Key challenges facing athletes in contaminated supplement cases: Discussion on the Ademi decision

Published 02 June 2017 By: Claude Ramoni

Capsules and bottle on white background

In its award[1] issued in the case of the football player, Arijan Ademi, the Court of Arbitration for Sport (CAS) reduced the sanction imposed on the player, a ban for an anti-doping violation, down to two years from four. They ruled that the player demonstrated he had no intent to cheat, but failed to prove that he deserved a further reduction of the sanction for No Significant Fault or Negligence (see below) when using a contaminated product.

A full review of the Ademi case is available here: 'Key challenges facing athletes in contaminated supplement cases: A review of the Arijan Ademi decision'. It is suggested that readers review this piece first before moving onto the analysis below.

This article builds on the above case review by exploring several interesting issues relating to the interpretation and implementation of anti-doping regulations that were highlighted by the CAS panel in their award and reasoning. Specifically, it looks at how the following issues were addressed:

  • The prohibition on WADA-accredited laboratories to analyse supplements without a specific request by an anti-doping organisation (Article 4.2 of the Laboratory Code of Ethics); 
  • Is it necessary to establish the source of the prohibited substance in a sample in order to establish absence of intent to “cheat”? (Article 10.2.3 of the WADA Code);
  • The flexible concept of No Significant Fault or Negligence (Article 10.5 of the WADA Code) 
  • Conclusions

 

The prohibition on WADA-accredited laboratories to analyse supplements without a specific request by an anti-doping organisation (Article 4.2 of the Laboratory Code of Ethics) 

According to Article 4.2 Paragraph 3 of the Laboratory Code of Ethics, which is Annex B to the International Standard for Laboratories (LCE-ISL) issued by WADA:

The Laboratory shall not engage in analyzing commercial material or preparations (e.g. dietary supplements) unless specifically requested by an Anti-Doping Organization as part of a doping case investigation.

This actually means athletes cannot instruct a WADA-accredited laboratory to run tests at the athletes’ behest, and instead, athletes have to request the anti-doping organisation with result management authority to provide instructions that permit such testing to the laboratory. 

As a result of UEFA and the Croatian National Anti-Doping Organization’s refusal to allow the testing by a WADA-accredited laboratory of the supplements and products Ademi used before his positive test, the original contaminated product “M” used by the Player was only confirmed to have Stanozolol in it after the CAS hearing when the CAS Panel ordered the product M to be tested by the WADA-accredited Cologne laboratory. It took over a year from the day the Player sent all the products he was using before his positive test to the WADA-accredited laboratory in Seibersdorf (Austria) to the day the original product M, which caused Ademi’s positive test, was finally tested.

A general prohibition by WADA-accredited laboratories to analyze commercial material or preparations can be understood as WADA-accredited laboratories primarily focus on athletes' samples testing. Furthermore, if WADA-accredited laboratories were to regularly test material and products on behalf of sport supplement producers, this may lead to a risk of conflict of interests, for example if a laboratory reports an adverse analytical finding on the occasion of a doping test caused by the ingestion of a product manufactured by a company, which is also a client of the same laboratory.

Nevertheless, the strict prohibition to test supplements under the instructions of athletes, as enshrined in the LCE-ISL, even in the course of a disciplinary procedure, is unfortunate and should, in the author's opinion, be removed. This rule has the following disadvantages:

  1. First, the athlete has the burden of proof to demonstrate how the prohibited substance entered his or her body. Consequently, in order to provide evidence showing the source of the product, which implies the testing of the supplements or medications the athlete was using at the time of the positive test, the athlete is placed in a difficult position. The athlete’s options are: 

    1. He or she sends the products to a WADA-accredited laboratory, but then has to rely on the full cooperation of the anti-doping organisation in charge of the disciplinary procedure in order to possibly have the supplement tested. Furthermore, communication with the laboratory has to occur through the anti-doping organisation, which lacks efficiency, thus delaying the whole process. If, as in the case of Ademi, the anti-doping organisation refuses to allow the testing of supplements or other products, then the athlete is put in a very disadvantageous situation as discharging his or her burden of proof is made much more difficult; or, 

