Must athletes prove how a banned substance entered their body to establish lack of intention?

The World Anti-Doping Code1 2015 (the Code) introduced significant changes to the ineligibility period imposed on athletes who have been found guilty of doping. Article 10.2 of the Code now splits the ineligibility period into four years and two years for first-time offenders, depending on whether the substance is “specified” or “non-specified” 2 (see footnotes) and whether intention can be established:

• 10.2.1: The period of Ineligibility shall be four years where:

  • 10.2.1.1 - The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional. (emphasis added)

  • 10.2.1.2 - The anti-doping rule violation involves a Specified Substance and the Anti-Doping Organization can establish that the antidoping rule violation was intentional.

• 10.2.2: If Article 10.2.1 does not apply, the period of Ineligibility shall be two years.3

So a violation involving non-specified substances is subject to a basic sanction of 4 years unless the athlete can establish that the violation was unintentional, in which case the period of ineligibility is reduced to 2 years.4 On the other hand, a violation involving specified substances is subject to a basic sanction of 2 years unless the anti-doping organization can establish that the violation was intentional, in which case the period of ineligibility is increased to 4 years.5 In other words, if a violation involves non-specified substances, a heavier sanction is automatically implemented, and the athlete carries the burden to prove his or her lack of intention in order to reduce the sanction.

Unfortunately, there is a discrepancy surrounding what an athlete must show to prove that their violation was “not intentional”. One set of decisions have said that an athlete must prove how a non-specified substance entered their body to establish lack of intention; whereas another set of decisions have said it is not vital to prove this. How this question is answered is, in turn, affecting the outcome of cases.

This article summarizes the two different interpretations of “intention” under Article 10.2.1.1, and identifies the key case law on each side of the debate.