The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium

Antoine Duval; Herman Ram; Marjolaine Viret; Emily Wisnosky; Howard L. Jacobs; Mike Morgan

doi:10.1007/s40318-016-0097-9

The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium

Duval, Antoine;Ram, Herman;Viret, Marjolaine;Wisnosky, Emily;Jacobs, Howard L.;Morgan, Mike 2016-07-01 00:00:00 Int Sports Law J (2016) 16:99–117 DOI 10.1007/s40318-016-0097-9 ARTICLE The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium 1 2 3 3 • • • • Antoine Duval Herman Ram Marjolaine Viret Emily Wisnosky 4 5 Howard L. Jacobs Mike Morgan Published online: 10 June 2016 The Author(s) 2016. This article is published with open access at Springerlink.com Abstract This article brings together the contributions to a led to the adoption of the WADC 2015 and introduce the blog symposium on the new World Anti-Doping Code various contributions to the blog symposium. 2015 published on the ASSER International Sports Law Blog in October 2015. The contributions cover a variety of 1.1 The WADA and its code: a short history subjects, including the new sanctioning regime, the role of national anti-doping authorities, the working of therapeutic The WADA is a public–private hybrid governance body. It use exemptions and the increasing role played by the is formally a Swiss foundation, but its executive bodies are notion of intent under the WADC 2015. composed equally of representatives of public authorities and Sports Governing Bodies (SGBs). The current president Keywords Doping Burden of proof Arbitration Court of WADA, Sir Craig Reedie, is also vice-president of the of arbitration for sport Proportionality International Olympic Committee (IOC). The WADA was created as a response to the massive doping scandal that marred the Tour de France in 1998. Its original aim was ‘‘to 1 Introduction promote and coordinate the ﬁght against doping in sport internationally.’’ The idea of a speciﬁc global organization On 1 January, a new version of the World Anti-Doping Code was submitted at a World Conference on Doping in Sport in (WADC or Code) entered into force. This blog symposium Lausanne, in February 1999. A few months later, on 10 aims at taking stock of this development and at offering a November 1999, the WADA was established. preliminary analysis of the key legal changes introduced. WADA’s key task was, and still is, to devise the global This introduction will put the WADC into a more general set of uniform rules applicable to the anti-doping ﬁght: the historical and political context. It aims to brieﬂy retrace the WADC. The ﬁrst version of the WADC was ﬁnalized in 2003. After amendments were tabled, a second version of emergence of the World Anti-Doping Agency (WADA) and its Code. It will also reconstruct the legislative process that & Antoine Duval [email protected] Its atypical public–private institutional structure has stirred the attention of scholars of the Global Administrative Law movement. T.M.C. Asser Instituut (University of Amsterdam), See Casini (2009). The Hague, The Netherlands On WADA’s mission see WADA, Who we are, https://www.wada- Anti-Doping Authority, Capelle aan den IJssel, ama.org/en/who-we-are/a-brief-history-of-anti-doping, accessed 22 The Netherlands April 2016. 3 3 University of Neuchaˆtel, Neuchaˆtel, Switzerland The 2003 version of the WADC is accessible at WADA, 2003 World Anti-Doping Code, https://wada-main-prod.s3.amazonaws. Los Angeles, CA, USA com/resources/ﬁles/wada_code_2003_en.pdf, accessed 22 April Morgan Sports Law LLP, London, UK 2016. 123 100 Int Sports Law J (2016) 16:99–117 the Code entered into force in 2009. As the WADA does WADC is complemented by a set of ﬁve International not dispose of any public (or private for that matter) Standards, which are mandatory for the signatories. authority to implement the Code, it must be transposed by Finally, the implementation of the Code is also supported the SGBs and governments at the national and international by a set of Model Rules, Guidelines and Protocols. level to gain some teeth. Compliance with the Code is As illustrated by the recent doping scandal involving the compulsory for the whole Olympic Movement as provided Russian Athletics Federation, the question of compliance by article 43 of the Olympic Charter. WADA’s main with the Code is a prodigious challenge for WADA. The responsibility is to monitor and report on the compliance of organization’s raison d’e ˆ tre is threatened by the well- various federations and States. The Code was ﬁrst known gap between law in the books and law in action. endorsed by States in the Copenhagen Declaration on Anti- This discrepancy between a global uniform code and its Doping in Sport in 2003, and later supported by the many local realities, has led to recent calls for WADA to be adoption of the UNESCO International Convention against tasked with the implementation of the Code and to take 9 21 Doping in Sport in October 2005. The Convention is one charge of the testing process. The true impact of the Code of the most ratiﬁed UNESCO Conventions to date with 182 2015 will partially depend on the clariﬁcation of the signatories. competences and responsibilities of WADA in this regard. The WADC 2015 is a long document of more than 150 pages, composed of 25 articles complemented with com- 1.2 Making the code 2015: the legislative process prehensive comments. It deﬁnes the anti-doping rule violations, the burden of proof applicable to doping The WADC 2015 is the result of a peculiar legislative 12 13 cases and the functioning of the prohibited list. The process. WADA claims, since its early days, that the Code Code indicates also the technical procedure applicable to is a living document, subjected to a productive feedback doping tests and the procedural rights of suspected ath- chain. This revision of the WADC started at the end of letes. Most importantly, it provides for the sanctions 2011 and covered three different phases of consultation regime applicable in case of a violation. The Code like- over a 2-year period. Approximately 2000 proposals for wise regulates the potential appeal procedures. The amendments were submitted to the drafting team. In the end, the Code was approved on 15 November 2013 at the The 2009 version of the WADC is accessible at WADA, 2009 World Conference on Doping in Sport in Johannesburg. World Anti-Doping Code, https://wada-main-prod.s3.amazonaws. A speciﬁc team managed the consultation process and com/resources/ﬁles/wada_anti-doping_code_2009_en_0.pdf, acces- each of the three consultation phases included a review and sed 22 April 2016. the approval from the WADA Executive Committee. The The updated list of the current signatories is available at WADA, Code Signatories, https://www.wada-ama.org/en/code-signatories, ﬁrst phase started on 28 November 2011, whereby a call for accessed 22 April 2016. comments was communicated to stakeholders (WADA Article 43 of the Olympic Charter states: The World Anti-Doping does not indicate how it deﬁnes the reach of this category), Code is mandatory for the whole Olympic Movement. and feedback was received from 90 stakeholders. The On this monitoring of the compliance of signatory see WADA, comments led to the drafting of the Draft Version 1.0 of the Code Compliance, https://www.wada-ama.org/en/what-we-do/the- 2015 Code, which was approved by the WADA Executive code/code-compliance, accessed 22 April 2016. Committee in May 2012. On 1 June 2012, the second phase The text of the Copenhagen Declaration on Anti-Doping in Sport is available at WADA, Copenhagen Declaration on Anti-Doping in of consultation was initiated with a new call for comments Sport, https://wada-main-prod.s3.amazonaws.com/resources/ﬁles/ WADA_Copenhagen_Declaration_EN.pdf, accessed 22 April 2016. Article 13 WADC 2015. The text of the International Convention Against Doping in Sport is WADA’s International Standards are available at WADA, Inter- available at UNESCO, International Convention against Doping in national Standards, https://www.wada-ama.org/en/international-stan Sport 2005, http://portal.unesco.org/en/ev.php-URL_ID= dards, accessed 22 April 2016. 31037&URL_DO=DO_TOPIC&URL_SECTION=201.html, acces- sed 22 April 2016. WADA’s Model Rules, Guidelines and Protocols are available at WADA, Model Rules, Guidelines and Protocols, https://www.wada- The 2015 version of the WADC is available at WADA, 2015 ama.org/en/model-rules-guidelines-and-protocols, accessed 22 April World Anti-Doping Code https://wada-main-prod.s3.amazonaws. com/resources/ﬁles/wada-2015-world-anti-doping-code.pdf, accessed 22 April 2016. See WADA, WADA announces details of Independent Commis- sion, https://www.wada-ama.org/en/media/news/2014-12/wada- Article 2 WADC 2015. 12 announces-details-of-independent-commission, accessed 22 April Article 3 WADC 2015. Article 4 WADC 2015. ‘‘I.O.C. Asks WADA To Take Over Testing’’, New York Times,18 Article 5,6,7 WADC 2015. October 2015, http://www.nytimes.com/2015/10/18/sports/olympics/ Article 8 WADC 2015. ioc-asks-wada-to-take-over-testing.html?_r=1, accessed 22 April Article 9,10, 11, 12 WADC 2015. 2016. 123 Int Sports Law J (2016) 16:99–117 101 issued to all the ‘‘stakeholders’’. Over a period of 4 months, profoundly changed the operations of the Dutch NADA. In WADA received feedback from more than 100 stake- particular through its focus on a smarter anti-doping ﬁght. holders, which was incorporated in the second Draft of the He anticipates the stumbling blocks ahead and identiﬁes 2015 Code. Eventually, a third consultation phase took the key trends already under way. place from 3 December 2012 until 1 March 2013, which The second contribution by Marjolaine Viret and Emily led to the Executive Committee adopting a third draft of Wisnosky, the two researchers involved in the cutting edge the Code. The ﬁnal mould of the Code was submitted to the WADC-Commentary project alongside Professor Antonio World Conference on Doping in Sport, hosted in Johan- Rigozzi, focus on the new Code’s inﬂuence on Athletes nesburg in November 2013. The WADA Foundation under medical treatment. They study closely the new legal Board adopted the ﬁnal version of the Code at the regime applicable to obtain a Therapeutic Use Exemption Conference. and the potential sanctions faced by athletes under medical WADA is adamant (and proud of the fact) that the Code treatment who have not obtained a TUE before a positive was drafted in an inclusive and participative process. anti-doping test. Although it is undeniably positive that many stakeholders The third contribution by Howard Jacobs, a lawyer had the opportunity to access and discuss the drafts of the specialized in anti-doping disputes, analyses the function of Code, the speciﬁc reasons leading to the policy choices the notion of intent in the new Code. Indeed, one of the made remain largely undisclosed. It is extremely difﬁcult to main innovations of the Code is the introduction of speciﬁc know why a proposed amendment made it into the new sanctions based on the intentional or non-intentional nature Code and why another did not. Moreover, the scope of the of the doping violation. This raises many legal questions notion of a stakeholder is key to deﬁne who gets to con- linked especially to the burden of proof. Jacobs goes in tribute. If, for example (as I suspect), the SGBs and National great lengths to provide a clear analytical map of the Anti-Doping Organizations (NADOs) are massively over- problems ahead regarding the need to demonstrate the represented amongst the stakeholders consulted, it gives (non-)intentional nature of an anti-doping violation. He them a disproportionate voice in the legislative process of poses fundamental questions that will likely pop up in front the new Code. The transparency of the process is also lag- of anti-doping tribunals and the CAS, and offers some ging, as is illustrated by the fact that the comments are preliminary answers. nowhere to be found on WADA’s new website. This lack Finally, Mike Morgan, a lawyer specialized in anti- of transparency is worrying for an institution partially doping disputes, examines the new sanctions regime founded and managed by public authorities. In any event, stemming out of the Code 2015. As pointed out in various improving the transparency and inclusiveness of the adop- recent academic contributions, this is probably the most tion process of the WADC is a must to ensure that WADA fundamental change introduced in the Code. It is in any fulﬁlls the good governance standards it is aspiring to. case the most visible, since it will most vividly affect the athletes failing an anti-doping test. As Morgan shows, the 1.3 The blog symposium on the WADA code 2015 new Code vows to introduce a degree of ﬂexibility in the sanctions regime and to provide smarter, tailor-made, The blog symposium includes four contributions from very sanctions. Whether this aim will be achieved is still very different perspectives, by specialized academics, practi- much an open question. tioners and an anti-doping administrator. They deal pri- marily with the various practical changes to the anti-doping ﬁght induced by the new Code. The objective is to show 2 The impact of the revised WADC on the work how the Code has already changed the way the ‘‘anti-doping of NADOs world’’ is operating, and the transformations it might still trigger in the future. The symposium is organized with the 2.1 Introduction help of both Marjolaine Viret and Emily Wisnosky. The ﬁrst contribution by Herman Ram, the Head of the The 2015 WADC is not a new Code, but a revision of the Dutch Doping Autoriteit, covers the impact of the WADC 2009 Code. In total, 2269 changes have been made. Quite 2015 on the work of national anti-doping agencies. Ram See the website of the WADC Commentary, http://wadc- highlights the various ways in which the Code has (or may) commentary.com/, accessed 22 April 2016. See, for example, Rigozzi et al. (2015a, b). Unfortunately, it is impossible to review the presentations and WADA, 2015 World Anti-Doping Code—Final Redlined to 2009 interventions made at the conference, as its website has been Code, https://wada-main-prod.s3.amazonaws.com/resources/ﬁles/ deactivated. wada-redline-2015-wadc-to-2009-wadc-en.pdf, accessed 22 April Though they were online on the older version of the website. 2016. 123 102 Int Sports Law J (2016) 16:99–117 a number of these changes are minor corrections, additions 4-year sanction will more or less automatically result from and reformulations with little or no impact on the work of the simple fact that a non-speciﬁed substance is involved. NADOs. But the number of truly inﬂuential changes is still Some exploratory analysis of the sanctions imposed impressive, which makes it hard to choose. Luckily, under the 2009 Code for speciﬁed substances has shown WADA has identiﬁed the—in their view—more signiﬁcant that panels have already established a practice with a lot of changes in a separate document and I have used this ﬂexibility in those kind of cases under the 2003 and 2009 document to bring some order in a number of comments Codes, and I do not expect major changes there. that I want to make on the impact of those revisions on our Quite interesting from our (NADO’s) point of view is daily work. Article 10.6.3, which introduces a role for both the Part of what follows is based on our experiences with the (N)ADO with result management responsibility and implementation of the revised Code so far, but quite a bit of WADA in cases where athletes or other persons promptly what follows cannot be based on any actual experience, admit an anti-doping rule violation. If both the (N)ADO because the revised Code has only been in place for and WADA agree, a sanction reduction from 4 years to a 7 months, and only a rather small number of disciplinary minimum of 2 years is possible. We do not yet know what procedures in relatively simple cases have come to a ﬁnal WADA’s position will be in this kind of cases, but I do decision under the revised rules. As a result, and because I am know that many NADOs will be inclined to grant a not in the business of predicting the future, on this occasion I reduction of the period of ineligibility, because we want to have decided to share some of my expectations with you. stimulate admissions as much as possible. Information Only the future can tell whether I am right on those issues. given by athletes and other persons is most valuable, and (less important, but still…) we can spare ourselves a lot of 2.2 Sanctions costly work in the process. Somewhat related to prompt admissions (not new, but Probably the most discussed aspect of the revision is the amended and expanded in the revised Code) is the possi- longer period of ineligibility that can be imposed on—as bility to reduce sanctions based on substantial assistance WADA formulates it—‘real cheats’. In other cases, espe- (Article 10.6.1). Because of the growing importance of cially cases of unintentional violations, the revision should Investigations and Intelligence (see 2.4 below) and the lead to more ﬂexibility to impose lower sanctions. Due to increased emphasis on Athlete Support Personnel (2.5) I the amendments in most cases it will be crucial to establish think that we will see that this Article will become more ‘intent’—or the lack of it—in order to be able to determine important in the work of NADOs. It seems to me that the the appropriate sanction. And because of the Strict liability revisions will help us considerably in all cases where ath- letes or other persons need reassurance that an agreed-upon principle that applies to the burden of proof in cases with Adverse Analytical Findings, NADOs have not focused reduction of sanctions will be respected ‘no matter what’. very much on the establishment of ‘intent’, simply because At the same time, more information will become available under the previous Codes it was not relevant for the out- that may help us in uncovering and prosecuting other anti- come of most cases. doping rule violations. In the case of non-speciﬁed substances, it is now up to the athlete to prove that the violation was not intentional, 2.3 Proportionality and human rights and in the case of speciﬁed substances it is up to the (N)ADO to prove intent. This is new, and our current I can be quite short here: I have not identiﬁed a single practice shows that this kind of evidence is very hard to consequence of this Theme for the NADO that I work for, deliver for both parties. As a consequence, 4-year sanctions and I can hardly imagine that other developed NADOs will have been imposed rather matter-of-factly until now in see this differently. This is not because this Theme is not cases where non-speciﬁed substances are involved. And important (quite the contrary), but because NADOs do not such severe sanctions will remain common if non-speciﬁed need extra encouragement in order to ensure that propor- substances are detected, but they will be quite rare in other tionality and human rights are taken into consideration on cases. No doubt, jurisprudence will be developed that will an everyday basis. And because—at least in Europe—data help to assess speciﬁc situations, but for most cases the protection issues and the related issues of public disclosure and the protection of minors are primarily governed by legislation, not by the Code. WADA, Document on the Signiﬁcant Changes Between the 2009 Code And the 2015 Code, Version 4.0, https://wada-main-prod.s3. amazonaws.com/wadc-2015-draft-version-4.0-signiﬁcant-changes-to- 2009-en.pdf, accessed 22 April 2016. 123 Int Sports Law J (2016) 16:99–117 103 2.4 Investigations and intelligence the long run, however, ‘Intelligence and Investigations’ will probably have a signiﬁcant impact on the effectiveness Indeed, the development of ‘Intelligence and Investiga- of doping control programs, which will not really become tions’ is one of the major issues that quite a few NADOs ‘smarter’ (more brain power has been invested in the are dealing with now. In less than 2 years’ time, more than testing programs under the 2003 and 2009 Codes than most a dozen NADOs have attracted new staff for this purpose, people can imagine), but certainly more ‘targeted’ and and cooperation between NADOs (and some IFs) in this tailor-made. This may be an equally important effect of ﬁeld is gradually developing, at a pace that is primarily ‘Intelligence and Investigations’ as collecting evidence. determined by taking care of the legal side of things. The The extension of the statute of limitations (Article 17) to Code revision has not initiated this development, but it 10 years will not make a big difference in numbers, but the certainly conﬁrms and strengthens it. And we are well cases where this extension pays off, will for a large part be aware that Intelligence has played a major role in practi- the kind of cases that we ﬁnd especially important to bring cally all cases (old and recent) where large-scale, orga- to justice. There is a downside to this as well, of course, nized, doping practices have been uncovered. Which does and one of the aspects that I have not seen mentioned often not mean that we are all prepared for this kind of thing… is the fact that relevant samples will have to be stored for First of all, it is necessary to develop and sign bilateral another 2 years, which will lead to additional costs. Few cooperation agreements in which the preconditions for people realize how expensive the storing of samples—un- sharing information between (N)ADOs are deﬁned. I have der the right conditions—is. signed several, and there are more to come. But it is also necessary to start and develop a cooperation with customs 2.5 Athlete support personnel (ASP) and law enforcement agencies, and this kind of cooperation needs even more legal preparation in order to be successful This part is closely connected to Sect. 2.4, because anti- (or just possible). Indeed, information sharing with gov- doping rule violations by Athlete Support Personnel cannot ernment agencies is just as logical as it is complicated in be proven by the traditional means of proof of ADOs, i.e., practice. the analysis of urine and blood samples. There can be no I do not know one NADO that does not feel the need for doubt that catching those coaches and doctors that supply cooperation with law enforcement agencies. And that fact, and administer doping to the athletes must be a high pri- supported by the revised Code, means that NADOs are ority for NADOs. We are well aware that athletes do not slowly but surely getting better acquainted with government function in a vacuum. As a consequence, NADOs will agencies. It is my opinion that several legislation proposals in dedicate a considerable part of their ‘Intelligence and various countries in Europe illustrate this development Investigations’ capacity to ASP. A rise in the number of nicely. Countries which have done without speciﬁc anti- cases where ASP is involved can be predicted, although— doping legislations for years—including my own country— unfortunately—a huge