador (CAS 2011/A//2384).