Unless ‘fairness requires otherwise’ – Exceptions to retroactive disqualification of competitive results for doping offencesMarkus Manninen
Retroactive disqualification of competitive results is a vital part of a credible anti-doping regime for various reasons. It has a deterrent effect on doping, particularly when combined with increased retesting of samples. Moreover, from the clean athletes' point of view, retroactive re-rankings and reallocation of medals may have intangible significance and considerable economic effects: successful athletes are awarded substantial amounts of monetary compensation.
This article focuses on the most common legal challenges relating to the retroactive disqualification of an individual athlete's competitive results under Article 10.8 of the World Anti-Doping Code 2015 (the "Code"). Specifically, it looks at:
- Article 10.8 of the Code
- Fairness test - Factors in assessing fairness
- disqualification of results over a long period of time
- athlete's degree of fault
- unaffected sporting results
- significant consequences of the disqualification of the results
- disqualification of results over a long period of time
- Concluding remarks
In particular, the author examines the grounds for exceptionally upholding the competition results of an athlete that has committed an anti-doping rule violation (ADRV), between the time of the ADRV and a suspension. The disqualification of results at multi-competition events or in team sports are not addressed here.
Article 10.8 of the Code
Article 10.8 of the Code reads as follows:
"10.8 Disqualification of Results in Competitions Subsequent to Sample Collection or Commission of an Anti-Doping Rule Violation
In addition to the automatic Disqualification of the results in the Competition which produced the positive Sample under Article 9, all other competitive results of the Athlete obtained from the date a positive Sample was collected (whether In-Competition or Out-of-Competition), or other anti-doping rule violation occurred, through the commencement of any Provisional Suspension or Ineligibility period, shall, unless fairness requires otherwise, be Disqualified with all of the resulting Consequences including forfeiture of any medals, points and prizes." (Emphasis added.)
Article 10.8 provides a clear rule regarding retroactive disqualification of competitive results: all results from the ADRV until the commencement of the provisional suspension or ineligibility period shall be disqualified.
There are no quantitative or temporal limitations to the disqualification. Thus, in an individual case, the rule could invalidate a significant number of results covering a considerable period.
There is, however, one important exception to the aforesaid rule, according to which the results may remain untouched if "fairness requires otherwise". As shown below, this discretionary provision has resulted in a lot of discussion and challenges for the hearing panels.
Article 10.8 does not stipulate from whose standpoint fairness should be evaluated although the angle obviously has great significance on the outcome of the consideration: a fair judgment may feel extremely unfair when looked at from the perspective of another. The provision refers to “fairness” at a general level and gives rise to different interpretations.
This issue has not been addressed in detail in the arbitral awards of the Court of Arbitration for Sport (CAS). The implied starting point seems to be that fairness should be primarily assessed from the point of view of the athlete having committed the ADRV. This is a well-established approach. The athlete is a party to the disciplinary proceedings and it is their achievements that are primarily at stake.
The viewpoint shall not, however, be categorically restricted to the athlete in question. As noted by the sole arbitrator in the case of Chernova, "not to disqualify results that have been achieved by using a prohibited substance or prohibited method cannot be considered as fair with regard to the other athletes" that competed against the sentenced athlete.
The broadness of the term "fairness" was addressed in detail by the CAS in the case of Glaesner. In that case, the respondent, Fédération Internationale de Natation (FINA), argued for a narrow interpretation of the term and submitted that only in cases where disciplinary proceedings were delayed, would fairness require results obtained after the ADRV not be disqualified.
The sole arbitrator rejected FINA’s position. He rightly noted that the term is broad and covers a variety of situations. Furthermore, he stated that the CAS jurisprudence had interpreted the notion of fairness in a broad sense and that the systematic interpretation of the rules supports such a view. Finally, according to the sole arbitrator, the CAS panels had in the past interpreted the notion of fairness to include factors other than mere delay.
Subsequent CAS panels have also interpreted "fairness" broadly and have accepted various factors as grounds for the non-disqualification of the results.