    2. The athlete instructs a private laboratory, which is used to provide services to athletes in contamination cases, to test medications and supplements but then faces criticism or doubts from anti-doping organisations, which may challenge the independence and reliability of results issued by such laboratories that are known to provide services to athletes in doping cases; or,

    3. The athlete choses to ask an independent laboratory in charge of food safety to test the products. The challenge in such a case can be that an independent state-of-the-art laboratory in charge of food safety is not familiar with anti-doping regulations and disciplinary or arbitration proceedings, meaning that even though such laboratories are independent and reliable, they are not used to working with the utmost urgency in compliance with short appeal deadlines or to appearing before disciplinary or arbitration panels as expert. 

  2. In a doping case, there is a clear conflict of interest between the anti-doping organisation, who acts as a “prosecutor” in the disciplinary procedure, and the athlete, who tries to minimize the sanction imposed on him or her. Anti-doping organisations may also be reluctant to undertake the financial risk of instructing a WADA-accredited laboratory to test supplements further to an athlete's request if, eventually, the athlete fails to reimburse the laboratory's costs to the anti-doping organisation. Consequently, anti-doping organisations may be tempted not to provide full assistance to an athlete trying to provide an explanation for a positive case.

  3. The rule seems misplaced in the LCE-ISL and contradictory to the purpose of the World Anti-Doping Code. Testing supplements related to an adverse analytical finding in order to either determine the source of the prohibited substance or exclude the hypothesis of product contamination obviously does not constitute a breach of ethical principles. Services provided by WADA-accredited laboratories that aim to establish the truth should not be considered unethical because it allegedly helps “cheaters”. On the contrary, only WADA-accredited laboratories arguably have sufficient expertise and knowledge of doping such that they can put in place, in collaboration with athletes, protocols for testing of supplements in order to ensure that evidence provided by athletes in disciplinary procedures and before the CAS is reliable, thus separating the real cheaters from the honest athletes, who inadvertenly ingested a prohibited substance.

  4. Evidently, the author suggests that the fight against doping would be improved if WADA-accredited laboratories were authorised – at least in the framework of doping case investigations or proceedings – to receive instructions and have direct contacts with athletes. Then, the laboratories could get information about the possible source of adverse analytical findings, which would, in turn, help further develop the anti-doping tests and overall knowledge of the severely underregulated supplements industry.

 

Is it necessary to establish the source of the prohibited substance in a sample in order to establish absence of intent to “cheat”? (Article 10.2.3 of the WADA Code)

In the Ademi award, the CAS panel clearly ruled that an athlete does not need to establish the source of the prohibited substance in order to prove an absence of intent to dope.

The panel weighed the factors for and against this proposition, and finally gave significant weight to the clear wording of Article 10.2.3 of the WADA Code[2], in direct contrast with Articles 10.4 and 10.5 of the WADA Code and specifically the definition of No Fault or Negligence and No Significant Fault or Negligence (which both require the athlete to demonstrate how the substance entered his or her body, except if the athlete is a minor). However, minor athletes can also show that their fault is not significant – or that they are not at fault – without having to prove how the prohibited substance entered their body.

This reasoning by the CAS in the Ademi award confirms the findings of the Panels in the cases Villanueva v. FINA, and Tomasz Hamerlak v. International Paralympic Committee,[3] but contradicts some other CAS awards (see for example: Carribean Anti-Doping Organization v Greaves, and WADA v IWF and Alvarez[4]).

The position adopted by the CAS in Ademi, which was based on a strict interpretation of the principle of legality and the contra proferentem rule,[5] is the most convincing analysis of the “intent” concept to date. There are cases where it appears that inadvertent use is more likely than intentional doping, even if the source of the prohibited substance remains unknown. Notably, this would be the case of an athlete reporting a negative test shortly before testing positive for a very low concentration, which, under the circumstances, would likely exclude a voluntary intake of a large amount of the prohibited substance[6].

