Prosecuting historic doping: Why the 2015 WADA Code’s new limitation period is an opportunity missed

Published 04 November 2015 By: Tim Meakin , Tim Walker

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The World Anti-doping Code (the “Code”)1 contains a set of rules that aims to harmonise the anti-doping rules worldwide by the identification of prohibited substances and methods, the definition of anti-doping rule violations (ADRV), and the imposition of appropriate sanctions.2 The Code was amended with effect from January 2015 (the “2015 Code”) and various changes were instituted to it. Specifically, as part of a general increase in sanctions,3 the period of limitation for prosecuting an ADRV has been increased under Article 17 from 8 years4 to 10 years.

This article considers the legal issues relating to the prosecution of historic ADRV’s outside of the Code’s stated period of limitation, and asks whether the changes instituted under the 2015 Code provide an effective legal structure for tackling that problem.

 

The Code’s New Period of Limitation

The period of limitation under Article 17 of the 2015 Code provides a defence to historic anti-doping offences. The defined period in which to prosecute doping offences is now ten years from the date the violation is asserted to have occurred (“the limitation period”). Therefore, in principle, an athlete has a complete defence to doping violations after 10 years from the date when the doping offence occurred. Article 17 of the Code states as follows:

No anti-doping rule violation proceeding may be commenced against an Athlete or other Person unless he or she has been notified of the anti-doping rule violation as provided in Article 7, or notification has been reasonably attempted, within ten years from the date the violation is asserted to have occurred

The aim of the increase is to widen the net slightly to enable the prosecution of more athletes who are guilty of historic but as yet unproven doping offences. It will further discourage those currently competing if they know that their samples might be analysed in the future when scientific advances might reveal offences that could not have been detected contemporaneously.

But does the mere two-year extension of a rigid limitation period address the real problem? What of the athletes who have successfully concealed offences that date back beyond the limitation period? Some may still be competing and still gaining an advantage from historic drug use. Even if not still competing, they might be involved in their sport as a coach or administrator. The clean athletes they defeated are still denied the satisfaction of knowing that they were the best (though even a successful prosecution will not give them back their moment in the spotlight).

Shortcomings in the Drafting of Article 17

An inconsistent and unsatisfactory approach to overcoming the rigidity of the limitation period has evolved. It remains unresolved with the amended drafting.

A cursory analysis of Article 17 immediately identifies problems. There is a lack of precision as to when an ADRV occurred for the purpose of determining the date from which limitation started running, and therefore when it ends. Given the multiplicity and variety of doping offences, they cannot all be subject to the same rigid criteria. Moreover, there is no express provision made within the Code to identify the circumstances in which the period of limitation can be interrupted, suspended, extended or set aside so that a consistent worldwide approach can be applied to the prosecution of those whose offences were committed more than 10 years ago.

That produces a rigid conceptual approach. A comparison with the Limitation Act 1980 in England & Wales highlights these deficiencies. Under the 1980 Act, the fundamental issues are defined including:

  1. the date from when limitation starts to run;
  2. the factors that can delay its commencement, including a claimant’s knowledge of a cause of action;5
  3. specific provisions providing for the postponement of the commencement of the limitation period in cases of fraud and concealment;6 and
  4. the criteria to assess whether “statute barred” cases may proceed,7 including an equitable balancing of respective prejudice caused to the parties, both from a delay in bringing an action, and the ability of the defendant to defend it out of time.

As presently drafted the Code fails to address all of those issues and the need for clear terminology, purpose and a flexibility of response to provide a solid legal foundation for the prosecution of historic doping violations committed outside the primary limitation period.

 

What is the legal basis to extend or suspend the limitation period under the Code?

A legal basis has evolved on which some prosecuting agencies now proceed to prosecute cases outside the Code’s express period of limitation. It has evolved through case law and does not derive from the Code. The approach seemingly has two components.

First, case law principles have identified that in the absence of guidance within the Code, prosecuting agencies are required to apply their own national laws in order to determine whether and when an ADRV is or is not within the period of limitation. This principle was established in the case of Coni [2005].8 The Court of Arbitration for Sport (CAS) approached the issue as follows:

The question may arise as to how to measure the eight-year period in terms, for example, of dies a quo, interruption, suspension, expiry or extension of such time-bar. In this respect, it must be noted that doping rules enacted by sports authorities are private law rules (and not penal law rules). Consequently, in the Panel’s view, any legal issue concerning the application of such eight-year rule should be dealt with in the context of the principles of private law of the country where the interested sports authority is domiciled”.9

The problem with this is that the issue of whether and how a national law will apply in a particular country, and therefore whether and how a National Anti-Doping Organisation (NADO) can apply a limitation period, has to be assessed on a national rather than a consistent worldwide basis.

