Case law review: What has the first year of the 2015 WADA Code taught us about the issue of intent?

Published 06 January 2016 By: Philip Clemo

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This article will examine the recent decisions made in the UK under the new World Anti Doping Code 20151 (2015 Code) and look to draw conclusions from them as to what approach is being taken with regard to the question of intent (explained below) and whether new ground has been broken by the new rules coming into force.

 

The new rules

The UK Anti-Doping Rules (ADR)2 came into force on 1st January 2015. They were designed to implement the revised 2015 Code, which came into force on the same date.

The headline change was that an Anti-Doping Rule Violation (ADRV) will now attract a four-year ban rather than two years as was previously the case. That is subject to issues such as intentionality, which will be considered below, and levels of fault.

How these rules are applied has perhaps never been more important when one considers the recent scandals in cycling and athletics and with the spotlight now to other sports such as rugby.

 

What do the new rules do?

The rules apply differently depending on whether the substance is specified or non-specified. Specified substances are defined at Article 3.3.1 of the ADR. All prohibited substances are deemed to be specified substances unless they fall within exempt categories on the WADA Prohibited List. Such exempt categories relate to anabolic agents and hormones and certain stimulants, hormone antagonists and modulators.

The rules set out that if the substance is a non-specified substance then the period of ineligibility shall be four years unless the athlete or other person can establish, on the balance of probabilities, that the ADRV was not intentional.3

If the substance is specified then the burden of proof shifts to UK Anti-Doping (UKAD), who bring the cases, who must then establish intentionality on the balance of probabilities in order for the athlete to receive the four-year ban.4 The focus of this article will be on the former scenario.

Where the athlete establishes that he did not act intentionally then the period of the ban is halved to two years.5 There is therefore much to play for in relation to this issue. In the brief candle of most sporting careers, the difference between a ban of two years and four years will all too often be the difference between retaining some hope of returning to competition and accepting that one’s career as a competitor is finished.

Perhaps because of the importance of this issue, the ADR requires 166 words to define “intentional”.6 The definition can be summarised as follows:

  1. That if you cheated and you knew it then you acted intentionally.
  2. If you knew that what you were doing entailed a significant risk that you would commit an ADRV and you manifestly disregarded that risk, then you acted intentionally.
  3. If the substance is specified and only prohibited in-competition, then there is a rebuttable presumption that the conduct was not intentional if the athlete can establish that the prohibited substance was used out-of-competition.
  4. If the substance is not a Specified Substance but is only prohibited in-competition and the athlete can establish that it was used out-of-competition in a context unrelated to sports performance, then the conduct shall also be considered to be unintentional.

If you manage to establish that your ADRV was not intentional, the panel will then consider whether the athlete acted with no fault or negligence, in which case there would be no ban,7 or no significant fault or negligence.

If such an application is successful and relates to either a Specified Substance or a Contaminated Product (a product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable internet search8) then the punishment is somewhere between a reprimand and no ban and a ban of two years depending on the degree of fault.9

If the application of no significant fault or negligence is based on other matters and is successful then the ban can be not less than half of what it otherwise would have been.10 In most cases this will mean one year.11

 

How have the new rules been applied?

The following cases can all be downloaded from the UKAD website.12

 

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Author

Phil Clemo

Philip Clemo

Philip is a barrister at St Johns Buidlings. He has a busy sports law practice covering all areas of sports disciplinary work including on field infractions, behaviour off the field of play which brings the sport into disrepute and anti-doping cases.

He has successfully represented the Amateur Swimming Association in ASA v G, a matter involving a match official being abused by a coach. He is currently instructed by the ASA in several cases including an appeal regarding a brutality charge.

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