How doping offences are reduced under WADA Article 10.5.4Barnaby Hone
Background to reductions on bans
Since the introduction of Article 10.5.4, ‘Reduction of period of ineligibility based on admission of an Anti-Doping Rule Violation in the absence of other evidence’, in the 2009 WADA World Anti-Doping Code1 (2009 Code), an athlete has been entitled to a reduction in his ban of up to half, if he admits the offence before he is, or is likely, to be caught. These cases fall into two main categories.
First, there is the athlete who is doping and admits to the authorities, before he is caught, that he is doping. This could be an athlete who spontaneously goes to the authorities to admit their use of banned substances, motivated by guilty consciences, or as in the case of RFU v. Bradley Parker 2 (Parker - which we return to later below), where the player was confronted by his coach and admitted to taking banned substances. The common factor in both of these scenarios is that there would have been no evidence of an offence unless the players admitted to the offences.
Secondly, there is an admission where a procedural offence such as evasion or tampering has occurred and that admission is the only reliable evidence of the violation at the time of the admission. In these cases, the Anti-Doping authorities will usually be aware that an offence has taken place, and will have begun an investigation into the offence, but will not know the identity of the offender.
Two examples of the second category have recently been in the courts: UK Anti-Doping v. Danso andOffiah (Offiah)3 and UK Anti-Doping v. Kolasa (Kolasa)4 (see below). Each case discussed the application of Article 10.5.4.5 Specifically, the court looked at (i) the legal test that applies, and (ii) the weight that can be attached to the Commentary to the Articles (see below) when considering the merit of a case.
I will deal with these two issues below; along with a brief word on the amount a ban should be reduced if the sentence is reduced at the end.
The Articles under the 2009 Code
Article 10.5.4 of the 2009 Code states:
“Admission of an Anti-Doping Rule Violation in the Absence of Other Evidence
Where an Athlete or other Person voluntarily admits the commission of an anti-doping rule violation before having received notice of a Sample collection which could establish an anti-doping rule violation (or, in the case of an anti-doping rule violation other than Article 2.1, before receiving first notice of the admitted violation pursuant to Article 7) and that admission is the only reliable evidence of the violation at the time of admission, then the period of Ineligibility may be reduced, but not below one-half of the period of Ineligibility otherwise applicable” (Underlining added, as we will return to the phrase below).
The commentary to Article 10.5.4 states:
“This Article is intended to apply when an Athlete or other Person comes forward and admits to an anti-doping Article violation in circumstances where no Anti-Doping Organization is aware that an anti-doping Article violation might have been committed. It is not intended to apply to circumstance where the admission occurs after the Athlete or other Person believes he or she is about to be caught.” (the “Commentary”).
The cases of Offiah and Kolasa.
The only live point in the cases of Offiah and Kolasa were whether the investigatory panels were going to reduce their respective bans under Article 10.5.4. In both cases the athletes had accepted that they had committed an offence.
Two key issues arose and were discussed in the judgements concerning the application of Article 10.5.4:
- Issue 1 - How should the “only reliable evidence” test be approached?
- Issue 2 - How should the Commentary be applied to this type of case, if at all?
Facts of Offiah
Mr Offiah was a Basketball player for PAWS Capitals, a team in the English Basketball League. He was 29 at the time of the incident, had a long record of playing the sport at a high level, and was a qualified disabilities coach. He was charged along with Mr Danso who, was not registered for the team, and was playing as a stand in on the night of the incident.
On the night of the incident the coach was running late, so Mr Offiah was asked to act as the team bus driver, and to handle the players’ licenses, which contained the players’ registration details for the team and without which they could not play. This was the first time Mr Offiah had handled the licenses. When Mr Offiah got to the venue in Brentford, he was told that the team would be subject to in competition anti-doping testing.
The licences were handed to the testing team by a young ball boy. After the game, the coach still having not arrived, Mr Offiah was deemed the “designated person”, namely the person responsible for confirming that when a license was picked, the correct player then took the test. Mr Danso was playing under the registration of another player, as he did not have his own registration. The registration of the other player was picked. Mr Offiah falsely confirmed that Mr Danso was actually the other player. Mr Danso was then tested. His test came back positive for cannabis.
