When can athletes obtain a valid retroactive TUE? A review of the Samir Nasri case

Published 28 March 2018 | Authored by: Rustam Sethna

As a general rule, an athlete having committed an anti-doping rule violation (ADRV) under the World Anti-Doping Code, 2015 (Code) is liable to face sanctions. However, one way through which sanctions may be avoided is if the athlete was granted a Therapeutic Use Exemption (TUE).

Generally, an athlete must apply to his national or international federation (as applicable) for a TUE, before consuming a ‘Prohibited Substance’ or ‘Prohibited Method’.

However, as an exception to the general rule, an athlete may be granted a TUE retroactively (i.e. after consumption) if certain conditions, prescribed under WADA’s International Standard on Therapeutic Use Exemptions, 2016 (ISTUE), are met.

The case of Samir Nasri involves an application to Union Européennes de Football Association (UEFA) by the ex-Arsenal and Manchester City player for a retroactive TUE, to use an intravenous drip that was administered to him when he was feeling under the weather on holiday in December 2016. He was sanctioned for a period of 6 months of ineligibility.

Given the limited jurisprudence on retroactive TUEs, this article seeks to highlight important takeaways for athletes and considers whether an inexperienced athlete in the same position would attract the same level of sanction. Specifically, it looks at:

  • Background facts to the case

  • TUEs in a nutshell: Why Nasri’s application for a TUE failed

  • Arguments before CAS

  • CAS decision

  • Analysis (including mitigating and aggravating factors)

  • Conclusion

Background facts

Doping in top level football is a relatively rare occurrence1, and so when an elite footballer is charged with an ADRV, the episode naturally attracts the proverbial spotlight.

This particular case involved Samir Nasri, a French international and professional footballer, who at the time, was playing for Sevilla FC on loan from Manchester City.

In December 2016, Nasri visited Los Angeles during the competition break in the Spanish league. Whilst on holiday, on 26 December 2016, Nasri fell ill and suffered from a bout of vomiting. He then proceeded to call a doctor, Dr Sarabjit Anand (Dr A), who visited him at his hotel room and diagnosed Nasri, as being, amongst others, in a “state of dehydration2.

Dr A prescribed the intravenous infusion of a sodium chloride solution (IV Treatment) on the basis that Nasri was due to fly back to Europe soon thereafter, in time to play for Sevilla in the La Liga, which was due to recommence in January 2017.

Nasri decided to receive the IV Treatment from a company called “Drip Doctors”; specialising in the provision of private medical services to patients (celebrities in particular) at their residences/ specified locations. 500 ml of the IV Treatment was administered following which Drip Doctors reported an improvement in Nasri’s health.

Meanwhile, Nasri’s receipt of the IV Treatment had transpired through the media and social media. This caused the Spanish Agency for Health Protection in Sport (AEPSAD) to make an inquiry at Sevilla for further details of the IV Treatment received by Nasri. In response, the Club stated that Nasri had declared that he had taken two infusions of 50 ml each, with an interval of more than 6 (six) hours between each infusion.

In view of the above, Dr Adolfo Muñoz Macho (Dr M), Head of Medical Services at Sevilla made an application for a retroactive TUE to UEFA’s TUE Committee (UEFA TUEC), on behalf of Nasri, in January 2017. In February 2017, UEFA TUEC rejected the application, causing Nasri to request the World Anti-Doping Agency (WADA) to review UEFA’s rejection.

However, in March 2017, WADA declined to conduct a formal review of Nasri’s application for a retroactive TUE.

It is against this backdrop that Nasri decided to initiate proceedings before the Court of Arbitration for Sport (CAS), appealing the UEFA’s refusal to grant him a retroactive TUE in respect of the IV Treatment received in Los Angeles.

A tabular chronology of the facts may be found in the Annexure at the end of this article.

 

TUEs in a nutshell: Why Nasri’s application for a TUE failed

The Code generally prohibits athletes, from consuming, among other things, what are known as "Prohibited Substances" or using "Prohibited Methods". These "substances" and "methods" are prescribed by WADA through a list known as the "Prohibited List", which is updated by WADA from time to time, usually every year.

