WADA Article 10.4 – Part 2

Published 18 September 2013 By: Matthew Chantler

Dwain Chambers on his own

Further to my previous article (WADA Article 10.4 "specified substances" – the end of the farce?) there has been a “further development” regarding the interpretation of Article 10.4.

The National Anti-Doping Appeal Panel (NADP) has determined an appeal in relation to the interpretation of the WADA Code and it is hoped that the decision clarifies the approach to be taken by future tribunals (UKAD and Ryan Llewellyn).

Ultimately the decision is bad for athletes as the NADP held that that the correct interpretation of Article 10.4 is that the athlete has to establish that he did not take the product to enhance his performance (therefore, following the approach of Foggo and Kutrovsky) and that the timing of the ingestion of the product is not conclusive of an absence of intent to enhance performance.  Further, that, on the facts of the case, the athlete could not satisfy the provisions of Article 10.5.2 (No Significant Fault or Negligence).  The result is a decision that goes against athletes and it may well be seen as a precedent for other tribunals by the very fact that the three panel tribunal consisted entirely of Queen’s Counsel – it would take a very bullish panel to go against the decision.

In the Llewellyn case the athlete was attempting to make weight for a fight which was due to take place on 30 March 2012.  As he was struggling to make the weight he purchased a product that contained MHA and took the supplement five days before the fight and stopped taking the supplement one day before the fight.

The case highlights the confusion regarding Article 10.4 and the Panel stated that it was surprised that UKAD interpreted the Article by drawing the distinction between the use of a Specified Substance “Out of Competition” and its use “In Competition” and UKAD’s submission that if the athlete has taken the product Out of Competition then this should lead to the panel being satisfied that the product was not taken to enhance his sports performance.

In relation to UKAD’s construction of the Article, by drawing the distinction between In and Out of Competition, the Panel explained that there can be no reason why the use of a Specified Substance out of competition may not also lead to an anti-doping rule violation if, on the facts, the tribunal concludes that its use was intended to enhance the athlete’s sports performance.  

The panel then went on to explain the fact that knowledge of the specific Prohibited Substance is not a requisite of  an anti-doping rule violation makes it difficult to understand the conclusions of a number of CAS Panels that the athlete must know what Prohibited Substance he or she has taken before he can be held to have taken it with the intent to enhance his performance.  Further that “such confusions betray a confused thought process.  It is difficult to understand why it should be thought to be relevant that an athlete does not know what Prohibited Substance he… has used for the purposed of Article 10.4 when it is not relevant to the commission of the [anti-doping rule violation].  It is the intent that the athlete had in using the Prohibited Substance that is relevant to Article 10.4”. 

The panel concluded that “as knowledge of the specific Prohibited Substance could only be a relevant consideration if Article 10.4 provided a defence to an anti-doping rule violation, which it does not.  As it does not such knowledge is not a relevant consideration”.

The Panel was given the clear impression that UKAD held the view that because Specified Substances could be used out of competition without resulting in an Anti-Doping Rule Violation, they could never be used to enhance sport performance and thus UKAD seemed reluctant to test an athlete’s evidence of lack of intent or the corroborating evidence if the athlete had taken the substance out of competition.  As a result of this interpretation a number of athletes have benefited significantly (Maccareneli, Dodson, Barrett etc.).

The Panel reiterated that it is the role of the national anti-doping organisations and of the tribunals to apply loyally the plain words of the WADA Code.  The issue, the panel stated, is not one of the time at which the Specified Substance was used, it is whether or not it was used with the intent to enhance sport performance.

The panel recognised that there may be cases in which the primary use of the substance was not the intent to enhance sport performance but which, nevertheless, may enhance the athlete’s sport performance.  The example given is of an athlete has toothache and takes a pill to cure the tooth ache which contains a specified substance; the argument can still be run that the taking of the pill was with the intent to enhance performance as the athlete without toothache is likely to perform better.  However the panel explained that the dominant purpose would be to cure the toothache and not to enhance sport performance.  

Turning to the case at hand the panel disagreed with UKAD and stated that if the athlete had not made weight he would not have been able to take part in the fight; making the weight was an essential part of the athlete’s sport performance.   It was noted that had the athlete’s use been a number of weeks before the fight then the submission could have been made that it was not intended to enhance performance; the crux of the matter was the timing of the use, the proximity to the weigh-in and fight, and as a result they concluded that the athlete intended to enhance his sport performance.

The Panel also asserted that there is no ambiguity in the language of Article 10.4, an assertion that one must disagree with – there is significant case law evidencing the ambiguity and, as provided by the panel, by applying the natural ordinary meaning of the words of the article the interpretation must be that the specified substance and not the product was not intended to enhance the athlete’s sport performance.  Panel’s should not disregard the clear and unambiguous wording of Article 10.4.1.

In relation to Article 10.5.2 (No Significant Fault or Negligence) the panel held that the athlete failed by a substantial margin to satisfy it that his fault or negligence was not significant and that there was no justification for any reduction from a 2 year sanction.  To note is the clear statement by the Panel that it will not be an acceptable excuse, accept in the rarest of cases, for an athlete to rely upon a lack of education due to the fact that the WADA Code has been in force for a number of years and due to a number of high profile cases.  Further that he was a young and unsophisticated man was no excuse.

Until the revised WADA Code comes into play, this decision has left athletes trying to rely upon Article 10.4 on the ropes!

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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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