Factors in Assessing Fairness
It is often difficult to determine whether all results between an ADRV and a ban should be disqualified or whether fairness dictates a deviation from this principle. Each case must be judged on its own merits.
Based on the CAS case law, it is, however, possible to extrapolate several factors that the hearing panels may take into consideration when assessing the principle of fairness. These factors are discussed below.
Disqualification of results over a long period of time
Depending on the nature of the anti-doping rule violation at issue, Article 10.8 of the Code could capture results over a long period of time. If the proceedings on the ADRV have dragged on particularly long and the delay is not attributable to the athlete, fairness may dictate that only some of the athlete's results be invalidated. This has been confirmed in various CAS awards. By way of an example, in the case of Volandri, the CAS panel stated as follows:
"Although the ITF knew of the adverse analytical findings, it chose not to inform Mr Filippo Volandri and to let the latter take part in 19 tournaments before formally charging him with a doping offence. Such a long period is unacceptable and incompatible with the intention of the anti-doping regime that matters should be dealt with speedily. (…) Based on the above considerations, the Panel is of the opinion that fairness requires (…) that his individual result in respect of the 2008 Indian Wells tournament only is disqualified (…)"
In the recent Ugarova award, the sole arbitrator noted that it had taken approximately three years to commence the results management process for no valid reason. He disqualified the athlete’s results for a period of six months, which was deemed long enough to perform the results management, including the disciplinary proceedings.
It should be noted that the impact of a long delay in notifying an athlete of an ADRV or adjudicating an ADRV is particularly complex in cases involving retesting and in Athlete Biological Passport cases. In such cases, the delays may be significant and it may debatable whether the anti-doping organisation in question could or should have operated quicker in commencing the disciplinary proceedings, considering that the athlete has obviously endeavoured to conceal the ADRV.
Athlete's degree of fault
If the athlete’s degree of fault is low and he/she is eligible for a shortened ban, fairness may require that only some results be disqualified. In the case of Cañas, for example, the CAS ruled as follows.
"9.9 Since the [CAS] Panel has found that Appellant bears No Significant Fault or Negligence, the [CAS] Panel deems that fairness dictates that other than with respect to the [Mexican] Tournament, none of Appellant’s results shall be disqualified."
Considering that the disqualification of all results is the main rule, a lower degree of fault can only rarely justify the adjustment of the annulment. Significance should also be placed on other factors potentially affecting the disqualification of results (disqualification over a long period of time and significant negative consequences of disqualification, to name a few). On the other hand, the CAS panel in the case of Karapetyn also rejected the view that a finding of no (significant) fault or negligence is a necessary pre-condition for the exercise of discretion.
It is worth noting that according to Article 10.8 of the Code, results shall be disqualified between the ADRV and the commencement of the provisional suspension or ineligibility period. Therefore, results should not be disqualified at all if no ban is imposed. This has been confirmed by a CAS panel in the case of Volandri in which the arbitral tribunal issued a reprimand and only disqualified the athlete’s results in respect of the tournament in which he had given a positive sample.
The disqualification of all results even over a fairly long period of time is often justified if the ADRV is intentional or the athlete's degree of fault is high. However, the longer the period of time under scrutiny, the harsher the full disqualification would be and the more likely it will be that fairness requires some of the results be upheld.
Unaffected sporting results
The athlete being able to establish that, between the ADRV and the ban, his/her results had not been affected by the prior administration of a prohibited substance, speaks in favour of upholding the results. This abides by the principle of fair play and is in fact expressly recognised as a potential factor to be included in the consideration of whether to disqualify results in multi-competition events.
A negative sample between the one having led to the ADRV and the commencement of the ineligibility period is a rather strong indication that the use of a prohibited substance has not affected the results. This factor has been accepted by various CAS panels. In the case of Rasmussen, the panel noted as follows:
"(…) the Panel finds it important to emphasize the circumstance that, as conceded by the UCI at the hearing, the First Respondent's competitive results after 28 April 2011 had not been affected by any doping practice, and were fairly obtained by Rasmussen. Therefore, the Panel sees no reason to disqualify them."
