Tips for athletes when delegating their Prohibited List dutiesMiranda Joseph
Sharapova is expected to be back on court (this time the tennis court) in April 2017, having successfully managed to reduce the doping ban that was imposed on her by the International Tennis Federation in June 2016.1 However, the Court of Arbitration for Sport’s ("CAS") appeal decision of 4 October 20162 casts light on the issues that can arise when an athlete delegates his or her duty to check the World Anti-Doping Code's Prohibited List (the "Prohibited List").
Accordingly, this article looks at the following issues and questions:
- The background to strict liability in doping.
- The Sharapova case: In circumstances where an athlete has delegated their Prohibited List duties, a breach occurs, and the athlete argues that there is “no significant fault or negligence” ("NSF") on their part:
- Whose fault is to be assessed (is it that of the athlete or the delegate)?
- Where is the bar set for demonstrating “no significant fault or negligence” (should it be lower than if the athlete performed the task themselves)?
- Whose fault is to be assessed (is it that of the athlete or the delegate)?
- Tips for athletes when delegating duties to check the Prohibited List.
Background to strict liability in doping
At the heart of the World Anti-Doping Agency's ("WADA") 2015 World Anti-Doping Code ("the Code") is the principle that an anti-doping rule violation ("ADRV") can be established without demonstrating fault. Article 2.1.1 of the Code states as follows:
"It is each Athlete's personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Athlete's part be demonstrated in order to establish an anti-doping violation under Article 2.1".
In other words, a violation of Article 2.1.1 of the Code is a "strict liability" offence.
The comments to the Code explicitly state that whether or not an athlete is at fault can only be considered when determining the sanctions of the rule violation, not when considering whether or not a rule violation has occurred.3
The strict liability principle is a practical necessity for WADA’s system to work. If the burden of proof lay on WADA to demonstrate intention and/or a required level of fault in every case, it would be inoperable. However, the Code’s obligations sit within the reality of an athlete’s day-to-day life. It is easy to understand why athletes such as Sharapova may wish to delegate certain tasks under the Code to any number of people, allowing them more time to concentrate on their performance. This applies, in particular, to those of an administrative nature, such as:
- checking substances against the Prohibited List; and
- filing of and updating whereabouts information4.
However, both the decision of CAS in relation to the alleged use of a prohibited substance by 32 Australian Football League Players who played for Essendon Football Club and the recent Sharapova decision serve as timely reminders of the dangers of delegation for athletes.5 In the Essendon case, the players were found to have been injected with a Prohibited Substance, having consented to the injections on the basis that they were informed by the club's coach and sports scientist that the injections were "in compliance with current WADA anti-doping policy and guidelines".6 CAS held that the players' reliance on assurances by the club's personnel was not a sufficient plea in mitigation, and it was not enough for their sanction to be reduced.7 The players could have, but failed, to check the content of the injections with the club's doctor.
For an in depth analysis of the Essendon case, please see here8
When considering the appeal of Sharapova, CAS considered in particular the case of Al Nahyan v International Federation for Equestrian Sports (FEI).9 Al Nahyan is an equestrian case (which has caused some commentators to criticise CAS' reliance on the decision)10 in which the horse was found to have a banned substance in its system. The rider was subsequently sanctioned with a period of ineligibility of two years and three months. The vet (whom the rider employed) was found to have been negligent in administering medication to the horse without inquiring about the content of the medication.
In the Al Nahyan case, CAS held that
"the misdeed of [the vet] is objectively imputed to the [rider], regardless of the presence of intent, fault or negligence or even knowledge of the use on the part of the [rider]. The [rider] cannot avoid strict liability for the anti-doping violation by saying that he or she relied on others or delegated responsibility away from himself or herself…."11
Sharapova’s plea in mitigation
Whose fault is assessed when an athlete delegates their obligation to check the Prohibited List and there is a subsequent breach?
In the Sharapova case, both parties agreed to follow the approach of Al Nahyan12, and Sharapova sought to invoke the NSF provision of the Tennis Anti-Doping Programme ("TADP") in order to reduce the period of ineligibility imposed upon her.13
In doing so, she argued that she cannot be blamed for trusting her agent, Max Eisenbud of IMG (one of the world's largest sports agencies), to perform anti-doping compliance services for her.14
CAS held that the fault to be assessed is not that which is made by the delegate, but the fault made by the athlete in her choice of delegate.15 In this regard, CAS found that Sharapova's fault in relation to her choice of delegate "was not significant".16
Where is the bar set for demonstrating NSF in cases of delegation (should it be lower than if the athlete performed the task themselves)?
CAS found that Sharapova's choice of Mr Eisenbud of IMG as a delegate for the performance of all anti-doping related matters was reasonable given that he was an experienced sports agent.
