Proportionality of sanctions under the WADA Code: a case study from the Czech Republic
Published 19 May 2015 By: Jirí Janák
Acting in breach of Art. 2.3 of the WADA World Anti-Doping Code 20151 (WADC) is a severe doping offence that rightly deserves to be sanctioned.
In light of a recent case arising in the Czech Republic (Handball case)2 however, this author would like to explore the proportionality of sanctions for such a breach (and more generally), together with the question of whether adjudicating panels should be given any discretion, when sanctioning, to eliminate, reduce or suspend any ineligibility period on the merits of the case3 when the case does not otherwise fall under the purview of any of Articles 10.4, 10.5 and 10.6 WADC.
The Handball case involves an Athlete competing in the major Czech Handball League. During one of the matches, the Athlete was selected to undergo a doping control test. After the match, the Athlete, together with 5 other athletes who were also selected, followed doping control officers to a room for the doping control. The doping control was problem-free for the other athletes (all of whom tested negative); however, a problem occurred with the Athlete. The Athlete was not able to produce a urine sample that would meet the specific gravity requirements under the Regulations for Doping Control and Sanctions in Sports in the Czech Republic (the “Regulations”)4 - i.e. his urine was too diluted. The specific gravity of his urine was measured by a refractometer and reached from 1.003 to 1.004.
He tried to produce a valid sample six times over a period of some four hours, but none of the samples met the gravity requirements. The Athlete then got desperate, lost his nerve, tore the doping control form into pieces, and left the doping control room without permission. He had earlier asked the doping control officers if he could leave soon, as he needed to be at work and the whole team was waiting outside the hall for him in the bus. His request however was denied by the doping control officers, who insisted that he had to give them the required sample, and if did not, he would be acting in breach of Regulations.
The next day, the Athlete, after realising that he could have committed an anti-doping rule violation, immediately apologised for his behaviour and offered his assistance to try to rectify the situation. He eventually underwent a voluntary toxicological control in the hospital, proving the presence of no banned substances in his body.
The case occurred in 2014, and accordingly the previous versions of the Regulations and the WADC applied. However, aside from the relevant sanctions under the 2015 Regulations and the WADC (which have been increased from 2 up to 4 years), the other applicable provisions remain materially the same for the purposes of the case.
Article 2.3 of the Regulations (previous version) stated that the following constitutes an anti-doping rule violation:
"Refusing or failing without compelling justification to submit to Sample collection after notification as authorized in applicable anti-doping rules, or otherwise evading Sample collection."
In terms of the required gravity of Samples, Article 5.12.5 of the Regulations states:
"If the value of specific gravity of the first Sample is outside of the required values (lower than 1.010 or 1,005 in case of measuring by refractometer), the Athlete shall be obliged to stay in the Doping Control Station until he/she provides another Sample having Suitable Specific Gravity for Analysis. If the Athlete refuses to meet this obligation this shall be considered a refusal to submit a Sample under Article 2.3."
According to Art. G., Annex G of the ISTI, for Urine Samples that do not meet the requirement for Suitable Specific Gravity of Analysis, the procedure to follow is:
"The DCO shall determine that the requirements for Suitable Specific Gravity for Analysis have not been met (G.4.1).
The DCO shall inform the Athlete that he/she is required to provide a further Sample (G.4.2).
The DCO should continue to collect additional Samples until the requirement for Suitable Specific Gravity for Analysis is met, or until the DCO determines that there are exceptional circumstances which mean that for logistical reasons it is impossible to continue with the Sample Collection. Such exceptional circumstances shall be documented accordingly by the DCO (G.4.6).
If it is determined that none of the Samples collected from the Athlete meets the requirement for Suitable Specific Gravity for Analysis and the DCO determines that for logistical reasons it is impossible to continue with the Sample Collection Session, the DCO may end the Sample Collection Session (G.4.9).
The DCO shall send to the laboratory for analysis all Samples which were collected, irrespective of whether or not they meet the requirement for Suitable Specific Gravity for Analysis (G.4.10).
The laboratory shall determine, in conjunction with the Testing Authority, which Samples shall be analyzed (G.4.11)."
Article 10.3.1 of the Regulations (previous version) stated:
"For violations of Article 2.3 (Refusing or Failing to Submit to Sample Collection) or Article 2.5 (Tampering with Doping Control), the Ineligibility period shall be two (2) years unless the conditions provided in Article 10.5, or the conditions provided in Article 10.6, are met."
In December 2014, the Panel determined on the facts that the Athlete had breached Article 2.3 of the Regulations, and imposed a 2-year ineligibility period. The decision was upheld on appeal.5 The first instance decision did not include any reasoning; however, the appellate body stated that it had been sufficiently proved that the Athlete had left the doping control room without permission and thus had “refused” to submit a Sample to collection without any compelling justification.
On the question of proportionality, the appellate body stated that the principle of proportionality must be respected and that sanctions imposed upon athletes must be proportionate to the offence committed. However, the body concluded that the principle of proportionality is already sufficiently provided for within the WADC at Articles 10.5 and 10.6.
As to the specific sanction for the Athlete, the appellate body heard pleas for a reduction of the ineligibility period pursuant to Articles 10.5 and/or 10.6, but found no reason for either provision to apply. It concluded that the Athlete’s conduct was intentional because he had intentionally torn-up the doping control form and had left the doping control room “refusing” to submit a sample despite being warned by the doping control officers of possible consequences.
A further appeal has been filed with the Czech Olympic Committee - the supreme authority in doping matters in the Czech Republic – who are likely to hear the case in summer 2015.
