Inadvertent doping and the CAS: Part II

The relevance of a “credible non-doping explanation” in the application of Article 10.4 WADA Code Published 27 November 2013 By: Antonio Rigozzi, Brianna Quinn

Athlete Drinks

The present article follows on from the recently published “Inadvertent Doping and the CAS: Part 1”, a review of CAS jurisprudence on the interpretation of Article 10.4 of the WADA Code (WADC), which 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.

By way of recap, Part I concluded that CAS Panels to date (though not without some express limitations1) have shown a clear preference for the so-called “Oliveira approach”.

The Oliveira approach essentially accepts that: 

[Article 10.4] does not explicitly require the athlete to prove no intent to enhance sport performance through the use of a product itself rather than a specified substance therein [and] Article 10.4 provides a broader range of flexibility (i.e. zero to two years ineligibility) in determining the appropriate sanction for an athlete’s use of a specified substance because “there is a greater likelihood that Specified Substances, as opposed to other Prohibited Substances, could be susceptible to a credible, non-doping explanation.2

Whilst the WADC is set to be completely overhauled in 2015, the  reality is that arbitrators and practitioners alike will be required to continue to interpret the nature and effects of Article 10.4 until such time as the new WADC takes effect.3

Therefore, and in an attempt to demonstrate why there is such a clear preference for the Oliveira approach, the present article shall consider: (i) the relevance of the substance (as opposed to the product) when Article 10.4 was originally inserted into the WADC; (ii) the concept of “doping-related intent” and the central nature of this concept to the interpretation of Article 10.4; and (iii) the flexibility provided for in Article 10.4 by sanctioning the athlete according to his or her “degree of fault”. The authors shall also briefly consider the proposed amendments to the 2015 version of the WADC in order to determine whether this problematic area might finally be resolved. 

 

Background to the introduction of Article 10.4 into the WADC

It is the fundamental premise of the WADC that each athlete is personally responsible for what he or she ingests and to ensure that he or she does not breach the provisions of the WADC.4 With respect to this obligation, it is also clear that the plethora of supplements being promoted to and used by athletes is a serious problem.5

That said, and particularly in light of the latter, it is also important to remember that there is a vital distinction to be made between athletes who are intentionally seeking to enhance their performance through the use of prohibited substances and athletes who inadvertently – and/or negligently – fall foul of the system. 

In September 2008, WADA issued a Press Release to explain some revisions made in the then forthcoming 2009 WADC – including the insertion of the now infamous Article 10.4. WADA’s Press Release read as follows:

The 2009 List offers a number of changes compared to the 2008 List, including modifications in relation to specified substances in order to align the 2009 List with the more flexible sanctions set forth in the revised World Anti-Doping Code (2009 Code) to come into effect on January 1, 2009. The objective of this flexibility, which was approved by WADA’s stakeholders as part of their unanimous endorsement of the revised Code last year, is to allow for enhanced sanctions for deliberate doping offenders, and reduced sanctions for inadvertent cheaters or for athletes who can unequivocally establish that the substance involved was not intended to enhance performance

[The amendments mean that] where athletes can clearly establish how a specified substance entered their body or came into their possession, and that such substance was not intended to enhance sport performance, the sanction may be reduced as low as a reprimand and no period of ineligibility. […] 

“Specified substances, as defined in the revised Code, are not necessarily less serious agents for purposes of doping than other prohibited substances,” said WADA’s President. […] However, there is a greater likelihood that specified substances, as opposed to non-specified substances, could be susceptible to a credible, non-doping explanation.6

What seems clear from this press release is that WADA’s intent in revising the WADC (and the Prohibited List thereto) was not to punish an athlete who unknowingly used a product containing a specified substance in an attempt to enhance performance but, to the contrary, to acknowledge that specified substances7 are more likely to be ingested unintentionally than other prohibited substances (such as, for example, EPO). 

Furthermore, in expressly connecting the requirement to “unequivocally [establish]” a lack of intent to enhance performance with the “substance involved”, WADA demonstrated that the clear link between the relevant substance ingested and the need to “produce corroborating evidence […] which establishes to the comfortable satisfaction of the hearing panel the absence of intent to enhance sport performance or mask the use of a performance enhancing substance”.8

 

The relevance of a “credible non-doping explanation”

In addition to confirming the link between: (a) the evidentiary requirement in paragraph 2 of Article 10.4; and (b) the specified substance involved in the violation, WADA’s Press Release also made clear that the existence of a credible, non-doping explanation was central to the application of the relevant provision.