UK Anti-Doping (UKAD) interviewed the man whose license had been used. He stated he was not playing that night. They then interviewed Mr Offiah who made a full confession and admitted his part in falsely identifying the player. Mr Offiah was then charged along with Mr Danso by UKAD. Mr Danso was not interviewed and had not cooperated in any way with the investigation. Mr Danso did not appear at the hearing and received a two-year ban. We will return to consider the question of Mr Offiah’s ban below.
Facts of Kolasa
Mr Kolasa was a young Rugby League player at London Skolars, a team playing in the third level of Rugby League. He was studying at college at the time of the incident, and training with the first team of London Skolars. It was his first season on a professional contract and he had not received any training on Anti-Doping issues.
On the 21 August 2013, at a London Skolars evening training session, UK Anti-Doping attended to complete Out of Competition testing. Mr Kolasa seeing the test team went back to the changing rooms with the team, and then rather than waiting for the test to take place, put his motorcycle helmet on and left via a back stair well. As he was walking to his motor scooter a tester tried to stop him and asked him who he was. He ignored him and drove off.
The Coach of London Skolars told the testers that the person who had left was Mr Kolasa. No formal Identification parade was carried out, but it was detailed in the testers report that the coach had identified Mr Kolasa. Mr Kolasa was the only player who was listed as present but was not registered as present by the testers.
The issue that arose was whether UKAD could reliably identify the person who had evaded the test. Mr Kolasa was interviewed a couple of weeks afterwards and confirmed that he was the one who had evaded the test. He was then charged with the offence. He indicated he would plead guilty to the offence and admitted the offence at the hearing.
Issue 1 – What is the correct test for assessing if an admission is the “only reliable evidence” of the violation?
This is primarily an evidential question: does the Anti-Doping authority have enough reliable evidence to secure a conviction prior to the admission by the player? This is a case of interpretation where the panel have to consider:
- What the evidence was before the admission?
- Would it be reliable enough for a panel to find the violation proved?
This means that a panel have to engage in considering if there was any other defence or explanation which could realistically be run at the time before that admission. In both Offiah and Kolasa the panel were given a list of different scenarios that could have occurred on the facts before admission.
Though it easy to say in hindsight, that some of these defences were improbable, an athlete’s advocate must aim to show that they were at least arguable and that the admission was the key evidence. It is important to note that it is the evidence the Anti-Doping agency hold at the time, not the evidence they could gather.6
In Offiah the panel made a clear finding that his admission was the only reliable evidence.7 They looked at two factors (a) was the admission voluntary? (b) was the admission the only reliable evidence? They answered yes to both questions. This was a rather uncontroversial decision on the facts.
In Kolasa, the situation was more controversial, as there was some evidence identifying him as the person who evaded the test. At first instance the panel found that there was reliable evidence, this was then overturned on appeal.8 On appeal the panel made a number of useful comments on how the test should be interpreted. They considered different interpretations of the word “reliable” and came to the conclusion at paragraph 4.21:
“In short, we think the appropriate interpretation of Article 10.5.4 is that the requirement that the admission must be “the only reliable evidence of the violation at the time of the admission”, should be read, in their context and in light of the policy underlying the Article, as bearing the meaning that the admission must be “the evidence which ensures the outcome will be conviction not acquittal.” We recognise that this is a purposive interpretation not a literal one, and that it is relatively broad and generous to the athlete who makes the admission; but we think that is appropriate for the reasons just given.”
In the author’s view, this is a sensible test to apply. A purposive approach that seeks to give full effect to the intended purpose of the Article (rather than an arguably more restrictive literal interpretation of the individual words) is appropriate as it makes the retrospective exercise of considering the evidence before the admission clearer. It is also an interpretation that encourages admissions by athletes, which is in the interest of Anti-Doping policy overall. Though this case law is not binding, it will provide a persuasive authority for future matters.
