Inadvertent doping and the 2015 WADA CodeDaniel Saoul
Daniel Saoul provides some perspectives on events in Johannesburg in November and on the changes introduced by the 2015 World Anti-Doping Code, in particular those dealing with inadvertent doping.
The World Conference on Doping in Sport took place in Johannesburg from 12 to 15 November 2013. I attended, along with hundreds of others with an interest in the world of doping (or rather, anti-doping), including scientists, politicians, journalists, representatives from international sports federations, leaders of athletes’ unions, members of national governing bodies, heads of national anti-doping organisations and no small number of lawyers from around the globe.
The purpose of the Conference is to review and approve a new version of the World Anti-Doping Code. However with extensive consultation having taken place about revisions of the 2009 Code over the previous two years, so that the 2015 version was all but finalised in advance, in practice the formal presentations that were delivered were perfunctory and the substantial time allowed for pre-prepared 3 minute “interventions” from government and sport movement representatives was neither intended to nor actually did promote any real debate or dialogue.
The real value of the conference for those of us involved in doping work – be it prosecuting or defending – was the opportunity to meet colleagues from a variety of jurisdictions to build networks, discuss cases and exchange views and ideas about the changes to the anti-doping rules that are coming into force on 1 January 2015.
The 2015 Code and inadvertent doping
For my part, probably the most interesting change to the rules lies in the increase of the mandatory ban for a first offence to four years (from two) and to changes to the rules and sanctions applicable to inadvertent doping. I have acted on a number of cases over the last two or three years involving athletes at all levels –from Olympic medallists to part-time rugby union professionals – who claimed to have ingested a prohibited substance by accident and without any intention to enhance their sport performance. This has been a fertile area generally and the rules in question have been the subject of much debate.
As matters stand, such pleas fall under the auspices of WADA Code Article 10.4, the construction of which generates a significant division of opinion, with international and domestic tribunals reaching materially different conclusions on important aspects of the legal tests in play (readers unfamiliar with this debate should read the two contrasting CAS decisions in the cases of USADA v Oliveira (CAS 2010/A/2107) and Foggo v National Rugby League (CAS A2/2011) by way of example – there have been more recent cases but these frame the debate very clearly).
[Editor’s Note: see articles on this issue at 'Inadvertent doping and the CAS: Part I - Review of CAS jurisprudence on the interpretation of Article 10.4 of the Current WADA Code' & 'Inadvertent doping and the CAS: Part II - The relevance of a “credible non-doping explanation” in the application of Article 10.4 WADA Code']
This divergence of judicial opinion on the interpretation of an important rule – which turns on whether an athlete has to establish whether it was the specific banned chemical that he did not intend to use for sports purposes, or whether in fact he has to establish lack of sports enhancing intent regarding the nutritional product (e.g. a sports drink or supplement) in which it was contained – is highly undesirable. It renders the law unclear, means it is applied inconsistently and leaves athletes and prosecuting authorities not knowing where they stand. The UK National Anti-Doping Panel’s attempt, on appeal, to take a clear position in the case of UKAD v Llewellyn was laudable in theory but resulted in a controversial fudge with the panel taking a hard line on the interpretation issue based on doubtful reasoning, and then exercising a discretion that is non-existent under the rules to reduce the relevant athlete’s ban from two years to one. The unprincipled nature of this decision has in the eyes of many resulted in the waters being muddied further rather than clarified.
Against this background the changes brought in – which seek to draw bright lines between “intentional” cheating (which will always carry a four year ban as a starting point) and non-intentional positives (where a sanction could be as light as a reprimand) – are a welcome development. Very few people object to longer bans for cheats, but there has always been a risk of treating accidents too harshly and the goal of distinguishing between the two, and treating them differently, cannot be criticised.
The new Code – some concerns
My concern though is that the new rules will not achieve all that is hoped of them, and in particular will not clarify the position for athletes nor avoid tribunals scratching their heads over how they should decide cases. Much as Prof Dr Ulrich Haas, the lead draftsman of the new rules, tried to present them as transparent when addressing the congregation in Johannesburg, the reality – as exemplified by his fiendishly complicated powerpoint slides – is very different.
For example, the burden of proving intention (or lack thereof) shifts depending on the nature of the substance ingested, with further rebuttable presumptions in play depending on when the substance was ingested and why; the relevant passages of the new Code do not make straightforward reading even for the most hardened of lawyers.
Perhaps even more crucially, the definition of “intentional” cheating is itself likely to result in further debate. The taking of a banned substance is considered intentional if an athlete engaged in conduct which they knew constituted an anti-doping rule violation or if they knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and they manifestly disregarded that risk.
The objective of capturing both those who dope deliberately and those who dope recklessly is a sound one, but from an English lawyer’s perspective at least we may be heading for a minefield of decisions about the definition of knowledge that sits at the crux of the new Articles.
Indeed, in English civil law “knowledge” (not to mention the often associated notion of dishonesty) is a highly nuanced concept, and depending on the wrong or tort concerned it might or might not extend to constructive knowledge (i.e. what the individual concerned ought to have known), suspicions, or what they appreciated might be the probable consequences of their actions (even if those consequences were not directly intended). In other instances, knowledge will be limited to what was subjectively in the relevant person’s mind at the time. Criminal law too faces vexed questions of this kind, with some academics heavily criticising, for example, the concept of “oblique intention” (which refers in broad terms to consequences that are foreseen and accepted but that are not the primary objective) that has been developed in the context of murder, manslaughter and grievous bodily harm.
Away from the UK, the Court of Arbitration for Sport is likely to resolve these dilemmas by reference to Swiss law: this may well drive Tribunals to face similarly tough questions, since Swiss criminal law expressly includes as intentional those outcomes which a party appreciated were possible consequences of his conduct, although the civil provisions don’t include explicit language to this effect, and in any case one must still decide whether an athlete who insists he did not personally appreciate the risks in play should be treated as non-intentional even if a reasonable athlete in their position would have done, something upon which the 2015 Code is silent. Of course, drafting rules of this kind is no easy task, and one must also recognise that in legislative terms the WADA Code is still in its infancy, having only come into force in its first iteration in 2004.
The way ahead
It remains to be seen how these issues will play out, and of course in practice much will turn on the demeanour of athletes giving evidence on the day – one can expect Tribunals to interpret the rules in such a way as to achieve what they consider to be a fair outcome on a case to case basis. That is certainly what history suggests: the difficulty is that the lack of clear and consistent guidance and principles emanating from the CAS and domestic tribunals can result in one athlete being treated very differently from another (because the composition of tribunals can vary significantly), with the wider population of competitors unable, through no fault of their own, to understand or rely on the very Code that is intended to protect them. The one thing we can almost certainly rely on, however, is that anti-doping lawyers are likely to be kept busy into 2015 and beyond.
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About the Author
Dan’s practice is focused on commercial litigation and arbitration of all varieties, sports law and costs. He is considered a leading junior by both Chambers and Partners and the Legal 500, which describe him as “a commercial litigator who has swiftly developed a strong reputation”, "a rising star of the Sports Bar" and “one to watch”.