The Code prescribes 10 situations which potentially constitute an ADRV. Among these include the presence, use, attempted use, possession, trafficking, attempted trafficking, administration or attempted administration of "Prohibited Substances" or "Prohibited Methods".

However, if it can be proved,3 in respect of a Prohibited Substance and Prohibited Method, that:

  1. It was needed to treat an acute or chronic medical condition, such that the athlete would experience a significant impairment to health if were to be withheld;

  1. It is highly unlikely that its use would produce any additional enhancement of performance beyond what might be anticipated by a return to the athlete’s normal state of health following treatment of the acute or chronic medical condition;

  1. There is no reasonable therapeutic alternative to its use; and

  1. The necessity for such use is not a consequence, of the prior use of the substance or method which was prohibited at the time of such use,

then the athlete shall be granted an exemption, also known as a TUE and therefore not be considered to have committed an ADRV.4

Generally, TUEs must be applied for by an athlete before consuming a "Prohibited Substance" or "Prohibited Method".

However, as an exception to the general rule, an athlete may be granted a TUE retroactively (i.e. after consumption) if one the following conditions are met:5

  1. Emergency treatment or treatment of an acute medical condition was necessary; or

  1. Due to other exceptional circumstances, there was insufficient time or opportunity for the athlete to submit an application for the TUE prior to sample collection; or

  1. The applicable rules required the athlete to apply for a retroactive TUE; or

  1. A retroactive TUE should be granted in the interest of fairness.

In Nasri’s case, the applicable Prohibited List restricted intravenous infusions of more than 50 ml per 6 (six) hour period, unless of course, exempted by a TUE6. As stated above, Nasri had received two infusions of 500 ml each – a clear breach of the acceptable thresholds.

Considering the above, the UEFA TUEC rejected Nasri’s request for a retroactive TUE on the following grounds7:

  1. Nasri was merely “feeling under the weather” and “attempting to gain preventive health and immune system support”. This did not amount to a "acute or chronic medical condition" and the withholding of the IV Treatment would not have significantly impaired his health.

  1. No medical evidence was provided to demonstrate why oral hydration was not considered. The only reason justifying the IV Treatment was that Nasri had to fly back to Europe. This was not adequate grounds for considering the IV Treatment as a “reasonable alternative.”

  1. Again, the severity (rather the lack thereof) of Nasri’s condition did not necessitate “emergency treatment”. As such, the UEFA TUEC was not convinced that a medical emergency existed.

In essence, the above grounds drew the broad lines on which the battle before CAS would eventually ensue.

 

Arguments before CAS

While agreeing that the administration of the IV Treatment constituted a potential ADRV, Nasri argued that he ought to have retroactively been granted a TUE.

To prove this, Nasri first sought to argue that a he was eligible for a preventive TUE (i.e. a TUE obtained before the IV Treatment was administered), and therefore, given the facts at hand, such TUE should have been granted retroactively.

A summary of the arguments put forth:8

  1. Acute Medical Condition: At the outset, Nasri contended that he had been sick for two days without medication before resorting to the IV Treatment. Dr A, through a report, submitted that Nasri was “very weak, confused, vomiting and had diarrhoea9. It was therefore “absolutely impossible” for Nasri to take the long flight back to Spain from Los Angeles. This constituted an "acute… medical condition" within the meaning of Article 4.1(a) of the ISTUE – the first of four conditions to be satisfied to benefit from a TUE.

However, UEFA argued that Nasri failed to provide sufficient proof of the fact that he (a) had been sick for two days already; and (b) in any event, was suffering from an "acute disease", requiring an instant intravenous drip instead of regular oral hydration. This is because:

  1. Dr A’s report referred to “typical symptoms of gastroenteritis without any particular serious symptoms10.

  1. Fever was described as ranging between moderate and moderately high. In fact, after Dr A’s initial examination and before Drip Doctors administered the IV Treatment, there was a drop in Nasri’s body temperature and Nasri had stopped vomiting.