Although this particular part of the fairness test appears rather straightforward at first glance, the issue can be complex. Indeed, depending on the substance and other circumstances of the case, it may be persuasively argued that the past administration of a banned substance has indirectly affected the results in the form of the athlete's enhanced ability to practice harder.
At the other extreme, it is obvious that an evidenced continuous use of a prohibited substance or a prohibited method should lead to the disqualification of all results during the infringement period. In the cases of Sharmina and Chernova, the results were disqualified for a period of approximately four years. In these cases, the sole arbitrator indicated that the disqualification is excessive in terms of proportionality, but the fairness to the other athletes and the removal of tainted performances from the record supersedes such a principle.
Significant consequences of the disqualification of the results
Some hearing panels have found that significant negative financial or competitive consequences resulting from the disqualification may support the view that no or only a limited annulment should be imposed. In the case of Schachl, the CAS panel took into account the fact that disqualifying would have concerned the athlete's results achieved in the Olympic Games. In the case of Napoleon, the CAS noted that by disqualifying all the results between the ADRV and the commencement of the ineligibility period, the athlete would have lost the opportunity to participate in the Commonwealth Games. Therefore, the panel disqualified results from two separate periods:
"These periods of disqualification equate to the ban imposed by FINA but take account of the undue delay which would have otherwise precluded the Appellant from fair participation in future competitions."
Although the results should, according to the main rule, be disqualified only for a short period of time, fairness may require that the disqualification be limited if it otherwise would prevent the athlete from participating in the most important competitions of the season, for example, because of the annulment of the results of the qualification round.
The disqualification of the results deserves a careful consideration by the hearing panels. Decisions on disqualification should be made through the lens of fairness, having regard to the various applicable factors.
It is clear however that although the prerequisites for upholding, in exceptional cases, the results between the ADRV and a ban have been clarified by the CAS, the application of Article 10.8 of the Code remains a challenging task.
 WADA 2015 World Anti-Doping Code (Code), available to view here: https://www.wada-ama.org/sites/default/files/resources/files/wada-2015-world-anti-doping-code.pdf (last accessed 5 April 2017)
 Article 10.1 of the Code.
 Article 11.2 of the Code.
 Article 10.8 of the Code substantively corresponds with its predecessors i.e. the 2009 (https://www.wada-ama.org/sites/default/files/resources/files/wada_anti-doping_code_2009_en_0.pdf) and 2003 (https://www.wada-ama.org/sites/default/files/resources/files/wada_code_2003_en.pdf) versions of the Code. Therefore, relevant legal praxis is not limited to cases adjudicated under the 2015 version. None of the versions contains comments that would be relevant for the purposes of this article.
 See also Lewis – Taylor, Sport: Law and Practice, Third Edition, Bloomsbury Professional Limited, Croydon, 2014, p. 542.
 According to Lewis – Taylor, it is the athlete's burden to show on the balance of probabilities that fairness requires otherwise. See Lewis – Taylor, Sport: Law and Practice, Third Edition, Bloomsbury Professional Limited, Croydon, 2014, p. 542. Contrary to this position, Viret has submitted that because Article 10.8 of the Code does not explicitly place the burden of proof on the athlete, it should stay on the anti-doping organisation. See Viret, Evidence in Anti-Doping at the Intersection of Science and Law, T.M.C. ASSER PRESS, The Hague, 2016, p. 494-495.