effect is unlikely. Not only because are now working on legal measures that aim to facilitate a these cases will always be hard to prove (no matter what) close(r) cooperation between governments and (N)ADOs (in but also because large groups of ASP are not (properly) line with the expansion of Article 22.2 in the 2015 Code). bound by anti-doping regulations. The seriousness of this The investigative powers of Intelligence Ofﬁcers of problem varies per country and per sport (discipline), and NADOs on the one hand, and law enforcement agents on the the problem may—at least partly—be solved through leg- other hand, are wide apart. In most countries, an Intelligence islation. But in my own country, I do not see how the Code Ofﬁcer has no other rights than any citizen, while there are revision will help the NADO in prosecuting ASP, unless elaborate laws that deﬁne and regulate what law enforcement and until we manage to ﬁnd ways to sufﬁciently bind all ofﬁcers may and may not do. The gap between the two has to relevant ASP to our rules. be narrowed, in order to facilitate and stimulate further The new anti-doping rule violation ‘Prohibited Associ- cooperation. Which means that Intelligence Ofﬁcers will ation’ brings us some serious new challenges, I think. One need to have speciﬁc authorizations that enable them to do of them being the burden of proof, which often will not be their job within sport, but without becoming law enforce- easy to discharge. Here again, ‘Intelligence and Investi- ment ofﬁcers themselves. The solutions will be different per gations’ will play a crucial role. But even if it can be country, but the common factor will be that NADOs will proven that an athlete is working with an ineligible coach, have more tools to fulﬁll their tasks. trainer or doctor, there may be several legal challenges if Apart from these legislative and regulatory develop- the ineligible person has a private practice outside orga- ments, which open doors that have been ﬁrmly closed until nized sport, and working with athletes is the livelihood of now in many countries, there are not many’ quick wins’ to that person. be expected because of ‘Intelligence and Investigations’. In 123 104 Int Sports Law J (2016) 16:99–117 2.6 Smart testing and analyzing 2.7 International federations and NADOs As I mentioned above (see 2.4) ‘Intelligence and Investi- Another development that is not initiated by the Code gations’ will probably have a signiﬁcant positive impact on revision—but certainly is supported and accelerated by it— the effectiveness of doping control programs. However, it is the improvement of NADO–IF cooperation. The revised remains to be seen whether this effectiveness will show in Code clariﬁes and solves several of the problems that we terms of the detection of more anti-doping rule violations, have experienced with the 2009 Code. Examples are the or in a better deterrence. Whichever it will be, a conse- control of therapeutic use exemptions (Article 4.4), the quence of the development towards more targeted and testing authority during international events (Articles 5.3, tailor-made testing and analyzing, is that the price of 5.2.6 and 7.1.1), and the coordination of whereabouts testing will go up. Tailor-made testing means more indi- failures (Article 7.1.2). All these changes are vidual testing, on odd hours, in (sometimes) strange places. improvements. This is—no surprise—considerably more expensive than However, cooperation is more in the soul than it is in the testing a number of players at random after a training rules, and we must acknowledge and accept that there are session of a team. relevant differences between NADOs on the one hand and On top of that, the Technical Document for Sport Speciﬁc IFs on the other hand, in terms of culture, position and Analysis that has been developed after the implementation tradition. WADA has created Ad Hoc Working Groups of of the revised Code (based on Article 6.4 of that Code), NADOs and IFs separately, and these groups have made prescribes a minimum percentage of additional analyses per inventories of existing problems that are subsequently sport discipline, with even more cost increase as a conse- brought to the table in joint meetings. The Articles in the quence. Some NADOs have managed to get additional Revised Code that underline the need for better cooperation funding in relation to these new requirements, but most of us will have no meaning if we stay separated in two worlds. have not (and not many of us foresee a budget increase in the But the impact will be huge, if and when we beneﬁt from near future). So the global number of tests performed by each other’s knowledge and experience. And although I am not an optimist by nature, I am pretty sure that this will NADOs will in all likelihood decrease. Whether this decrease in numbers will be acceptable, work out ﬁne. depends on the value added by the additional analyses that are now performed. If less tests bring more proof, then it is 2.8 A clearer and shorter code a good development. However, for the time being, there is no way to tell. And it is predictable that decreasing num- I think it is obvious that this goal is quite ambitious, and I bers of tests (the number of tests performed being the most can only regretfully conclude that the revised Code is commonly used measuring stick to assess the performance neither clearer, nor shorter than the 2009 version. The Code of a NADO) will generate critical questions about how is the most important legal tool in the anti-doping world, serious we take the ﬁght against doping in sport. and both lawyers and administrators may (and do) delight While I am writing this contribution, we are in the in the fact that the Code has proven to be an indispensable middle of the ‘IAAF controversy’, following the leakage of tool in our toolkit. It is, however, not a tool for athletes conﬁdential information to the media, and the subsequent (except for those who are also lawyer or administrator) and publication of sensitive data. I am not in the position to it will never be. Clarity about the rules is delivered by the comment on what exactly is right and wrong in this case (I Education departments of NADOs, in the form of numer- simply do not know), but I do know that the IAAF anti- ous publications, leaﬂets, manuals and (more and more) doping program is ‘smarter’ than most, and that it can show digital tools. And it is my personal opinion that there is not results that few IFs can. Nonetheless, the public discussion much wrong with accepting that the Code is not meant to is focusing on what has not been accomplished with all educate athletes, but to protect them. these data. So the large amounts of data that become available through ‘smart’ testing and elaborate biological 2.9 Miscellaneous passport programs, may become a burden instead of a blessing if the burden of proof is not reached in too many It is difﬁcult to choose what other aspects of the revised cases. Which—I fear—may be the case. Code are worth mentioning here. Let me name only a few. The new possibility for an athlete to return to training during the last part of the period of ineligibility imposed on WADA, Technical Document of 7 December 2015 for Sport him (Art. 10.12.2), is—in my opinion—a balanced com- Speciﬁc Analysis—TD2014SSA, https://wada-main-prod.s3.amazo promise between the need to fully execute sanctions, and naws.com/resources/ﬁles/wada-tdssa-v2.3_en.pdf, accessed 22 April the interests of team members that have not been 123 Int Sports Law J (2016) 16:99–117 105 sanctioned themselves. However, this reﬁnement of the discusses the avenues open to an Athlete to compete while sanction regime further complicates the task that has been a under treatment, namely by applying for a Therapeutic Use burden for many NADOs for years already: how to monitor Exemption (‘‘TUE’’) or, in some cases, navigating the that sanctions are observed correctly and fully. This mon- provisions governing conditionally prohibited substances. itoring task usually cannot be fulﬁlled without the help of The second part addresses the consequences in case an sport federations and clubs, and—to a certain extent— Athlete should fail to take the proper avenues. This piece fellow athletes. Publicly known elite athletes will hardly closes with observations regarding the current system in have an opportunity to violate their sanction without being light of one of the pillars of the anti-doping movement: the ‘caught’, but for lesser gods the situation is different, which Athlete’s health. fact collides with the Level playing ﬁeld that we want to achieve. 3.2 Obtaining clearance to compete—therapeutic Article 6.5 of the revised Code addresses the storing of use exemptions and conditional prohibitions samples for further analysis. It is good that these rules are now clariﬁed, because it is to be expected that the per- 3.2.1 Amendments to procedural requirements centage of samples that are stored for future analysis will for granting a TUE rise over the years. The revised rules are meant to do justice to both the athlete and the (N)ADO and I think they An Athlete undergoing medical treatment that involves a actually do that, although I am sure that both NADOs and Prohibited Substance must seek a TUE from the competent athletes will disagree in any particular case they are Anti-Doping Organisation (‘‘ADO’’). The 2015 regime involved in. preserves the ‘‘national vs international’’ distinction that The importance of the explicit wording of the Articles existed under the previous rules. The basic principle is that 20.4.3 and 22.6 that address the need for NADOs to be free International-Level Athletes request TUEs from their from interference in our operational decisions, cannot be International Federation, while National-Level Athletes overestimated. Anti-doping issues can get a lot of attention request TUEs from their National Anti-Doping Organisa- in the media, and that may or may not lead to unleashing tion (‘‘NADO’’). During the consultation process leading certain political powers. In my country, parliamentary to the 2015 Code, recommendations were made for an questions have been asked about speciﬁc doping cases on international independent TUE Committee that would several occasions. Thankfully, in no case this has led to grant TUEs in a centralised manner. No such system has actual interference in our work, but it is very good that the been introduced at this point, but the 2015 revision does Revised Code is there to ward off such interference in take steps to ease the procedural burden and enhance countries where this may be necessary. clarity for those Athletes whose competition schedule would require multiple TUEs (e.g., those transitioning from national-level competition to international-level competi- 3 The ‘‘Athlete Patient’’ and the 2015 Code: tion). In particular, the 2015 Code and 2016 International competing under medical treatment Standard for Therapeutic Use Exemptions (‘‘ISTUE’’): • Provide a streamlined process for Athletes seeking 3.1 Introduction international recognition of a national-level TUE. These Athletes are now relieved from having to go Doping often involves the illegitimate use of a therapeutic through a whole new application process if they already product. Indeed, many Prohibited Substances and Methods have the beneﬁt of a TUE granted by their NADO: they are pharmaceutical innovations that are or have been can have the TUE ‘‘recognised’’ by the International developed to serve legitimate therapeutic purposes. Much Federation, which ‘‘must’’ grant such recognition if the is being done within the anti-doping movement to coordi- TUE is in compliance with the ISTUE. nate efforts with the pharmaceutical industry in order to • Encourage the automatic recognition of TUEs. ISTUE prevent abuse of drugs that have been discontinued or are 7.1 encourages International Federations and Major still in development phase. At the other end of the spec- trum, some Athletes may require legitimate medical treat- ment and wish to receive that treatment without being Article 4.4.4 of the 2015 Code further addresses the right for Major Event Organisations to provide speciﬁc requirements for their events; forced to give up their sports activities. for more details, see Rigozzi et al. (2013), n 173 et seq. This post takes a cursory look at how the 2015 Code WADA, Document on the International Standard for Therapeutic tackles these issues and provides a summary of the main Use Exemptions (ISTUE), https://wada-main-prod.s3.amazonaws. changes that affect the modalities for Athletes to receive com/resources/ﬁles/WADA-2015-ISTUE-Final-EN.pdf, accessed 22 medical treatment after the 2015 revision. The ﬁrst part April 2016. 123 106 Int Sports Law J (2016) 16:99–117 Event Organisers to declare automatic recognition of blockers in shooting and lack of additional perfor- TUEs, at least in part—e.g., those granted by certain mance-enhancement. selected other ADOs or for certain Prohibited • Declares standard of proof as a ‘‘balance of probabil- Substances. ity’’. An explicit reference to the requisite standard of proof to establish these substantive criteria—a balance Another key procedural change reﬂected in the 2015 of probability—was only added in the most recent revision is an increased storage time for application data, in revision of the ISTUE. This solution is in line with the accordance with the extended statute of limitation period Code and general principles of evidence in that it for initiating anti-doping proceedings from 8 to 10 years mirrors the general provision for establishing facts (revised Article 17 of the 2015 Code). During the TUE related to anti-doping rule violations when the burden process, the application must include the diagnosis as well of proof is on the Athlete, set forth in Article 3.1 of the as evidence supporting such diagnosis. This sensitive 2015 Code. medical data is newly stored for 10 years under the revised • Allows retroactive TUEs for ‘‘fairness’’ reasons. As a 2015 regime for the approval form (versus 8 years under rule, TUEs must be obtained prior to using the the 2009 regime). All other medical information may be Prohibited Substance or Method (ISTUE 4.2). Excep- kept for 18 months from the end of the TUE validity. tionally, a TUE may be granted with retroactive effect, which mostly concerns lower-level Athletes for whom 3.2.2 Amendments to substantive requirements the applicable anti-doping rules accept such possibility for granting a TUE (Article 4.4.5 of the 2015 Code), or for emergency situations (ISTUE 4.3). The 2016 ISTUE allows for the The requirements to receive a TUE were slightly adapted possibility to grant a retroactive TUE if WADA and the for the 2015 ISTUE—but not in a manner that would relevant ADO agree that ‘‘fairness’’ so requires. The signiﬁcantly alter the assessment—and remain unchanged scope of this new exception remains unclear. A recent in the 2016 ISTUE. In short, the TUE Committee must ﬁnd award rejected an Athlete’s plea that he did not that the following four criteria are fulﬁlled: ‘‘timeously’’ request a TUE based on ignorance of the 1. Signiﬁcant impairment to the Athlete’s health if the system. One may wonder whether fairness-related substance or method were withheld; reasons could offer a solution for situations of venire 2. Lack of performance enhancement beyond a return to a contra proprium factum, i.e., when the Athlete received normal state of health through the use of the substance assurance from a competent ADO that the substance or or method; method was not prohibited and the latter could thus 3. Absence of any other reasonable therapeutic alterna- reasonably be considered estopped from pursuing a tive, and; violation based on a subsequent positive test. 4. Necessity for use not a consequence of prior use without a valid TUE. With regard to the manner in which these criteria operate, the 2016 ISTUE: • Places the burden of proof on the Athlete. The 2015 ISTUE received an explicit addition that conﬁrms and See Rigozzi A, Viret M, Wisnosky E, ‘‘The ISSF v. WADA CAS codiﬁes the interpretation of the CAS panel in the Award: Another Therapeutic Use Exemption Request for Beta recent ISSF v. WADA award (Article 4.1, in initio): ‘‘An Blockers Shot Down’’, Anti-Doping Blog, 10 August 2015, http:// Athlete may be granted a TUE if (and only if) he/she wadc-commentary.com/issf-v-wada/, accessed 22 April 2016. can show that each of the following conditions is met’’ Ibid. (emphasis added). While a welcome addition for legal CAS 2014/A/3876, Stewart v. FIM, Award of 27 April 2015. See, for a detailed analysis, see our comment on the Stewart CAS Award predictability, the hurdle for the Athlete to overcome is in Rigozzi, Viret, Wisnosky (2015), p. 61 et seq. high and can lead to nearly insurmountable evidentiary The Prohibited List is an ‘‘open list’’, which means that simply situations, such as in ISSF v. WADA regarding beta- consulting the list does not always provide a conclusive answer as to whether a particular substance or method is prohibited. Prohibited Methods (‘‘M’’ classes) need by their very nature to be described in See, for example, ISTUE, Annex 2. somewhat general scientiﬁc terms that always leave a certain room for See WADA, Document on the International Standard for the interpretation (see, for example, CAS 2012/A/2997, NADA v. Y, Protection of Privacy and Personal Information, Annex A, https:// Award of 19 July 2013). For substances (‘‘S’’ classes), the precision wada-main-prod.s3.amazonaws.com/resources/ﬁles/WADA-2015- of the description of the prohibition under the Prohibited List varies ISPPPI-Final-EN.pdf, accessed 22 April 2016. depending on the substance at stake. 123 Int Sports Law J (2016) 16:99–117 107 3.2.3 Transparency for conditionally prohibited other situations, it ought to be sufﬁcient for the Athlete substances to present credible explanations (e.g., listing the substance on the Doping Control form ) that the Only minor changes were made in the 2015 revision in the Prohibited Substance originated from an authorised context of conditionally prohibited substances. Some cat- Use. The burden of proof ought then to be on the ADO egories of Prohibited Substances are widely used to treat to convince the hearing panel to a comfortable satisfac- minor conditions, including in the context of sports medi- tion (Article 3.1 of the 2015 Code) that a prohibited cine. Moreover, their effects on the Athlete may depend on Use occurred. the mode of use. Thus, the Prohibited List prohibits the • Prefers short-cut procedures to transparency. The following substances only conditionally: International Standard for Laboratories (‘‘ISL’’) intro- duces the ‘‘Presumptive Adverse Analytical Finding’’ • Certain Beta-2 agonists (class S.3)—e.g., Salbutamol, to promote procedural economy by allowing a labora- which is the active ingredient of ‘‘Ventolin’’ and is tory to enquire with the Testing Authority whether a widely used to treat asthma in endurance sports. TUE exists prior to the conﬁrmation step of the A ‘‘Limits of use’’ have been determined that are deemed Sample for a S.3 or S.9 class substance (normally the to reﬂect an acceptable therapeutic use of the presence of a TUE is determined after report of the substance. Adverse Analytical Finding, during the initial review • Glucocorticoids (class S.9), which have been the by the ADO). The revised 2015 regime maintains this subject of debates for their use in sports medicine, are pragmatic solution, but seeks to foster transparency in prohibited only when administered by certain routes order to avoid this short cut from being abused by (oral, intravenous, intramuscular or rectal). A contrario ADOs to stop cases from going forward. The 2015 ISL all other routes of application are permitted. makes it explicit that any such communication and its These categories require adjustments for establishing an outcome must be documented and provided to WADA anti-doping rule violation compared to the standard regime, (ISL 5.2.4.3.1.1). as the ﬁnding of a violation calls for information beyond the mere detection of the substance. Unless a distinctive 3.3 Sanctions for legitimate medical treatment trait for dosage or route of administration can be identiﬁed without a TUE directly during Sample analysis, the information must be gathered during results management and generally sup- An Athlete who is undergoing legitimate medical treatment poses explanations from Athletes regarding the causes that that involves a Prohibited Substance but does not have a led to the ﬁndings. In particular, for these types of sub- TUE might—if tested—return an Adverse Analytical stances, the 2015 Code: Finding. As mentioned above, an anti-doping violation • Applies a different burden of proof. Whereas the burden cannot be invalidated for reasons of legitimate medical is on the Athlete to show that the criteria for a TUE are treatment, save in certain exceptional circumstances where realised (see above), or to demonstrate the origins of the system allows for a retroactive TUE or for authorised the analytical ﬁndings to obtain a reduced sanction Use of S.3 and S.9 class substances. Thus, Athletes will (Article 10 of the 2015 Code), for S.3 and S.9 typically ﬁrst turn to the options in the sanctioning regime substances proving dosage and/or route of administra- to reduce or eliminate the sanction for Fault-related rea- tion is part of the requirements for a violation. A sons. The success of this effort varies considerably from speciﬁc allocation of the burden to the Athlete is only case-to-case, with no clear pattern emerging in the CAS provided in the Prohibited List for ﬁndings of Salbu- jurisprudence. tamol and Formoterol above a certain Threshold. In all The 2015 WADC has not improved the clarity of the situation for violations involving legitimate medical Not to be confused with a Threshold concentration in the Sample. Only Salbutamol and Formoterol currently have a form of Threshold The standard Doping Control Form and ISTI 7.4.5 (q) invite with a Decision Limit (in TD2014DL), beyond which the ﬁnding is Athletes to disclose all recent medication, supplements and blood presumed not to result from a therapeutic use and the Athlete needs to transfusions (for blood sampling). On the legal implications of this produce an administration study to invalidate the Adverse Analytical disclosure, see Viret (2015), p. 573 et seq. Finding. On the imprecise use of the term TUE, see Viret (2015), p. 379 et New terminology under the 2015 Prohibited List. Up to the 2014 seq. ADOs would rely in practice on Athlete declarations on the List, ‘‘glucocorticosteroid’’. Doping Control Form. The 2015 WADA Results Management In particular, by ﬁnding Metabolites that differ depending on the Guidelines encourage ADOs to contact the Athlete to enquire about route of administration. A solution codiﬁed e.g. in the revised the route of administration if there is no TUE on the record TD2014MRPL, Table 1, for the glucocorticoid budesonide. (Sect. 3.4.2.2). 