  1. The "chief complaint" in Dr A’s report does not note the diagnosis of gastroenteritis.

  1. Neither the medical report of Dr A nor that of Drip Doctors used the term "acute" to describe Nasri’s condition.

  1. No specific indication was provided as to which “significant impairment to health” Nasri would have experienced if the IV Treatment infusion would have been withheld.

Additionally, the fact that it would have been absolutely impossible to fly back to Seville was not considered a valid argument, as this did not constitute a “significant impairment to health”.

  1. Reasonable Therapeutic Alternative: To satisfy the third and penultimate condition precedent for the grant of a TUE (Article 4.1(c) ISTUE), it would have to be proved that oral hydration (as opposed to the IV Treatment) would not have been an effective solution.

Therefore, Nasri sought to argue that his medical condition, coupled with the fact that he was to take a long flight back to Europe, was reasonable grounds for him to not consider oral rehydration as a “comparable alternative11.

He further added that the low humidity in the aircraft cabin coupled with his decreased fluid intake would cause dehydration. In any event, airlines do not allow sick passengers to travel.

According to Dr M, the IV Treatment was a “safe method” and the “most efficient treatment taking into consideration the circumstances of the case at stake.

However, UEFA submitted, on the contrary, that oral rehydration was "clearly" a valid therapeutic alternative, that the reports in support of Nasri did not provide any medical reason as to why oral rehydration was not possible and that medical literature does not conclusively regard oral hydration as being less effective than the IV Treatment12.

In addition to the above, Nasri contended that the UEFA TUEC ought to have considered the remaining two of the four conditions required to be satisfied prior to the grant of a TUE.

The first was that the IV Treatment was “highly unlikely to have produced any additional enhancement of performance”, pursuant to Article 4.1(b) of the ISTUE; with the second being that the use of the IV Treatment in this case was not a consequence of its prior use, which treatment, at the time of such prior use, was prohibited (Article 4.1(d) of the ISTUE).

However, as mentioned above, Article 4.1 requires “each” of the four conditions to be satisfied. In other words, if even one of the four conditions were not satisfied, a TUE could not be granted. In this case, UEFA found that two of four conditions failed the requisite tests – therefore, it is not necessary that UEFA was obliged to consider the other two conditions.

Having made submissions relating to the granting of a preventive TUE, Nasri contended that a retroactive TUE ought to be granted in accordance with Article 4.3 of the ISTUE. Namely that:

  1. Emergency treatment of an acute medical condition was necessary: Because gastroenteritis and dehydration required urgent treatment; and

  1. Due to other exceptional circumstances, there was insufficient time or opportunity for the Athlete to submit, or for the TUEC to consider an application for the TUE prior to Sample collection: Being abroad over Christmas, suffering from gastroenteritis and the necessity to take a long flight, it was submitted, constituted exceptional circumstances.

The first consideration was rebutted by UEFA on the basis that no explanation was provided as to why the IV Treatment, as an immediate care, was necessary. In fact, according to the Drip Doctors report, Nasri’s fever had decreased and he was no longer vomiting at the time that Drip Doctors administered the IV Treatment. Therefore, there was no question of an "emergency".

As for the second, the circumstances cited by Nasri were not considered to be "exceptional" by UEFA.

  1. Medical Recommendation: Dr M also submitted that the IV Treatment had to have been conducted following Dr A’s instruction – how could Nasri “question the medical indications of a doctor”? He also contended that the IV Treatment was the “less risky and more efficient option”.

UEFA referred to Article 21.1 of the Code which requires athletes to “inform medical personnel of their obligation to use… Prohibited Methods and to take responsibility to make sure that any medical treatment received does not violate anti-doping policies and rules…

However, Nasri did not event attempt to reach his team doctor or medical personnel, even though there was a period of 2.5 hours between visits by Dr A and Drip Doctors.

As such, instead of “relying blindly” on the recommendation of Dr A, Nasri had the clear obligation to ensure that the treatment was executed in compliance with the anti-doping requirements, especially where two medical practitioners, both unknown to the athlete, were involved.