It is regrettable that the unclear wording of article 10.2.3 of the WADA Code has resulted in contradictory CAS awards on the issue of what needs to be proven in order to establish lack of intent. Nevertheless, it is clear that the ability of an athlete to establish the source of a positive test will increase the prospects of establishing that the anti-doping rule violation was not intentional. As mentioned by the panels in the Ademi and the Villanueva awards, proving the absence of intent without establishing the source of the positive test may occur only in truly rare cases.

 

The flexible concept of No Significant Fault or Negligence (Article 10.5 of the WADA Code)

In Ademi, the CAS panel accepted that the player, before starting his use of the product M, checked the label to ensure that it did not include any prohibited substance and confirmed with the club doctor that the product was safe and not prohibited. The panel also noted that the product M was listed on the doping control form. The panel could also have taken into consideration that the product M (i) was taken to treat a medical condition and not to increase performance and (ii) was not associated or connected with fitness, sport performance, body building or muscle increase, as classic sport supplements sometimes are.

Nevertheless, the panel was of the opinion that the player failed to show the high duty of care needed to establish No Significant Fault or Negligence notably as Ademi

  1. did not perform an Internet search regarding the product M,

  2. did not purchase the product from a pharmacy or a drugstore, but directly from his coach at a training centre, 

  3. failed to ensure that the product was duly sealed and in its original card box,

  4. used the M pills even though the same container contained both yellow and white pills and

  5. is a professional experienced international player.

As a matter of comparison, in the case Sharapova v ITF,[7] the panel accepted that the player bore No Significant Fault or Negligence, even though she failed to realise that the Meldonium substance she was using for years had been newly put on the WADA Prohibited List, notably because she delegated all anti-doping matters to her agent.

The concept of No Significant Fault or Negligence and the assessment of the duty of care of athletes appears to be a flexible concept that is assessed differently by CAS panels on a case by case basis. In the Ademi award, the panel ruled that consulting the club doctor before starting the use of the supplement M was not sufficient in view of all other circumstances of the case to demonstrate No Significant Fault or Negligence. Here, yet again, there is a complete lack of predictability of the measures athletes must undertake in order to comply with their duty of care under anti-doping regulations.

 

Conclusion

In the author's view, the CAS's Ademi award illustrates the challenges faced by athletes confronted with an anti-doping violation involving a non-specified substance such as an anabolic steroid, even if it is found at a very low concentration in the player’s sample.

Providing reliable evidence of the prohibited substance’s source and proving the possibility of contamination is made more difficult due to WADA rules governing laboratories’ work.

Ultimately, determining whether in an individual case an athlete deserves a reduction of the ordinary four-year sanction – often tantamount to the end of the athlete’s sporting career – is made more challenging due to the complexity, strict nature and lack of clarity of the anti-doping regulations currently in place. The initial philosophy of the WADA Code (i.e. to impose harmonised sanctions on all athletes worldwide without taking into consideration the circumstances of each individual case and sport[8], subject to a possible reduction in very specific circumstances) no longer exists under the 2015 WADA Code.

On the one hand, the current version of the WADA Code imposes strict rules limiting the freedom of deciding bodies or CAS panels to fix sanctions in case of anti-doping rule violations as they deem fit. On the other hand, the numerous possibilities to decrease the ordinary four-year period of ineligibility may result in a lack of predictability and uniformity of doping sanctions worldwide.

 

 

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Author

Claude Ramoni

Claude Ramoni

Claude Ramoni is a Swiss qualified Attorney‐at‐Law specialising in advising and representing clients in the fields of sports and business law. After more than seven years of practice with a major law firm in Lausanne, he joined Libra Law as a founding partner in 2009.

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