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.