WADA Article 10.4 "specified substances" - the end of the farce?

Published 10 February 2013 By: Matthew Chantler

Article 10.4 of the 2009 WADA Code provides that in certain circumstances the period of a suspension can be eliminated or reduced for “specified substances”. To benefit, the athlete must satisfy two conditions: 

  1. the athlete must establish how the substance entered his/her body, and
  2. the athlete must show that such specified substance was not intended to enhance his sports performance.

In relation to the second condition above, there have been two main issues but this article will deal with the first issue, the second (how do you interpret “not intended to enhance his sports performance.”) to be the subject of a further blog.

The first issue relates to the interpretation of the second condition and there has been significant confusion over whether the individual has to prove: 

 a) that the specified substance was not intended to enhance his performance (as applied in the case of “Oliveira” (CAS 2010/A/2107) and “Qerimaj” (CAS 2012/A/2822)). The view expressed in Oliveira was followed by other CAS Panels (see CAS 2011/A/2645 and CAS 2011 A/2495), or 

b) that the supplement or product was not intended to enhance his performance (as applied in the case of “Foggo”  (CAS A2/2011) and “Kutrovsky” (CAS 2012/A/2804)). 

Thus, unfortunately, there is conflicting case law on this issue including cases before the Court of Arbitration for Sport (CAS) and the situation is not helped by the fact that there is no hierarchy of CAS decisions. 

Depending on the supplement and the timing of the ingestion, it may be crucial to the case that the applicable panel follows the Oliveira decision and does not follow Foggo which, it may be argued, applied the wrong principle. There has been, and will continue to be, cases of athletes taking supplements with the intention of enhancing performance (be it an energy drink, weight gain/loss product etc.) but where the athlete was unaware that the product contained the specified substance.

With respect to the second condition, a panel must be comfortably satisfied by the objective circumstances of the case that the athlete in taking the Prohibited Substance did not intend to enhance his sports performance. It should be argued that it follows that this condition is met (if applying Oliveira) when an athlete can produce corroborating evidence in addition to his word, which establishes to the comfortable satisfaction of a panel that he/she ingested a specified substance unknowingly (e.g. by means of ingesting a contaminated or mislabelled product) (as provided for in Berrios (CAS 2010/A/2229)).

 

Qerimaj

The writer agrees with the recent Qerimaj decision which found that the wording of the article goes in favour of Oliveira:

 “paragraph 1 expressly links the intent to enhance performance to the taking of the specified substance.  It is true, that the link is not repeated in the second paragraph that constitutes a rule of evidence.  However, the second paragraph does not exclude similar interpretation either…

The underlying rationale of Article 10.4… is that – as the commentary puts it – “there is a greater likelihood that specified substances, as opposed to other prohibited substances, could be susceptible to a credible non-doping explanation” and that the latter warrants – in principle – a lesser sanction” (paragraphs 8.10 and 8.11) 

One must agree that the intention of the Article is to acknowledge and deal with the inherent risk that specified substances are taken inadvertently by the athlete and that if an athlete takes nutritional supplements then he should still be able to benefit from the Article.

The question that the Panel in Qerimaj went on to discuss is what happens if the risk at stake is not a general but a very specific one that the athlete has deliberately chosen to take?  Clearly the argument, as submitted by the International Weightlifting Federation, is that if an athlete chooses to engage in risky behaviour (by taking nutritional supplements), he should not benefit from Article 10.4.

The Panel, correctly in the writer’s opinion, did not follow that interpretation.  The difficulty is determining what patterns of behaviour qualify as risky behaviour.  As stated by the Panel, what products constitute normal risk and others high risk?  Further, as those that have knowledge of sport will understand; the use of supplements is widespread and athletes’ behaviour is mostly guided by a sole purpose; to maintain or enhance their sport performance, whether that is by way of taking supplements, their diet, and their decision not to drink alcohol etc.

As the Panel in Qerimaj held, nutritional supplements are usually taken for performance enhancing purposes and therefore the question can not be whether or not the athlete intended to enhance his performance by a certain behaviour (by taking a product, therefore the Foggo approach) but if the intent of the athlete was of doping-relevance.  The Panel supported this rationale by relying upon the commentary of the Code that provides “Generally, the greater the potential performance-enhancing benefit, the higher the burden on the athlete to prove lack of intent to enhance sport performance”.

 The Panel therefore applied the Article to the case and held that as the label of the product did not mention methylhexaneamine (MHA), the athlete did not know that it was contained within the product and had no direct intent to enhance his performance through the specified substance.  The Panel then went on to consider the athlete’s indirect intent and explained that an athlete has to take a certain level of precautionary measures in order to qualify his behaviour as reckless, i.e. with indirect intent.  The Panel was comfortably satisfied that the athlete did not have indirect intent to enhance his sport performance through the use of the specified substance, MHA as he had trusted a third party and disclosed the usage of the supplement on the doping control forms.  As a result they considered the athlete’s degree of fault and imposed a period of ineligibility of fifteen months.

 

Revised WADA Code – Version 1

The revised WADA Code which is due for implementation in 2015, proposed amendments to article 10.4, but such amendments were not favourable to athletes. 

WADA included a ‘comment’ stating that “contrary to the CAS decision in Oliveira… where an athlete or other person uses or possesses a product to enhance sport performance, then, regardless of whether the athlete… knew that the product contained a Prohibited Substance, Article 10.4.1 does not apply”.  This would result in athletes having a harder fight as clearly they would have to prove that the actual supplement taken was not intended to enhance performance rather than only having to prove that the specified substance, which is often hidden and unknown to the taker, was not intended to enhance their performance. This, as stated above, could be problematic for many athletes as most supplements are taken to aid training and/or performance.

 

Revised WADA Code Version 2

Version 2 of the Code has recently been published.  There has been a substantial about turn in relation to Article 10.4 as the revised article now proposes:

Where the anti-doping rule violation involves a specified substance, and the Athlete… can establish No Significant Fault, then the period of Ineligibility shall be replaced with the following:

First Violation: At a minimum, a reprimand and no period of Ineligibility and at a maximum, two years of Ineligibility, depending on the Athlete’s… degree of fault

 

Conclusion

Clearly version 2 of the revised Code deals with the issue by removing the need for the athlete to establish that the specified substance was not taken to enhance his sport performance.  However the issue will remain as the revised Code will not be implemented until 2015 and therefore the conflicting cases on the article may rumble on.  It is clearly also worth considering any potential lex mitior argument once the revised Code is implemented (Article 25.2) or in light of FINA v Mellouli (CAS 2007/A/1252) any proportionality arguments, especially as the Code is in the process of being revised as it was in that case.

The writer therefore hopes that until the revised Code is implemented, more panels follow the Oliveira/Qerimaj approach and athletes who, on the facts of the case, have clearly not intended to enhance their performance by taking the actual specified substance receive a reduced sanction compared to those who, for example, take steroids with the clear sole intention to cheat

 

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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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