123 108 Int Sports Law J (2016) 16:99–117 treatment, unless contamination is involved. In the 2009 related reasons. If they were to fail, they face a strict WADC, if Athletes were ‘‘fortunate’’ enough to have 4-year period of Ineligibility, which could raise propor- inadvertently Used a Speciﬁed Substance then the Panel tionality concerns for this type of violation. had the ﬂexibility to settle on a sanction ranging from a The Fault-related reductions in the 2015 WADC, like reprimand and no period of Ineligibility, up to a 2-year those in the 2009 WADC, rest in an interpretive grey area period of Ineligibility; if the Prohibited Substance was not for violations arising from legitimate medical use. A a Speciﬁed Substance, the shortest period of Ineligibility sanction can be reduced for Fault-related reasons if the available was 1 year. This raises questions of fairness, Athlete can establish a factual scenario that is accepted to since violations under similar factual circumstances, and reﬂect no fault or negligence, or no signiﬁcant fault or with similar levels of fault are punished with very different negligence. On one hand, it is well-established that medi- sanctions. The 2015 WADC remedied this disparate cations often contain Prohibited Substances, thus panels treatment when the violation involves a Contaminated expect a high-level of diligence from an Athlete to avoid a Product. No analogous exception to receive a facilitated violation arising from medications. Thus, these types of reduction in the case of legitimate medical treatment is violations often are committed with a high level of negli- available, even though similar policy arguments could also gence at least bordering on ‘‘signiﬁcant’’ and at times be lodged in this context. approaching ‘‘reckless’’. As to the level of Fault, CAS Before Athletes can seek to establish a Fault-related panels are not consistent. One CAS panel found that a reduction, newly under the 2015 WADC they must ﬁrst legitimate medical Use of a Prohibited Substance that avoid a ﬁnding that the violation was committed ‘‘inten- could have been (and eventually was) excused by a TUE tionally’’. This prospect poses interpretational issues for can implicate only a low-level of Fault, whereas others medications. According to the deﬁnition in WADC have come to the opposite conclusion, holding that the 10.2.3, ‘‘the term ‘intentional’ is meant to identify those (alleged) ‘‘legitimate therapeutic use’’ of a medication was Athletes who cheat.’’ However, the core of the deﬁnition ‘‘irrelevant’’, and contributed to the Athlete’s signiﬁcant deﬁnes ‘‘intentional’’ conduct as encompassing both level of Fault. In light of these different characterisations, knowing and reckless behaviour. Since the violations it is difﬁcult to predict how a panel would sanction these considered in this article involve the knowing administra- violations under the 2015 Code. tion of a medication, it can be expected that Athletes will rely on the reference to ‘‘cheating’’ to argue that their conduct falls outside of this deﬁnition. If they were to succeed with this line of argumentation before hearing Article 10.2.1 places the burden of proof to establish that the panels, then their basic sanction starts at a 2-year period of violation was not ‘‘intentional’’ on the Athlete if the violation did not Ineligibility that is subject to further reduction for Fault- involve a Speciﬁed Substance, and on the Anti-Doping Organisation to establish that the violation was ‘‘intentional’’ if the violation did involve a Speciﬁed Substance. See also our comment on the Stewart CAS award, Supra (35). See, for example CAS 2014/A/3876, Stewart v. FIM, para. 79; See A new provision (WADC 10.5.1.2) allows for these types of also, CAS 2012/A/2959, WADA v. Nilforushan, Award of 30 April violations to be subject to a ﬂexible 0–2 year period of Ineligibility, 2013, para. 8.21. In rare cases, Athletes have been able to establish No regardless of the type of substance involved. Fault or Negligence under very speciﬁc circumstances. See, for ‘‘Intentional’’ violations draw a four-year period of Ineligibility, example CAS 2005/A/834, Dubin v. IPC, Award of 8 February 2006. whereas non-‘‘intentional’’ violations start with a two-year basic See, for example, CAS 2014/A/3876, Stewart v. FIM, para. 84 sanction. Only non-intentional violations are subject to further where the CAS panel held that the Athlete’s level of Fault must be reduction for Fault-related reasons. See, more generally, on inten- considered ‘‘light’’ where he was prescribed the medication by a tional doping, the piece by Howard Jacobs in this Blog Symposium. doctor and later obtained a TUE. See also CAS 2011/A/2645, UCI v. Article 10.2.3 ab initio: ‘‘As used in Articles 10.2 and 10.3, the Kolobnev, Award of 29 February 2012, paras. 87–90, which does not term ‘intentional’ is meant to identify those Athletes who cheat. The speciﬁcally address the possibility of obtaining a TUE, but conﬁrmed term, therefore, requires that the Athlete or other Person engaged in a ﬁrst instance decision (after weighing a list of factors) that a conduct which he or she knew constituted an anti-doping rule Prohibited Substance taken for purposes unrelated to sport perfor- violation or knew that there was a signiﬁcant risk that the conduct mance, and upon medical advice fell at ‘‘the very lowest end of the might constitute or result in an anti-doping rule violation and spectrum of fault’’. manifestly disregarded that risk’’. See, for example, the ITF Independent Anti-Doping Tribunal, ITF For a discussion of the expected role of the term ‘‘cheat’’ in v. Nielsen, Award of 5 June, that found that it is not relevant ‘‘whether establishing that a violation was ‘‘intentional’’, see Rigozzi et al. the player might have been granted a therapeutic use exemption’’. See (2015a, b). On a related note, an argument akin to those made in the also CAS 2008/A/1488, P. v. ITF, Award of 22 August 2008, para. 19, Oliveira/Foggo line of cases under the 2009 Code could also arise which found it of ‘‘little relevance to the determination of fault that here: If Athletes do not have actual knowledge that their medications the product was prescribed with ‘professional diligence’ and ‘with a contain a Prohibited Substance, would purposefully consuming the clear therapeutic intention’’’. These cases were both referenced in product still be considered ‘‘intentional’’? CAS 2012/A/2959, WADA v. Nilforushan, para. 8.20. 123 Int Sports Law J (2016) 16:99–117 109 3.4 Conclusion—remember health considerations of their privacy for the sake of clean sport, it might be behind anti-doping desirable to explore paths through which clean sport might wish to pay these Athletes back by providing them and Athletes do not have it easy when it comes to reconciling their physicians with an additional source of data on health necessary medical treatment with high-level competition in matters, an aspect of Athlete’s lives that is always on the sport. The conditions for claiming the right to compete brink of being endangered in elite sports. despite Use of a Prohibited Substance or Method are stringent, and the procedure at times is burdensome. There is no doubt that the system must strictly monitor any 4 ‘‘Proof of intent (or lack thereof) under the 2015 possible abuse of medical treatment as a cover-up for World Anti-Doping Code’’ doping attempts. Nevertheless, this system should not escalate into penalising Athletes who had a legitimate need Historically, under the anti-doping rules of most organi- for treatment and resorted in good faith to such treatment, zations (including the WADC), the concept of ‘‘strict lia- especially since in many cases the performance-enhancing bility’’ has meant that the proof of intent (or lack thereof) effects of the Use of a Prohibited Substance or Method are was irrelevant to the issue of whether or not the athlete has hypothetical at most. violated the anti-doping rules. However, so long as the The current system requires considerable Athlete rules provide for sanction ranges instead of a set sanction transparency in matters related to their health. The TUE for all offenses, the issue of intent to dope has always been process is not the only context in which Athletes may have somewhat relevant to the issue of sanction length. The to reveal information about medical conditions and/or 2015 WADC, with its potential 4-year sanctions for a ﬁrst ongoing treatment for these conditions. Apart from the violation based on whether or not the anti-doping rule disclosure of medication and blood transfusion that Ath- violation was intentional, will make the question of intent letes are required to make on the Doping Control form, the an important issue in virtually every anti-doping case. This anti-doping proceedings themselves may bring to light article analyzes these new rules allowing for 4-year sanc- information about medical conditions affecting the Athlete. tions for a ﬁrst violation, in the context of how intent (or This may occur either because the Athlete is bound to lack of intent) will be proven. reveal information to build a defence, or because the detection system itself may uncover collateral data indi- 4.1 Why intent matters under the 2015 World Anti- cating a pathology—known or unknown to the Athlete. Doping Code In return for these expectations, the anti-doping move- ment must keep in mind one of its key stated goals—the It should be remembered that under the 2015 WADC intent protection of the Athlete’s health—when regulating mat- is still irrelevant to the issue of whether or not an athlete ters implicating legitimate medical treatment. This pro- has committed an anti-doping rule violation. This is clear tection must include efforts to avoid the Athlete from the Comment to Article 2.1.1: ‘‘An anti-doping rule inadvertently committing an anti-doping rule violation violation is committed under this Article without regard to while under therapeutic treatment, which may include an Athlete’s Fault. This rule has been referred to in various more systematic labelling of medication with explicit CAS decisions as ‘‘Strict Liability’’. An Athlete’s Fault is warnings. The attentiveness to the Athlete’s health, how- taken into consideration in determining the Consequences ever, could go beyond these efforts and exploit the data of this anti-doping rule violation under Article 10. This collected as part of Doping Control also for the beneﬁt of principle has consistently been upheld by CAS.’’ the Athlete. The current regime already allows for sus- Article 10 of the WADC—dealing with length of pected pathologies detected on the occasion of Doping sanction, has always taken ‘‘intent’’ into account in deter- Control to be communicated to the Athlete on certain mining whether or not a sanction should be reduced. In speciﬁc aspects. As Athletes agree to disclose large parts other words, a sanction that would ordinarily be 2 years See, as a prominent example, the Claudia Pechstein saga with Footnote 52 continued respect to the explanations—doping or rare pathology?—for her Guidelines and Compilation of Required Elements, https://wada- abnormal blood values. main-prod.s3.amazonaws.com/resources/ﬁles/wada-abp-operating- guidelines-v5.0-en.pdf, accessed 22 April 2016. See WADA, Guidelines for Reporting and Management of Human Chorionic Gonadotrophin (hCG) and Luteinizing Hormone (LH) See, for example, 2015 WADC Art. 10.4: ‘‘if an athlete or other Findings in male athletes, https://wada-main-prod.s3.amazonaws. Person establishes in an individual case that he or she bears no fault or com/resources/ﬁles/wada-guidelines-hcg-lh-ﬁndings-v2.0-2015-en. negligence, then the otherwise applicable period of Ineligibility shall pdf, accessed 22 April 2016; as well as the recommendations for ABP be eliminated’’; and Art. 10.5 on the Reduction of the Period of expert review in WADA, The Athlete Biological Passport Operating Ineligibility based on No Signiﬁcant Fault or Negligence. 123 110 Int Sports Law J (2016) 16:99–117 could be reduced to no sanction where the athlete had no 4.2 How will the NADO/IF prove ‘‘intent’’ in cases fault or negligence whatsoever, or could be reduced to involving ‘‘speciﬁed substances’’? some degree if the athlete was not signiﬁcantly at fault or negligent. In this way, intent is indirectly relevant to the Many older CAS cases have discussed the difﬁculty that a NADO or IF faces in proving that an athlete ‘‘intended’’ to issue of how much, if at all, an otherwise applicable sanction (sometimes referred to as the ‘‘default sanction’’) use a prohibited substance, in their discussions of the jus- tiﬁcation of the ‘‘strict liability’’ rule. could be eliminated or reduced. This is because an athlete who can prove that he or she did not intend to violate the While this difﬁculty in proving that an athlete ‘‘in- tended’’ to use a prohibited substance to enhance their sport anti-doping rules would be much more likely to establish a lack of signiﬁcant fault or negligence in committing the performance has not changed in theory, it has changed in violation in the ﬁrst place. practice with the deﬁnitions that WADA provided for Now, however, the 2015 WADC makes the issue of proving ‘‘intent’’ within the meaning of Art. 10.2.1 of the intent directly relevant to the ﬁrst issue of the length of the 2015 WADC. Speciﬁcally, Art. 10.2.3 now provides the default sanction itself. Therefore, intent is now not only following deﬁnition of ‘‘intent’’: relevant to the issue of reducing the default sanction, but is ‘‘As used in Articles 10.2 and 10.3, the term ‘‘in- also relevant to the threshold issue of what the default tentional’’ is meant to identify those athletes who sanction is in the ﬁrst place. cheat. The term, therefore, requires that the athlete or Speciﬁcally, Art. 10.2.1 of the 2015 WADC provides: other Person engaged in conduct which he or she ‘‘The period of Ineligibility shall be 4 years where: knew constituted an anti-doping rule violation or knew that there was a signiﬁcant risk that the conduct 10.2.1.1 The anti-doping rule violation does not involve a Speciﬁed Substance, unless the athlete or might constitute or result in an anti-doping rule vio- lation and manifestly disregarded that risk. An anti- other Person can establish that the anti-doping rule violation was not intentional. doping rule violation resulting from an adverse ana- lytical ﬁnding for a substance which is only prohib- 10.2.1.2 The anti-doping rule violation involves a Speciﬁed Substance and the anti-doping organization ited In-Competition shall be rebuttably presumed to can establish that the anti- doping rule violation was be not ‘‘intentional’’ if the substance is a Speciﬁed intentional.’’ Substance and the athlete can establish that the Pro- hibited Substance was used out-of-Competition. An Art. 10.2.2 of the 2015 WADC goes on to state that ‘‘if anti-doping rule violation resulting from an adverse Article 10.2.1 does not apply, the period of Ineligibility analytical ﬁnding for a substance which is only pro- shall be 2 years.’’ Therefore, under the 2015 WADC, the hibited In-Competition shall not be considered ‘‘in- default sanction is determined as follows: tentional’’ if the substance is not a Speciﬁed Substance and the athlete can establish that the Pro- 1. Where the violation does not involve a ‘‘Speciﬁed Substance’’, the default sanction is 4 years unless the hibited Substance was used out-of-Competition in a athlete can prove that the violation was ‘‘not inten- context unrelated to sport performance.’’ tional’’; if the athlete meets this burden of proving Therefore, for the purpose of proving ‘‘intent’’ within ‘‘lack of intent’’, then the default sanction is 2 years. the meaning of WADC Art. 10.2.1, in the case of Speciﬁed 2. Where the violation involves a ‘‘Speciﬁed Substance’’, Substances, the NADO/IF can meet its burden by proving the default sanction is 2 years unless the National Anti- simply that the athlete engaged in conduct where the ath- Doping Organization (‘‘NADO’’) or the International lete ‘‘knew that there was a signiﬁcant risk that the conduct Federation (‘‘IF’’) can prove that the violation was might constitute or result in an anti-doping rule violation ‘‘intentional’’; if the NADO or IF meets this burden of and manifestly disregarded that risk.’’ However, practical proving ‘‘intent’’, then the default sanction is 4 years. realities of this ‘‘proof’’ must be considered against the In either case, ‘‘intent’’ is now directly relevant to the following questions: length of the default sanction; the only difference is who 1. How will this deﬁnition of ‘‘intent’’ contained in bears the burden of proving ‘‘intent’’ or ‘‘lack of intent’’, WADC Art. 10.2.3 be read in connection with the depending on whether or not the substance involved is a Speciﬁed Substance. See, for example, CAS 95/141, C. v. FINA in Reeb (2001), p. 220, par. 13: ‘‘Indeed, if for each case the sports federations had to prove the intentional nature of the act (desire to dope to enhance one’s performance) in order to be able to give it the force of an offence, the ﬁght against doping would become practically impossible’’. 123 Int Sports Law J (2016) 16:99–117 111 seemingly contradictory comment to 2015 WADC Art. test, which low levels would be inconsistent with the 4.2.2 that speciﬁed substances are ‘‘substances which purposeful use of the stimulant ‘‘in Competition’’, as are more likely to have been consumed by an Athlete sufﬁcient proof of out-of-Competition use? for a purpose other than the enhancement of sport (b) Will arbitral tribunals accept a polygraph ﬁnding that performance’’? the athlete was truthful in stating that he did not use 2. How will an athlete who knowingly takes a ‘‘risky the prohibited substance at issue on the day of the supplement’’ without knowing that the supplement competition at issue as sufﬁcient proof of out-of- contained a banned ‘‘Speciﬁed Substance’’ be viewed Competition use? in connection with this deﬁnition of ‘‘intent’’ contained (c) How will arbitral tribunals analyze the issue of in WADC Art. 10.2.3? whether the out-of-Competition use of the stimulant was ‘‘in a context unrelated to sport performance?’’ Furthermore, in cases where an athlete intentionally As has been seen in past cases, arguments can be used a supplement, but the athlete did not know that the made that virtually any substance that an athlete supplement contained a prohibited substance (and where consumes, including food, is done in a context the lack of knowledge was reasonable, such as in cases related to sport performance. Therefore, in order to involving misleading ingredient lists), what will the avoid an analysis that renders this phrase meaning- NADO/IF be required to prove? Will the burden be to less, arbitral tribunals must apply a common-sense prove that the athlete knew or should have known that the and realistic meaning to the issue of when something supplement contained a prohibited substance, or will it be is consumed in a context that is actually related to sufﬁcient to prove that the type of supplement or the sup- sport performance, as opposed (for example) to plement manufacturer itself could be viewed as risky, such consuming a product for general health purposes. that the athlete’s use of the supplement could be considered as a manifest disregard of a signiﬁcant risk, for which the For substances that are banned at all times, such as athlete should receive a 4-year sanction? The manner in anabolic agents, the analysis of ‘‘in-competition’’ versus which CAS tribunals resolve this use could dramatically ‘‘out-of-Competition’ use will be unnecessary. In these impact the applicable ‘‘default sanction’’ in cases involving cases, in order to avoid a ‘‘default sanction’’ of 4 years, the nutritional supplements. athlete will be required to prove that he or she did not take the substance intentionally. It is therefore critical to con- 4.3 How does the athlete prove ‘‘no intent’’ in cases sider what will happen to the athlete who has no idea what not involving ‘‘speciﬁed substances’’? caused his or her positive test, and who, despite investi- gation, is unable to prove the source of the prohibited In cases that do not involve ‘‘Speciﬁed Substances’’, the substance. For these athletes, how will arbitral tribunals athlete carries the burden of proving ‘‘no intent’’ to avoid analyze this issue, which could mean the difference the application of a 4-year default sanction. In many cases, between a career-ending 4-year sanction and a ‘‘default therefore, this burden of proof will mean the difference sanction’’ of 2 years? Some important questions arise: between a career-ending sanction and one from which an (a) Will the athlete’s failure to prove how the prohibited athlete could potentially return. Therefore, the manner in substance entered his or her system (within the which this burden of proof is applied by the arbitral tri- meaning of 2015 WADC Art. 10.4 and Art. 10.5.2) bunals will be critical. automatically result in a 4-year default sanction? As mentioned above, Art. 10.2.3 of the 2015 WADC Arbitral tribunals should recognize the difference provides that ‘‘an anti-doping rule violation resulting from between (1) proving the source of the prohibited an adverse analytical ﬁnding for a substance which is only substance as a pre-condition to receiving a reduction prohibited In-Competition shall not be considered ‘‘inten- in the ‘‘default sanction’’, and (2) the requirement of tional’’ if the substance is not a Speciﬁed Substance and the proving ‘‘no intent’’ in order to avoid the application athlete can establish that the Prohibited Substance was used of a ‘‘default sanction’’ of 4 years. An athlete should out-of-Competition in a context unrelated to sport perfor- be able to prove ‘‘no intent’’ without proving the mance.’’ Therefore, in cases involving non-speciﬁed stim- source of the prohibited substance, at least in the ulants, an athlete can avoid a ‘‘default sanction’’ of 4 years abstract. by proving that the stimulant was used out-of-Competition in a context unrelated to sport performance. This raises a 55 Prior arbitral tribunals have already accepted that polygraph test number of important issues: results are admissible in anti-doping proceedings. See, for example, CAS 2011/A/2384 & 2386, UCI v. Alberto Contador Velasco & (a) Will arbitral tribunals accept a low concentration RFEC and WADA v. Alberto Contador Velasco & RFEC, Award of 6 level of the prohibited stimulant in the anti-doping February 2012. 