Secondly, and following on from the application of national laws, a doctrine of “fraudulent concealment” has evolved. Essentially, the doctrine provides that an alteration of the period of limitation is justified on the basis that the dishonest conduct of the athlete has prevented the lawful prosecuting of the ADRV.

The failure to adopt a harmonised and comprehensive structure in the Code similar to those appearing in other statutory provisions prescribing a period of limitation (such as the Limitation Act 1980) has arguably created an inconsistent and conceptually dysfunctional global approach. It is unsatisfactory to say the least that whilst CAS permits agencies to rely on their own private law rules, there is no express provision in the Code to justify this approach. Moreover, it runs contrary to the aim of harmonising anti-doping law under the Code, which ultimately should be the definitive determination any interpretation of universally applied anti-doping rules.

 

How has Article 17 been extended in practice?

The case of Eddy Hellebuyck

Hellebuyck was a marathon runner10 who competed in the 1996 Summer Olympics in Atlanta. He was tested out of competition in 2004 by the United States Anti-Doping Agency (USADA) and the test demonstrated the use of a prohibited substance, erythropoietin (EPO). Giving evidence at his own hearing in 2004, Hellebuyck stated he had never used EPO before 2004, but he was duly banned for two years. Thereafter in 2010 he admitted to USADA that he had in fact used EPO in 2001. USADA promptly reviewed the 2004 decision, which resulted in further charges in 2011.11

Notwithstanding that the proceedings commenced in 2011 related to violations in 2001 - and so outside the then applicable period of limitation - the proceedings were permitted and succeeded.12 The justification was that based on national law principles: applying the fraudulent concealment doctrine, Hellebyuck’s fraudulent concealment and perjury at his hearing in 2004 suspended the operation of the period of limitation until the accurate facts were finally ascertained. Time would therefore run from the date of his admission in 2010 and he was duly banned.

The Case of Lance Armstrong

The facts of the case are well known but, in summary as to the limitation issue, whilst Armstrong admitted extensive doping violations, he never actually tested positive for a prohibited substance.13 The proceedings against him commenced in June 2012 and so were subject to the then eight-year period of limitation. Consequently, the issue was whether proceedings could be brought to strip him of his Tour de France titles from 1998 to June 2004. The USADA's 'Reasoned Decision' of 10 October 201214 invoked the fraudulent concealment doctrine and ruled that the extension of the limitation period was justified as Armstrong had deliberately concealed his doping history and generally acted dishonestly. Whilst many might consider that the decision was just, the reasoning was strained in that in Armstrong’s case there was no “fraudulent concealment” by his testimony, as he had never given evidence before a relevant tribunal. In fact, the case against him was based on his admission in the face of 24 statements of former teammates and other documentation. In summary, the Reasoned Decision held that:

  1. The 8 year period of limitation in Article 17 was not absolute and the interpretation of the period of limitation should be made in the context of the private law of the country where the interested sports authority is domiciled, namely USADA.
  2. US law expressly provided that the limitation period could be suspended on proof of fraudulent concealment of past offences, which Armstrong had done, including the intimidation of witnesses and lying before a French judicial investigation. There was evidently ample additional evidence of his attempt to cover up his wrongdoing.

 

Inconsistency of application of the period of limitation: the case of Ryder Hesjedal

Whilst the conceptual basis for extending or suspending the limitation period is set out in case law, the application of the Code in practice has lacked consistency. For example, Ryder Hesjedal, a Canadian cyclist, admitted in 2013 anti-doping offences committed in August 2003, therefore just outside the period of limitation. Notwithstanding the cynical nature of this admission for an athlete who continued to compete, no proceedings were ever brought against him even though his doping was admitted.15 No satisfactory explanation has ever been given for this failure to apply the Code consistently in relation to Article 17.

 

Is there a need to strengthen Article 17 against a growing problem? The recent leak of IAAF blood data

The recent leak of an IAAF blood data database in August 2015 by the Sunday Times and a German Broadcaster (ARD/WDR) reveals the results of testing of athletes from 2001 to 2012. Some commentators claim that the results indicate evidence of potential wholesale cheating in athletics,16 with one anti-doping expert suggesting that the database reveals that more than 800 athletes have recorded blood tests that were “highly suggestive of doping or at the very least abnormal.17 Were the samples to provide sufficient evidence of historic doping offences, then the prosecuting agencies could potentially have to prosecute many historic alleged ADRVs outside the period of limitation. Given the vulnerabilities highlighted herein it is questionable whether the Code in its present form would enable successful and prompt prosecutions to be brought in such cases and it is likely that different approaches would be taken by different NADOs.

 

What practical changes would increase the effectiveness of Article 17?

It would be relatively straightforward to amend Article 17 of the Code to clarify the provision and to empower prosecuting agencies to bring charges in respect of historic doping violations beyond the primary limitation period, and so further protect clean sport.