Therefore, as an experienced football player, Nasri should have been aware of the implications of undergoing the IV Treatment.

In sum, Nasri submitted that he was “not in a condition to discuss or argue with the Doctor about the legitimacy of the treatment or its urgency. The treatment received…was absolutely harmless, absolutely unable to enhance his performance and had the only scope of rehydrating him while suffering and acute gastroenteritis.

UEFA, on the other hand, was not satisfied with the explanation provided by Nasri. In fact, no medical explanation for the necessity of administering intravenous infusion of 500ml, substantially more than the permissible levels, was provided. Nasri failed in his responsibilities as an elite athlete and erred in relying on the advice of a doctor who had no experience in doping matters. Oral hydration was a clear alternative.

 

CAS decision13

The CAS panel observed that Nasri had the onus of establishing, on a balance of probabilities, first, that he qualified for a TUE and second, that such TUE should have been applicable, retroactively.

It was held, that the witness statement of Dr A implied that the medical situation did not require the IV Treatment, but that it could have been cured by oral intake of fluids. Additionally, Dr M, in his testimony admitted that oral hydration should be tried before considering the IV Treatment. However, it was found that oral rehydration was not even attempted.

Additionally, CAS found that the Drip Doctors report showed that Nasri recovered very quickly (he was in a position to be photographed in "good shape" after treatment – hardly signs of an "acutely ill" patient). Therefore, even if Nasri was "acutely ill" at the time of Dr A’s decision, findings from the Drip Doctors report suggested that this was no longer the case when the IV Treatment was administered.

CAS also observed that the IV Treatment was not administered in accordance with the criteria laid down in the WADA TUE Physician Guidelines on Intravenous Infusions or Injections14 that require there to be:

  1. A clear diagnosis;

  1. Supportive evidence that no alternative treatment was available;

  1. Treatment ordered by a physician and administered by qualified medical personnel in an appropriate setting; and

  1. Adequate records maintained.

CAS confirmed that the first two conditions above were not met, and therefore, "medical best practices" were not respected.

Additionally, it was held that just because the IV Treatment was a faster and more efficient method, did not mean it was a reasonable therapeutic alternative. The choice of IV Treatment was not driven by medical reasons but by the fact that Nasri had to fly back to Europe soon after.

CAS also referred to Article 2.01 of the UEFA Anti-Doping Regulations (UEFA ADR), which state that it is the responsibility of the athlete to ensure that no Prohibited Method is used. Therefore, he could not simply rely on the decision of Dr A, who had no anti-doping experience. In fact, he should have at the very least attempted to contact the medical personnel at Sevilla.

Importantly, CAS noted that the "emergency situation" required to obtain a retroactive TUE, did not exist. An emergency situation connotes even more severe circumstances than those in the case of Nasri – for example, Dr A would not have left Nasri alone in his room without the infusion or any treatment at all if an emergency treatment was necessary15.

Finally, it was held that Nasri’s intent to fly back to Europe did not constitute "other exceptional circumstances" due to which there was insufficient time or opportunity for the athlete to submit an application for the TUE prior to sample collection in terms of Article 4.3(b) of the ISTUE.

Therefore, CAS held that Nasri was unable to prove that it was more likely than not that he should have been granted a retroactive TUE. It upheld the decision of the UEFA TUEC and dismissed Nasri’s appeal as unsuccessful.

Nasri was sanctioned for a period of 6 months from the date of the CAS award – he will therefore be ineligible to play football until June 2018.

 

Analysis

It is interesting that despite CAS clearly finding in favour of UEFA, Nasri might consider himself lucky to have got away with just a 6 month sanction.

This is because the IV Treatment in excess of applicable thresholds, as mentioned above, is a "method" which is prohibited by WADA and is classified as "non-specified". What this essentially means is that the administration of 500 ml of the IV Treatment is considered to be greater than what is necessary, thereby attracting more stringent standards.