 See, for example, arbitral awards in cases CAS 2005/A/951 Cañas v/ATP, revised award of 23 May 2007 paras. 9.8-9.9 (https://law.marquette.edu/assets/sports-law/pdf/2012-conf-canas-rev.pdf), CAS 2009/A/1782 Volandri v/ITF, award of 12 May 2009 paras. 55-56, https://jurisprudence.tas-cas.org/Shared%20Documents/1782.pdf (last accessed 5 April 2017), CAS 2010/A/2216 Ryan Napoleon v. Fédération Internationale de Natation (FINA), award of 22 December 2010 para. 17, https://jurisprudence.tas-cas.org/Shared%20Documents/2216.pdf, (last accessed 5 April 2017); and CAS 2011/A/2671 UCI v. Rasmussen & DIF, award of 4 July 2012 paras. 83-84, https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/103.pdf (last accessed 5 April 2017).
 CAS 2016/O/4469, International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Tatyana Chernova, award of 29 November 2016, https://www.tas-cas.org/fileadmin/user_upload/Award_4469__internet_.pdf (last accessed 5 April 2017)
 Ibid. para. 176. See also Viret, Evidence in Anti-Doping at the Intersection of Science and Law, T.M.C. ASSER PRESS, The Hague, 2016, p. 494 where she has noted that "retroactive Disqualification is detrimental to fair competition since it creates an uncertainty for other Athletes as to the definitive rankings".
 CAS 2013/A/3274 Mr Mads Glaesner v. Fédération Internationale de Natation (FINA), award of 31 January 2014, https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/140.pdf (last accessed 5 April 2017). See also Viret, Evidence in Anti-Doping at the Intersection of Science and Law, T.M.C. ASSER PRESS, The Hague, 2016, p. 492 and The Glaesner award: Another case of mistaken identity involving a Vicks inhaler (https://wadc-commentary.com/glaesner/) by the WADC Commentary Team (https://wadc-commentary.com/) on 31 January 2014. The case mainly concerned Article 10.1 of the Code i.e. the disqualification of results in a multi-competition event but also contains an obiter dictum comment regarding the fairness exception under Article 10.8 of the Code.
 CAS 2013/A/3274 Mr Mads Glaesner v. Fédération Internationale de Natation (FINA), award of 31 January 2014, para. 84, https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/140.pdf (last accessed 5 April 2017)
 The sole arbitrator referred to CAS 2008/A/1744 para. 74, UCI v. Schachl & ÖRV, https://www.doping.nl/media/kb/571/CAS%202008_A_1744%20UCI%20vs%20Schachl%20%26%20%C3%96RV%20(S).pdf (last accessed 5 April 2017)
 The sole arbitrator made reference to CAS 2007/A/1362 & 1393 CONI v. Petacchi & FCI and WADA v. Petacchi & FCI, https://jurisprudence.tas-cas.org/Shared%20Documents/1362,%201393.pdf (last accessed 5 April 2017) and to CAS 2011/A/2671 UCI v. Rasmussen & DIF, award of 4 July 2012 (https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/103.pdf (last accessed 5 April 2017)
 See, for example, CAS 2016/O/4463 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Kristina Ugarova, award of 29 November 2016, https://www.tas-cas.org/fileadmin/user_upload/Award_4463__internet_.pdf (last accessed 5 April 2017) where the sole arbitrator gave significance, in addition to the delay in the proceedings, to the fact that no doping scheme had been established.
 Lewis – Taylor, Sport: Law and Practice, Third Edition, Bloomsbury Professional Limited, Croydon, 2014, p. 542.
 CAS 2009/A/1782, award of 12 May 2009, paras. 99-100, https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/25.pdf (last accessed 5 April 2017)
 CAS 2016/O/4463 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Kristina Ugarova, award of 29 November 2016, https://www.tas-cas.org/fileadmin/user_upload/Award_4463__internet_.pdf (last accessed 5 April 2017)
 See e.g. decision by the Anti-Doping Hearing Panel of the IBU concerning Mr Alexander Loginov on 30 June 2015, https://www4.biathlonworld.com/media/files/press_201507/Decision_Loginov.pdf (last accessed 5 April 2017)
 CAS 2005/A/951 Cañas v/ATP, revised award of 23 May 2007 paras. 9.8-9.9, https://law.marquette.edu/assets/sports-law/pdf/2012-conf-canas-rev.pdf, (last accessed 5 April 2017). See also arbitration CAS 2013/A/3274 Mr Mads Glasner v. Fédération Internationale de Natation (FINA), award of 31 January 2014, https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/140.pdf (last accessed 5 April 2017)
 See also Lewis – Taylor, Sport: Law and Practice, Third Edition, Bloomsbury Professional Limited, Croydon, 2014, p. 543.