First, the lack of flexibility has to be rectified. The modern sophistication of doping cannot be effectively investigated when NADOs are constrained by a rigid limitation period. The 2-year extension to 10 years does not address that issue. Three points support that view:

  1. The Armstrong case demonstrates that his successful prosecution took a long time to investigate. The need for newer and improved testing is an ever more onerous requirement imposed on agencies to keep pace with those who seek competitive advantage by cheating. In that context the imposition of arbitrary time limits puts the prosecuting agencies at an unnecessary and avoidable disadvantage.
  2. Cheating athletes can still be competing at and beyond 10 years after an original doping offence. Thus the imposition of an arbitrary time limit with no express provision for extension merely aggravates the effects of their dishonesty, which can have a disproportionate and long-lasting effect on clean athletes.
  3. The recent increases in sanctions for doping offences means there is now potentially less incentive for doping cheats to admit dishonesty within the limitation period. There needs to be a structure that encourages athletes to make a prompt admission.

Secondly, there needs to be a consistent worldwide approach to extending the limitation period, which only the worldwide Code can implement. In a highly relevant article, Stuart Gillespie, an Attorney for the U.S. Department of Justice, expands on some of these criticisms and provides a reasoned basis for extending and suspending the operation of Article 17.18 First, there is an over-reliance on the doctrine of fraudulent concealment, which in terms of the evolving aspects of anti-doping technology is a relatively crude instrument. In contrast, he emphasises the need to fortify the fraudulent concealment doctrine with what he terms the “continuing violations doctrine”. Essentially, where the evidence demonstrates violations that have continued over a specific period of enhanced sporting performance, then the period of limitation should be extended to permit enforcement.19 The Code should (and arguably on a proper construction, does) identify that an anti-doping violation is not necessarily as an individual, discrete act, but as a continuing act of violation. The phrase in the Code “use or attempted use of a prohibited substance or method” should be interpreted to include the prohibited action over a protracted period in order to obtain a competitive advantage.20 The words “method” and “utilisation” in the Code also arguably provide express support for this proposition. Correspondingly, doping violations that create that advantage for the athlete should automatically mean an extension of the period of limitation, as the smallest proven dishonest advantage properly justifies the suspension/extension of the limitation period.21

 

Application of the Doctrine of Fraudulent Concealment

That principled analysis also chimes with the empirical experience of modern doping in that the performance-enhancing benefits are now known to have long term and even permanent beneficial effects (for example, that steroids can permanently alter musculature; and also the development of gene doping22). They are also increasingly difficult to detect. Thus the Code must be interpreted and applied flexibly to ally the application of the period of limitation to the period over which the performance-enhancing drug has/had an impact, and moreover which identifies the illegality to which the limitation period should apply. Thus a combination of both the application of the fraudulent concealment doctrine with the doctrine of continuing violation will provide a more robust basis to safeguard clean sport.

 

Comment and Further observations

It is undoubtedly the case that, with ever-more sophisticated technical advances in detecting ADRVs, the problems associated with prosecuting cases outside the Code’s limitation period will increase. At present it is strongly arguable that the jurisprudential approach combined with the lack of precision under the 2015 Code, is making this task more difficult than it should be. What prosecuting agencies require is a principled and effective legal structure that not only permits sufficient time to investigate an historic ADRV, but also provides the means to extend the period of limitation in appropriate circumstances to prosecute historic violations. It would be a relatively straightforward task to amend the 2015 Code and to articulate a set of legal principles on the procedural issues whilst at the same time combining both the fraudulent concealment and continuing violations doctrines to prescribe a coherent regime for the suspension or disapplication of the period of limitation.

After all, widening the scope of the legal concepts that can defeat doping should be seen as just as important as the technical advances in order to preserve the integrity of honest competition, whilst at the same time placing the onus on the cheating athlete to admit that dishonesty, as opposed to providing him or her with an avoidable opportunity to evade sanction completely by running out the limitation period.

 