As such, the normal sanction for such a violation would be a period of 4 years. However, if the athlete can demonstrate that (i) the use was not intentional (Article 10.2 of the Code); (ii) there was no significant fault or negligence on his part (Article 10.5 of the Code); and (iii) there was substantial assistance with the doping control process, the sanction can be significantly reduced, sometimes to as low as 4 months (an approx. 90% reduction) (Article 10.6 of the Code).

This is largely based on an assessment of facts and evidence examined by the CAS panel.

 

Mitigating Factors

While the CAS panel in Nasri’s case did not specifically discuss these three criteria in pronouncing its decision, it is likely that these factors were explicitly considered as "mitigating" when awarding Nasri a reduced sanction of 6 months (in this case a reduction by almost 88%). These have been considered below:

  1. Intent: "Intent" under both, the UEFA ADR and the Code is used to identify those athletes who cheat.

The term, therefore, requires that the player or other person engaged in conduct which he 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” (Article 10.2.3 of the Code).

CAS was generally sympathetic towards Nasri’s circumstances (see below), but it noted that in determining whether the TUE should be granted, “considerations concerning intent or the degree of negligence are irrelevant”. This statement implies that CAS acknowledged the lack of intent on Nasri’s part.

If the ADRV is proved to be not intentional, the sanction shall automatically be reduced from 4 to 2 years.

  1. No Significant Fault or Negligence (“NSFN”): NSFN can be established when an athlete’s fault or negligence when viewed in totality of the circumstances, is not significant in relation to the ADRV.

CAS admitted that Nasri was in an “unfortunate situation16 and cited factors such as family holidays abroad over Christmas time, being sick in a hotel room and the lack of medical expertise in doping-related matters as possibly contributing towards a reduced sanction.

If NSFN can be proved, the range of sanctions can be reduced to a range of 2 years to 1 year (minimum one-half of the 2 year sanction).

  1. Substantial Assistance: As a third step, the panel would assess the possibility of further reducing sanctions if it can be proved that Nasri was cooperative with the investigation and adjudication of the case.

Nasri while explaining his situation, conceded that he may have taken wrong decisions. Additionally, CAS considered his statement to be “credible and compelling17.

If Substantial Assistance can be proved, no more than three quarters of the otherwise applicable period of ineligibility may be suspended. Therefore, if a sanction is reduced to 1 year on finding NSFN, it may be further reduced to a minimum of 3 months upon finding "substantial assistance".

In another anti-doping case - Marin Cilic vs the International Tennis Federation18, CAS established the following framework to measure the degree of fault (“Cilic Scale”):

  1. Significant degree of or considerable fault (16-24 months, with a “standard” significant fault leading to a suspension of 20 months);

  1. Normal degree of fault (8-16 months, with a “standard” normal degree of fault leading to a suspension of 12 months); and

  1. Light degree of fault (0-8 months, with a “standard” light degree of fault leading to a suspension of 4 months).

 

Aggravating factors

Despite the above, the CAS Panel also stressed on the fact that Nasri was an experienced athlete who, by his own admission, checked the "Prohibited List" every year19. It is interesting to note that CAS seems to have accepted UEFA’s argument, that:

as an experienced professional football player he was not a regular patient and a “red light” must have switched on if something should be injected.20

This statement implies that experienced professional footballers attract a greater duty of care in relation to anti-doping issues as compared with their more inexperienced peers. Indeed, "experience" is a relative concept and therefore will be considered in light of other factual circumstances. However, in this case it was considered as a factor allowing for an aggravated sanction.

This approach has also been adopted by CAS in the past, where it has acted leniently towards younger and more inexperienced athletes. For example, in Cilic21, the CAS held that “an athlete’s youth and/or inexperience” was an example of a factor which can be taken into consideration when determining the subjective level of fault.

This is important, as CAS has subsequently emphasised this principle in WADA v. International Weightlifting Federation and Yenny Alvarez Caicedo22, noting that youth and inexperience “are not factors to be considered in determining fault but are only relevant in assessing the degree of fault…”.