123 112 Int Sports Law J (2016) 16:99–117 (b) Assuming that the failure to prove how the prohib- circumstances’’ rules are being asserted as a basis for ited substance entered the athlete’s system is not sanction reduction. automatically equated with intent to use the prohib- ited substance, how will the athlete who cannot prove the source of the prohibited substance prove 6 Ensuring proportionate sanctions lack of intent? Will it be sufﬁcient, for example, for under the 2015 WADA Code an athlete to submit a polygraph ﬁnding that the he was truthful in stating that he did not knowingly use 6.1 Introduction the prohibited substance at issue, as sufﬁcient proof of lack of intent, such that the applicable ‘‘default According to the WADA, the 2015 WADC, which came sanction’’ is 2 years instead of four? Or, even in the into effect on 1 January 2015, is a ‘‘stronger, more robust absence of a polygraph exam, could an athlete tool that will protect the rights of the clean athletes’’. establish ‘‘no intent’’ within the meaning of 2015 Among the key themes of the revised Code, is the promise WADC Art. 10.2.1.1 solely through her own credible of ‘‘longer periods of Ineligibility for real cheats, and more testimony that she did not knowingly ingest the ﬂexibility in sanctioning in other speciﬁc circumstances’’. prohibited substance at issue? These will be impor- While Article 10 of the 2015 Code unquestionably tant evidentiary issues for arbitral tribunals to provides for longer periods of ineligibility, the validity of consider, and the manner in which they are deter- WADA’s claim that the harsher sanctions will be reserved mined will have a signiﬁcant impact on the sanction for ‘‘real cheats’’ depends partly on how one deﬁnes the length for many athletes under the 2015 WADC. term ‘‘real cheat’’, and partly on how the 2015 Code’s mechanisms for reducing sanctions are to be interpreted. This piece reﬂects on the totality of the context from which the current sanctions regime arose. That is important 5 Conclusion because Article 10 will have to be applied in a manner consistent with that context in mind if the 2015 Code is to The concept of giving longer sanctions to athletes who become the tool promised by WADA and if it is to avoid intend to cheat, and shorter sanctions to those athletes who the scrutiny of the courts. do not have such an intent, is certainly laudable, and the 2015 WADC has introduced a number of new legal and 6.2 Context evidentiary issues in an effort to further differentiate between intentional and non-intentional ‘‘dopers’’. How- 6.2.1 The Katrin Krabbe case ever, as is often the case, the 2015 WADC has provided very broad concepts, which the arbitral tribunals will have In the lead up to the adoption of the ﬁrst version of the to interpret and apply to real-world situations. How these WADA Code (2003), there was considerable debate as to general concepts are applied in reality will—for many what length of sanction could lawfully be imposed on an athletes—mean the difference between a 2-year sanction athlete for a ﬁrst violation. that is ‘‘merely’’ devastating and a 4-year sanction that is The decision ﬁnally to settle on a 2-year ban for ﬁrst career ending. In those cases, where an athlete has no idea offences was heavily inﬂuenced by the ﬁndings of the where the prohibited substance came from, the arbitral Munich Courts in the case of Katrin Krabbe, that a sus- tribunals must be very careful in how they apply these new pension exceeding 2 years was disproportionate : concepts. These new concepts related to ‘‘intent’’ will change the (a) The Regional Court held that a 2-year suspension manner in which arbitral tribunals address the preliminary imposed on an athlete for a ﬁrst offence ‘‘represents issue of the applicable ‘‘default sanction’’. They will not the highest threshold admissible under fundamental materially affect the manner in which these tribunals rights and democratic principles’’. address the issues related to the reduction in the ‘‘default sanction.’’ However, because of the limitations in how WADA, The Code, https://www.wada-ama.org/en/what-we-do/ much the ‘‘default sanction can be reduced (in cases of no the-code, accessed 22 April 2016. signiﬁcant fault, the maximum reduction in the ‘‘default Supra (27). See Oswald (1999) and the Vereinigung fur deutsches und sanction’’ is 50 %), the determination of this new ‘‘intent’’ internationals Sportrecht (1999). issue as related to the ‘‘default sanction’’ will be doubly See Kaufmann-Kohler et al. (2003). important in cases where the older ‘‘exceptional Decision of the LG Munich of 17 May 1995, Krabbe v. IAAF et al, SpuRt 1995 pp. 161, 167. 123 Int Sports Law J (2016) 16:99–117 113 (b) The High Regional Court held that the 3-year ban then vice-president of the IAAF, Dr Arne Lungqvist imposed by the IAAF ‘‘was excessive in respect of explained as follows: its objective. Such a rigid disciplinary measure as a I asked Torri Edwards whether she would allow me to sanction for a ﬁrst sports offence is inappropriate use her case as an example of the importance of and disproportionate’’. making some sort of differentiation between those And so it came to pass that a ﬁrst violation under Article weak stimulants that you can get over the counter by 10.2 of the 2003 Code would be punished with a 2-year accident, carelessness, negligence or whatever. (…) sanction. Various legal opinions procured by WADA We are not after those who are negligent. between 2003 and 2008 afﬁrmed the position that a 2-year WADA acceded to the IAAF’s lobbying and down- sanction for a ﬁrst violation (1) was a signiﬁcant incursion graded nikethamide to the Speciﬁed Substance list in on the rights of the individual affected; and (2) was likely September 2005. The IAAF Council shortly thereafter the limit of the severity that could be imposed in the reinstated Edwards to competition further to the doctrine of absence of aggravating circumstances. lex mitior. Following Edwards’ reinstatement, Dr Lungqvist explained as follows: 6.2.2 Speciﬁed substances The IAAF wishes to see strong penalties for real The 2003 Code proved somewhat inﬂexible, which resulted cheats. This was a different case, […] I did not feel in 2-year bans for unintentional and minor anti-doping rule comfortable when I had to defend the then-existing violations. One of the starkest examples of that inﬂexibility rules against her at the CAS hearing in Athens. arose in CAS OG 04/003 Torri Edwards v IAAF and I judge that Torri has paid a high price for having USATF. inadvertently taken a particular substance at the Edwards had consumed glucose powder that, unbe- ‘wrong’ time, shortly before [the reclassiﬁcation] and knownst to her, contained the stimulant nikethamide. A from now on such an intake would result in a warning 2-year ban was imposed on her on the basis that she could only (Emphasis added). not meet the thresholds for ‘‘No Fault’’ and ‘‘No Signiﬁcant Four years later, WADA went one step further and, with Fault’’ and despite the fact that she had, in the words of the the introduction of the 2009 version of the WADA Code, CAS panel, ‘‘conducted herself with honesty, integrity and broadened the list of substances that would be categorised character, and that she has not sought to gain any as Speciﬁed Substances, promising ‘‘lessened sanc- improper advantage or to ‘cheat’ in any way’’. tions….where the athlete can establish that the substance Ms Edwards’ case became a cause ce´le`bre, leading the involved was not intended to enhance performance’’ IAAF to lobby WADA to have nikethamide and other under Article 10.4. similar stimulants reclassiﬁed as Speciﬁed Substances. The The aim was to avoid the likes of the Edwards case. Indeed, a number of cases determined under the 2009 Code which involved the same glucose brand that had landed Decision of the OLG Munich of 28 March 1996, Krabbe v. IAAF et al., SpuRt 1996 pp. 133, 138. See WADA, Legal Opinion of G. Kaufmann-Kohler, G. Malin- verni and A. Rigozzi on the Conformity of Certain Provisions of the Draft WADC with Commonly Accepted Principles of International Law, paragraphs 142 and 143, https://wada-main-prod.s3.amazonaws. Savage S, ‘‘Doping-Edwards case inﬂuenced WADA rule com/resources/ﬁles/kaufmann-kohler-full.pdf, accessed 22 April change’’, Red Orbit, 30 January 2006, http://www.redorbit.com/ 2016; WADA, Legal Opinion of C. Rouiller on Whether Article 10.2 news/sports/374998/dopingedwards_case_inﬂuenced_wada_rule_ of the World Anti-Doping Code is compatible with the Fundamental change/, accessed 22 April 2016. Principles of Swiss Domestic Law, paragraph 3 (b) (aa) at page 26 See IAAF Press Release of 22 November 2005, ‘‘Torri Edwards and paragraph 3. (f) (aa) at page 32, https://wada-main-prod.s3.ama Reinstatement’’, http://www.iaaf.org/news/news/torri-edwards-rein zonaws.com/resources/ﬁles/Article_10_2_WADC_Swiss_Law.pdf, statement, accessed 22 April 2016. accessed 22 April 2016; and WADA, Legal Opinion of G. Kaufmann- Kohler and A. Rigozzi on the Conformity of Article 10.6 of the 2007 Elliott, H, ‘‘Sprinter Excited About Reprieve’’, Los Angeles Times, Draft World Anti-Doping Code with the Fundamental Rights of 17 November 2005, http://articles.latimes.com/2005/nov/17/sports/ Athletes, at paragraphs 33, 114, 138 and 139, https://wada-main-prod. sp-edwards17, accessed 22 April 2016. s3.amazonaws.com/resources/ﬁles/Legal_Opinion_Conformity_10_ WADA, 2009 World Anti-Doping Code Questions and Answers, 6_complete_document.pdf, accessed 22 April 2016. https://www.wada-ama.org/en/questions-answers/2009-world-anti- CAS OG 04/003, Torri Edwards v IAAF and USATF, Award of 17 doping-code, accessed 22 April 2016. August 2004. 2009 Code, Article 10.4 (‘‘Elimination or Reduction of the Period See paragraph 5.8 of CAS OG 04/003 Torri Edwards v IAAF and of Ineligibility for Speciﬁed Substances under Speciﬁc USATF. Circumstances’’). 123 114 Int Sports Law J (2016) 16:99–117 Edwards with a 2-year ban in 2004, resulted in periods of ‘‘aggravated circumstances’’ provision from the 2015 ineligibility ranging between 0 and 6 months. Code and the introduction of standard 4-year sanctions, explained as follows by WADA: 6.2.3 The rise and fall of ‘‘aggravating circumstances’’ There was a strong consensus among stakeholders, and in particular, Athletes, that intentional cheaters The primary themes of the 2009 Code were, according to should be Ineligible for a period of 4 years. Under the WADA, ‘‘ﬁrmness and fairness’’. ‘‘Fairness’’ was to be current Code, there is the opportunity for a 4-year reﬂected by the broadening of the Speciﬁed Substance list, period of Ineligibility for an Adverse Analytical while ‘‘ﬁrmness’’ was intended to manifest itself through Finding if the Anti-Doping Organization can show the concept of ‘‘aggravating circumstances’’. ‘‘Aggravating Circumstances.’’ However, in the more The presence of ‘‘aggravated circumstances’’ permitted than 4 years since that provision has been part of the ADOs to increase periods of ineligibility beyond the Code, it has been rarely used (Emphasis added). standard 2-year ban up to a maximum of 4 years. A legal opinion commissioned by WADA in relation to The decision to double the standard 2-year sanctions to the ‘‘aggravated circumstances’’ provisions (the ‘‘Third 4 years may have surprised anyone who had ever read the WADA Legal Opinion’’) noted as follows: Third WADA Legal Opinion, since that opinion had expressly cautioned as follows: 91. […] it is clear that the intention to enhance per- formance is not in and-of-itself an aggravating 138. […] one should bear in mind that a 4-year ban circumstance. would most often put an end to an athlete’s (high 92. […] This provision makes it clear that cheating is level) career and thus be tantamount to a life ban. an important element of the notion of aggravating Therefore, an aggravated ﬁrst offence could de facto circumstances. However, the mere fact of cheating be punished as harshly as numerous second offences alone is not sufﬁcient. Additional elements are (Article 10.7.1) and almost all third offences (Article required. 10.7.3). 93. The essence of the concept of aggravating cir- 139. This could raise problems if the ineligibility cumstances is thus a qualiﬁed kind of cheating, which period were automatically of 4 years in the presence involves an additional element (Emphasis added). of aggravating circumstances. In reality, Art. 10.6 provides for an increased suspension of up to 4 years, Not only, therefore, was actual cheating required to which means that the adjudicating body is afforded invoke the provision but there needed to be something sufﬁcient ﬂexibility to take into account all the cir- more than the mere fact of cheating. Examples provided by cumstances to ensure that aggravating circumstances the 2009 Code included being part of a doping scheme or do not systematically result in a 4-year period of using multiple prohibited substances. ineligibility (Emphasis added). The ‘‘aggravated circumstances’’ provision was rarely invoked and, when it was, it rarely resulted in the maxi- 6.2.4 Proportionality mum increase. That ultimately led to the removal of the The principle of proportionality plays an important role in See CAS 2011/A/2493 Antidoping Switzerland v/Vaton Zyberi, the determination of sanctions applicable in doping mat- Award of 29 November 2011; CAS 2013/A/3327 Marin Cilic v. 78 79 ters. The principle pervades Swiss law, EU law and International Tennis Federation and CAS 2013/A/3335 International general principles of (sports) law. Tennis Federation v. Marin Cilic, Award of 11 April 2014; AFLD Decision No. 2011-71 dated 7 July 2011; and AFLD Decision No. The CAS itself has consistently measured sanctions 2009-50 dated 10 December 2009. imposed on athletes against the principle of proportionality Supra (68). both before the inception of the WADA Code and since. Article 10.6 of the 2009 WADA Code (Aggravating Circum- (a) Pre-WADA Code: the anti-doping rules of many stances Which May Increase the Period of Ineligibility). Note that Violations under Articles 2.7 (Trafﬁcking) and 2.8 sports prior to the creation of the WADA Code (Administration) were not subject to the application of Article 10.6 since the sanctions for those violations (four years to life) already allowed discretion for aggravating circumstances. Supra (27). 74 78 See Kaufmann-Kohler et al. (2003). See CAS 2005/C/976 and 986, FIFA & WADA, delivered on 21 April 2006, paragraph 124. Ibid. See, Case C-519/04, P Meca-Medina & Majcen v Commission, See CAS 2013/A/3080, Alemitu Bekele Degfa v. TAF and lAAF, [2006] ECR I-6991, paragraphs 47 and 48. Award of 14 March 2014, for a detailed assessment by the CAS of the ‘‘aggravated circumstances’’ provision. See Kaufmann-Kohler et al. (2003). 123 Int Sports Law J (2016) 16:99–117 115 mandated ﬁxed sanctions without the possibility of 6.3 Comment reductions. The CAS nevertheless sometimes reduced these sanctions on the basis they were not While the 2015 Code does have more mechanisms by proportionate. which to modify the default sanctions than in previous (b) Post-WADA Code: The WADA Code introduced versions of the WADA Code, that is partly because the mechanisms by which sanctions could be reduced or default sanctions with regards to most of the violations eliminated. However, the CAS has made clear that have doubled : the introduction of these mechanisms does not remove the obligation of disciplinary panels to Violation Default sanction Default sanction measure the sanctions applied in any particular case under the 2015 under the 2009 against the principle of proportionality. In Squizzato Code for a ﬁrst Code for a ﬁrst v. FINA, the CAS held that: offence offence Presence of a speciﬁed 2 years (Art. 2 years (Art. 10.2.1) substance (Art. 2.1) 10.2.2) 10.24 […] the Panel holds that the mere adoption of Presence of a non- 4 years (Art. 2 years (Art. 10.2.1) the WADA Code […] by a respective Federation speciﬁed substance 10.2.1) does not force the conclusion that there is no other (Art. 2.1) possibility for greater or less reduction a sanction Use or attempted use of 2 years (Art. 2 years (Art. 10.2.1) a speciﬁed substance 10.2.2) than allowed by DC 10.5. The mere fact that regu- (Art. 2.2) lations of a sport federation derive from the World Use or attempted use of 4 years (Art. 2 years (Art. 10.2.1) Anti-Doping Code does not change the nature of a non-speciﬁed 10.2.1) these rules. They are still—like before—regulations substance (Art. 2.2) of an association which cannot (directly or indirectly) Evading, refusing or 4 years (Art. 2 years (Art. 10.3.1) replace fundamental and general legal principles like failing to submit to 10.3.1) the doctrine of proportionality a priori for every sample collection (Art. 2.3) thinkable case. Whereabouts failures 2 years (Art. 1–2 years (Art. Though the 2015 Code asserts that it ‘‘has been drafted (Art. 2.4) 10.3.2) 10.3.3) giving consideration to the principles of proportionality Tampering or attempted 4 years (Art. 2 years (Art. 10.3.1) and human rights’’, that obviously does not mean that tampering (Art. 2.5) 10.3.1) proportionality no longer plays a part in the assessment of Possession of a 2 years (Art. 2 years (Art. 10.2.1) speciﬁed substance 10.2.2) sanctions for the same reasons propounded by the CAS in (Art. 2.6) Squizzato. Indeed, the 2015 Code itself recognises that it Possession of a non- 4 years (Art. 2 years (Art. 10.2.1) ‘‘is intended to be applied in a manner which respects the speciﬁed substance 10.2.1) principles of proportionality and human rights’’. More- (Art. 2.6) over, the most recent CAS decisions in which the principle Trafﬁcking or attempted 4 years to life (Art. 4 years to life (Art. of proportionality was applied concerned the sanctioning trafﬁcking (Art. 2.7) 10.3.3) 10.3.2) regimes of the 2003 and 2009 Code, both of which man- Administration or 4 years to life (Art. 4 years to life (Art. attempted 10.3.3) 10.3.2) dated default sanctions of 2 years, not 4 years. The administration (Art. principle of proportionality is, therefore, arguably even 2.8) more relevant now than it previously was. Complicity (Art. 2.9) 2–4 years (Art. Elements of this 10.3.4) violation previously formed part of the ‘‘Administration 81 or Attempted See CAS 1996/56, Foschi v. FINA, Award of October 1997; CAS Administration’’ 2002/A/396, Baxter v. FIS, Award of 30 September 2002; and CAS violation 2001/A/337, B./FINA, Award of 22 March 2002. Prohibited association 2 years (Art. This violation did CAS 2005/A/830, Squizzato v. FINA, Award of 15 July 2005. (Art. 2.10) 10.3.5) not exist under the See page 11 of the 2015 Code—‘‘Purpose, Scope and Organiza- 2009 Code tion of the World Anti-Doping Program and the Code’’. See the Introduction at page 17 of the 2015 Code. 85 86 See, for example, CAS 2010/A/2268, I. v. FIA, Award of 15 Note that the table only reﬂects the default sanctions applicable September 2011; and TAS 2007/A/1252, FINA c. O. Mellouli and before consideration of any of the mechanisms intended to increase or FTN, Award of 11 September 2007. decrease those sanctions. 123 116 Int Sports Law J (2016) 16:99–117 is that athletes who ‘‘cheat’’ are athletes who have acted knowingly and dishonestly to gain an unfair advantage. Athletes accused of committing a violation under Arti- Article 10.2 cannot, therefore, be intended to punish cles 2.1, 2.2, 2.3 or 2.6 are now in a position in which they careless athletes. Bearing in mind the limits pronounced by are required to meet the Article 10.2 thresholds regarding the courts in Krabbe and bearing in mind the ‘‘justiﬁable ‘‘intent’’ simply to get them back to the 2-year default aim’’, any interpretation of the provision that would result in sanctions that would have applied under previous versions a 4-year ban for nothing more than careless—or even of the Code. reckless, but otherwise honest—conduct would risk inviting If the 2015 Code is to become the tool promised by the sort of scrutiny exercised by the German courts in the WADA and if it is to avoid or survive legal challenges, Pechstein and Krabbe cases. tribunals will need to ensure that their interpretations of the Likewise, the interpretation of the other reduction reduction mechanisms, such as those contained at Article mechanisms, such as Article 10.5 (‘‘No Signiﬁcant Fault or 10.2, do not result in disproportionate sanctions. Negligence’’), will require the same degree of pragmatism. The parameters within which the proportionality of a If the parameters for ‘‘No Signiﬁcant Fault’’ were to be sanction falls to be measured were described as follows applied as strictly today as they were in the Edwards case, by the panel in CAS 2005/C/976 and 986 FIFA and anti-doping would end up right back to where it was in WADA: 2004, when the Code’s sanctioning regime was perceived 139. A long series of CAS decisions have developed to be so inﬂexible that it had to be overhauled in 2009. the principle of proportionality in sport cases. This Assuming that the aim of the 2015 Code is not to take principle provides that the severity of a sanction must 11 years’ worth of backward steps, tribunals will have to be proportionate to the offense committed. To be ensure that ‘‘No Signiﬁcant Fault’’ is interpreted in a proportionate, the sanction must not exceed that manner that fulﬁls WADA’s promise of ‘‘greater ﬂexibil- which is reasonably required in the search of the ity’’, particularly in cases involving Speciﬁed Substances justiﬁable aim (Emphasis added). and Contaminated Products. The evaluation of whether a sanction is proportionate 6.4 Concluding remark therefore begins with the identiﬁcation of the ‘‘justiﬁable aim’’. According to WADA, the increased sanctions were The 2015 Code has the potential to become the fairest intended to target ‘‘intentional cheats’’. That is echoed by WADA Code to date. However, it also has the potential to the wording of Article 10.2.3 of the 2015 Code, which be the cruelest. Interpreting it in a manner consistent with provides as follows: the totality of the context from which it was conceived is As used in Articles 10.2 and 10.3, the term ‘‘in- the surest way to ensure that the right version prevails. tentional’’ is meant to identify those Athletes who Open Access This article is distributed under the terms of the cheat. The term, therefore, requires that the athlete Creative Commons Attribution 4.0 International License (http://crea or other Person engaged in conduct which he or tivecommons.org/licenses/by/4.0/), which permits unrestricted use, she knew constituted an anti-doping rule violation distribution, and reproduction in any medium, provided you give or knew that there was a signiﬁcant risk that the appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were conduct might constitute or result in an anti-doping made. rule violation and manifestly disregarded that risk (Emphasis added) […] See Landesgericht (LG) Mu¨nchen, Claudia Pechstein v. DESG and ISU, 26. February 2014, 37 O 28331/12; and Oberlandesgericht The ﬁnal sentence emphasised above is, arguably, open (OLG) Mu¨nchen, Claudia Pechstein v. DESG and ISU, 15 January to interpretation. However, the ﬁrst line identiﬁes the 2015, Az. U 1110/14 Kart. overarching aim of the provision—i.e., ‘‘the term ‘inten- WADA, 2015 World Anti-Doping Code, https://www.wada-ama. tional’ is meant to identify those athletes who cheat’’. org/en/questions-answers/2015-world-anti-doping-code, accessed 22 According to the Oxford Dictionary, a ‘‘cheat’’ is a April 2016. ‘‘person who behaves dishonestly in order to gain an Notably, the concept of ‘‘No Signiﬁcant Fault or Negligence’’ in previous versions of the Code was limited to ‘‘exceptional circum- advantage’’ and the act of ‘‘cheating’’ amounts to ‘‘a stances’’. That limitation has been removed in the context of fraud or deception’’. A reasonable inference, therefore, Speciﬁed Substances and Contaminated Products under Article 10.5.1 of the 2015 Code. Thus, it should now be easier for athletes to trigger the application of ‘‘No Signiﬁcant Fault’’ in those types of cases than Note that article 10.2 only applies to those violations. For a it previously was. See Sect. 6.2 of Rigozzi et al. (2015a, b) for a detailed assessment of Article 10.2, see Rigozzi et al. (2015a, b). detailed discussion of the point. 123 Int Sports Law J (2016) 16:99–117 117 Rigozzi A, Viret M and Wisnosky E (2013) Does the World Anti- References Doping Code revision live up to its promises? Jusletter. ISSN 1424-7410 Casini L (2009) Global hybrid public-private bodies: the World Anti- Rigozzi A, Haas U, Wisnosky E, Viret M (2015a) Breaking down the Doping Agency (WADA). Int Organ Law Rev 6(2):421–446 process for determining a basic sanction Under the 2015 World Kaufmann-Kohler G, Rigozzi A, Malinverni G (2003) Doping and Anti-Doping Code. Int Sports Law J 15/1–2:3–48 fundamental rights of athletes: comments in the wake of the Rigozzi A, Viret M, Wisnosky E (2015b) Switzerland anti-doping adoption of the World Anti-Doping Code. Int Sports Law Rev reports. Int Sports Law Rev 2/15:31–44 3:39–52 Vereinigung fur deutsches und internationals Sportrecht (1999) The Oswald D (1999) A lesson to the moralizers. Olymp Rev 26:21–22 position of Germany. Olymp Rev 26:22–23 Reeb M (2001) Digest of CAS awards I, 1986–1998. Wolters Kluwer Viret M (2015) Evidence in anti-doping at the intersection of science Law and Business and law. Asser Press, Springer, Berlin http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The International Sports Law Journal Springer Journals http://www.deepdyve.com/lp/springer-journals/the-world-anti-doping-code-2015-asser-international-sports-law-blog-fHWVfmrYNI