References

  1. WADA World Anti-Doping Code 2015, https://wada-main-prod.s3.amazonaws.com/resources/files/wada-2015-world-anti-doping-code.pdf. The Code applies to all international organisations and countries that have endorsed it. It provides the legal basis on which doping violations are identified and enforced and is central to the protection of the integrity of drug-free sport. In the United Kingdom enforcement of the Code is overseen by an independent agency, UK Anti-doping (UKAD), and in the USA by United Stated Anti-Doping Agency (USADA). These national Anti-Doping Organisations (NADOs) are responsible for testing athletes and sports personnel at any time and if necessary, prosecuting the individual and imposing sanctions.
  2. The key criteria are substances and methods that (1) may, or do in fact, enhance performance, or (2) may, or do in fact, harm an athlete’s health, or (3) violate the spirit of the sport. Pursuant to Art.4.3, a substance or method will be banned under the Code and will appear on WADA’s Prohibited List if it meets two of the three criteria. The list can be found at https://list.wada-ama.org/
  3. Under the 2015 Code, subject to express defences, an ADRV in breach of Arts.2.1 or 2.2 of the Code is a strict liability offence - a successful prosecution can if the offence was intentional (see Art.10.2.1 as to where the burden of proof lies in proving intent) result in a 4-year period of disqualification. This was increased from 2 years under the 2009 Code. The intention was to increase the penalty for intentional doping, whilst maintaining a greater flexibility of sanction for non-intentional offences.
  4. The period of limitation was 8 years under the WADA Code 2009
  5. Limitation Act 1980 s.14A
  6. Limitation Act 1980 s.32
  7. Limitation Act 1980 s.33
  8. Comitato Olimpico Nazionale Italiano (Coni) CAS 2005/C/841, https://www.doping.nl/media/kb/150/CAS%202005_C_841%20Advisary%20Opinion%20CONI%20S-FS.pdf
  9. Ibid, see para 78
  10. John Brant, ‘The Confessions of Eddy Hellebuyck’, runnersworld.com, 12 June 2015, last viewed 26 October 2015, https://www.runnersworld.com/elite-runners/the-confessions-of-eddy-hellebuyck
  11. He was charged under Article 2.2. The intention was to remove Hellebuyck’s results after August 2001. As the charges were commenced in April 2011, ostensibly jurisdiction was limited to a period after April 2003.
  12. The limitation period under the WADA Code 2009 was 8 years.
  13. Testimony obtained after protracted investigations proved he was using EPO, human growth hormones and testosterone, with additional methods of blood doping. Obviously he then sought to evade detection by masking.
  14. United States Anti Doping Agency v. Lance Armstrong, ‘Reasoned Decision Of The United States Anti-Doping Agency On Disqualification And Ineligibility’ 10 October 2012, available to download at https://cyclinginvestigation.usada.org/ (last checked 26 October 2015)
  15. This omission is even more difficult to comprehend given he had given evidence against Armstrong and that evidence had been relied upon by USADA.
  16. Andy Cryer, ‘Banned drugs found in 3,800 samples in 2014, says Wada’, bbc.com, 7 October 2015, last viewed 12 October 2015, https://www.bbc.co.uk/sport/0/33686397
  17. Dan Roan, ‘Leaked IAAF doping files: Wada 'very alarmed' by allegations’ bbc.com, 2 August 2015, last viewed 29 October 2015 https://www.bbc.co.uk/sport/0/athletics/33749208
  18. Stuart Gillespie, “When the clock starts for pursuing doping violations”, [2013] Texas Review of Entertainment and Sports Law Vol 15.2
  19. Note that under the Code, a doping offence does not have to prove a performance enhancing effect (although that is the general aim of taking such a substance or method) and the mere presence of a prohibited substance by sample can invoke strict liability.
  20. WADA Code 2015 Article 2.2. The emphasis on “method” could arguably support an interpretation of a continuing act that intends to achieve a competitive advantage, in both the short and long term, when it is proved to have enhanced and long term benefits.
  21. Arguably, in the case of Armstrong, the benefits of reliance upon the “continuing violations doctrine” would have avoided the unsatisfactory and strained application of the fraudulent concealment.
  22. It is also emphasised that Human Growth Hormone has “Substantial performance-enhancing effects that remain elevated for weeks if not months” p.142 and also U. Meinhardt et al “the Effects of Growth Hormone on Body Composition and Physical Performance in Recreational Athletes.” Annals of Internal Medicine 2010 Vol.152. See also https://www.bbc.com/news/science-environment-247301151.

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Author

Tim Meakin

Tim Meakin

Tim Meakin is a barrister at Seven Bedford Row. His practice covers a wide range of sports, including doping cases, and other sports disciplinary cases, child safe-guarding, in addition to specialist personal injury and professional negligence claims (including claims relating to doctors, physiotherapists and coaches). He has been instructed on a wide range of issues from individual sports personnel to major sporting bodies, (including the Rugby Football League, UK Athletics and British Cycling Federation). Tim provides both advice and representation in courts and tribunals and has undertaken a wide range of civil litigation and disciplinary cases before sports governing bodies as diverse as the Football Association, British Gymnastics and the British Canoe Union. Tim also writes on issues relating to Sports Law and he is a member of the British Association for Sport and Law (BASL).

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Tim Walker

Tim's practice focuses on the problems faced by small and medium sized enterprises in the commercial and employment fields. As a former international hockey player and qualified coach, distinctly average golfer, road cyclist and long term Liverpool fan, Tim also has a keen interest in sport and legal matters relating to sport.

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