Social drugs in sport – where do you draw the line?
Matthew Chantler takes a look at two recent cases centered on the issue of social drugs use by sportspersons and the potential effect of the proposed amendments to the WADA Code.
The debate regarding social drugs being included on the WADA Prohibited List will rumble on for a significant amount of time with some arguing that athletes should be suspended for taking such substances as they are role models to many, and further, that some substances, such as cocaine, might enhance sport performance.
There are certainly arguments that the imposition of a two year suspension is disproportionate and might amount to an unreasonable restraint of trade or further, an infringement of the player’s human rights. Notwithstanding such arguments, the timing of the actual ingestion might lead to a farcical result; especially in sports such as football where the FA prohibits cocaine both In and Out of Competition (whereas the same is only prohibited In Competition in accordance with the Prohibited List).
This blog will look at two recent cases on the above issues and the proposed amendments to the WADA Code.
Australian Rugby Union and Wendell Sailor
The Sailor decision was in 2006 – therefore under the 2004 WADA Code. Sailor did not argue no significant fault or negligence (NSFN) or no fault or negligence (NFN). He argued that:
(1) cocaine is only prohibited In Competition and that where it is established that no use of cocaine has occurred In Competition, no In Competition Violation had occurred; and
(2) he should receive a sanction substantially less than 2 years given that:
a) he took it at least 96 hours before the game and therefore no performance enhancing benefit could be intended or achieved; and
b) to impose a penalty of 2 years for the recreational use of a stimulant being the same as that imposed against a player deliberately using a performance enhancing drug would be inequitable.
In support of the first argument it was also argued that the detection of the metabolites of cocaine is insufficient to establish a doping violation where it is established that there was no use of cocaine at the time of the relevant competition. In other words, there is no doping violation where the player can establish that the metabolites detected in the player’s bodily sample are metabolites from the usage of cocaine Out of Competition. Further, that the relevant words should be construed in favour of the player where there was ambiguity.
The professor who gave evidence in the case explained that that the metabolite of cocaine can be detectable for about 1-4 days but can be detectable for up to 3 weeks depending on the dose. Whereas on the other hand cocaine takes between 40 minutes to 4 hours to be cleared from the body and it should be completely eliminated within 24 hours. The issue therefore is that a player could take it weeks before a game and, if he’s not subject to an Out of Competition test and subsequently undergoes an In competition test and fails; he’ll get a 2 year suspension instead of 6 months (under FA rules and regulations). Therefore you could, hypothetically, get a case of two players taking it at a party two weeks prior to the game – one getting selected for an Out of Competition test and getting a 6 month suspension whereas the other gets tested In Competition and receives a two year suspension.
The professor also confirmed that to the extent that the scientific evidence establishes that the ingestion of cocaine provides a performance enhancing benefit, that benefit would only be expected to occur for a very short period after ingestion – performance enhancing effects would not be likely to be evident after 30 minutes from ingestion; evidence that contradicts the argument that it should be prohibited for its performance enhancing effects.
It transpired that Sailor had received a doping education session on a yearly basis and had received doping educational materials.
The panel held that he took cocaine of his own volition, consciously and deliberately.
On the first argument above (and the interpretation and construction argument of the rules) and the player’s argument that there is an unacceptable inconsistency in the rules if a player legitimately uses a substance out of competition but is tested and fails a test In Competition – the panel was un-persuaded. They held that the doping offence took place In Competition and that there was no reference to the timing if the ingestion by the athlete in the rules.1
On the second argument, and the further submission that a two year ban would lead to an unreasonable restraint of trade and hence invalid and void, the panel held that the appropriate penalty was 2 years. It held that such a penalty was appropriate and proportionate and the clause is mandatory in its application.
Rugby Football League and George Flanagan
Again the player argued that he took cocaine:
1. without an intention to enhance performance; and
2. 2 year ban would be disproportionate and an infringement of his human rights.
On the first argument the Panel held it was not a specified substance and therefore his first argument failed.
On the second, they stated that there was no power for them to disapply or mitigate the mandatory 2 year suspension otherwise than under Article 10.4 and 10.5.2 The panel also relied on the fact that cocaine is only prohibited in competition; clearly this is not the case in football. They concluded "the code pursues a legitimate aim and the restrictions are those necessary to ensure doping free-sport. The sanction in this case is proportionate to the doping offence and does not infringe any fundamental rights of the player.. Any player bound by anti doping rules who takes cocaine is knowingly taking the risk of detection which will result in him being banned from the sport for 2 years on a first violation".
Therefore as a result of the 2009 WADA Code and as supported by this case, the proportionality argument may now be redundant (see Mellouli TAS 2007/A-1252 in which the panel considered the case as a whole and held that the sanction appeared disproportionate in comparison to the degree of fault and therefore imposed a suspension of 18 months).
Revised WADA Code
The consultation regarding the amendments to the revised WADA Code, to be implemented in 2015, continues with version two recently being published.
The revised Code now provides for Substances of Abuse at 10.4.3.3
Depending on the facts of the case and whether one could argue that NFN applies (see Gasquet) or that NSFN applies (see CAS 2008/A/1490 WADA v./USAD & Thompson) it may be that the two year suspension will be imposed on athletes taking cocaine until the actual implementation of the revised WADA Code. However, it is clearly also worth considering any potential lex mitior (if the law relevant to the offence of the accused has been amended, the less severe law should be applied) argument once the revised Code is implemented (Article 25.2 of the WADA Code and as is clear from CAS jurisprudence; the criminal law doctrine applies by analogy) or, in light of Mellouli, prior to 2015 during the consultation process, depending on the facts of the case.
1 They therefore found that the argument “is without foundation and must fail.. that is because it turns upon the time at which the drug was ingested and not t the time at which the sample is taken for the purpose of doping control. The phrase “in competition” in the By-Law encompasses, not the time at which the drug was ingested, but rather the time at which the process of Doping Control took place… There can be no doubt that the Doping Control took place In Competition…The timing is irrelevant”.
2 Further “the scheme under the WADA Code 2009 does allow for justified exceptions to the necessary principle of strict liability with fixed penalties. If the athlete cannot produce the evidence to bring himself within the two exceptions, then he has no ground to challenge the 2 year suspension… if a player cannot satisfy those conditions then there is nothing unfair or disproportionate in imposing a 2 year suspension”.
3 Article 10.4.3 States “where the anti-doping rule violation involves a substance that is identified on the Prohibited List as a Substance of Abuse, and the Athlete or other Person establishes no intent to enhance sport performance, the period of Ineligibility found in Article 10.2 shall be replaced with the following: First Violation: at a minimum, a reprimand, and at a maximum, one (1) year Ineligibility, depending on whether the anti-doping rule violation involves a specified substance an other circumstances of the sase. The Anti-Doping Organisation with results management responsibility may also allow the Athlete the opportunity to participate in a program of rehabilitation, at the Athlete’s expense, in lieu of an appropriate part of the period of Ineligibility which would otherwise be applicable”.
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