Although not strictly pertinent to the current discussion, it should be noted that issues also arose around whether or not all of the doping control procedure requirements requested by the ISTI were observed by the DCO; particular relating to, among other things, the DCO’s failure to collect and send the Samples to the laboratory in breach of G.4.10 of ISTI, Annex G.
The author would like to comment on the proportionality of the ineligibility period of 2 years imposed upon the Athlete given the circumstances of the case.
The author is clearly against all forms of doping in sports, and approves of the activities of anti-doping authorities, particularly in cases of intentional and organized cheating in sports. However, the author is also of the opinion that, in certain cases when the facts merit it, panels should have the discretion to apply sanctions more flexibly so as to avoid disproportionately punishing athletes who have otherwise acted in conformity with anti-doping rules during their careers.
The author submits that the current circumstances in which sanctions can be proportionally reduced under the WADC (see Articles 10.4, 10. 5 and 10.6) cannot have foreseen, and so cannot cover, all possible situations that could arise (such as here). This author therefore submits that, in addition to those Articles, certain overarching, universally accepted, principles should apply to the WADC and be available for use by panels if the circumstances of a case merit it. Proportionality is an example of one such principle.
It is interesting to note that the appropriate application of the principle of proportionality to doping cases is not universally agreed upon, as can be seen from the contradictory CAS case law on the matter. On one occasion, the CAS Panel has stated the need for an overarching principle of proportionality to be applied by panels when imposing sanctions; yet on other occasions CAS Panels have stated that the principle is already fairly embedded within the WADC, and so sanctions cannot be reduced otherwise than as stipulated under the code.6
Both panels agree that the severity of the sanction imposed must be proportionate to the offence committed;7 it is their approaches towards the implementation of the principle that differ. The WADC itself provides no clear instructions on this issue, as it only sets forth that the code has been drafted giving consideration to principles of proportionality and human rights.8
The principle of proportionality is also well established under Swiss law. As stated by the CAS in the case of Puerta, “The WADA is itself is a Swiss private law foundation…the rules of a Swiss private law entity should comply with Swiss law…the principal concern of WADA was to ensure that the WADC complied with Swiss law in respect of proportionality”9 and in the CAS Advisory Opinion FIFA, WADA “One of these general principles, which pervades Swiss jurisprudence and the Swiss legal system, and which is relevant in the context of this Opinion, is the principle of proportionality, a principle which has its roots in constitutional and administrative law.”10 If the WADC is subject to Swiss law, it is interesting to consider whether any failure to adequately consider the appropriate proportionality of a sanction would violate Swiss law.
However, proportionality is not only the concern of Swiss law. In his legal opinion on the draft 2015 World Anti-Doping Code, Mr. Costa stated that “Several national constitutional courts and international courts have clearly ruled that a disproportionate sentence, in particular regarding the length of the sentence, is unlawful” and that the individualization of sentences – and hence the prohibition of automatic and non-adjustable sanctions - is a traditional principle in jurisdictions such as France, United States or Germany.11 The Court of Justice of the European Union has similar jurisprudence, having stated: “One can therefore conclude that the internationally recognized principles of law encompass the notions of proportionality of sanctions and prohibition of excessively severe sanctions”.12
Without the possibility of panels considering proportionality more generally, what we are left with is situations such as that of our Handball Athlete – whose factual circumstances are somewhat out of the ordinary - suffering the same sanction as an athlete who commits a more straightforward or normal case of evasion, refusal, or failure to submit a sample without taking any further actions to try to rectify the situation. Does this seem right? And is this in line with the broader anti-doping policy envisaged? Accordingly, this author believes that adjudicating bodies should be permitted more discretion (within pre-defined parameters) when imposing sanctions under the WADC. This could be implemented without hindering the WADC’s aim to ensure harmonized and effective anti-doping programs.
The alternative view is naturally that this could lead to uneven sanctions being imposed in similar cases, and a lack of consistency, which is a fair point. But is it still not better to rely on the guided judgement of a qualified panel to determine whether the specific facts of a case warrant a deviation from the sanction otherwise specified under the WADC based upon established principles of proportionality, than it is to risk giving sanctions that seem prima facie grossly disproportionate and that result in very significant, real life consequences for the athlete involved?
Even under the Criminal Code in the Czech Republic it is possible to reduce a sanction beyond that which is set out if exceptional circumstances are present.13 Why should this not be reflected in doping procedures too?
While this author agrees with the conclusion made by Prof. Kaufmann-Kohler who stated that “…we conclude that Articles 10.2, 10.3, and 10.5 pursue a legitimate aim and satisfy the requirement of proportionality…in short, Articles 10.2, 10.3, and 10.5 comply with human rights and general legal principles”,14 the author also believes that it is insufficient that the principle of proportionality should be limited and reflected only in these Articles. In the author’s opinion, imposing a sanction of 2 years of ineligibility for the conduct described above is disproportionate, and does not reflect the real aims and objectives of the WADC. Its aim should be to impose sanctions in fair and proportionate manner, as only with this approach can the severity of sanctions (particularly bans) be justified. The author believes that this issue needs to be dealt with in more detail at the highest level (namely by CAS and WADA) before we can expect more clarity on this matter.
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- Tags: Anti-Doping | Czech Republic | France | Germany | Handball | Switzerland | United States of America (USA) | World Anti-Doping Agency (WADA) | World Anti-Doping Code (WADC)
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Jiri Janak is an attorney-at-law specialising in the fields of sports law, civil and procedure law, and business law. He practices in Prague, Czech Republic for KSD Legal, the award winning sports law firm.