A player friendly approach to anti-doping violations - the “Kolasa” case

Published 23 September 2014 By: Matthew Chantler

Rugby ball outside the scrum

A recent National Anti-doping Panel Appeal Tribunal decision, Sebastian Kolasa v. UK Anti-Doping,1 highlighted the importance of Article 10.5.4 of the 2009 WADA World Anti-Doping Code (2009 Code)2.

Article 10.5.4 of the 2009 Code provides:

Admission of an Anti-Doping Rule Violation in the Absence of Other Evidence

Where an Athlete or other Person voluntarily admits the commission of an anti-doping rule violation before having received notice of a Sample collection which could establish an anti-doping rule violation (or, in the case of an anti-doping rule violation other than Article 2.1, before receiving first notice of the admitted violation pursuant to Article 7) and that admission is the only reliable evidence of the violation at the time of admission, then the period of Ineligibility may be reduced, but not below one-half of the period of Ineligibility otherwise applicable.”3

The case involved a semi-professional rugby league player who became the first British athlete to be banned for deliberately evading a drug test.4

Ultimately, the player’s appeal was successful and his suspension was reduced from 24 to 15 months. This was as a result of the player’s reliance on Article 10.5.4, which allows for the period of ineligibility to be reduced if the athlete voluntary admits the anti-doping rule violation before sample collection, or, as in this case, admits the doping charge before notice of the alleged violation is given.  

Facts

In August 2013, in the middle of the playing season, the player signed for London Skolars (Skolars). As a result, the player missed the talk on anti-doping rules given to the players at the start of the season.

On Friday 16 August, the player attended a party at which cannabis was smoked. He did not smoke any himself but later became concerned that he might have inhaled second hand cannabis smoke. On Wednesday 21 August 2013, the Skolars were selected for out of competition testing at their training ground. The player was with the squad at the training session and became aware that the testers were present. He did not know that cannabis is prohibited in-competition only and that as this was an out of competition test, the sample analysis would not be screened for cannabis. He did not know that this would not be an anti-doping rule violation.

The players were told to wait in the changing rooms, however the player left the training complex. On Friday 23 August 2013, a doping control officer attending at the player’s residential address and undertook a doping test with the player. The player stated that he was nervous due to the possibility that he may have inhaled second hand cannabis smoke at a party. The player’s sample tested negative.

On 16 October 2013, the player was interviewed by the RFL. The player admitted that the reason that he left was to avoid the doping control personnel.

As an aside, interestingly the RFL stated at the outset that they believed that the player could rely upon Article 10.5.4 because of his admission at the interview. This is in contrast to other sports governing bodies that take a ‘prosecution’ role and thus take a ‘hard line’ approach.

First Instance

The first instance tribunal decided that an anti-doping rule was established, and it was admitted, so they rejected the contention that the player could rely upon Article 10.5.45. The original tribunal decided that “the admission… did no more than confirm a set of facts that was already unequivocally clear based on Mr. Kolasa’s conduct6 in that the player had submitted to the RFL’s jurisdiction, had deliberately left to avoid the testing procedure, had covered his face with a motorcycle helmet to avoid being identified, had lied when challenged as to whether he was a member of the squad, and had not responded to a text sent to him. Therefore, the player was given a two-year suspension.

Appeal

The player’s appeal was solely in relation to the application of Article 10.5.4. The player contended that until he made his admissions in interview, the case against him was not unanswerable and that on the basis of the evidence available to UK Anti-Doping (UKAD) before the interview, he could have sought to rely upon a number of defences (for example, that he had compelling justification to leave).

UKAD did not strongly argue that Article 10.5.4 was excluded and conceded, in its written submissions, that it might not have had enough evidence to charge the player before the admission. This again, which the author supports, is a player ‘friendly’ approach compared to the ‘prosecutor’ approach of other sports governing bodies.7

In relation to the correct interpretation of Article 10.5.4, the tribunal referred to the commentary on rule 10.5.4, which states “this Article is intended to apply when an Athlete or other Person comes forward and admits an anti-doping rule violation in circumstances where no Anti-Doping Organization is aware that an anti-doping rule violation might have been committed. It is not intended to apply to circumstances where the admission occurs after the Athlete or Other Person believes he or she is about to be caught”. The tribunal held that the commentary had no application to the case and is mainly relevant to cases where an athlete makes an admission after it has become apparent to the athlete that he or she will be tested shortly, but before having been given actual notice of sample collection.

The tribunal referred to previous jurisprudence, UKAD v. Danso and Offiah8, in which it was held that Mr Offiah could rely upon Article 10.5.4 in circumstances where his admission led to clarification that he was guilty of tampering which requires fraudulent intent, because he admitted not only to misidentifying a “ringer” (unlicensed stand-in) but doing so fraudulently, not merely innocently. Thus, it confirmed that Article 10.5.4 can apply where the admission confirms the mens rea (guilty mind) necessary to establish the anti-doping rule violation. The Panel stated that the violation of “otherwise evading sample collection” is an offence of specific intent, in that there must be a deliberate intention to avoid being tested. 

The parties agreed that a very strict and narrow interpretation of Article 10.5.4 should not be applied as to do so would result in the Article being redundant and undermine the aim of the Article; to reward candour, save resources and making charging decisions easier, by encouraging pre-charge admissions. The author agrees with the approach of the parties and panel, it would be unfair and unjust for an athlete to be unable to rely upon the Article where some reliable evidence of a violation exists but would be insufficient for a hearing panel to be comfortably satisfied as to the commission of such a violation.

The panel explained that a measure of generosity towards the person making the admission is appropriate and that where a person is confronted with a circumstantial case for conviction and is then interviewed before charge, Article 10.5.4 ought to apply if the contents of the interview are such that they may well decisively affect the chances of a conviction9. The panel stated that “the appropriate interpretation of Article 10.5.4 is that the requirement that the admission must be “the only reliable evidence of the violation at the time of the admission”, should be read, in their context and in light of the policy underlying the Article, as bearing the meaning that the admission must be “the evidence which ensures the outcome will be conviction and not acquittal"10. This is an athlete favourable interpretation but one which the author agrees. 

Conclusion

In light of the above, the panel concluded that the evidence against the player that he had committed the actus reus (guilty act) of “otherwise evading Sample collection” (the act of avoiding the test) was overwhelming before any admission was made, and that the player’s admission that he was the person that had left provided the necessary mens rea. That without the admission, the panel would have to be comfortably satisfied that he had the requisite intent based on the circumstantial evidence. The panel decided that this was not a case so overwhelming that the admission was unnecessary, as the case on intent had weaknesses and as the player had possible defences that could have succeeded. Thus, UKAD wished to obtain the player’s assurances that he did not deny fleeing the scene and that he did so in order to avoid testing. 

The admission transformed a reasonably strong circumstantial case into an unanswerable one and was therefore sufficient to enable the player to rely upon Article 10.5.4 and have the mandatory two-year suspension reduced to 15 months.

Brief Comment

The case again highlights the inadequacies of the education provided to athletes. To have one doping seminar pre-season is of no benefit to those, like the player, that join mid-season. The case also highlights the potential application, depending on the facts of the case, of Article 10.5.4 where an athlete faces a doping charge that also requires mens rea

 

 

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Author

Matthew Chantler

Matthew Chantler

Matthew, a solicitor at Mills & Reeve LLP, specialises in Sports Law and is an FA and RFL Registered Lawyer. He advises players' associations including Professional Players Federation, Professional Footballers' Association, PFA Scotland, Rugby Players Association, 1eagu3 and their members, a number of professional football clubs, players and agents on regulatory and legal matters. 

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