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2021 WADA Code – Reduced Sanctions For Substances Of Abuse, Multiple Violations And Recreational Athletes

2021 WADA Code – Reduced Sanctions For Substances Of Abuse, Multiple Violations And Recreational Athletes
Wednesday, 03 February 2021 By Paul J. Greene, Matthew Kaiser

On 1 January 2021, the fourth version of the World Anti-Doping Code[1] (the 2021 Code) went into effect and brought with it a set of significant changes[2] affecting athletes across the entire spectrum of sports. In particular, the 2021 Code created more lenient sanctions for:

  1. non-elite “recreational athletes” (Recreational Athletes);
  2. athletes who ingest or use substances of abuse; and
  3. athletes who have committed multiple violations.

Importantly, athletes in these categories who are currently serving suspensions under the old 2015 Code could be eligible for an immediate reduction now that the 2021 Code has taken effect.  This article reviews the changes, looking at each of the three points above in turn. 

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About the Author

Paul J. Greene

Paul J. Greene

pgreene@globalsportsadvocates.com | @greenesportslaw

Paul J. Greene, Esq. is a U.S. based sports lawyer who protects the rights of athletes in disputes, including those charged in anti-doping proceedings. Paul has been recognized by Chambers USA and Super Lawyers as one of America’s top sports lawyers.

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Matthew Kaiser

Matthew Kaiser

Matthew D. Kaiser is an associate at Global Sports Advocates and has worked with and represented athletes in a variety of legal issues from challenging disciplinary sanctions and doping violations to protecting athletes’ intellectual property rights.

Comments (3)

  • Jan Exner

    • 04 February 2021 at 09:14
    • #

    Thank you very much, Paul and Matthew, for an interesting analysis of three selected provisions of the sanctioning framework of Code 2021. In general, I agree with you that Code 2021 provides more fairness and flexibility in the sanctioning of athletes. On top of the provisions you selected for your analysis, I believe that there are other modifications of the Code that deserve further attention in terms of sanctioning athletes, in particular regarding the proportionality of sanctions: the re-designed definition of intentional presence, use or possession of prohibited substances without the reference to "athletes who cheat"; aggravating circumstances; protected persons; greater flexibility in sanctioning evading, refusing or failing to submit to sample collection and tampering or attempted tampering with any part of doping control and others. Nevertheless, I understand why you picked the three groups of provisions as these are some of the most significant changes for athletes.

    To address the topics analyzed in your article, I am particularly curious about what facts will fall under Art. 10.2.4.2 of Code 2021 (ingestion, use, or possession of substances of abuse in-competition in the context unrelated to sports performance). I can imagine situations falling under Art. 10.2.4.1 (for example the facts of the Guerrero case). But I am quite struggling to see the application of Art. 10.2.4.2 in practice. Would it apply, for example, when an athlete ingests cocaine in competition because he/she deals with some serious personal situation unrelated to sports? Or because he/she is addicted to drugs? I also wonder why the treatment program applies only to Art. 10.2.4.1 and cannot be taken into account while dealing with the situation under Art. 10.2.4.2. Thank you very much in advance for your thoughts.

    Jan Exner

    reply

    • Matthew Kaiser

      • 07 February 2021 at 21:04
      • #

      Great comments, Jan.

      We completely agree about the other modifications that are worth noting. We hope the omission/deletion of "athletes who cheat" from the definition of "intentional" does not affect the analysis, but we shall see how arbitrators interpret the new provision.

      As for your questions:

      * An example of an Article 10.2.4.2 case is if an athlete takes the substance of abuse in the early morning hours before his or her event. The standard definition of "in-competition" is "the period commencing at 11:59 pm on the day before a Competition in which the Athlete is scheduled to participate through the end of such Competition". Therefore, if the athlete stays out late and takes a substance of abuse (say around 2am) and he or she has a match that day, that would be an in-competition use but unrelated to sport.

      Another example could occur if an international federation changes the definition of "in-competition" to expand it across all games in a single tournament. If an athlete smokes marijuana or cocaine after a match during the tournament, then the use would be in-competition but it would be unrelated to sports performance.

      * We agree that it is curious why the treatment program would apply only to Article 10.2.4.1 when an athlete could very well have addiction issues under an Article 10.2.4.2 situation, too. ADOs clearly did not want to provide any assistance to an athlete who took a substance in-competition that is only banned in-competition.

      reply

      • Jan Exner

        • 10 February 2021 at 11:14
        • #

        Thank you, Matthew, for your comment, including the example of situations falling under Art. 10.2.4.2 of Code 2021.

        I was also thinking about a hypothetical scenario in which an athlete is participating in a competition held in the evening. In the morning of the same day, the athlete encounters certain personal inconveniences, for example, a breakup with a partner. In reaction to such inconvenience, the athlete knowingly uses a substance of abuse. A doping control held after the evening competition reveals the presence of the substance in the athlete’s sample. I believe that hearing panels should not consider such a presence “intentional” since the ingestion was unrelated to sports performance. The athlete definitely deserves some punishment because the presence of the substance of abuse in the athlete’s sample could endanger the athlete’s or other persons’ health and violate the spirit of sport. On the other hand, I believe that such an athlete does not deserve the same punishment compared to another athlete who would commit a straightforward anti-doping rule violation by intentionally ingesting a prohibited substance in relation to sports performance.

        reply

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