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See paragraph 5.8 of CAS OG 04/003 Torri Edwards v IAAF and USATF
Necessity for use not a consequence of prior use without a valid TUE
Sprinter Excited About Reprieve
(2001)
Digest of CAS awards I, 1986–1998
(1999)
The position of Germany
Olymp Rev, 26
Vereinigung fur deutsches und internationals Sportrecht (1999) The position of Germany
How will arbitral tribunals analyze the issue of whether the out-of-Competition use of the stimulant was ‘‘in a context unrelated to sport performance?’’ As has been seen in past cases,

Publisher: Springer Journals
Copyright: 2016 The Author(s)
ISSN: 1567-7559
eISSN: 2213-5154
DOI: 10.1007/s40318-016-0097-9
Publisher site: See Article on Publisher Site

Abstract

Int Sports Law J (2016) 16:99–117 DOI 10.1007/s40318-016-0097-9 ARTICLE The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium 1 2 3 3 • • • • Antoine Duval Herman Ram Marjolaine Viret Emily Wisnosky 4 5 Howard L. Jacobs Mike Morgan Published online: 10 June 2016 The Author(s) 2016. This article is published with open access at Springerlink.com Abstract This article brings together the contributions to a led to the adoption of the WADC 2015 and introduce the blog symposium on the new World Anti-Doping Code various contributions to the blog symposium. 2015 published on the ASSER International Sports Law Blog in October 2015. The contributions cover a variety of 1.1 The WADA and its code: a short history subjects, including the new sanctioning regime, the role of national anti-doping authorities, the working of therapeutic The WADA is a public–private hybrid governance body. It use exemptions and the increasing role played by the is formally a Swiss foundation, but its executive bodies are notion of intent under the WADC 2015. composed equally of representatives of public authorities and Sports Governing Bodies (SGBs). The current president Keywords Doping Burden of proof Arbitration Court of WADA, Sir Craig Reedie, is also vice-president of the of arbitration for sport Proportionality International Olympic Committee (IOC). The WADA was created as a response to the massive doping scandal that marred the Tour de France in 1998. Its original aim was ‘‘to 1 Introduction promote and coordinate the ﬁght against doping in sport internationally.’’ The idea of a speciﬁc global organization On 1 January, a new version of the World Anti-Doping Code was submitted at a World Conference on Doping in Sport in (WADC or Code) entered into force. This blog symposium Lausanne, in February 1999. A few months later, on 10 aims at taking stock of this development and at offering a November 1999, the WADA was established. preliminary analysis of the key legal changes introduced. WADA’s key task was, and still is, to devise the global This introduction will put the WADC into a more general set of uniform rules applicable to the anti-doping ﬁght: the historical and political context. It aims to brieﬂy retrace the WADC. The ﬁrst version of the WADC was ﬁnalized in 2003. After amendments were tabled, a second version of emergence of the World Anti-Doping Agency (WADA) and its Code. It will also reconstruct the legislative process that & Antoine Duval [email protected] Its atypical public–private institutional structure has stirred the attention of scholars of the Global Administrative Law movement. T.M.C. Asser Instituut (University of Amsterdam), See Casini (2009). The Hague, The Netherlands On WADA’s mission see WADA, Who we are, https://www.wada- Anti-Doping Authority, Capelle aan den IJssel, ama.org/en/who-we-are/a-brief-history-of-anti-doping, accessed 22 The Netherlands April 2016. 3 3 University of Neuchaˆtel, Neuchaˆtel, Switzerland The 2003 version of the WADC is accessible at WADA, 2003 World Anti-Doping Code, https://wada-main-prod.s3.amazonaws. Los Angeles, CA, USA com/resources/ﬁles/wada_code_2003_en.pdf, accessed 22 April Morgan Sports Law LLP, London, UK 2016. 123 100 Int Sports Law J (2016) 16:99–117 the Code entered into force in 2009. As the WADA does WADC is complemented by a set of ﬁve International not dispose of any public (or private for that matter) Standards, which are mandatory for the signatories. authority to implement the Code, it must be transposed by Finally, the implementation of the Code is also supported the SGBs and governments at the national and international by a set of Model Rules, Guidelines and Protocols. level to gain some teeth. Compliance with the Code is As illustrated by the recent doping scandal involving the compulsory for the whole Olympic Movement as provided Russian Athletics Federation, the question of compliance by article 43 of the Olympic Charter. WADA’s main with the Code is a prodigious challenge for WADA. The responsibility is to monitor and report on the compliance of organization’s raison d’e ˆ tre is threatened by the well- various federations and States. The Code was ﬁrst known gap between law in the books and law in action. endorsed by States in the Copenhagen Declaration on Anti- This discrepancy between a global uniform code and its Doping in Sport in 2003, and later supported by the many local realities, has led to recent calls for WADA to be adoption of the UNESCO International Convention against tasked with the implementation of the Code and to take 9 21 Doping in Sport in October 2005. The Convention is one charge of the testing process. The true impact of the Code of the most ratiﬁed UNESCO Conventions to date with 182 2015 will partially depend on the clariﬁcation of the signatories. competences and responsibilities of WADA in this regard. The WADC 2015 is a long document of more than 150 pages, composed of 25 articles complemented with com- 1.2 Making the code 2015: the legislative process prehensive comments. It deﬁnes the anti-doping rule violations, the burden of proof applicable to doping The WADC 2015 is the result of a peculiar legislative 12 13 cases and the functioning of the prohibited list. The process. WADA claims, since its early days, that the Code Code indicates also the technical procedure applicable to is a living document, subjected to a productive feedback doping tests and the procedural rights of suspected ath- chain. This revision of the WADC started at the end of letes. Most importantly, it provides for the sanctions 2011 and covered three different phases of consultation regime applicable in case of a violation. The Code like- over a 2-year period. Approximately 2000 proposals for wise regulates the potential appeal procedures. The amendments were submitted to the drafting team. In the end, the Code was approved on 15 November 2013 at the The 2009 version of the WADC is accessible at WADA, 2009 World Conference on Doping in Sport in Johannesburg. World Anti-Doping Code, https://wada-main-prod.s3.amazonaws. A speciﬁc team managed the consultation process and com/resources/ﬁles/wada_anti-doping_code_2009_en_0.pdf, acces- each of the three consultation phases included a review and sed 22 April 2016. the approval from the WADA Executive Committee. The The updated list of the current signatories is available at WADA, Code Signatories, https://www.wada-ama.org/en/code-signatories, ﬁrst phase started on 28 November 2011, whereby a call for accessed 22 April 2016. comments was communicated to stakeholders (WADA Article 43 of the Olympic Charter states: The World Anti-Doping does not indicate how it deﬁnes the reach of this category), Code is mandatory for the whole Olympic Movement. and feedback was received from 90 stakeholders. The On this monitoring of the compliance of signatory see WADA, comments led to the drafting of the Draft Version 1.0 of the Code Compliance, https://www.wada-ama.org/en/what-we-do/the- 2015 Code, which was approved by the WADA Executive code/code-compliance, accessed 22 April 2016. Committee in May 2012. On 1 June 2012, the second phase The text of the Copenhagen Declaration on Anti-Doping in Sport is available at WADA, Copenhagen Declaration on Anti-Doping in of consultation was initiated with a new call for comments Sport, https://wada-main-prod.s3.amazonaws.com/resources/ﬁles/ WADA_Copenhagen_Declaration_EN.pdf, accessed 22 April 2016. Article 13 WADC 2015. The text of the International Convention Against Doping in Sport is WADA’s International Standards are available at WADA, Inter- available at UNESCO, International Convention against Doping in national Standards, https://www.wada-ama.org/en/international-stan Sport 2005, http://portal.unesco.org/en/ev.php-URL_ID= dards, accessed 22 April 2016. 31037&URL_DO=DO_TOPIC&URL_SECTION=201.html, acces- sed 22 April 2016. WADA’s Model Rules, Guidelines and Protocols are available at WADA, Model Rules, Guidelines and Protocols, https://www.wada- The 2015 version of the WADC is available at WADA, 2015 ama.org/en/model-rules-guidelines-and-protocols, accessed 22 April World Anti-Doping Code https://wada-main-prod.s3.amazonaws. com/resources/ﬁles/wada-2015-world-anti-doping-code.pdf, accessed 22 April 2016. See WADA, WADA announces details of Independent Commis- sion, https://www.wada-ama.org/en/media/news/2014-12/wada- Article 2 WADC 2015. 12 announces-details-of-independent-commission, accessed 22 April Article 3 WADC 2015. Article 4 WADC 2015. ‘‘I.O.C. Asks WADA To Take Over Testing’’, New York Times,18 Article 5,6,7 WADC 2015. October 2015, http://www.nytimes.com/2015/10/18/sports/olympics/ Article 8 WADC 2015. ioc-asks-wada-to-take-over-testing.html?_r=1, accessed 22 April Article 9,10, 11, 12 WADC 2015. 2016. 123 Int Sports Law J (2016) 16:99–117 101 issued to all the ‘‘stakeholders’’. Over a period of 4 months, profoundly changed the operations of the Dutch NADA. In WADA received feedback from more than 100 stake- particular through its focus on a smarter anti-doping ﬁght. holders, which was incorporated in the second Draft of the He anticipates the stumbling blocks ahead and identiﬁes 2015 Code. Eventually, a third consultation phase took the key trends already under way. place from 3 December 2012 until 1 March 2013, which The second contribution by Marjolaine Viret and Emily led to the Executive Committee adopting a third draft of Wisnosky, the two researchers involved in the cutting edge the Code. The ﬁnal mould of the Code was submitted to the WADC-Commentary project alongside Professor Antonio World Conference on Doping in Sport, hosted in Johan- Rigozzi, focus on the new Code’s inﬂuence on Athletes nesburg in November 2013. The WADA Foundation under medical treatment. They study closely the new legal Board adopted the ﬁnal version of the Code at the regime applicable to obtain a Therapeutic Use Exemption Conference. and the potential sanctions faced by athletes under medical WADA is adamant (and proud of the fact) that the Code treatment who have not obtained a TUE before a positive was drafted in an inclusive and participative process. anti-doping test. Although it is undeniably positive that many stakeholders The third contribution by Howard Jacobs, a lawyer had the opportunity to access and discuss the drafts of the specialized in anti-doping disputes, analyses the function of Code, the speciﬁc reasons leading to the policy choices the notion of intent in the new Code. Indeed, one of the made remain largely undisclosed. It is extremely difﬁcult to main innovations of the Code is the introduction of speciﬁc know why a proposed amendment made it into the new sanctions based on the intentional or non-intentional nature Code and why another did not. Moreover, the scope of the of the doping violation. This raises many legal questions notion of a stakeholder is key to deﬁne who gets to con- linked especially to the burden of proof. Jacobs goes in tribute. If, for example (as I suspect), the SGBs and National great lengths to provide a clear analytical map of the Anti-Doping Organizations (NADOs) are massively over- problems ahead regarding the need to demonstrate the represented amongst the stakeholders consulted, it gives (non-)intentional nature of an anti-doping violation. He them a disproportionate voice in the legislative process of poses fundamental questions that will likely pop up in front the new Code. The transparency of the process is also lag- of anti-doping tribunals and the CAS, and offers some ging, as is illustrated by the fact that the comments are preliminary answers. nowhere to be found on WADA’s new website. This lack Finally, Mike Morgan, a lawyer specialized in anti- of transparency is worrying for an institution partially doping disputes, examines the new sanctions regime founded and managed by public authorities. In any event, stemming out of the Code 2015. As pointed out in various improving the transparency and inclusiveness of the adop- recent academic contributions, this is probably the most tion process of the WADC is a must to ensure that WADA fundamental change introduced in the Code. It is in any fulﬁlls the good governance standards it is aspiring to. case the most visible, since it will most vividly affect the athletes failing an anti-doping test. As Morgan shows, the 1.3 The blog symposium on the WADA code 2015 new Code vows to introduce a degree of ﬂexibility in the sanctions regime and to provide smarter, tailor-made, The blog symposium includes four contributions from very sanctions. Whether this aim will be achieved is still very different perspectives, by specialized academics, practi- much an open question. tioners and an anti-doping administrator. They deal pri- marily with the various practical changes to the anti-doping ﬁght induced by the new Code. The objective is to show 2 The impact of the revised WADC on the work how the Code has already changed the way the ‘‘anti-doping of NADOs world’’ is operating, and the transformations it might still trigger in the future. The symposium is organized with the 2.1 Introduction help of both Marjolaine Viret and Emily Wisnosky. The ﬁrst contribution by Herman Ram, the Head of the The 2015 WADC is not a new Code, but a revision of the Dutch Doping Autoriteit, covers the impact of the WADC 2009 Code. In total, 2269 changes have been made. Quite 2015 on the work of national anti-doping agencies. Ram See the website of the WADC Commentary, http://wadc- highlights the various ways in which the Code has (or may) commentary.com/, accessed 22 April 2016. See, for example, Rigozzi et al. (2015a, b). Unfortunately, it is impossible to review the presentations and WADA, 2015 World Anti-Doping Code—Final Redlined to 2009 interventions made at the conference, as its website has been Code, https://wada-main-prod.s3.amazonaws.com/resources/ﬁles/ deactivated. wada-redline-2015-wadc-to-2009-wadc-en.pdf, accessed 22 April Though they were online on the older version of the website. 2016. 123 102 Int Sports Law J (2016) 16:99–117 a number of these changes are minor corrections, additions 4-year sanction will more or less automatically result from and reformulations with little or no impact on the work of the simple fact that a non-speciﬁed substance is involved. NADOs. But the number of truly inﬂuential changes is still Some exploratory analysis of the sanctions imposed impressive, which makes it hard to choose. Luckily, under the 2009 Code for speciﬁed substances has shown WADA has identiﬁed the—in their view—more signiﬁcant that panels have already established a practice with a lot of changes in a separate document and I have used this ﬂexibility in those kind of cases under the 2003 and 2009 document to bring some order in a number of comments Codes, and I do not expect major changes there. that I want to make on the impact of those revisions on our Quite interesting from our (NADO’s) point of view is daily work. Article 10.6.3, which introduces a role for both the Part of what follows is based on our experiences with the (N)ADO with result management responsibility and implementation of the revised Code so far, but quite a bit of WADA in cases where athletes or other persons promptly what follows cannot be based on any actual experience, admit an anti-doping rule violation. If both the (N)ADO because the revised Code has only been in place for and WADA agree, a sanction reduction from 4 years to a 7 months, and only a rather small number of disciplinary minimum of 2 years is possible. We do not yet know what procedures in relatively simple cases have come to a ﬁnal WADA’s position will be in this kind of cases, but I do decision under the revised rules. As a result, and because I am know that many NADOs will be inclined to grant a not in the business of predicting the future, on this occasion I reduction of the period of ineligibility, because we want to have decided to share some of my expectations with you. stimulate admissions as much as possible. Information Only the future can tell whether I am right on those issues. given by athletes and other persons is most valuable, and (less important, but still…) we can spare ourselves a lot of 2.2 Sanctions costly work in the process. Somewhat related to prompt admissions (not new, but Probably the most discussed aspect of the revision is the amended and expanded in the revised Code) is the possi- longer period of ineligibility that can be imposed on—as bility to reduce sanctions based on substantial assistance WADA formulates it—‘real cheats’. In other cases, espe- (Article 10.6.1). Because of the growing importance of cially cases of unintentional violations, the revision should Investigations and Intelligence (see 2.4 below) and the lead to more ﬂexibility to impose lower sanctions. Due to increased emphasis on Athlete Support Personnel (2.5) I the amendments in most cases it will be crucial to establish think that we will see that this Article will become more ‘intent’—or the lack of it—in order to be able to determine important in the work of NADOs. It seems to me that the the appropriate sanction. And because of the Strict liability revisions will help us considerably in all cases where ath- letes or other persons need reassurance that an agreed-upon principle that applies to the burden of proof in cases with Adverse Analytical Findings, NADOs have not focused reduction of sanctions will be respected ‘no matter what’. very much on the establishment of ‘intent’, simply because At the same time, more information will become available under the previous Codes it was not relevant for the out- that may help us in uncovering and prosecuting other anti- come of most cases. doping rule violations. In the case of non-speciﬁed substances, it is now up to the athlete to prove that the violation was not intentional, 2.3 Proportionality and human rights and in the case of speciﬁed substances it is up to the (N)ADO to prove intent. This is new, and our current I can be quite short here: I have not identiﬁed a single practice shows that this kind of evidence is very hard to consequence of this Theme for the NADO that I work for, deliver for both parties. As a consequence, 4-year sanctions and I can hardly imagine that other developed NADOs will have been imposed rather matter-of-factly until now in see this differently. This is not because this Theme is not cases where non-speciﬁed substances are involved. And important (quite the contrary), but because NADOs do not such severe sanctions will remain common if non-speciﬁed need extra encouragement in order to ensure that propor- substances are detected, but they will be quite rare in other tionality and human rights are taken into consideration on cases. No doubt, jurisprudence will be developed that will an everyday basis. And because—at least in Europe—data help to assess speciﬁc situations, but for most cases the protection issues and the related issues of public disclosure and the protection of minors are primarily governed by legislation, not by the Code. WADA, Document on the Signiﬁcant Changes Between the 2009 Code And the 2015 Code, Version 4.0, https://wada-main-prod.s3. amazonaws.com/wadc-2015-draft-version-4.0-signiﬁcant-changes-to- 2009-en.pdf, accessed 22 April 2016. 