Inadvertent doping and the CAS: Part I
Justin Gatlin: “It never crossed my mind that they were doping” he said of the failed tests of his sprint rivals. “You have to keep it basic in regard to who’s around you, who you trust, who’s in your inner circle. You have to make sure you’re responsible for what’s going into your body”.1
Following the latest “doping scandal” to hit the press (i.e. Tyson Gay and Asafa Powell2) Article 10.4 of the World Anti-Doping Code (WADC) may again be thrust into the spotlight. Assuming that this provision is applicable to the proceedings, and depending on the arbitrators involved, it is fair to say that there is simply no way of accurately predicting the outcome of these athletes’ cases despite the growing body of jurisprudence on point from the Court of Arbitration for Sport (CAS).
In fact, even if the circumstances behind the two athletes’ positive tests were identical, the respective panels could conceivably impose a reprimand on one athlete and a 2-year period of ineligibility on the other. The sanction will ultimately depend on the arbitrators’ preferred interpretation of this notoriously problematic article.
In light of a recent blog by Matthew Chantler on this same issue,3 it is also clear that certain doping panels in the United Kingdom are taking a markedly different approach from the majority of CAS arbitrators called upon to decide such cases.
Such a state of affairs is very difficult to understand for athletes, their legal counsel and the arbitrators appointed to decide on any given case.4 Even worse, it creates an unacceptable legal uncertainty that undermines the credibility of the entire anti-doping system. Whilst the proposed 2015 version of the WADC should, hopefully, bring an “end to the farce”,5 in the meantime Article 10.4 WADC must be interpreted as it is currently drafted.
It is with this in mind that we wish to consider the relevance of a “credible non-doping explanation” in the context of legal proceedings involving Article 10.4 WADC and the failure of two CAS Panels (as well as a number of UK doping panels) to acknowledge this concept. In doing so, we aim to demonstrate that there is a real – and essential – distinction to be made between the two concepts referred to by Justin Gatlin above: (i) doping and (ii) the responsibility of an athlete to avoid ingesting a prohibited substance. It is our ultimate conclusion that it is only with this distinction in mind that Article 10.4 WADC can be applied as it was originally intended to be.
Part I of this article will provide a review of CAS case law in order to determine whether there is any clear line of jurisprudence developed to date. Part II will consider the rationale behind this jurisprudence and briefly consider the relevant amendments the draft 2015 WADC.
The wording of Article 10.4 WADC
In the current (2009) version of the WADA Code, Article 10.4 reads as follows:
Where an Athlete […] can establish how a Specified Substance entered his or her body […] and that such Specified Substance was not intended to enhance the Athlete’s sport performance or mask the use of a performance-enhancing substance, the period of Ineligibility found in Article 10.2 shall be replaced with the following:
First violation: at a minimum, a reprimand and no period of Ineligibility [and] at a maximum, two (2) years of Ineligibility.
To justify any elimination or reduction, the Athlete […] must produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance or mask the use of a performance enhancing substance. The Athlete[’s …] degree of fault shall be the criterion considered in assessing any reduction of the period of Ineligibility.
The conflicting interpretations
For the purposes of this article the authors shall focus on CAS jurisprudence.6
CAS Panels have diverged in the manner in which they have interpreted the element of intent in Article 10.4 WADC – specifically, the jurisprudence is not unanimous as to whether the intention to enhance sports performance (set out in paragraph two of the provision) relates to the ingestion of the substance, or the product in which it was contained.
At the heart of the debate is the fact that the second paragraph of Article 10.4 WADC does not expressly refer to the “substance” (as it does in its first paragraph) when it sets out the evidential rule as to the burden to “produce corroborating evidence that the athlete did not intend to enhance sport performance”.
Recent years have seen a number of decisions concerning the interpretation of Article 10.4 WADC and, to a certain (albeit limited) extent, diverging CAS opinions. Certainly, the most divisive issue is whether an athlete could possibly have had the relevant “intent” to enhance performance in circumstances where he or she did not know that a supplement or medication contained a specified substance.
