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

Published 06 January 2016 | Authored by: Philip Clemo

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

UKAD v Songhurst

The first case to be decided by the National Anti-Doping Panel under the new rules was that of UKAD v Songhurst.13

Facts

Paul Songhurst played rugby league on a semi-professional basis for South Wales Scorpions. He provided a urine sample which showed that he had committed an ADRV as drostanolone (a non-specified substance) and one of its metabolites was present.

The only issue to be decided at the hearing was the issue of intentionality. Mr Songhurst provided a statement in which he said that he did not know how the substance had made its way into his system.

He made reference to two supplements that he had been taking. UKAD, for their part, produced evidence that drostanolone only appears in the body if administered by intra-muscular injection. If it is taken by mouth then the body breaks it down. The supplements that Mr Songhurst had been taking were also discounted as a possible source and this was ultimately accepted by Mr Songhurst.

Decision

The Tribunal were invited by his counsel to consider Mr Songhurst’s credibility in the round. That suggestion was rejected. The Tribunal held that it was easy for an athlete to deny knowledge and all UKAD could do was to look at the scientific evidence. That is why, the Tribunal said, the rule was structured the way that it was (with the burden of proof upon the athlete). They held that no real explanation had been provided and therefore the burden of proof had not been discharged. Mr Songhurst was banned for 4 years.

UKAD vs Graham

Another case to be decided under the new regime was UKAD v Graham.14 At this stage it is only proper that the author declares a degree of interest as he was involved in this case as counsel for Mr Graham.

Facts

Lewis Graham was a semi-professional rugby league player for Keighley Cougars in the Kingstone Press League 1. He had spent his earlier career in the youth set-ups of Warrington and Huddersfield, both top-flight teams. In February 2015 Mr Graham was subject to a random check and was found to have nandrolone, a non-specified substance, in his system. Again, he accepted the charge but argued chiefly that there was a lack of intentionality. Mr Graham gave details of the supplements that he had taken and the levels of checks that he had carried out.

Decision

One of the particularly interesting features of this case is that UKAD tried to argue that because Article 2.1 of the ADR said that intention is not necessary to establish an ADRV that that meant that there was a presumption of knowledge and intent. The Tribunal rejected that argument, concluding that:

 “In our view Article 2.1 does no more than make it clear that it is not necessary for a prosecuting authority to demonstrate that there was knowledge or intent (or fault or negligence) on the part of the athlete in order for an ADRV to be established. In other words, an Adverse Analytical Finding is sufficient without more.15

The Tribunal also rejected the submission that Article 10.2.1 created any such presumptions stating that:

 “…in our view Article 10.2.1 simply identifies two circumstances in which the period of Ineligibility will be four years unless the specified party establishes the requisite intent or lack of it.16

The crucial points of principle were then dealt with with regards to what the athlete had to prove in order to establish a lack of intent.17 In summary, the Tribunal rejected the suggestion that there was any substantial difference between the tests applied under 2009 and the 2015 WADA Codes. It is therefore the view of the author that decisions under the old code (including important ones such as the recent case of The Football Association v Jake Livermore) will be of relevance to decisions made under the new 2015 Code. That view is reinforced by the citation, with approval, of pre-2015 decisions in cases such as Graham.

The question of what “conduct” for the purposes of 10.2.3 meant was also discussed. The Tribunal declined to give that word an interpretation that extended to general conduct. The Tribunal held (para 38) that without establishing the likely method of ingestion it would be difficult to properly and fairly consider the question of intent in relation to the conduct that led to the ingestion and that to decide otherwise would be to go against pre-2015 code authority in this area. The Tribunal held that if that were not the case, it would leave unscrupulous athletes free to simply deny all knowledge of ingestion and ask the Tribunal to find in their favour anyway. The conduct was therefore held to be the method by which the Prohibited Substance entered the athlete’s system.

The Tribunal also addressed the issue of potential contamination of supplements but rejected that as a possible explanation for lack of scientific evidence.18 Sympathy with the position of athletes of limited means was expressed but it was said that that did not alter the proper application of the test. Mr Graham too therefore received a 4-year ban.

UKAD v Bevan

UKAD v Bevan19 is a further authority to support the position that the method of ingestion is necessary to prove lack of intent although the facts of that case mean that the decision was arrived at in a way unlikely to be repeated.

Facts

Ross Bevan was a rugby league player but was registered with both the RFL and the WRU as a result of his being registered with Nelson RFC for whom the Tribunal held he had played a number of times during 2014. He admitted that in 2014 he had taken steroids as part of his other interest, namely body building.

The Tribunal held that he had stopped taking those steroids in December 2014. He started training with South Wales Scorpions (a rugby league team in Kingstone Press League 1) in January 2015 and was offered a contract in February.