It is in this respect that the Oliveira approach seems to best reflect the intentions of the drafters of Article 10.4 and, arguably, why it has received more support from subsequent CAS Panels than the Foggo decision. Relevantly, and along the lines of what has been held by a number of CAS Panels:

[…] only the construction of the (ambiguous) second paragraph of Article 295 [an equivalent provision to Article 10.4] as having the same meaning of the (much clearer) first paragraph harmonizes the provision and appears to be consistent with the very concept of “specified substances” as prohibited substances “which are particularly susceptible to unintentional doping violations” or susceptible to have a “credible non-doping explanation.9

Contrary to the above rationale, the findings in the Kutrovsky majority decision and the Foggo decision indicate that the relevant arbitrators did not give priority to the question of whether or not there was “doping-related intent” on the part of the athlete, focusing instead on whether the athlete intended to enhance his performance through the use of (in that case) a dietary supplement, whilst ignorant of the fact that the supplement contained a specified substance:

WADC 10.4 would not be satisfied if an athlete believes that the ingestion of the [supplement] will enhance his or her performance although the athlete does not know that the [supplement] contains a banned ingredient.10

There are two problems with this approach. The first problem, and one that has been routinely cited by CAS Panels in Article 10.4 cases, is the fact that most behaviours of elite athletes are guided by the sole purpose of performance enhancement.11 In this respect, and in designating a particular substance as prohibited, even the WADC itself recognises the difference between legitimate performance enhancement and the use of a prohibited substance:

Using the potential to enhance performance as the sole criterion [for including a substance on the prohibited list] would include, for example, physical and mental training, red meat, carbohydrate loading and training at altitude.12

Accordingly, in adopting the reasoning in the Oliveira decision, the majority of CAS Panels appear to have preferred to take the approach that:

An athlete is entitled to consume any substance that seems useful to enhance his sport performance as long as this substance is not listed on WADA’s prohibited list. Therefore, the primary focus can obviously not be on the question whether or not the athlete intended to enhance his sport performance by a certain behaviour (i.e. consuming a certain product), but [rather] if the intent of the athlete in this respect was of doping-relevance”.13

The second problem with departing from the Oliveira approach is the inevitable result referred to by the Kutrovsky majority itself where it commented that under the Kutrovsky approach:

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.14

Accordingly, in order to accept the Kutrovsky approach one would also have to accept that even where an athlete had a credible, non-doping explanation, that athlete would be precluded from relying on Article 10.4 if he or she had a general performance enhancing intent in using the product in question.

 

The concept of the degree of fault

In light of the above, and in determining why Panels have favoured the Oliveira approach, it may also be helpful to critically consider one of the key arguments put forward by the majority in Kutrovsky in declining to follow the Oliveira approach, namely, that:

[i]t is counterintuitive that in a code which imposes on an athlete a duty to take responsibility for what he ingests, ignorance alone works to his advantage.15

The fundamental flaw in this statement is that it fails to acknowledge the existence (and the effect) of the concept of degree of fault in Article 10.4 of the WADC.16 Relevantly, and as noted by the Sole Arbitrator in the recent De Goede award: 

[…] if a Panel comes to the conclusion that an athlete has not acted intentionally […] nothing has “worked in the athlete’s favour” yet, since the most important step, i.e. the determination of the length of the sanction on the basis of the athlete’s degree of fault is still outstanding.17

It is, perhaps, with respect to this final consideration that one can identify the key reason for the preference for the Oliveira approach. That is, in interpreting Article 10.4 one must question whether it is better to:

  1. Take a restrictive approach, ensuring that athletes are prohibited from invoking Article 10.4 where they ignorantly – and negligently – consume a product which contains a specified substance in an attempt to enhance their performance; or 
  2. Accept that where there is no “doping–related intent” in the relevant violation the provision may be invoked, yet the concept of “degree of fault” shall be carefully applied to adequately sanction the relevant fault – or indeed recklessness – of the athlete involved.

Regardless of whether a person (be it a practitioner, arbitrator, athlete or even a fan) has a general inclination towards either harsh or lenient sanctions for inadvertent anti-doping violations,  the inevitable conclusion is that the former approach will regularly result in the harshest sanction available for a first violation of the WADC (equivalent to that which would be received for the intentional use of a steroid, for example),18 while the latter provides for such severity only in appropriate circumstances and for flexibility in every case.  In effect, perhaps it is should only be when considering the degree of fault of the athlete that the “product” as opposed to the “substance” becomes relevant to the application of the provision. 

 

WADA Code 2015: a step in the right direction?

The sole remaining question to be considered in this article is whether the new WADC, which will take effect on 1 January 2015, has made any progress in addressing the interpretational issues surrounding Article 10.4.19

Given that Article 10.4 has been all but obliterated, the answer would appear to be yes. However, such a conclusion is not without its reservations. 