Issue 2 - Role of the Commentary
On the face of it, if the Commentary was followed in cases such as Offiah or Kolasa, no reduction could be applied under 10.5.4, as in both cases UKAD suspected that there had been a violation, but they did not know who the perpetrator was. This goes against the part of the Commentary that states:
“Circumstances where no Anti-Doping Organization is aware that an anti-doping rule violation might have been committed.”
In Kolasa, UKAD suspected that the person in the helmet was a player avoiding being tested, so thought there was an offence, but were not sure as there might be other explanations. In Offiah, UKAD were aware that there was an offence in respect of Mr Danso when his test came back positive, and suspected there might be an offence of tampering when the other man stated he was not playing. In both cases UKAD heavily suspected an offence had taken place, and in the case of Mr Kolasa had a prime suspect, but there were other possible explanations up until the admissions by both athletes.
The panels in both cases had to consider whether to apply the Commentary strictly. The Commentary is clearly designed for cases where Athletes have taken banned substances, and to stop them taking advantage of the when they see a test is likely. It does not seem designed for cases such as the ones set out above.
The issue was only directly addressed by the panel in Kolasa (on appeal), at paragraphs 4.9 to 4.13.9 The Code itself states at Article 24.2, “the comments [which include the Commentary] annotating various provisions of the Code shall be used to interpret the Code”.10 The panel considered this issue in detail, and the Anti-Doping Tribunal’s decision in UK Anti-Doping v Anderson, which included comments and references to relevant case law addressing the status of the Commentary on provisions in the Code.11
The panel in Anderson noted at paragraph 4.17 that it is “very difficult to treat as having binding normative effect statements which are mostly factual examples of hypothetical cases, given that every case is different”12; but the panel went on to state that if a case fulfilled the factual example given in the Commentary then it would be very likely that a Tribunal would reach the same result.
The panel in Kolasa then came to the conclusion, at paragraph 4.12:
“In our view, the commentary has no application to the situation here and is mainly relevant to cases where an athlete makes an admission after it has become apparent to the athlete that he or she will be tested shortly, but before having been given actual notice of sample collection.”
They went on to say at paragraph 4.13:
“… the commentary as a whole, are directed to a case where, as here, the RFL and UK Anti-Doping knew very well from 22 August 2013 that an anti-doping rule violation might have been committed, but wanted further and better evidence of who committed it, and in particular whether the prime suspect had the necessary mens rea.”
In the author’s view, this is a very sensible approach of the panel to take. The Commentary has to be seen as a guide but it is not binding. If a more literal approach was taken it would severely limit the scope of Article 10.5.4, which would mean a reduction in admissions by athletes, the very purpose of the Article.
Discussion on the “only reliable evidence” test and the use of the Commentary
These cases seem to give a clear steer on the two issues originally raised. Both cases have developed a clear approach to the reliable evidence point. This should have an effect on how athletes are advised when they are considering making an admission. In the author’s view it is also advisable to discuss the position with the relevant Anti-Doping agency. Some agencies are more likely to cooperate than others, but it is worth discussing whether an admission might lead to reduction. If this is not forthcoming an assessment can be made of the likely evidence that an Anti-Doping agency already hold.
The position in Andersoni13 and endorsed in Kolasa, have a wider application throughout the Anti-Doping Articles and should be considered in any situation where the facts of the case clash with the facts envisioned in the commentary. It appears that a common sense approach will be applied by the panel. This will be particularly useful when the new code is implemented in 2015.14
Looking forward to the new 2015 WADA Code
A further interesting point is how this area will develop under the new code. Article 10.5.4 and its accompanying Commentary have not changed from the 2009 Code to the 2015 Code. It will be now numbered Article 10.6.2. One interesting addition to the code is Article 10.6.3 “Prompt Admission of an Anti-Doping Article Violation Sanctionable under Article 10.2.1 or Article 10.3.1.[for evading or refusing Sample Collection or Tampering with Sample Collection.]”15
To be eligible for a reduction under this Article, there must be approval by WADA or the relevant anti-doping organisation. This means that if an athlete does not fit under 10.6.2 their admission might get a reduction under 10.6.3. The main issue arising is the need for consent from the relevant anti-doping agency. The relationship between 10.6.2 and 10.6.3 will develop overtime. With the increase of most bans to four years, athletes will be increasingly relying on 10.6.2 and 10.6.3 to attempt to reduce their bans to more manageable levels.
