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

Published 31 October 2017 | Authored by: Nan Sato, Shoichi Sugiyama

 

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.

 

Decisions requiring an athlete to prove how a non-specific substance entered their body when establishing lack of intention

Soon after the release of the revisions, the U.K. National Anti-Doping Panel (UKAD) administered by Sport Resolutions ruled that an athlete has to demonstrate how the substance entered his or her body to establish the lack of intention (see UKAD vs. Paul Songhurst6 and UKAD Limited vs. Lewis Graham7).

Following this panel, some other anti-doping disciplinary panels have also ruled that how a substance entered an athlete’s body is an indispensable element in establishing the athlete’s lack of intent. Such cases include:

The reasoning of these panels is largely based on three points.

  1. It is inconceivable how an athlete can establish his or her lack of intent to commit an anti-doping violation, manifested by the presence of a prohibited substance, if he or she cannot even show the source of such substance.

  2. For the elimination or reduction of an ineligibility period, Article 10.4 of the Code requires the showing of (a) how a specified substance entered the body and (b) the lack of intention to enhance the athlete’s sporting performance. These requirements, even not expressly, have been subsumed into Article 10.2 of the Code.13

  3. There is a consistent line of jurisprudence which requires the showing of the source to establish the absence of fault.14

 

Decisions not requiring an athlete to prove how a non-specific substance entered their body when establishing lack of intention

Nonetheless, the relevant provisions of the Code seem to intentionally avoid requiring the establishment of the source of the prohibited substance.15 In contrast to other parts of the Code which explicitly require the showing of the source to establish “no fault and negligence” or “no significant fault and negligence,16

Articles 10.2.1.1, 10.2.1.2, and 10.2.3 do not contain this requirement. This deliberate omission may signify that the drafters did not intend to require athletes to demonstrate the source of the prohibited substances.

In fact, the decisions rendered by a number of anti-doping disciplinary panels did not require the athletes to show how the banned substances entered into their bodies:

 

Comment

The division between the two camps is significant in that the exact same set of facts may result in completely different outcomes for an athlete depending on which panel reviews the case. In the Arijan Ademi vs. UEFA case23, for instance, the player received a basic sanction of 2 years because the panel deemed that the establishment of the source of the prohibited substance was not an indispensable element of proof of absence of intent.24 Although the player could not show how the substance entered his body, the panel was satisfied with the player’s showing that he did not knowingly engage in a violation. A panel in the first camp, however, would have reached the opposite conclusion, and as a result, the player would have received a 4-year basic sanction.

One of the objectives of the 2015 revisions of the Code was to provide more clarity on how certain provisions should be interpreted, including the provisions on the ineligibility period. Unfortunately, the effort to standardize the interpretations has failed and outcomes of the cases are vastly arbitrary depending on the reviewing panels. Athletes face great uncertainty and unfairness as a result of this remaining ambiguity in the Code. WADA should issue a clarification on its legislative intent to help unify the interpretation of these clauses.

In the meantime, athletes should be prepared to demonstrate the source of prohibited substances by preserving a sample of any medicines or supplements that they take.

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About the Author

Nan Sato

Nan Sato

Nan Sato is an attorney qualified in New York, Pennsylvania, and New Jersey. She advises international and Japanese players’ associations, commercial sponsors, clubs, and athletes in a number of sports, including football, baseball, rugby, and American football. In addition to contractual and labor issues, she has developed a strong focus on the intersection of technology and sports. Nan works in English, Japanese, Chinese, and Spanish.

More information about Nan, including a list of publications and speaking engagements, can be found here. You can connect with Nan on LinkedIn.

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Shoichi Sugiyama

Shoichi Sugiyama

Shoichi Sugiyama is a Japanese attorney specialized in sports law. He is a member of the Japan Sports Law Association, the Japan Arbitrators Association, and the Daini Tokyo Bar Association Law Policy Committee on Sports Law. Shoichi serves as a case manager of the Japan Sports Arbitration Agency and teaches sports law at Chuo University and Nihon University.

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