Whilst a comprehensive review of the 2015 WADC is beyond the scope of the present article, it is worth mentioning the following:

  • Under the latest draft of the 2015 WADC, the default sanction for any first violation (regardless of the substance involved) is 4 years in any case where the use of the substance was intentional20 – a term newly defined under the WADC as:

meant to identify those Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. An anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the Athlete or other Person can establish that the Prohibited Substance was Used Out-of-Competition in a context unrelated to sport performance.21

Whilst defining the concept of “intentional” will go some way in aiding the interpretation of the relevant provisions, one must question:

    • How the concept of “manifest disregard for risk” will be interpreted?;
    • How it can be proved that an athlete “knew” (or did not know) that there was a significant risk that his or her conduct might constitute or result in an anti-doping violation? In particular, will there be a different standard applied depending on the level of anti-doping education the relevant athlete has received?; 
    • How the concept of “a context unrelated to sports performance” will be interpreted, particularly noting that this issue seemingly raises some of the exact issues that were problematic with Article 10.4: Is using nasal spray to reduce the symptoms of a cold and continue training medicinal, or performance related? Is using supplements in an attempt to lose weight related to sports performance, or cosmetic? Is using supplements to increase general strength, energy levels and/or recover better after training an offence, or related to an athlete’s general well-being? 
  • Despite the general increase in the default sanction for intentional offences, WADA has nevertheless differentiated between specified substances and other prohibited substances by providing that in cases involving the latter, the burden shall be on the athlete to prove a lack of relevant intention, whereas with respect to the former, the relevant Anti-Doping Organisation shall bear such burden.22 This approach appears to be consistent with the present WADC, that is, it recognises the greater likelihood that specified substances might be ingested unintentionally and attempts to provide for a certain degree of leniency in light of that fact. 
  • WADA has maintained the defence of “no fault or negligence” in the 2015 WADC,23 however, as with the current version of the WADC this defence shall only apply in “exceptional circumstances” and cannot be invoked (for example) in cases involving mislabelled or contaminated vitamins or nutritional supplements.24
  • WADA has abandoned the present formulation of Article 10.4 and instead expanded the defence of “no significant fault or negligence” to cover both prohibited and specified substances in a variety of situations. Relevantly, where the violation involves a specified substance25 or a contaminated product26 and the athlete can establish no significant fault or negligence, the sanction will range from a reprimand to a maximum of two years. A few comments can be made on these additions:
    • The extension of the defence of “no significant fault or negligence” to specified substances might initially concern some readers, due to the many CAS decisions refusing to accept this defence in cases involving nutritional supplements. That said, the reluctance of Panels to accept the defence in such cases is generally attributable to the fact that the WADA Code previously provided that “no significant fault or negligence” (as with “no fault or negligence”) would only apply in “exceptional cases”.27 As this comment is no longer applicable to cases involving “no significant fault or negligence”,28 it appears that CAS (and/or other relevant) Panels will be entitled to take a less restrictive approach in such cases.  
    • The concept of “contaminated products” has been introduced into the WADC with a contaminated product defined as: “a product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search”.29 Whilst the introduction of this concept is certainly welcome, obvious questions will arise, particularly concerning: (i) what amounts to a “reasonable” internet search; (ii) the assumption that all athletes have internet access and at all relevant times; and (iii) the differing quality of materials available on the internet in different jurisdictions and different languages.
  • Finally, in the initial versions of the 2015 WADC WADA had also considered the addition of a specific provision related to “substances of abuse”,30 however this provision was ultimately abandoned. Given the sheer number of Adverse Analytical Findings related to “recreational” drugs (particularly cannabis31 and cocaine) one might have thought that further exploration of a provision specific to these substances might have been worthwhile, particularly where any such substance is defined as a specified substance under the WADC.

 

Conclusions

As noted in the introduction to Part I of this article, cases involving the application of Article 10.4 regularly arise, yet the manner in which this provision is (and ought to be) interpreted is not entirely clear. What the present article has aimed to do, therefore, is to identify a clear preference of CAS Panels in such matters (i.e. the Oliveira approach) and to attempt to discern the key rationale for this preference.

Whilst it is yet to be seen whether future CAS Panels will continue to prefer the Oliveira approach (or some variation thereof) and, indeed, whether the 2015 WADA Code will provide a more coherent system of dealing with doping defences, it is clear from the following statement that a distinction needs to be made between intentional and inadvertent violations: 

 […] I want to be clear in saying to my family, friends, and most of all my fans worldwide that I have never knowingly or wilfully taken any supplements or substances that break any rules. I am not now – nor have I ever been – a cheat.

My team has launched an internal investigation and we are cooperating with the relevant agencies and law enforcement authorities to discover how the substance got into my system. I assure you that we will find out how this substance passed our rigorous internal checks and balances and design systems to make sure it never happens again.

[…] My fault here however is not cheating but instead not being more vigilant. I want to reiterate that in my entire career as an athlete I have never sought to enhance my performance with any substance…33

It remains to be seen whether this statement is a true reflection of the events leading to the positive test in question; however where this is in fact the case, one can only hope that a consistent and coherent decision is rendered in the proceedings, shedding further light on the appropriate approach to cases involving Article 10.4 of the World Anti-Doping Code. 

 

 

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Author

Antonio Rigozzi

Antonio Rigozzi

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.

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Brianna Quinn

Brianna Quinn

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.

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