The issue was first considered by CAS in the Oliveira decision,7 which held that the relevant intent is inextricably linked to the substance in question.8 The Panel considered that the application of Article 10.4 WADC to the case was evident (and appropriate) in light of its flexibility in sanctioning athletes. Specifically, the Panel considered that Article 10.4 WADC was intended to provide flexible sanctions that took into account the “greater likelihood that Specified Substances, as opposed to other Prohibited Substances, could be susceptible to a credible, non-doping explanation”.9
The Oliveira decision has since been expressly favoured in a total of six published CAS decisions (Berrios;10 Kolobnev;11 Lapikov;12 Fauconnet;13 Armstrong;14 and the 15 April 2013 case of de Goede15) and in at least one unpublished decision (Qerimaj16).
The unpublished Qerimaj decision contains the most extensive discussion on the issue, with the Panel ultimately holding it was prepared to follow Oliveira for a number of reasons, including: (i) the wording of Article 10.4 WADC; (ii) the underlying rationale of the article; (iii) the reality that most behaviour of elite athletes is guided by the sole purpose of enhancing their performance (in particular the use of supplements which are not prohibited per se by the Code); and (iv) the ability to address risky behaviour through the flexibility of a sanction ranging anywhere from a reprimand to two years.17 The recent de Goede decision evidences further support for the Oliveira approach at the CAS level (and the rationale for same in Qerimaj), despite the different stance taken in national level decisions in the United Kingdom.18
The “Oliveira” construction was also (impliedly) adopted in four additional CAS decisions: Cielo;19 Kendrick;20 Molina;21 and Sterba22, given the failure of the respective Panels to address whether or not the athletes had intended to enhance their performance by using the product in question. In each of these decisions the focus was instead on whether the athletes had a doping related intention to enhance performance (or to “cheat”).
Despite this general acceptance of the Oliveira interpretation in CAS jurisprudence, there have been two isolated decisions in which the Panels have declined to apply that same interpretation.
The first such decision was Foggo23, where the relevant Panel simply stated that it declined to follow Oliveira (without providing any detailed consideration for its conclusion24) and held that Article 10.4 WADC would not be satisfied (i.e. is not applicable at all) in cases where the athlete believes ingestion of the product would enhance sports performance although he or she did not know that the product contained a prohibited substance.25
The only other CAS Panel to have interpreted Article 10.4 WADC in line with the decision in Foggo was the (majority) in the Kutrovsky case.26 Whilst the Kutrovsky decision contained a more reasoned justification for the “Foggo” interpretation, with due respect to the majority of the Panel, it appears that the decision is not entirely convincing as it does not seem to accurately reflect the intention of Article 10.4 WADC as it was initially drafted.27
The Panel in Kutrovsky considered that Article 10.4 WADC could not apply as: (i) there is no distinction to be made between the specified substance and the product; (ii) the use of the terminology “such specified substance” implies a link back to the form in which the substance was proven to have been ingested; (iii) if absence of knowledge was conclusive it would be mentioned in the text or commentary; (iv) the Oliveira approach makes the requirement for corroborating evidence redundant; and (v) it is counter-intuitive that “in a Code which imposes on an athlete a duty to take responsibility for what he ingests, ignorance alone works to his advantage”.28
The Kutrovsky majority did not consider that precluding reliance on Article 10.4 WADC would negatively affect the article’s intended flexibility of sanctioning as “under Article 10.4 in a case of products containing specified substances of which the athlete was ignorant, there would still be an opportunity to establish an absence of intent in relation to the product, which would allow for flexibility and reasonableness. In some cases the athlete would succeed, in others not ”29 (emphasis added).