 In Viret's view, fairness would require that the results be upheld in cases of No (Significant) Fault or Negligence, unless the result was actually affected. Viret, Evidence in Anti-Doping at the Intersection of Science and Law, T.M.C. ASSER PRESS, The Hague, 2016, p. 493.
 Arbitration CAS 2007/A/1283, WADA v. ASADA, AWF & Karapetyn, award of 15 November 2007, https://www.wada-ama.org/sites/default/files/resources/files/karapetyn.pdf, para. 55. (last accessed 5 April 2017)
 CAS 2009/A/1782, arbitral award dated 12 May 2009, https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/25.pdf (last accessed 5 April 2017)
 See CAS Bulletin 1/2010 (https://www.tas-cas.org/fileadmin/user_upload/Bulletin01112010.pdf) p. 117-124 and Fumagalli: 'Problems related to the retroactive disqualification of results and to the retroactive suspension (doping)', in CAS Seminar, Montreux, 2011, Reeb & Mavromati (eds), International Council of Arbitration for Sport (ICAS), Lausanne, 2012, p. 154.
 See Article 10.1 of the Code.
 CAS 2011/A/2671 UCI v. Rasmussen & DIF, award of 4 July 2012 para. 84 (https://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/103.pdf). See also CAS 2005/A/951 Cañas v/ATP, revised award of 23 May 2007 para. 9.8, https://law.marquette.edu/assets/sports-law/pdf/2012-conf-canas-rev.pdf (last accessed 5 April 2017); and CAS 2009/A/1782 Volandri v/ITF, award of 12 May 2009 para. 98, https://jurisprudence.tas-cas.org/Shared%20Documents/1782.pdf (last accessed 5 April 2017)
 CAS 2016/O/4464 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Ekaterina Sharmina, https://www.tas-cas.org/fileadmin/user_upload/Award_4464__internet_.pdf (last accessed 5 April 2017)
 In Lance Armstrong's case, the disqualification period was even longer. All his results were disqualified from 1 August 1998 onwards because he was shown to have used prohibited substances at least from 1998 to 2005. See USADA press release of 24 August 2012, https://www.usada.org/lance-armstrong-receives-lifetime-ban-and-disqualification-of-competitive-results-for-doping-violations-stemming-from-his-involvement-in-the-united-states-postal-service-pro-cycling-team-doping-conspi/ (last accessed 5 April 2017)
 CAS 2008/A/1744 UCI v. Schachl & ÖRV paras. 76-78, https://www.doping.nl/media/kb/571/CAS%202008_A_1744%20UCI%20vs%20Schachl%20%26%20%C3%96RV%20(S).pdf (last accessed 5 April 2017)
 CAS 2010/A/2216 Ryan Napoleon v. Fédération Internationale de Natation (FINA), award of 22 December 2010 para. 17, https://jurisprudence.tas-cas.org/Shared%20Documents/2216.pdf, (last accessed 5 April 2017)
 In Viret's view, panels should not lightly put into the balance the strength of the athlete's interest in having a particular result upheld.
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- Tags: Anti-Doping | Anti-Doping Rule Violation (ADRV) | Arbitration | Court of Arbitration for Sport (CAS) | Dispute Resolution | Fédération Internationale de Natation (FINA) | Governance | Regulation | WADA Code 2015
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About the Author
Markus is an attorney focused on commercial litigation and arbitration as well as sports law at the Finnish law firm Hannes Snellman Attorneys (Helsinki). He serves as a CAS arbitrator.