Proportionality in doping cases and proposed revisions to the World Anti-Doping Code

Published 31 October 2013 By: Nicholas Goodfellow

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One of the main purposes of the World Anti-Doping Code ("WADC"), produced by the World Anti-Doping Agency ("WADA"), is to make the fight against doping in sport more effective by harmonising the legal framework and to provide uniform doping sanctions to be applied in all sports.

It has been observed by the Court of Arbitration for Sport ("CAS") that it would be a "disaster" for the WADC, and the fight against doping in sport in general, if the WADC were to be struck down as not producing a "just and proportionate" sanction: see Puerta v ITF CAS 2006/A/1025.

The most recent version of the draft revision to the WADC (likely to come into force in 2015) mandates that the length of ban for positive tests by 'first time infringers', where the contravention is "intentional" (or something akin to recklessness), will be four years. This increases the length of sentence under the current WADC from two years (it should be noted that articles 10.4 and 10.5 of the WADC provide limited circumstances in which the length of the mandatory ban may be mitigated and reduced).

There is a very real issue as to whether such an increase will be considered 'proportionate' (as observed in the Editorial of the BASL Journal, volume 21).

On the one hand, CAS case law evidences that it will readily uphold the provisions of the WADC even in cases where the results produced may well seem 'harsh': see Edwards v IAAF, CAS OG 04/003, a case where the athlete had unintentionally and unknowingly ingested two glucose tablets containing nikethamide, where a two year sanction was upheld, in circumstances where the athlete's actions were found to have been negligent (and therefore article 10.5 mitigation was rejected).

In Hipperdinger v ATP CAS 2004/4/690 it was accepted that the principle of proportionality must be observed in applying a sanction for a doping offence, but on the facts of that case, CAS was not prepared to depart from the two-year minimum on the basis that it could not be said to be "totally disproportionate" to the behaviour in question, given that the athlete's article 10.5 argument (i.e. that they had acted with no significant fault or negligence) had been rejected (as in Edwards).

Further, in subsequent cases, CAS has effectively proceeded on the basis that the clear provisions of the Code are not disproportionate: see Diethart v IOC CAS 2007/A/1290 where it was observed that the principle of proportionality was "built into" the WADC. It has only been in a "very rare case" that CAS has held that the sanction prescribed by the WADC question was neither just nor proportionate: see Puerta; a case concerning the penalties for second-time infringers which led to a subsequent revision of the WADC.

Given the case law above, the likelihood is that CAS will strive to uphold any increase to the mandatory sentence for first time infringers to four years. In particular, Edwards and subsequent cases illustrate how sanctions will be upheld even if the results seem 'harsh'. If it is not disproportionate for an athlete who unknowingly and unintentionally ingests a banned substance (albeit negligently), then a greater sentence for an intentional infringement seems (at first blush) likely to be proportionate.

Further, the proposed revision of the WADC includes a reorganization of the provisions dealing with when a sanction may be reduced (articles 10.4-10.6), and includes a specific provision dealing with mitigation for the ingestion of a 'Contaminated Product'. Such revisions may be relevant when considering the proportionality of the increase of the mandatory ban.

Most importantly, the increase to the mandatory ban has been welcomed by most stakeholders after a long consultation period. WADA President John Fahey has said, the increase says to cheats:

"We're going to get you and deal with you even more effectively than we have in the past"

The difficulty, however, is that a two year ban under the current regime for an intentional infringement is already perceived to be proportionate. Whilst the current regime does afford the ability to impose a four year sentence to first time infringers in 'aggravating circumstances' (see article 10.7) this provision will not bite for mere intentional infringement but requires something more: e.g. being part of a conspiracy or common enterprise to commit anti-doping violations.

Further, the narrow approach to proportionality under EU law makes the increase to four years open to serious challenge. As to this:

  1. Anti-doping rules in professional sport are potentially subject to the anti-competition prohibition contained in article 81 of the EC Treaty: Meca Medina and Majcen v Commission of the European Communities [2006] 5 CMLR 18.
  2. In order not to be covered by the prohibition in article 81, the anti-doping rules must be (1) justified by a legitimate objective, and (2) "limited to what was necessary to ensure the proper conduct of competitive sport": Meca Medina at paras 43-47.
  3. As to (1) in Meca Medina it was observed that such a limitation was "inherent in the organisation and proper conduct of competitive sport".
  4. The real issues surround point (2) and it is notable that the language used is limited to what is 'necessary'.

Meca-Medina itself was a case concerning two professional swimmers who received a four year ban from the Fédération Internationale de Natation ("FINA") (adopting the rules of the International Olympic Committee), following a positive test for Nandralone. The swimmers sought to argue that the threshold for a positive test was set at an excessively low level. This argument failed. The swimmers did not, however, argue that the four year ban was excessive in duration. As to this the European Court of Justice observed, somewhat curiously (at para 55):

"Since the appellants have, moreover, not pleaded that the penalties which were applicable and were imposed in the present case are excessive, it has not been established that the anti-doping rules at present are disproportionate"

One construction of this passage is that had the duration of the ban been challenged it would have been found to be disproportionate. Whilst that construction is open to doubt, the position remains that under EU law it will need to be established that the four year mandatory ban is limited to what is 'necessary' to ensure the proper conduct of competitive sport. In effect, this seems likely to mean that the sporting body will need to argue that the current WADC rules are/were not acting as a sufficient deterrent for intentional infringers, or find some other reason why it is necessary to increase the length of the ban.

Whether such arguments will withstand the scrutiny of a European Court will be interesting to see. Is this increase a disaster waiting to happen?

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Nicholas Goodfellow

Nicholas Goodfellow

Nick specialises in commercial and employment litigation. Nick is a keen sportsman, and has acted in a variety of sports related disputes. Nick has acted for a racehorse trainer claiming unpaid fees and defending allegations of professional negligence, and for a senior executive of a leading football club.

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