123 Int Sports Law J (2016) 16:99–117 103 2.4 Investigations and intelligence the long run, however, ‘Intelligence and Investigations’ will probably have a signiﬁcant impact on the effectiveness Indeed, the development of ‘Intelligence and Investiga- of doping control programs, which will not really become tions’ is one of the major issues that quite a few NADOs ‘smarter’ (more brain power has been invested in the are dealing with now. In less than 2 years’ time, more than testing programs under the 2003 and 2009 Codes than most a dozen NADOs have attracted new staff for this purpose, people can imagine), but certainly more ‘targeted’ and and cooperation between NADOs (and some IFs) in this tailor-made. This may be an equally important effect of ﬁeld is gradually developing, at a pace that is primarily ‘Intelligence and Investigations’ as collecting evidence. determined by taking care of the legal side of things. The The extension of the statute of limitations (Article 17) to Code revision has not initiated this development, but it 10 years will not make a big difference in numbers, but the certainly conﬁrms and strengthens it. And we are well cases where this extension pays off, will for a large part be aware that Intelligence has played a major role in practi- the kind of cases that we ﬁnd especially important to bring cally all cases (old and recent) where large-scale, orga- to justice. There is a downside to this as well, of course, nized, doping practices have been uncovered. Which does and one of the aspects that I have not seen mentioned often not mean that we are all prepared for this kind of thing… is the fact that relevant samples will have to be stored for First of all, it is necessary to develop and sign bilateral another 2 years, which will lead to additional costs. Few cooperation agreements in which the preconditions for people realize how expensive the storing of samples—un- sharing information between (N)ADOs are deﬁned. I have der the right conditions—is. signed several, and there are more to come. But it is also necessary to start and develop a cooperation with customs 2.5 Athlete support personnel (ASP) and law enforcement agencies, and this kind of cooperation needs even more legal preparation in order to be successful This part is closely connected to Sect. 2.4, because anti- (or just possible). Indeed, information sharing with gov- doping rule violations by Athlete Support Personnel cannot ernment agencies is just as logical as it is complicated in be proven by the traditional means of proof of ADOs, i.e., practice. the analysis of urine and blood samples. There can be no I do not know one NADO that does not feel the need for doubt that catching those coaches and doctors that supply cooperation with law enforcement agencies. And that fact, and administer doping to the athletes must be a high pri- supported by the revised Code, means that NADOs are ority for NADOs. We are well aware that athletes do not slowly but surely getting better acquainted with government function in a vacuum. As a consequence, NADOs will agencies. It is my opinion that several legislation proposals in dedicate a considerable part of their ‘Intelligence and various countries in Europe illustrate this development Investigations’ capacity to ASP. A rise in the number of nicely. Countries which have done without speciﬁc anti- cases where ASP is involved can be predicted, although— doping legislations for years—including my own country— unfortunately—a huge effect is unlikely. Not only because are now working on legal measures that aim to facilitate a these cases will always be hard to prove (no matter what) close(r) cooperation between governments and (N)ADOs (in but also because large groups of ASP are not (properly) line with the expansion of Article 22.2 in the 2015 Code). bound by anti-doping regulations. The seriousness of this The investigative powers of Intelligence Ofﬁcers of problem varies per country and per sport (discipline), and NADOs on the one hand, and law enforcement agents on the the problem may—at least partly—be solved through leg- other hand, are wide apart. In most countries, an Intelligence islation. But in my own country, I do not see how the Code Ofﬁcer has no other rights than any citizen, while there are revision will help the NADO in prosecuting ASP, unless elaborate laws that deﬁne and regulate what law enforcement and until we manage to ﬁnd ways to sufﬁciently bind all ofﬁcers may and may not do. The gap between the two has to relevant ASP to our rules. be narrowed, in order to facilitate and stimulate further The new anti-doping rule violation ‘Prohibited Associ- cooperation. Which means that Intelligence Ofﬁcers will ation’ brings us some serious new challenges, I think. One need to have speciﬁc authorizations that enable them to do of them being the burden of proof, which often will not be their job within sport, but without becoming law enforce- easy to discharge. Here again, ‘Intelligence and Investi- ment ofﬁcers themselves. The solutions will be different per gations’ will play a crucial role. But even if it can be country, but the common factor will be that NADOs will proven that an athlete is working with an ineligible coach, have more tools to fulﬁll their tasks. trainer or doctor, there may be several legal challenges if Apart from these legislative and regulatory develop- the ineligible person has a private practice outside orga- ments, which open doors that have been ﬁrmly closed until nized sport, and working with athletes is the livelihood of now in many countries, there are not many’ quick wins’ to that person. be expected because of ‘Intelligence and Investigations’. In 123 104 Int Sports Law J (2016) 16:99–117 2.6 Smart testing and analyzing 2.7 International federations and NADOs As I mentioned above (see 2.4) ‘Intelligence and Investi- Another development that is not initiated by the Code gations’ will probably have a signiﬁcant positive impact on revision—but certainly is supported and accelerated by it— the effectiveness of doping control programs. However, it is the improvement of NADO–IF cooperation. The revised remains to be seen whether this effectiveness will show in Code clariﬁes and solves several of the problems that we terms of the detection of more anti-doping rule violations, have experienced with the 2009 Code. Examples are the or in a better deterrence. Whichever it will be, a conse- control of therapeutic use exemptions (Article 4.4), the quence of the development towards more targeted and testing authority during international events (Articles 5.3, tailor-made testing and analyzing, is that the price of 5.2.6 and 7.1.1), and the coordination of whereabouts testing will go up. Tailor-made testing means more indi- failures (Article 7.1.2). All these changes are vidual testing, on odd hours, in (sometimes) strange places. improvements. This is—no surprise—considerably more expensive than However, cooperation is more in the soul than it is in the testing a number of players at random after a training rules, and we must acknowledge and accept that there are session of a team. relevant differences between NADOs on the one hand and On top of that, the Technical Document for Sport Speciﬁc IFs on the other hand, in terms of culture, position and Analysis that has been developed after the implementation tradition. WADA has created Ad Hoc Working Groups of of the revised Code (based on Article 6.4 of that Code), NADOs and IFs separately, and these groups have made prescribes a minimum percentage of additional analyses per inventories of existing problems that are subsequently sport discipline, with even more cost increase as a conse- brought to the table in joint meetings. The Articles in the quence. Some NADOs have managed to get additional Revised Code that underline the need for better cooperation funding in relation to these new requirements, but most of us will have no meaning if we stay separated in two worlds. have not (and not many of us foresee a budget increase in the But the impact will be huge, if and when we beneﬁt from near future). So the global number of tests performed by each other’s knowledge and experience. And although I am not an optimist by nature, I am pretty sure that this will NADOs will in all likelihood decrease. Whether this decrease in numbers will be acceptable, work out ﬁne. depends on the value added by the additional analyses that are now performed. If less tests bring more proof, then it is 2.8 A clearer and shorter code a good development. However, for the time being, there is no way to tell. And it is predictable that decreasing num- I think it is obvious that this goal is quite ambitious, and I bers of tests (the number of tests performed being the most can only regretfully conclude that the revised Code is commonly used measuring stick to assess the performance neither clearer, nor shorter than the 2009 version. The Code of a NADO) will generate critical questions about how is the most important legal tool in the anti-doping world, serious we take the ﬁght against doping in sport. and both lawyers and administrators may (and do) delight While I am writing this contribution, we are in the in the fact that the Code has proven to be an indispensable middle of the ‘IAAF controversy’, following the leakage of tool in our toolkit. It is, however, not a tool for athletes conﬁdential information to the media, and the subsequent (except for those who are also lawyer or administrator) and publication of sensitive data. I am not in the position to it will never be. Clarity about the rules is delivered by the comment on what exactly is right and wrong in this case (I Education departments of NADOs, in the form of numer- simply do not know), but I do know that the IAAF anti- ous publications, leaﬂets, manuals and (more and more) doping program is ‘smarter’ than most, and that it can show digital tools. And it is my personal opinion that there is not results that few IFs can. Nonetheless, the public discussion much wrong with accepting that the Code is not meant to is focusing on what has not been accomplished with all educate athletes, but to protect them. these data. So the large amounts of data that become available through ‘smart’ testing and elaborate biological 2.9 Miscellaneous passport programs, may become a burden instead of a blessing if the burden of proof is not reached in too many It is difﬁcult to choose what other aspects of the revised cases. Which—I fear—may be the case. Code are worth mentioning here. Let me name only a few. The new possibility for an athlete to return to training during the last part of the period of ineligibility imposed on WADA, Technical Document of 7 December 2015 for Sport him (Art. 10.12.2), is—in my opinion—a balanced com- Speciﬁc Analysis—TD2014SSA, https://wada-main-prod.s3.amazo promise between the need to fully execute sanctions, and naws.com/resources/ﬁles/wada-tdssa-v2.3_en.pdf, accessed 22 April the interests of team members that have not been 123 Int Sports Law J (2016) 16:99–117 105 sanctioned themselves. However, this reﬁnement of the discusses the avenues open to an Athlete to compete while sanction regime further complicates the task that has been a under treatment, namely by applying for a Therapeutic Use burden for many NADOs for years already: how to monitor Exemption (‘‘TUE’’) or, in some cases, navigating the that sanctions are observed correctly and fully. This mon- provisions governing conditionally prohibited substances. itoring task usually cannot be fulﬁlled without the help of The second part addresses the consequences in case an sport federations and clubs, and—to a certain extent— Athlete should fail to take the proper avenues. This piece fellow athletes. Publicly known elite athletes will hardly closes with observations regarding the current system in have an opportunity to violate their sanction without being light of one of the pillars of the anti-doping movement: the ‘caught’, but for lesser gods the situation is different, which Athlete’s health. fact collides with the Level playing ﬁeld that we want to achieve. 3.2 Obtaining clearance to compete—therapeutic Article 6.5 of the revised Code addresses the storing of use exemptions and conditional prohibitions samples for further analysis. It is good that these rules are now clariﬁed, because it is to be expected that the per- 3.2.1 Amendments to procedural requirements centage of samples that are stored for future analysis will for granting a TUE rise over the years. The revised rules are meant to do justice to both the athlete and the (N)ADO and I think they An Athlete undergoing medical treatment that involves a actually do that, although I am sure that both NADOs and Prohibited Substance must seek a TUE from the competent athletes will disagree in any particular case they are Anti-Doping Organisation (‘‘ADO’’). The 2015 regime involved in. preserves the ‘‘national vs international’’ distinction that The importance of the explicit wording of the Articles existed under the previous rules. The basic principle is that 20.4.3 and 22.6 that address the need for NADOs to be free International-Level Athletes request TUEs from their from interference in our operational decisions, cannot be International Federation, while National-Level Athletes overestimated. Anti-doping issues can get a lot of attention request TUEs from their National Anti-Doping Organisa- in the media, and that may or may not lead to unleashing tion (‘‘NADO’’). During the consultation process leading certain political powers. In my country, parliamentary to the 2015 Code, recommendations were made for an questions have been asked about speciﬁc doping cases on international independent TUE Committee that would several occasions. Thankfully, in no case this has led to grant TUEs in a centralised manner. No such system has actual interference in our work, but it is very good that the been introduced at this point, but the 2015 revision does Revised Code is there to ward off such interference in take steps to ease the procedural burden and enhance countries where this may be necessary. clarity for those Athletes whose competition schedule would require multiple TUEs (e.g., those transitioning from national-level competition to international-level competi- 3 The ‘‘Athlete Patient’’ and the 2015 Code: tion). In particular, the 2015 Code and 2016 International competing under medical treatment Standard for Therapeutic Use Exemptions (‘‘ISTUE’’): • Provide a streamlined process for Athletes seeking 3.1 Introduction international recognition of a national-level TUE. These Athletes are now relieved from having to go Doping often involves the illegitimate use of a therapeutic through a whole new application process if they already product. Indeed, many Prohibited Substances and Methods have the beneﬁt of a TUE granted by their NADO: they are pharmaceutical innovations that are or have been can have the TUE ‘‘recognised’’ by the International developed to serve legitimate therapeutic purposes. Much Federation, which ‘‘must’’ grant such recognition if the is being done within the anti-doping movement to coordi- TUE is in compliance with the ISTUE. nate efforts with the pharmaceutical industry in order to • Encourage the automatic recognition of TUEs. ISTUE prevent abuse of drugs that have been discontinued or are 7.1 encourages International Federations and Major still in development phase. At the other end of the spec- trum, some Athletes may require legitimate medical treat- ment and wish to receive that treatment without being Article 4.4.4 of the 2015 Code further addresses the right for Major Event Organisations to provide speciﬁc requirements for their events; forced to give up their sports activities. for more details, see Rigozzi et al. (2013), n 173 et seq. This post takes a cursory look at how the 2015 Code WADA, Document on the International Standard for Therapeutic tackles these issues and provides a summary of the main Use Exemptions (ISTUE), https://wada-main-prod.s3.amazonaws. changes that affect the modalities for Athletes to receive com/resources/ﬁles/WADA-2015-ISTUE-Final-EN.pdf, accessed 22 medical treatment after the 2015 revision. The ﬁrst part April 2016. 123 106 Int Sports Law J (2016) 16:99–117 Event Organisers to declare automatic recognition of blockers in shooting and lack of additional perfor- TUEs, at least in part—e.g., those granted by certain mance-enhancement. selected other ADOs or for certain Prohibited • Declares standard of proof as a ‘‘balance of probabil- Substances. ity’’. An explicit reference to the requisite standard of proof to establish these substantive criteria—a balance Another key procedural change reﬂected in the 2015 of probability—was only added in the most recent revision is an increased storage time for application data, in revision of the ISTUE. This solution is in line with the accordance with the extended statute of limitation period Code and general principles of evidence in that it for initiating anti-doping proceedings from 8 to 10 years mirrors the general provision for establishing facts (revised Article 17 of the 2015 Code). During the TUE related to anti-doping rule violations when the burden process, the application must include the diagnosis as well of proof is on the Athlete, set forth in Article 3.1 of the as evidence supporting such diagnosis. This sensitive 2015 Code. medical data is newly stored for 10 years under the revised • Allows retroactive TUEs for ‘‘fairness’’ reasons. As a 2015 regime for the approval form (versus 8 years under rule, TUEs must be obtained prior to using the the 2009 regime). All other medical information may be Prohibited Substance or Method (ISTUE 4.2). Excep- kept for 18 months from the end of the TUE validity. tionally, a TUE may be granted with retroactive effect, which mostly concerns lower-level Athletes for whom 3.2.2 Amendments to substantive requirements the applicable anti-doping rules accept such possibility for granting a TUE (Article 4.4.5 of the 2015 Code), or for emergency situations (ISTUE 4.3). The 2016 ISTUE allows for the The requirements to receive a TUE were slightly adapted possibility to grant a retroactive TUE if WADA and the for the 2015 ISTUE—but not in a manner that would relevant ADO agree that ‘‘fairness’’ so requires. The signiﬁcantly alter the assessment—and remain unchanged scope of this new exception remains unclear. A recent in the 2016 ISTUE. In short, the TUE Committee must ﬁnd award rejected an Athlete’s plea that he did not that the following four criteria are fulﬁlled: ‘‘timeously’’ request a TUE based on ignorance of the 1. Signiﬁcant impairment to the Athlete’s health if the system. One may wonder whether fairness-related substance or method were withheld; reasons could offer a solution for situations of venire 2. Lack of performance enhancement beyond a return to a contra proprium factum, i.e., when the Athlete received normal state of health through the use of the substance assurance from a competent ADO that the substance or or method; method was not prohibited and the latter could thus 3. Absence of any other reasonable therapeutic alterna- reasonably be considered estopped from pursuing a tive, and; violation based on a subsequent positive test. 4. Necessity for use not a consequence of prior use without a valid TUE. With regard to the manner in which these criteria operate, the 2016 ISTUE: • Places the burden of proof on the Athlete. The 2015 ISTUE received an explicit addition that conﬁrms and See Rigozzi A, Viret M, Wisnosky E, ‘‘The ISSF v. WADA CAS codiﬁes the interpretation of the CAS panel in the Award: Another Therapeutic Use Exemption Request for Beta recent ISSF v. WADA award (Article 4.1, in initio): ‘‘An Blockers Shot Down’’, Anti-Doping Blog, 10 August 2015, http:// Athlete may be granted a TUE if (and only if) he/she wadc-commentary.com/issf-v-wada/, accessed 22 April 2016. can show that each of the following conditions is met’’ Ibid. (emphasis added). While a welcome addition for legal CAS 2014/A/3876, Stewart v. FIM, Award of 27 April 2015. See, for a detailed analysis, see our comment on the Stewart CAS Award predictability, the hurdle for the Athlete to overcome is in Rigozzi, Viret, Wisnosky (2015), p. 61 et seq. high and can lead to nearly insurmountable evidentiary The Prohibited List is an ‘‘open list’’, which means that simply situations, such as in ISSF v. WADA regarding beta- consulting the list does not always provide a conclusive answer as to whether a particular substance or method is prohibited. Prohibited Methods (‘‘M’’ classes) need by their very nature to be described in See, for example, ISTUE, Annex 2. somewhat general scientiﬁc terms that always leave a certain room for See WADA, Document on the International Standard for the interpretation (see, for example, CAS 2012/A/2997, NADA v. Y, Protection of Privacy and Personal Information, Annex A, https:// Award of 19 July 2013). For substances (‘‘S’’ classes), the precision wada-main-prod.s3.amazonaws.com/resources/ﬁles/WADA-2015- of the description of the prohibition under the Prohibited List varies ISPPPI-Final-EN.pdf, accessed 22 April 2016. depending on the substance at stake. 123 Int Sports Law J (2016) 16:99–117 107 3.2.3 Transparency for conditionally prohibited other situations, it ought to be sufﬁcient for the Athlete substances to present credible explanations (e.g., listing the substance on the Doping Control form ) that the Only minor changes were made in the 2015 revision in the Prohibited Substance originated from an authorised context of conditionally prohibited substances. Some cat- Use. The burden of proof ought then to be on the ADO egories of Prohibited Substances are widely used to treat to convince the hearing panel to a comfortable satisfac- minor conditions, including in the context of sports medi- tion (Article 3.1 of the 2015 Code) that a prohibited cine. Moreover, their effects on the Athlete may depend on Use occurred. the mode of use. Thus, the Prohibited List prohibits the • Prefers short-cut procedures to transparency. The following substances only conditionally: International Standard for Laboratories (‘‘ISL’’) intro- duces the ‘‘Presumptive Adverse Analytical Finding’’ • Certain Beta-2 agonists (class S.3)—e.g., Salbutamol, to promote procedural economy by allowing a labora- which is the active ingredient of ‘‘Ventolin’’ and is tory to enquire with the Testing Authority whether a widely used to treat asthma in endurance sports. TUE exists prior to the conﬁrmation step of the A ‘‘Limits of use’’ have been determined that are deemed Sample for a S.3 or S.9 class substance (normally the to reﬂect an acceptable therapeutic use of the presence of a TUE is determined after report of the substance. Adverse Analytical Finding, during the initial review • Glucocorticoids (class S.9), which have been the by the ADO). The revised 2015 regime maintains this subject of debates for their use in sports medicine, are pragmatic solution, but seeks to foster transparency in prohibited only when administered by certain routes order to avoid this short cut from being abused by (oral, intravenous, intramuscular or rectal). A contrario ADOs to stop cases from going forward. The 2015 ISL all other routes of application are permitted. makes it explicit that any such communication and its These categories require adjustments for establishing an outcome must be documented and provided to WADA anti-doping rule violation compared to the standard regime, (ISL 5.2.4.3.1.1). as the ﬁnding of a violation calls for information beyond the mere detection of the substance. Unless a distinctive 3.3 Sanctions for legitimate medical treatment trait for dosage or route of administration can be identiﬁed without a TUE directly during Sample analysis, the information must be gathered during results management and generally sup- An Athlete who is undergoing legitimate medical treatment poses explanations from Athletes regarding the causes that that involves a Prohibited Substance but does not have a led to the ﬁndings. In particular, for these types of sub- TUE might—if tested—return an Adverse Analytical stances, the 2015 Code: Finding. As mentioned above, an anti-doping violation • Applies a different burden of proof. Whereas the burden cannot be invalidated for reasons of legitimate medical is on the Athlete to show that the criteria for a TUE are treatment, save in certain exceptional circumstances where realised (see above), or to demonstrate the origins of the system allows for a retroactive TUE or for authorised the analytical ﬁndings to obtain a reduced sanction Use of S.3 and S.9 class substances. Thus, Athletes will (Article 10 of the 2015 Code), for S.3 and S.9 typically ﬁrst turn to the options in the sanctioning regime substances proving dosage and/or route of administra- to reduce or eliminate the sanction for Fault-related rea- tion is part of the requirements for a violation. A sons. The success of this effort varies considerably from speciﬁc allocation of the burden to the Athlete is only case-to-case, with no clear pattern emerging in the CAS provided in the Prohibited List for ﬁndings of Salbu- jurisprudence. tamol and Formoterol above a certain Threshold. In all The 2015 WADC has not improved the clarity of the situation for violations involving legitimate medical Not to be confused with a Threshold concentration in the Sample. Only Salbutamol and Formoterol currently have a form of Threshold The standard Doping Control Form and ISTI 7.4.5 (q) invite with a Decision Limit (in TD2014DL), beyond which the ﬁnding is Athletes to disclose all recent medication, supplements and blood presumed not to result from a therapeutic use and the Athlete needs to transfusions (for blood sampling). On the legal implications of this produce an administration study to invalidate the Adverse Analytical disclosure, see Viret (2015), p. 573 et seq. Finding. On the imprecise use of the term TUE, see Viret (2015), p. 379 et New terminology under the 2015 Prohibited List. Up to the 2014 seq. ADOs would rely in practice on Athlete declarations on the List, ‘‘glucocorticosteroid’’. Doping Control Form. The 2015 WADA Results Management In particular, by ﬁnding Metabolites that differ depending on the Guidelines encourage ADOs to contact the Athlete to enquire about route of administration. A solution codiﬁed e.g. in the revised the route of administration if there is no TUE on the record TD2014MRPL, Table 1, for the glucocorticoid budesonide. (Sect. 3.4.2.2). 