On 15 April 2013, a further decision was rendered on the issue, the de Goede30 award. Once again, and despite the findings in Kutrovsky, the Sole Arbitrator elected to follow the Oliveira interpretation, noting that he had read the “different decisions, weighted the various arguments and – in principle – [found] the approach taken by the arbitral tribunal in Oliveira to be more persuasive for a number of reasons”.31 These were, inter alia, that:
- Both the wording and context of the rules speak in favour of the Oliveira interpretation;
- It is obvious that Article 10.4 WADC was intended as a lex specialis (i.e. applicable to all proceedings involving Specified Substances) and more lenient in nature than provisions relating to Prohibited Substances in general; and, most importantly,
- That it is clear that WADA “wanted to exclude reductions of the standard sanction involving a Specified Substance only where the anti-doping violation was committed intentionally”.32 The Sole Arbitrator also considered that the Panel in Kutrovsky had not interpreted Article 10.4 WADC in line with what was intended by the drafters of that provision.33
Thus, an analysis of CAS jurisprudence on Article 10.4 WADC demonstrates that a total of seven CAS Panels have been explicitly in favour of the interpretation in Oliveira; a further four decisions have impliedly held the interpretation in Foggo to be incorrect; and only the two Panels in Foggo and Kutrovsky have seen fit to exclude the application of Article 10.4 WADC to athletes who intended to enhance their performance by what they thought to be perfectly legitimate means.
Preliminary conclusion and preview of Part II
Recent decisions from the National Anti-Doping Panel in the United Kingdom have seen (remarkably emphatic)34 criticisms of the CAS Panels that have followed Oliveira and a clear preference for the Foggo interpretation on the part of some arbitrators.35 Despite this, it is clear from the above that the vast majority of CAS Panels to date have accepted the general rationale of the interpretation in Oliveira (albeit in some cases in a limited fashion36) and, with the utmost respect to the esteemed Panel in the Llewellyn case37, one must wonder whether it does not create more legal uncertainty for a national Anti-Doping Panel to depart from the interpretation favoured by the majority of CAS Panels to date.
As may be obvious from the tone of this article, the authors concur with the finding of the majority of CAS Panels that the Oliveira approach is to be preferred in cases dealing with Article 10.4 WADC. In particular, the authors find the ultimate conclusion in Kutrovsky to be the most concerning – the Panel suggests that flexibility in sanctioning is not “emasculated” by the Kutrovsky approach, yet goes on to expressly recognise that under that approach some athletes would be entirely precluded from relying on Article 10.4 WADC, even if they had no doping-related intention to ingest the relevant prohibited substance.38 As will be considered in Part II of this article, completely at odds with the fundamental rationale behind the insertion of Article 10.4 into the WADA Code.
Accordingly, in Part II of this article, the authors will consider, in detail, the justifications for upholding the Oliveira approach, including: the relevance of the substance in determining intent, the doping-related intent to enhance performance and the concept of the degree of fault. The authors will also briefly consider the proposed changes to the 2015 version of the WADC and the effect that this may have on future cases involving the inadvertent – or, rather, unintentional – ingestion of Specified (and, more generally, Prohibited) Substances.
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- Tags: Anti-Doping | Court of Arbitration for Sport (CAS) | Switzerland | UK Anti-Doping (UKAD) | United Kingdom (UK)
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- WADA Article 10.4 – Part 2
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Antonio Rigozzi is the partner in charge of the sports arbitration practice at Lévy Kaufmann-Kohler. He has extensive arbitration, litigation and dispute resolution experience across all the main areas of sports law, in a wide array of sports including football, Formula 1, sailing, athletics, ice hockey, swimming and cycling. As counsel, he represents and advises athletes, teams and sports-governing bodies before the CAS, the BAT and the Swiss courts.
Brianna Quinn is an Australian-qualified lawyer specialising in sports arbitration at Lévy Kaufmann-Kohler in Geneva, Switzerland. As well as advising athletes, clubs and governing bodies on sports-related disputes, Brianna regularly conducts cases and appears as counsel before the CAS in Lausanne. Brianna’s practice in sports arbitration is primarily focused on doping-related matters, cycling and football-related disputes and proceedings before the Basketball Arbitral Tribunal.