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“Tribunals are now freed to do justice…”1
The 2015 World Anti-Doping Code2 (2015 Code) is more flexible when it comes to sanction. This matters greatly as it is this issue upon which most doping cases turn. The relative strictness of the liability regime means that for most respondents the exercise is one of damage limitation. This article explores some key features of the 2015 Code when it comes to sanction, comparing and contrasting the position with the 2009 Code.
Under the 2009 Code, for a first violation where the Athlete could establish how a ‘Specified Substance’3 had entered his body and that this was not intended to enhance performance (or mask the use of a performance enhancing substance), the potential sanction ranged from 0 to 2 years, depending on the ‘degree of fault’ of the Athlete (article 10.4).
Curiously, by contrast, where an Athlete was guilty of a violation not concerning a Specified Substance, if he could establish that he bore ‘no significant fault or negligence’, the potential sanction ranged from 1 to 2 years (article 10.5.2).
Notwithstanding the differing sanctions available under articles 10.4 and 10.5.2 of the 2009 Code, the assessment of fault was based on exactly the same factors. There was a very real question as to why, if an Athlete could establish (a) a lack of performance enhancing intent, and (b) no significant fault or negligence, why the minimum period should nonetheless be 1 year, due to the substance not being Specified (particularly so, if the substance came into his body via a contaminated supplement).
This curious position has been addressed by the 2015 Code:
In each case the applicable sanction ranges based on the ‘degree of fault’. In other cases, where article 10.5.1 is not applicable, the range of sanctions remains from 1 to 2 years (article 10.5.2).
Now that panels are free to reduce the sanction to below one year in cases concerning contaminated products, there is early evidence of this opportunity to “do justice” being taken. In UKAD v Warburton and Williams5, a case concerning a ‘Contaminated Product’, the respondent athletes received periods of ineligibility of six and four months respectively. Both athletes tested positive after taking a supplement named ‘Mountain Fuel’, where something had “gone wrong” during the blending, manufacturing or packaging process.6 In the case of each athlete they had taken either ‘considerable’ or ‘very considerable’ investigations into nature and legitimacy of the supplement.7
The panel in Warburton and Williams were able to award these sanctions, notwithstanding that the anti-doping violations occurred before the 2015 Code came into force, by applying the principle of lex mitior. Article 25.2 provides that:
“the case shall be governed by the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred, unless the panel hearing the case determines the principle of “lex mitior” appropriately applies under the circumstances of the case.”
The lex mitior principle, where a person benefits from a lighter penalty where there has been a change in the law, effectively requires a panel deciding a case after 1 January 2015 (when the 2015 Code came into force) to apply the sanctions available under the 2015 Code, if to do so would produce a more lenient result. This is starkly illustrated by Warburton and Williams in which the hearing itself took place on 15 December 2014, before the 2015 Code came into force, but the decision was handed down on 12 January 2015. The weeks of deliberation made a significant difference to the athletes in that case.
Another sign of more flexibility in the 2015 Code relates to the ability to return to training before the end of period of Ineligibility. Article 10.12.2 provides that:
“an Athlete may return to train with a team or to use the facilities of a club or other member organization of a Signatory’s member organization during the shorter of: (1) the last two months of the Athlete’s period of Ineligibility, or (2) the last one-quarter of the period of Ineligibility imposed…“8
The commentary to the Code notes that in many team sports and some individual sports an Athlete cannot effectively train on his or her own so as to be ready to compete at the end of the period of Ineligibility. Again, there is early evidence of this provision being applied to the benefit of a respondent in a team sport context: see the case UKAD v Evans9 in which a Welsh Rugby player received a sanction of 2 years, with permission to return to training 2 months before the end of that period. This is another case in which the principle of lex mitior has been applied by the NADP since the 2015 Code came into force; whilst the violation occurred on 28 July 2014, the hearing and decision in the case did not take place until January 2015.
The flexibility of the 2015 Code works both ways. Whilst there is potentially more leniency for those who can establish no significant fault or negligence in the context of a Specified Substance or Contaminated Product, intentional dopers who do not promptly admit their actions will face a four year ban.
The burden is different depending on whether the case involves a ‘Specified Substance’ (article 10.2.1):
Under article 10.6 of the 2009 Code, there was latitude for the ban to be increased to four years due to ‘aggravating circumstances’ (with the potential for this to be applied to intentional dopers), but the Code was not clear on exactly how this applied to intentional dopers. The examples given to the 2009 Code tended to suggest that aggravating circumstances would be found if the Athlete had intentionally used multiple substances. Once aggravating circumstances were established, the burden was on the Athlete to prove to the comfortable satisfaction of the panel that “he or she did not knowingly commit the anti-doping rule violation” (emphasis added).
The 2015 Code elaborates on the test for ‘intention’, by providing that:
““intentional” is meant to identify those Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or she 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).10
It is notable that the definition of intention is broader than that under the old article 10.6, and also extends to what might be described as those with ‘constructive’ knowledge i.e. those who (a) knew there was a significant risk of an ADV, and (b) manifestly disregarded that risk. Quite how the breadth of this definition will be applied in practice will be interesting to see.
The 2015 Code is more flexible: it is harsher on the intentional cheat; and gives greater scope for leniency to those who have inadvertently ingested contaminated products, having taken considerable steps to check the product. This is well illustrated by Warburton and Williams, who must be grateful that the panel in their case took several weeks to deliberate.