The reductions granted to Offiah and Kolasa
Though a reduction of up to half a players ban is open to a panel, this rarely takes place. A panel could conceivably make no reduction of the ban. Though that would be a very rare factual case. It is more likely that the reduction will be between 3 and 9 months depending on the circumstances as the below case law demonstrates.
Reduction in Offiah
Mr Offiah initially received a 24-month ban, which was then reduced under Article 10.5.4 to 12-months16, starting from his last competitive match. The panel considered Mr Offiah to be ‘thoughtless and foolish rather than malicious’, and determined he did not set out to conceal a doping offence.17 The panel also noted Mr Offiah’s exemplary character,18 which highlights the need in cases like these to present character references to a panel in mitigation. Therefore the panel felt they could reduce the ban by the maximum amount allowable, i.e. one half of the full ban, here 12 months.
Reduction in Kolasa
The panel at first instance handed Mr Kolasa a 24-month ban and denied his application to reduce it under Article 10.5.4. As the initial panel found that there was reliable evidence in front of UKAD before the admission was made, they found that Mr Kolasa was ineligible for a reduction of his ban under 10.5.4.
On appeal, Mr Kolasa, received a 15-month ban, starting from his last competitive match. The panel reduced it under Article 10.5.4 from the original 24 months due to his admission, the fact that he was a young man who had acted foolishly and was inexperienced in anti-doping procedures. But they felt that due to the circumstances of the case, particularly that he had wilfully evaded the test, they were not able to reduce ban by the full 12 months.19
Reduction in Parker
In the introduction, we briefly touched on the case of RFU v. Parker20 as an example of an athlete making an admission when authorities had no prior knowledge of his action. Mr Parker played Rugby for Hove RFC. He had represented England Colleges and Sussex U20. He felt under pressure to increase his size. He started taking a cocktail of anabolic steroids. The coach of his club heard a rumour that he was taking these drugs and confronted him about his drug intake. Mr Parker admitted the offence in full to his coach and the matter was referred to the RFU.
Mr Parker received a 24-month ban, which was then reduced under Article 10.5.4 to 15-months, as the panel thought that he was not entitled to the full reduction as his admission had only come after his coach had confronted him.21 This was seen as a crucial factor by the panel and balanced against the inexperience and naivety of the player.
What these decisions highlight is that if a reduction is granted under 10.5.4, it does not automatically equate to a one half reduction of the period of ineligibility (i.e. the maximum permissible reduction). This on the basis that a panel will consider the culpability of an athlete, and the extent of their mitigation. This can be seen in the different treatment of the above cases. For instance, an experienced athlete who has been taking steroids for an extended period of time will be treated differently from a young naïve athlete like Mr Parker. In evasion/test cases the reduction will depend on the conduct of the person concerned and their overall character, so an athlete who intentionally evades a test, will be treated differently from a naive athlete like Mr Offiah who makes an error of Judgement.
With an athlete who admits to using banned substances, the time that they have been using the substance, their success in that time, and their motives for coming forward will be crucial factors. This is reflected in the decision of Parker. Therefore it is important to have clear mitigation prepared to assist the panel with deciding how much a ban should be reduced.
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- Tags: Anti-Doping | Basketball | England | Rugby | UK Anti-Doping (UKAD) | World Anti-Doping Agency (WADA) | World Anti-Doping Code (WADC)
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About the Author
Barnaby Hone is a barrister, practising from One Paper Buildings, specialising in Criminal and Professional Discipline. He has particular expertise in Sports and Anti-Doping matters. He appeared as counsel for both Mr Offiah and Mr Kolasa. He also sits on the RFU Anti-Doping Judicial Panel.