He signed an application for registration with the RFL as a player. In so doing he accepted that he was bound by the ADR and it was accepted by all sides that he was bound by them from the moment that the email attaching the application was sent. The same evening he went to training and was the subject of a UKAD urine test. The steroids that he had previously taken showed up in the test and he was suspended.

Decision

In deciding that Mr Bevan had discharged the burden on him to prove that the admitted ADRV was not intentional, the Tribunal held that the conduct must be “the conduct which causes the Prohibited Substance to be present in the athlete’s body”.20

Here the conduct had therefore taken place prior to the coming into force of the 2015 rules and at a time when he was not the subject of the predecessor rules (although he was the subject to the WRU’s rules which were identical to those of the RFL). The retroactivity provisions of Article 1.6 were considered but it was held that there could be no retroactive application here for reasons which need not be explored further in this article.

The Tribunal rejected the submission by UKAD that the act of signing the contract and signing up to the rules could be conduct for the purposes of Article 10.2.3.21 It was held that those acts made him subject to the rules and it could not be the case that one breaks the rules by the very act of signing up to them.

Having to consider whether the risk was manifestly disregarded in a retroactive fashion was also rejected. Mr Bevan was therefore banned for 2 years (his submissions regarding no significant fault etc. failing to find favour).

So again, the Tribunal made it crystal clear that the method of ingestion is the central feature of the conduct that is relevant for the purposes of determining intent.

UKAD v Williams

The position in UKAD v Bevan has perhaps been best summarised in the case of UKAD v Williams,22 dated 7th October 2015.

The facts of that case are unremarkable and need not be examined in detail. However, at paragraph 28 the Tribunal said the following:

The burden is on the Athlete to explain what ‘the conduct’ was that led to the positive test and show that it falls outside the definition of ‘intentional’ in Article 10.2.3. This means, at a minimum, that an Athlete has to show how the relevant Non-Specified Substance got into his or her system, because that is (or is a crucial part of) ‘the conduct’. If an Athlete cannot explain what ‘the conduct’ was that led to the positive test then he or she cannot show that the violation was not intentional.

UKAD v Grant

Facts

UKAD v Grant was decided on 15th October 2015.

Timothy Grant was an international rower and also a student at Oxford Brookes University. On 9th May he was selected for In-Competition testing at the Ghent International Regatta. He tested positive for modafinil, a non-specified substance which is only prohibited in-competition.

Mr Grant explained that he had taken Modalert pills on 7th May after he was given them by a friend because he was going to struggle to meet a coursework deadline if he did not work through the night. UKAD produced evidence that Modalert was the brand name under which modafinil is marketed and sold in India.

Mr Grant’s coach collected him for the competition the following day and they went to Belgium where he competed on 9th May after competing in the coxless four event. He did not declare his use of Modalert on his Doping Control Form and later said that he had completely forgotten about it.

Decision

UKAD accepted that the pills had been taken for reasons unrelated to rowing and conceded that the ADRV had not been intentional.

The Tribunal, entirely understandably, rejected the suggestion that the rower had acted with no significant fault or negligence.

The ban imposed was therefore one of two years.23

UKAD v Hoogland

The case of UKAD v Hoogland involved markedly similar facts as UKAD v Grant, involving as it did the same event and an athlete from the same university.

This time the substance that had been taken was cocaine, at a party several days prior when the athlete did not think he would have to compete. UKAD again accepted a lack of intent as defined in the ADR.

 

Conclusions

So what conclusions can be drawn from the first year of the new code?

  1. Firstly, it appears that athletes who wish to get a reduction from the default four-year bans must prove how the Prohibited Substance got into his/her system in order to establish that the conduct that led to an ADRV was not intentional.
  2. The second conclusion flows from the first. There is a real danger that those of lesser means find that they are in a position where they simply cannot advance what may be an honest and innocent position.

All are equal under the law and to that extent the Tribunal’s finding in Graham that lack of means does not alter the test to be applied is correct.

But it must cut both ways. The burden of proof is on the athlete but there will be many occasions where it is impossible for that burden to be discharged without access to funding.

An example is where there is a suspicion of contaminated supplements. In the author’s view, there should be some practical provision in place to assist those who, through no fault of their own, are not in a position to pay expensive laboratory fees in order to carry out such analysis or even to get their B samples tested (fees for which can be in the region of £1,000).

The increase of the standard four-year ban surely heightens the need to ensure that there is something approaching equality of arms. The precise mechanisms and funding of such a system could be open to debate and consultation.

It cannot be right in the UK in 2015 that no assistance is available to those who cannot assist themselves when they are facing potentially life-altering consequences. Taking a robust approach to drug cheats does not mean that inherent fair play – surely close to the hearts of all who are involved in ensuring clean sport – should be removed from the system.

 

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About the 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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