 

Conclusion

Despite his appeal having failed, Nasri’s six-month suspension was on the higher side of "light fault" on the Cilic Scale, meaning that CAS did not think he was significantly at fault here.

However, the case is a good example of the high threshold required to be satisfied if an athlete is to be granted the benefit of a retroactive TUE.

CAS jurisprudence on retroactive TUEs is limited. However, there has been one particular instance in the past where CAS has retroactively granted a TUE, particularly in relation to similar intravenous treatment (see Kazuki Ganaha v. Japan Professional Football League23). However, there are two key factors that differentiate the Kazuki case from the current scenario.

First, at that time (2007)24, there was no limit on the quantum of intravenous infusion an athlete could take. The rules changed with the 2012 Prohibited List25, restricting the levels of intravenous infusions to 50ml per 6 hour period, as is currently the case. Therefore, if Nasri found himself in the same situation, a decade earlier, arguing the same appeal before CAS may have been (arguably) less challenging.

Secondly, in the Kazuki case, the team doctor recommended the intravenous treatment and therefore the relevant CAS panel held that the athlete had no choice but to rely on the recommendation of the treating doctor to administer the treatment26. Therefore, from this jurisprudence it is likely that athletes who undergo such treatment (or take any substances which warrant a retroactive TUE application) are best advised to do so upon the prior recommendation of the team doctor, if they must.

The case also serves as an important reminder to athletes of WADA’s strict liability rule – that intent, fault or negligence need not be demonstrated in order to establish an ADRV – the mere presence or use of a prohibited substance or method is sufficient. Controversial as this may be, the rule does not show any signs of changing for the time being, therefore placing an arguably unreasonable but necessary burden of caution on the athlete.

Additionally, athletes should be aware of the benefits of cooperating with the doping control process rather than hiding facts and evidence, if ever subject to proceedings.

Notwithstanding this, the fact that CAS gave weight to Nasri’s experience in determining the sanction begs the question as to whether a younger player in (for example) the third division in the same situation would have been sanctioned with the same or greater degree of severity? As analysed above, the answer is probably not.

 

Factual timeline

Sr. No.

Particulars

Date

  • Nasri falls ill whilst on holiday in Los Angeles, US. He feels dehydrated, vomits; calls doctor;

  • Dr. Anand visits and prescribes intravenous hydration (4:00pm – 5:00pm); and

  • Drip Doctors visit Nasri’s hotel to administer the intravenous treatment – 500 ml of sterile water (7:30pm);

26 December 2016

Intravenous treatment received by Nasri made known to the public through media/ social media.

Between 26 December 2016 and 28 December 2016

AEPSAD writes letter to Sevilla requesting for further information on the medical treatment received by Nasri.

28 December 2016

  • Nasri takes a flight back to Europe; and

  • General Manager of Sevilla responded to AEPSAD stating that Nasri had taken not more than two infusions of 50ml each at intervals of more than 6 (six) hours.

30 December 2016

AM makes an application to UEFA for a TUE for the use of 500 ml of intravenous infusion by Nasri.

21 January 2017

TUE Committee of UEFA refused the application.

7 February 2017

Decision of TUE Committee of UEFA notified to Nasri.

8 February 2017

Nasri files a request for review before the WADA TUE Committee.

1 March 2017

WADA TUE Committee refuses to conduct a review of Nasri’s application.

10 March 2017

Nasri appeals decision of UEFA TUE Committee (see point 6 above) to CAS.

31 March 2017

CAS hearing in Lausanne.

3 October 2017

CAS issues final award; appeal is dismissed, and decision of UEFA TUE Committee upheld.

15 December 2017

The views expressed in this piece are solely those of the author in his personal capacity and do not in any way represent the views of any other individual or entity.

 

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About the Author

Rustam Sethna

Rustam Sethna

Rustam is an Indian qualified lawyer and candidate for a Master’s degree in International Sports Law at Instituo Superior de Derecho y Economía (ISDE), Madrid. Previously, Rustam has gained 3 years of post-qualification experience as an Associate with AZB & Partners, one of India’s leading full-service law firms.

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