This is despite the fact that Mr Eisenbud had stated (when giving evidence to the tribunal appointed by the International Tennis Federation) that he had no training to understand the composition of the Prohibited List and that he professed not to have the basic understanding of how the Prohibited List works.,17
CAS did find that Sharapova was at fault in so far as she did not give Mr Eisenbud instructions as to how the task had to be performed. For example, she did not inform Mr Eisenbud to check whether Mildronate was only a "brand name", and she did not instruct Mr Eisenbud to consult the WADA, ITF or WTA websites, or the ITF hot line.18 In addition, CAS found that Sharapova failed to establish any procedure of supervision and control over the actions performed by Mr Eisenbud.19
CAS was ultimately of the view that although Sharapova was at fault to some degree, it was not enough to exclude the possibility for the player to rely on NSF. Taking into account other factors in the case, CAS accepted Sharapova's claim of NSF and reduced the ban from two years to fifteen months.20
Although CAS stated that "a player who delegates his/her anti-doping responsibilities to another is at fault if he/she chooses an unqualified person as her delegate…"21 CAS still held that Sharapova's fault "was not significant"22 despite the fact she sought to rely upon an agent with an inadequate understanding of how the Prohibited List works. CAS stated that "in the Panel's opinion, the "bar" should not be set too high for a finding of NSF…".23
As is apparent, CAS therefore appears to have set a lower bar for Sharapova to demonstrate NSF in her choice of delegate than panels have traditionally required from athletes who remain directly responsible for their own tasks. For example, in the case of James Stewart, a professional motorcross and supercross rider.24 Stewart had been prescribed "Adderall" since 2012 to treat his diagnosed Attention Deficit Hyperactivity Disorder. Stewart failed to disclose his use of Adderall and subsequently failed an in-competition doping control test. Stewart sought to rely on the defence of NSF and submitted that he could have received a TUE for Adderall, but due to his lack of anti-doping education, and confusions surrounding the rules, he failed to do so.25 CAS did not accept that this was a case of mere "paper violation" and his suspension was maintained.26
Tips for athletes when delegating Prohibited List duties
The decisions referred to in this article not only serve as a warning to athletes about delegating their anti-doping responsibilities, but they also show that the rules are not clear when it comes to how to effectively delegate duties to another person.
For those athletes who are willing to take the risk of delegating their responsibility to check the Prohibited List, they must ensure that they delegate their responsibilities adequately. To do so, we would recommend the following minimum requirements:
- Choose someone who is suitably qualified to perform the role. Although it remains unclear as to what a suitable qualification is, CAS has stated that "checking a substance against the Prohibited List is not an action for which specific anti-doping training is required."27 The decision is expected to be made by the player who does not have scientific or medical expertise. Therefore, arguably, a delegate does not need any scientific or medical expertise. However, in the Sharapova and Essendon cases, had the athletes asked their doctors to check whether the products in question complied with the regulations, the violations may not have occurred. In light of such decisions, it may be more prudent for athletes to appoint someone with such expertise. Particularly given that brand names of medications may be different to those on the Prohibited List, or medications bought in foreign countries may contain different substances.
An athlete should at the very least choose a delegate who is familiar with the anti-doping requirements and in particular with the Prohibited List. It would also be wise for the athlete to investigate and confirm the delegate's qualifications to ensure that they have sufficient knowledge to perform the role correctly. It would be advisable for the athlete to maintain a detailed written record of all measures taken in this regard, so that they can demonstrate (if necessary) that they have completed sufficient due diligence.
- Provide adequate instructions and put in place sufficient processes for the delegate to report and verify products against the Prohibited List. The athlete should ensure that their delegate is kept fully informed of all medications and supplements that they are taking. The athlete should also specify which products the delegate should check, what the verification procedure is, what anti-doping information must be reviewed, and with whom the delegate must consult if there is uncertainty about a product or any steps to ensure the fulfilment of the athlete's obligations. The athlete may wish to provide the delegate with a checklist to complete in relation to verification of substances and provide timelines of when certain tasks should be completed in order to assist the delegate perform their role.
- Actively supervise the delegate in relation to fulfilling their obligations. In order to do this effectively, the athlete must, to a great extent, participate in the process. An athlete should not simply pass the responsibilities to a delegate without any further involvement. Regular meetings or calls should be scheduled (and documented if possible), to ensure that there is an open channel of communication at all times.
Ultimately, in order to delegate effectively, the athlete themselves must have a proficient understanding of the anti-doping rules and regulations. Only then can the athlete manage the delegate appropriately, by creating and then putting in place sufficient reporting and verifying processes and procedures for the delegate to follow. The athlete must understand the rules so that he or she knows which questions need to be asked, which products need to be checked, what changes have occurred and who needs to be informed. An athlete must ensure that he or she researches the contents of a product, asks questions to a nutritionist or doctor when in doubt, and makes use of the resources provided by the anti-doping organisations.
It should perhaps be obligatory for both athlete and delegate to complete mandatory periodic training in relation to anti-doping regulations. This could be available online to ensure it is as convenient as possible for the athletes and delegates to access and complete. WADA has developed a set of online tools to assist stakeholders with their anti-doping educational needs, and it is fundamental that athletes and their support staff are familiar with such material at the very least.28
If the requirements in relation to delegation are tightened, it may discourage athletes from delegating their duties, which in turn would mean that athletes will ultimately have to be responsible for their own compliance obligations. This is perhaps the most effective deterrent, and would uphold the strict liability principle under the Code.
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- Tags: Anti-Doping | Aussie Rules Football | Court of Arbitration for Sport (CAS) | Horseracing | International Federation for Equestrian Sports (FEI) | International Federation for Motorcycling | Motorsport | Tennis | Tennis Anti-Doping Programme | WADA Prohibited List | World Anti-Doping Agency (WADA) | World Anti-Doping Code (WADC)
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