123 108 Int Sports Law J (2016) 16:99–117 treatment, unless contamination is involved. In the 2009 related reasons. If they were to fail, they face a strict WADC, if Athletes were ‘‘fortunate’’ enough to have 4-year period of Ineligibility, which could raise propor- inadvertently Used a Speciﬁed Substance then the Panel tionality concerns for this type of violation. had the ﬂexibility to settle on a sanction ranging from a The Fault-related reductions in the 2015 WADC, like reprimand and no period of Ineligibility, up to a 2-year those in the 2009 WADC, rest in an interpretive grey area period of Ineligibility; if the Prohibited Substance was not for violations arising from legitimate medical use. A a Speciﬁed Substance, the shortest period of Ineligibility sanction can be reduced for Fault-related reasons if the available was 1 year. This raises questions of fairness, Athlete can establish a factual scenario that is accepted to since violations under similar factual circumstances, and reﬂect no fault or negligence, or no signiﬁcant fault or with similar levels of fault are punished with very different negligence. On one hand, it is well-established that medi- sanctions. The 2015 WADC remedied this disparate cations often contain Prohibited Substances, thus panels treatment when the violation involves a Contaminated expect a high-level of diligence from an Athlete to avoid a Product. No analogous exception to receive a facilitated violation arising from medications. Thus, these types of reduction in the case of legitimate medical treatment is violations often are committed with a high level of negli- available, even though similar policy arguments could also gence at least bordering on ‘‘signiﬁcant’’ and at times be lodged in this context. approaching ‘‘reckless’’. As to the level of Fault, CAS Before Athletes can seek to establish a Fault-related panels are not consistent. One CAS panel found that a reduction, newly under the 2015 WADC they must ﬁrst legitimate medical Use of a Prohibited Substance that avoid a ﬁnding that the violation was committed ‘‘inten- could have been (and eventually was) excused by a TUE tionally’’. This prospect poses interpretational issues for can implicate only a low-level of Fault, whereas others medications. According to the deﬁnition in WADC have come to the opposite conclusion, holding that the 10.2.3, ‘‘the term ‘intentional’ is meant to identify those (alleged) ‘‘legitimate therapeutic use’’ of a medication was Athletes who cheat.’’ However, the core of the deﬁnition ‘‘irrelevant’’, and contributed to the Athlete’s signiﬁcant deﬁnes ‘‘intentional’’ conduct as encompassing both level of Fault. In light of these different characterisations, knowing and reckless behaviour. Since the violations it is difﬁcult to predict how a panel would sanction these considered in this article involve the knowing administra- violations under the 2015 Code. tion of a medication, it can be expected that Athletes will rely on the reference to ‘‘cheating’’ to argue that their conduct falls outside of this deﬁnition. If they were to succeed with this line of argumentation before hearing Article 10.2.1 places the burden of proof to establish that the panels, then their basic sanction starts at a 2-year period of violation was not ‘‘intentional’’ on the Athlete if the violation did not Ineligibility that is subject to further reduction for Fault- involve a Speciﬁed Substance, and on the Anti-Doping Organisation to establish that the violation was ‘‘intentional’’ if the violation did involve a Speciﬁed Substance. See also our comment on the Stewart CAS award, Supra (35). See, for example CAS 2014/A/3876, Stewart v. FIM, para. 79; See A new provision (WADC 10.5.1.2) allows for these types of also, CAS 2012/A/2959, WADA v. Nilforushan, Award of 30 April violations to be subject to a ﬂexible 0–2 year period of Ineligibility, 2013, para. 8.21. In rare cases, Athletes have been able to establish No regardless of the type of substance involved. Fault or Negligence under very speciﬁc circumstances. See, for ‘‘Intentional’’ violations draw a four-year period of Ineligibility, example CAS 2005/A/834, Dubin v. IPC, Award of 8 February 2006. whereas non-‘‘intentional’’ violations start with a two-year basic See, for example, CAS 2014/A/3876, Stewart v. FIM, para. 84 sanction. Only non-intentional violations are subject to further where the CAS panel held that the Athlete’s level of Fault must be reduction for Fault-related reasons. See, more generally, on inten- considered ‘‘light’’ where he was prescribed the medication by a tional doping, the piece by Howard Jacobs in this Blog Symposium. doctor and later obtained a TUE. See also CAS 2011/A/2645, UCI v. Article 10.2.3 ab initio: ‘‘As used in Articles 10.2 and 10.3, the Kolobnev, Award of 29 February 2012, paras. 87–90, which does not term ‘intentional’ is meant to identify those Athletes who cheat. The speciﬁcally address the possibility of obtaining a TUE, but conﬁrmed term, therefore, requires that the Athlete or other Person engaged in a ﬁrst instance decision (after weighing a list of factors) that a conduct which he or she knew constituted an anti-doping rule Prohibited Substance taken for purposes unrelated to sport perfor- violation or knew that there was a signiﬁcant risk that the conduct mance, and upon medical advice fell at ‘‘the very lowest end of the might constitute or result in an anti-doping rule violation and spectrum of fault’’. manifestly disregarded that risk’’. See, for example, the ITF Independent Anti-Doping Tribunal, ITF For a discussion of the expected role of the term ‘‘cheat’’ in v. Nielsen, Award of 5 June, that found that it is not relevant ‘‘whether establishing that a violation was ‘‘intentional’’, see Rigozzi et al. the player might have been granted a therapeutic use exemption’’. See (2015a, b). On a related note, an argument akin to those made in the also CAS 2008/A/1488, P. v. ITF, Award of 22 August 2008, para. 19, Oliveira/Foggo line of cases under the 2009 Code could also arise which found it of ‘‘little relevance to the determination of fault that here: If Athletes do not have actual knowledge that their medications the product was prescribed with ‘professional diligence’ and ‘with a contain a Prohibited Substance, would purposefully consuming the clear therapeutic intention’’’. These cases were both referenced in product still be considered ‘‘intentional’’? CAS 2012/A/2959, WADA v. Nilforushan, para. 8.20. 123 Int Sports Law J (2016) 16:99–117 109 3.4 Conclusion—remember health considerations of their privacy for the sake of clean sport, it might be behind anti-doping desirable to explore paths through which clean sport might wish to pay these Athletes back by providing them and Athletes do not have it easy when it comes to reconciling their physicians with an additional source of data on health necessary medical treatment with high-level competition in matters, an aspect of Athlete’s lives that is always on the sport. The conditions for claiming the right to compete brink of being endangered in elite sports. despite Use of a Prohibited Substance or Method are stringent, and the procedure at times is burdensome. There is no doubt that the system must strictly monitor any 4 ‘‘Proof of intent (or lack thereof) under the 2015 possible abuse of medical treatment as a cover-up for World Anti-Doping Code’’ doping attempts. Nevertheless, this system should not escalate into penalising Athletes who had a legitimate need Historically, under the anti-doping rules of most organi- for treatment and resorted in good faith to such treatment, zations (including the WADC), the concept of ‘‘strict lia- especially since in many cases the performance-enhancing bility’’ has meant that the proof of intent (or lack thereof) effects of the Use of a Prohibited Substance or Method are was irrelevant to the issue of whether or not the athlete has hypothetical at most. violated the anti-doping rules. However, so long as the The current system requires considerable Athlete rules provide for sanction ranges instead of a set sanction transparency in matters related to their health. The TUE for all offenses, the issue of intent to dope has always been process is not the only context in which Athletes may have somewhat relevant to the issue of sanction length. The to reveal information about medical conditions and/or 2015 WADC, with its potential 4-year sanctions for a ﬁrst ongoing treatment for these conditions. Apart from the violation based on whether or not the anti-doping rule disclosure of medication and blood transfusion that Ath- violation was intentional, will make the question of intent letes are required to make on the Doping Control form, the an important issue in virtually every anti-doping case. This anti-doping proceedings themselves may bring to light article analyzes these new rules allowing for 4-year sanc- information about medical conditions affecting the Athlete. tions for a ﬁrst violation, in the context of how intent (or This may occur either because the Athlete is bound to lack of intent) will be proven. reveal information to build a defence, or because the detection system itself may uncover collateral data indi- 4.1 Why intent matters under the 2015 World Anti- cating a pathology—known or unknown to the Athlete. Doping Code In return for these expectations, the anti-doping move- ment must keep in mind one of its key stated goals—the It should be remembered that under the 2015 WADC intent protection of the Athlete’s health—when regulating mat- is still irrelevant to the issue of whether or not an athlete ters implicating legitimate medical treatment. This pro- has committed an anti-doping rule violation. This is clear tection must include efforts to avoid the Athlete from the Comment to Article 2.1.1: ‘‘An anti-doping rule inadvertently committing an anti-doping rule violation violation is committed under this Article without regard to while under therapeutic treatment, which may include an Athlete’s Fault. This rule has been referred to in various more systematic labelling of medication with explicit CAS decisions as ‘‘Strict Liability’’. An Athlete’s Fault is warnings. The attentiveness to the Athlete’s health, how- taken into consideration in determining the Consequences ever, could go beyond these efforts and exploit the data of this anti-doping rule violation under Article 10. This collected as part of Doping Control also for the beneﬁt of principle has consistently been upheld by CAS.’’ the Athlete. The current regime already allows for sus- Article 10 of the WADC—dealing with length of pected pathologies detected on the occasion of Doping sanction, has always taken ‘‘intent’’ into account in deter- Control to be communicated to the Athlete on certain mining whether or not a sanction should be reduced. In speciﬁc aspects. As Athletes agree to disclose large parts other words, a sanction that would ordinarily be 2 years See, as a prominent example, the Claudia Pechstein saga with Footnote 52 continued respect to the explanations—doping or rare pathology?—for her Guidelines and Compilation of Required Elements, https://wada- abnormal blood values. main-prod.s3.amazonaws.com/resources/ﬁles/wada-abp-operating- guidelines-v5.0-en.pdf, accessed 22 April 2016. See WADA, Guidelines for Reporting and Management of Human Chorionic Gonadotrophin (hCG) and Luteinizing Hormone (LH) See, for example, 2015 WADC Art. 10.4: ‘‘if an athlete or other Findings in male athletes, https://wada-main-prod.s3.amazonaws. Person establishes in an individual case that he or she bears no fault or com/resources/ﬁles/wada-guidelines-hcg-lh-ﬁndings-v2.0-2015-en. negligence, then the otherwise applicable period of Ineligibility shall pdf, accessed 22 April 2016; as well as the recommendations for ABP be eliminated’’; and Art. 10.5 on the Reduction of the Period of expert review in WADA, The Athlete Biological Passport Operating Ineligibility based on No Signiﬁcant Fault or Negligence. 123 110 Int Sports Law J (2016) 16:99–117 could be reduced to no sanction where the athlete had no 4.2 How will the NADO/IF prove ‘‘intent’’ in cases fault or negligence whatsoever, or could be reduced to involving ‘‘speciﬁed substances’’? some degree if the athlete was not signiﬁcantly at fault or negligent. In this way, intent is indirectly relevant to the Many older CAS cases have discussed the difﬁculty that a NADO or IF faces in proving that an athlete ‘‘intended’’ to issue of how much, if at all, an otherwise applicable sanction (sometimes referred to as the ‘‘default sanction’’) use a prohibited substance, in their discussions of the jus- tiﬁcation of the ‘‘strict liability’’ rule. could be eliminated or reduced. This is because an athlete who can prove that he or she did not intend to violate the While this difﬁculty in proving that an athlete ‘‘in- tended’’ to use a prohibited substance to enhance their sport anti-doping rules would be much more likely to establish a lack of signiﬁcant fault or negligence in committing the performance has not changed in theory, it has changed in violation in the ﬁrst place. practice with the deﬁnitions that WADA provided for Now, however, the 2015 WADC makes the issue of proving ‘‘intent’’ within the meaning of Art. 10.2.1 of the intent directly relevant to the ﬁrst issue of the length of the 2015 WADC. Speciﬁcally, Art. 10.2.3 now provides the default sanction itself. Therefore, intent is now not only following deﬁnition of ‘‘intent’’: relevant to the issue of reducing the default sanction, but is ‘‘As used in Articles 10.2 and 10.3, the term ‘‘in- also relevant to the threshold issue of what the default tentional’’ is meant to identify those athletes who sanction is in the ﬁrst place. cheat. The term, therefore, requires that the athlete or Speciﬁcally, Art. 10.2.1 of the 2015 WADC provides: other Person engaged in conduct which he or she ‘‘The period of Ineligibility shall be 4 years where: knew constituted an anti-doping rule violation or knew that there was a signiﬁcant risk that the conduct 10.2.1.1 The anti-doping rule violation does not involve a Speciﬁed Substance, unless the athlete or might constitute or result in an anti-doping rule vio- lation and manifestly disregarded that risk. An anti- other Person can establish that the anti-doping rule violation was not intentional. doping rule violation resulting from an adverse ana- lytical ﬁnding for a substance which is only prohib- 10.2.1.2 The anti-doping rule violation involves a Speciﬁed Substance and the anti-doping organization ited In-Competition shall be rebuttably presumed to can establish that the anti- doping rule violation was be not ‘‘intentional’’ if the substance is a Speciﬁed intentional.’’ Substance and the athlete can establish that the Pro- hibited Substance was used out-of-Competition. An Art. 10.2.2 of the 2015 WADC goes on to state that ‘‘if anti-doping rule violation resulting from an adverse Article 10.2.1 does not apply, the period of Ineligibility analytical ﬁnding for a substance which is only pro- shall be 2 years.’’ Therefore, under the 2015 WADC, the hibited In-Competition shall not be considered ‘‘in- default sanction is determined as follows: tentional’’ if the substance is not a Speciﬁed Substance and the athlete can establish that the Pro- 1. Where the violation does not involve a ‘‘Speciﬁed Substance’’, the default sanction is 4 years unless the hibited Substance was used out-of-Competition in a athlete can prove that the violation was ‘‘not inten- context unrelated to sport performance.’’ tional’’; if the athlete meets this burden of proving Therefore, for the purpose of proving ‘‘intent’’ within ‘‘lack of intent’’, then the default sanction is 2 years. the meaning of WADC Art. 10.2.1, in the case of Speciﬁed 2. Where the violation involves a ‘‘Speciﬁed Substance’’, Substances, the NADO/IF can meet its burden by proving the default sanction is 2 years unless the National Anti- simply that the athlete engaged in conduct where the ath- Doping Organization (‘‘NADO’’) or the International lete ‘‘knew that there was a signiﬁcant risk that the conduct Federation (‘‘IF’’) can prove that the violation was might constitute or result in an anti-doping rule violation ‘‘intentional’’; if the NADO or IF meets this burden of and manifestly disregarded that risk.’’ However, practical proving ‘‘intent’’, then the default sanction is 4 years. realities of this ‘‘proof’’ must be considered against the In either case, ‘‘intent’’ is now directly relevant to the following questions: length of the default sanction; the only difference is who 1. How will this deﬁnition of ‘‘intent’’ contained in bears the burden of proving ‘‘intent’’ or ‘‘lack of intent’’, WADC Art. 10.2.3 be read in connection with the depending on whether or not the substance involved is a Speciﬁed Substance. See, for example, CAS 95/141, C. v. FINA in Reeb (2001), p. 220, par. 13: ‘‘Indeed, if for each case the sports federations had to prove the intentional nature of the act (desire to dope to enhance one’s performance) in order to be able to give it the force of an offence, the ﬁght against doping would become practically impossible’’. 123 Int Sports Law J (2016) 16:99–117 111 seemingly contradictory comment to 2015 WADC Art. test, which low levels would be inconsistent with the 4.2.2 that speciﬁed substances are ‘‘substances which purposeful use of the stimulant ‘‘in Competition’’, as are more likely to have been consumed by an Athlete sufﬁcient proof of out-of-Competition use? for a purpose other than the enhancement of sport (b) Will arbitral tribunals accept a polygraph ﬁnding that performance’’? the athlete was truthful in stating that he did not use 2. How will an athlete who knowingly takes a ‘‘risky the prohibited substance at issue on the day of the supplement’’ without knowing that the supplement competition at issue as sufﬁcient proof of out-of- contained a banned ‘‘Speciﬁed Substance’’ be viewed Competition use? in connection with this deﬁnition of ‘‘intent’’ contained (c) How will arbitral tribunals analyze the issue of in WADC Art. 10.2.3? whether the out-of-Competition use of the stimulant was ‘‘in a context unrelated to sport performance?’’ Furthermore, in cases where an athlete intentionally As has been seen in past cases, arguments can be used a supplement, but the athlete did not know that the made that virtually any substance that an athlete supplement contained a prohibited substance (and where consumes, including food, is done in a context the lack of knowledge was reasonable, such as in cases related to sport performance. Therefore, in order to involving misleading ingredient lists), what will the avoid an analysis that renders this phrase meaning- NADO/IF be required to prove? Will the burden be to less, arbitral tribunals must apply a common-sense prove that the athlete knew or should have known that the and realistic meaning to the issue of when something supplement contained a prohibited substance, or will it be is consumed in a context that is actually related to sufﬁcient to prove that the type of supplement or the sup- sport performance, as opposed (for example) to plement manufacturer itself could be viewed as risky, such consuming a product for general health purposes. that the athlete’s use of the supplement could be considered as a manifest disregard of a signiﬁcant risk, for which the For substances that are banned at all times, such as athlete should receive a 4-year sanction? The manner in anabolic agents, the analysis of ‘‘in-competition’’ versus which CAS tribunals resolve this use could dramatically ‘‘out-of-Competition’ use will be unnecessary. In these impact the applicable ‘‘default sanction’’ in cases involving cases, in order to avoid a ‘‘default sanction’’ of 4 years, the nutritional supplements. athlete will be required to prove that he or she did not take the substance intentionally. It is therefore critical to con- 4.3 How does the athlete prove ‘‘no intent’’ in cases sider what will happen to the athlete who has no idea what not involving ‘‘speciﬁed substances’’? caused his or her positive test, and who, despite investi- gation, is unable to prove the source of the prohibited In cases that do not involve ‘‘Speciﬁed Substances’’, the substance. For these athletes, how will arbitral tribunals athlete carries the burden of proving ‘‘no intent’’ to avoid analyze this issue, which could mean the difference the application of a 4-year default sanction. In many cases, between a career-ending 4-year sanction and a ‘‘default therefore, this burden of proof will mean the difference sanction’’ of 2 years? Some important questions arise: between a career-ending sanction and one from which an (a) Will the athlete’s failure to prove how the prohibited athlete could potentially return. Therefore, the manner in substance entered his or her system (within the which this burden of proof is applied by the arbitral tri- meaning of 2015 WADC Art. 10.4 and Art. 10.5.2) bunals will be critical. automatically result in a 4-year default sanction? As mentioned above, Art. 10.2.3 of the 2015 WADC Arbitral tribunals should recognize the difference provides that ‘‘an anti-doping rule violation resulting from between (1) proving the source of the prohibited an adverse analytical ﬁnding for a substance which is only substance as a pre-condition to receiving a reduction prohibited In-Competition shall not be considered ‘‘inten- in the ‘‘default sanction’’, and (2) the requirement of tional’’ if the substance is not a Speciﬁed Substance and the proving ‘‘no intent’’ in order to avoid the application athlete can establish that the Prohibited Substance was used of a ‘‘default sanction’’ of 4 years. An athlete should out-of-Competition in a context unrelated to sport perfor- be able to prove ‘‘no intent’’ without proving the mance.’’ Therefore, in cases involving non-speciﬁed stim- source of the prohibited substance, at least in the ulants, an athlete can avoid a ‘‘default sanction’’ of 4 years abstract. by proving that the stimulant was used out-of-Competition in a context unrelated to sport performance. This raises a 55 Prior arbitral tribunals have already accepted that polygraph test number of important issues: results are admissible in anti-doping proceedings. See, for example, CAS 2011/A/2384 & 2386, UCI v. Alberto Contador Velasco & (a) Will arbitral tribunals accept a low concentration RFEC and WADA v. Alberto Contador Velasco & RFEC, Award of 6 level of the prohibited stimulant in the anti-doping February 2012. 123 112 Int Sports Law J (2016) 16:99–117 (b) Assuming that the failure to prove how the prohib- circumstances’’ rules are being asserted as a basis for ited substance entered the athlete’s system is not sanction reduction. automatically equated with intent to use the prohib- ited substance, how will the athlete who cannot prove the source of the prohibited substance prove 6 Ensuring proportionate sanctions lack of intent? Will it be sufﬁcient, for example, for under the 2015 WADA Code an athlete to submit a polygraph ﬁnding that the he was truthful in stating that he did not knowingly use 6.1 Introduction the prohibited substance at issue, as sufﬁcient proof of lack of intent, such that the applicable ‘‘default According to the WADA, the 2015 WADC, which came sanction’’ is 2 years instead of four? Or, even in the into effect on 1 January 2015, is a ‘‘stronger, more robust absence of a polygraph exam, could an athlete tool that will protect the rights of the clean athletes’’. establish ‘‘no intent’’ within the meaning of 2015 Among the key themes of the revised Code, is the promise WADC Art. 10.2.1.1 solely through her own credible of ‘‘longer periods of Ineligibility for real cheats, and more testimony that she did not knowingly ingest the ﬂexibility in sanctioning in other speciﬁc circumstances’’. prohibited substance at issue? These will be impor- While Article 10 of the 2015 Code unquestionably tant evidentiary issues for arbitral tribunals to provides for longer periods of ineligibility, the validity of consider, and the manner in which they are deter- WADA’s claim that the harsher sanctions will be reserved mined will have a signiﬁcant impact on the sanction for ‘‘real cheats’’ depends partly on how one deﬁnes the length for many athletes under the 2015 WADC. term ‘‘real cheat’’, and partly on how the 2015 Code’s mechanisms for reducing sanctions are to be interpreted. This piece reﬂects on the totality of the context from which the current sanctions regime arose. That is important 5 Conclusion because Article 10 will have to be applied in a manner consistent with that context in mind if the 2015 Code is to The concept of giving longer sanctions to athletes who become the tool promised by WADA and if it is to avoid intend to cheat, and shorter sanctions to those athletes who the scrutiny of the courts. do not have such an intent, is certainly laudable, and the 2015 WADC has introduced a number of new legal and 6.2 Context evidentiary issues in an effort to further differentiate between intentional and non-intentional ‘‘dopers’’. How- 6.2.1 The Katrin Krabbe case ever, as is often the case, the 2015 WADC has provided very broad concepts, which the arbitral tribunals will have In the lead up to the adoption of the ﬁrst version of the to interpret and apply to real-world situations. How these WADA Code (2003), there was considerable debate as to general concepts are applied in reality will—for many what length of sanction could lawfully be imposed on an athletes—mean the difference between a 2-year sanction athlete for a ﬁrst violation. that is ‘‘merely’’ devastating and a 4-year sanction that is The decision ﬁnally to settle on a 2-year ban for ﬁrst career ending. In those cases, where an athlete has no idea offences was heavily inﬂuenced by the ﬁndings of the where the prohibited substance came from, the arbitral Munich Courts in the case of Katrin Krabbe, that a sus- tribunals must be very careful in how they apply these new pension exceeding 2 years was disproportionate : concepts. These new concepts related to ‘‘intent’’ will change the (a) The Regional Court held that a 2-year suspension manner in which arbitral tribunals address the preliminary imposed on an athlete for a ﬁrst offence ‘‘represents issue of the applicable ‘‘default sanction’’. They will not the highest threshold admissible under fundamental materially affect the manner in which these tribunals rights and democratic principles’’. address the issues related to the reduction in the ‘‘default sanction.’’ However, because of the limitations in how WADA, The Code, https://www.wada-ama.org/en/what-we-do/ much the ‘‘default sanction can be reduced (in cases of no the-code, accessed 22 April 2016. signiﬁcant fault, the maximum reduction in the ‘‘default Supra (27). See Oswald (1999) and the Vereinigung fur deutsches und sanction’’ is 50 %), the determination of this new ‘‘intent’’ internationals Sportrecht (1999). issue as related to the ‘‘default sanction’’ will be doubly See Kaufmann-Kohler et al. (2003). important in cases where the older ‘‘exceptional Decision of the LG Munich of 17 May 1995, Krabbe v. IAAF et al, SpuRt 1995 pp. 161, 167. 123 Int Sports Law J (2016) 16:99–117 113 (b) The High Regional Court held that the 3-year ban then vice-president of the IAAF, Dr Arne Lungqvist imposed by the IAAF ‘‘was excessive in respect of explained as follows: its objective. Such a rigid disciplinary measure as a I asked Torri Edwards whether she would allow me to sanction for a ﬁrst sports offence is inappropriate use her case as an example of the importance of and disproportionate’’. making some sort of differentiation between those And so it came to pass that a ﬁrst violation under Article weak stimulants that you can get over the counter by 10.2 of the 2003 Code would be punished with a 2-year accident, carelessness, negligence or whatever. (…) sanction. Various legal opinions procured by WADA We are not after those who are negligent. between 2003 and 2008 afﬁrmed the position that a 2-year WADA acceded to the IAAF’s lobbying and down- sanction for a ﬁrst violation (1) was a signiﬁcant incursion graded nikethamide to the Speciﬁed Substance list in on the rights of the individual affected; and (2) was likely September 2005. The IAAF Council shortly thereafter the limit of the severity that could be imposed in the reinstated Edwards to competition further to the doctrine of absence of aggravating circumstances. lex mitior. Following Edwards’ reinstatement, Dr Lungqvist explained as follows: 6.2.2 Speciﬁed substances The IAAF wishes to see strong penalties for real The 2003 Code proved somewhat inﬂexible, which resulted cheats. This was a different case, […] I did not feel in 2-year bans for unintentional and minor anti-doping rule comfortable when I had to defend the then-existing violations. One of the starkest examples of that inﬂexibility rules against her at the CAS hearing in Athens. arose in CAS OG 04/003 Torri Edwards v IAAF and I judge that Torri has paid a high price for having USATF. inadvertently taken a particular substance at the Edwards had consumed glucose powder that, unbe- ‘wrong’ time, shortly before [the reclassiﬁcation] and knownst to her, contained the stimulant nikethamide. A from now on such an intake would result in a warning 2-year ban was imposed on her on the basis that she could only (Emphasis added). not meet the thresholds for ‘‘No Fault’’ and ‘‘No Signiﬁcant Four years later, WADA went one step further and, with Fault’’ and despite the fact that she had, in the words of the the introduction of the 2009 version of the WADA Code, CAS panel, ‘‘conducted herself with honesty, integrity and broadened the list of substances that would be categorised character, and that she has not sought to gain any as Speciﬁed Substances, promising ‘‘lessened sanc- improper advantage or to ‘cheat’ in any way’’. tions….where the athlete can establish that the substance Ms Edwards’ case became a cause ce´le`bre, leading the involved was not intended to enhance performance’’ IAAF to lobby WADA to have nikethamide and other under Article 10.4. similar stimulants reclassiﬁed as Speciﬁed Substances. The The aim was to avoid the likes of the Edwards case. Indeed, a number of cases determined under the 2009 Code which involved the same glucose brand that had landed Decision of the OLG Munich of 28 March 1996, Krabbe v. IAAF et al., SpuRt 1996 pp. 133, 138. See WADA, Legal Opinion of G. Kaufmann-Kohler, G. Malin- verni and A. Rigozzi on the Conformity of Certain Provisions of the Draft WADC with Commonly Accepted Principles of International Law, paragraphs 142 and 143, https://wada-main-prod.s3.amazonaws. Savage S, ‘‘Doping-Edwards case inﬂuenced WADA rule com/resources/ﬁles/kaufmann-kohler-full.pdf, accessed 22 April change’’, Red Orbit, 30 January 2006, http://www.redorbit.com/ 2016; WADA, Legal Opinion of C. Rouiller on Whether Article 10.2 news/sports/374998/dopingedwards_case_inﬂuenced_wada_rule_ of the World Anti-Doping Code is compatible with the Fundamental change/, accessed 22 April 2016. Principles of Swiss Domestic Law, paragraph 3 (b) (aa) at page 26 See IAAF Press Release of 22 November 2005, ‘‘Torri Edwards and paragraph 3. (f) (aa) at page 32, https://wada-main-prod.s3.ama Reinstatement’’, http://www.iaaf.org/news/news/torri-edwards-rein zonaws.com/resources/ﬁles/Article_10_2_WADC_Swiss_Law.pdf, statement, accessed 22 April 2016. accessed 22 April 2016; and WADA, Legal Opinion of G. Kaufmann- Kohler and A. Rigozzi on the Conformity of Article 10.6 of the 2007 Elliott, H, ‘‘Sprinter Excited About Reprieve’’, Los Angeles Times, Draft World Anti-Doping Code with the Fundamental Rights of 17 November 2005, http://articles.latimes.com/2005/nov/17/sports/ Athletes, at paragraphs 33, 114, 138 and 139, https://wada-main-prod. sp-edwards17, accessed 22 April 2016. s3.amazonaws.com/resources/ﬁles/Legal_Opinion_Conformity_10_ WADA, 2009 World Anti-Doping Code Questions and Answers, 6_complete_document.pdf, accessed 22 April 2016. https://www.wada-ama.org/en/questions-answers/2009-world-anti- CAS OG 04/003, Torri Edwards v IAAF and USATF, Award of 17 doping-code, accessed 22 April 2016. August 2004. 2009 Code, Article 10.4 (‘‘Elimination or Reduction of the Period See paragraph 5.8 of CAS OG 04/003 Torri Edwards v IAAF and of Ineligibility for Speciﬁed Substances under Speciﬁc USATF. Circumstances’’). 123 114 Int Sports Law J (2016) 16:99–117 Edwards with a 2-year ban in 2004, resulted in periods of ‘‘aggravated circumstances’’ provision from the 2015 ineligibility ranging between 0 and 6 months. Code and the introduction of standard 4-year sanctions, explained as follows by WADA: 6.2.3 The rise and fall of ‘‘aggravating circumstances’’ There was a strong consensus among stakeholders, and in particular, Athletes, that intentional cheaters The primary themes of the 2009 Code were, according to should be Ineligible for a period of 4 years. Under the WADA, ‘‘ﬁrmness and fairness’’. ‘‘Fairness’’ was to be current Code, there is the opportunity for a 4-year reﬂected by the broadening of the Speciﬁed Substance list, period of Ineligibility for an Adverse Analytical while ‘‘ﬁrmness’’ was intended to manifest itself through Finding if the Anti-Doping Organization can show the concept of ‘‘aggravating circumstances’’. ‘‘Aggravating Circumstances.’’ However, in the more The presence of ‘‘aggravated circumstances’’ permitted than 4 years since that provision has been part of the ADOs to increase periods of ineligibility beyond the Code, it has been rarely used (Emphasis added). standard 2-year ban up to a maximum of 4 years. A legal opinion commissioned by WADA in relation to The decision to double the standard 2-year sanctions to the ‘‘aggravated circumstances’’ provisions (the ‘‘Third 4 years may have surprised anyone who had ever read the WADA Legal Opinion’’) noted as follows: Third WADA Legal Opinion, since that opinion had expressly cautioned as follows: 91. […] it is clear that the intention to enhance per- formance is not in and-of-itself an aggravating 138. […] one should bear in mind that a 4-year ban circumstance. would most often put an end to an athlete’s (high 92. […] This provision makes it clear that cheating is level) career and thus be tantamount to a life ban. an important element of the notion of aggravating Therefore, an aggravated ﬁrst offence could de facto circumstances. However, the mere fact of cheating be punished as harshly as numerous second offences alone is not sufﬁcient. Additional elements are (Article 10.7.1) and almost all third offences (Article required. 10.7.3). 93. The essence of the concept of aggravating cir- 139. This could raise problems if the ineligibility cumstances is thus a qualiﬁed kind of cheating, which period were automatically of 4 years in the presence involves an additional element (Emphasis added). of aggravating circumstances. In reality, Art. 10.6 provides for an increased suspension of up to 4 years, Not only, therefore, was actual cheating required to which means that the adjudicating body is afforded invoke the provision but there needed to be something sufﬁcient ﬂexibility to take into account all the cir- more than the mere fact of cheating. Examples provided by cumstances to ensure that aggravating circumstances the 2009 Code included being part of a doping scheme or do not systematically result in a 4-year period of using multiple prohibited substances. ineligibility (Emphasis added). The ‘‘aggravated circumstances’’ provision was rarely invoked and, when it was, it rarely resulted in the maxi- 6.2.4 Proportionality mum increase. That ultimately led to the removal of the The principle of proportionality plays an important role in See CAS 2011/A/2493 Antidoping Switzerland v/Vaton Zyberi, the determination of sanctions applicable in doping mat- Award of 29 November 2011; CAS 2013/A/3327 Marin Cilic v. 78 79 ters. The principle pervades Swiss law, EU law and International Tennis Federation and CAS 2013/A/3335 International general principles of (sports) law. Tennis Federation v. Marin Cilic, Award of 11 April 2014; AFLD Decision No. 2011-71 dated 7 July 2011; and AFLD Decision No. The CAS itself has consistently measured sanctions 2009-50 dated 10 December 2009. imposed on athletes against the principle of proportionality Supra (68). both before the inception of the WADA Code and since. Article 10.6 of the 2009 WADA Code (Aggravating Circum- (a) Pre-WADA Code: the anti-doping rules of many stances Which May Increase the Period of Ineligibility). Note that Violations under Articles 2.7 (Trafﬁcking) and 2.8 sports prior to the creation of the WADA Code (Administration) were not subject to the application of Article 10.6 since the sanctions for those violations (four years to life) already allowed discretion for aggravating circumstances. Supra (27). 74 78 See Kaufmann-Kohler et al. (2003). See CAS 2005/C/976 and 986, FIFA & WADA, delivered on 21 April 2006, paragraph 124. Ibid. See, Case C-519/04, P Meca-Medina & Majcen v Commission, See CAS 2013/A/3080, Alemitu Bekele Degfa v. TAF and lAAF, [2006] ECR I-6991, paragraphs 47 and 48. Award of 14 March 2014, for a detailed assessment by the CAS of the ‘‘aggravated circumstances’’ provision. See Kaufmann-Kohler et al. (2003). 123 Int Sports Law J (2016) 16:99–117 115 mandated ﬁxed sanctions without the possibility of 6.3 Comment reductions. The CAS nevertheless sometimes reduced these sanctions on the basis they were not While the 2015 Code does have more mechanisms by proportionate. which to modify the default sanctions than in previous (b) Post-WADA Code: The WADA Code introduced versions of the WADA Code, that is partly because the mechanisms by which sanctions could be reduced or default sanctions with regards to most of the violations eliminated. However, the CAS has made clear that have doubled : the introduction of these mechanisms does not remove the obligation of disciplinary panels to Violation Default sanction Default sanction measure the sanctions applied in any particular case under the 2015 under the 2009 against the principle of proportionality. In Squizzato Code for a ﬁrst Code for a ﬁrst v. FINA, the CAS held that: offence offence Presence of a speciﬁed 2 years (Art. 2 years (Art. 10.2.1) substance (Art. 2.1) 10.2.2) 10.24 […] the Panel holds that the mere adoption of Presence of a non- 4 years (Art. 2 years (Art. 10.2.1) the WADA Code […] by a respective Federation speciﬁed substance 10.2.1) does not force the conclusion that there is no other (Art. 2.1) possibility for greater or less reduction a sanction Use or attempted use of 2 years (Art. 2 years (Art. 10.2.1) a speciﬁed substance 10.2.2) than allowed by DC 10.5. The mere fact that regu- (Art. 2.2) lations of a sport federation derive from the World Use or attempted use of 4 years (Art. 2 years (Art. 10.2.1) Anti-Doping Code does not change the nature of a non-speciﬁed 10.2.1) these rules. They are still—like before—regulations substance (Art. 2.2) of an association which cannot (directly or indirectly) Evading, refusing or 4 years (Art. 2 years (Art. 10.3.1) replace fundamental and general legal principles like failing to submit to 10.3.1) the doctrine of proportionality a priori for every sample collection (Art. 2.3) thinkable case. Whereabouts failures 2 years (Art. 1–2 years (Art. Though the 2015 Code asserts that it ‘‘has been drafted (Art. 2.4) 10.3.2) 10.3.3) giving consideration to the principles of proportionality Tampering or attempted 4 years (Art. 2 years (Art. 10.3.1) and human rights’’, that obviously does not mean that tampering (Art. 2.5) 10.3.1) proportionality no longer plays a part in the assessment of Possession of a 2 years (Art. 2 years (Art. 10.2.1) speciﬁed substance 10.2.2) sanctions for the same reasons propounded by the CAS in (Art. 2.6) Squizzato. Indeed, the 2015 Code itself recognises that it Possession of a non- 4 years (Art. 2 years (Art. 10.2.1) ‘‘is intended to be applied in a manner which respects the speciﬁed substance 10.2.1) principles of proportionality and human rights’’. More- (Art. 2.6) over, the most recent CAS decisions in which the principle Trafﬁcking or attempted 4 years to life (Art. 4 years to life (Art. of proportionality was applied concerned the sanctioning trafﬁcking (Art. 2.7) 10.3.3) 10.3.2) regimes of the 2003 and 2009 Code, both of which man- Administration or 4 years to life (Art. 4 years to life (Art. attempted 10.3.3) 10.3.2) dated default sanctions of 2 years, not 4 years. The administration (Art. principle of proportionality is, therefore, arguably even 2.8) more relevant now than it previously was. Complicity (Art. 2.9) 2–4 years (Art. Elements of this 10.3.4) violation previously formed part of the ‘‘Administration 81 or Attempted See CAS 1996/56, Foschi v. FINA, Award of October 1997; CAS Administration’’ 2002/A/396, Baxter v. FIS, Award of 30 September 2002; and CAS violation 2001/A/337, B./FINA, Award of 22 March 2002. Prohibited association 2 years (Art. This violation did CAS 2005/A/830, Squizzato v. FINA, Award of 15 July 2005. (Art. 2.10) 10.3.5) not exist under the See page 11 of the 2015 Code—‘‘Purpose, Scope and Organiza- 2009 Code tion of the World Anti-Doping Program and the Code’’. See the Introduction at page 17 of the 2015 Code. 85 86 See, for example, CAS 2010/A/2268, I. v. FIA, Award of 15 Note that the table only reﬂects the default sanctions applicable September 2011; and TAS 2007/A/1252, FINA c. O. Mellouli and before consideration of any of the mechanisms intended to increase or FTN, Award of 11 September 2007. decrease those sanctions. 123 116 Int Sports Law J (2016) 16:99–117 is that athletes who ‘‘cheat’’ are athletes who have acted knowingly and dishonestly to gain an unfair advantage. Athletes accused of committing a violation under Arti- Article 10.2 cannot, therefore, be intended to punish cles 2.1, 2.2, 2.3 or 2.6 are now in a position in which they careless athletes. Bearing in mind the limits pronounced by are required to meet the Article 10.2 thresholds regarding the courts in Krabbe and bearing in mind the ‘‘justiﬁable ‘‘intent’’ simply to get them back to the 2-year default aim’’, any interpretation of the provision that would result in sanctions that would have applied under previous versions a 4-year ban for nothing more than careless—or even of the Code. reckless, but otherwise honest—conduct would risk inviting If the 2015 Code is to become the tool promised by the sort of scrutiny exercised by the German courts in the WADA and if it is to avoid or survive legal challenges, Pechstein and Krabbe cases. tribunals will need to ensure that their interpretations of the Likewise, the interpretation of the other reduction reduction mechanisms, such as those contained at Article mechanisms, such as Article 10.5 (‘‘No Signiﬁcant Fault or 10.2, do not result in disproportionate sanctions. Negligence’’), will require the same degree of pragmatism. The parameters within which the proportionality of a If the parameters for ‘‘No Signiﬁcant Fault’’ were to be sanction falls to be measured were described as follows applied as strictly today as they were in the Edwards case, by the panel in CAS 2005/C/976 and 986 FIFA and anti-doping would end up right back to where it was in WADA: 2004, when the Code’s sanctioning regime was perceived 139. A long series of CAS decisions have developed to be so inﬂexible that it had to be overhauled in 2009. the principle of proportionality in sport cases. This Assuming that the aim of the 2015 Code is not to take principle provides that the severity of a sanction must 11 years’ worth of backward steps, tribunals will have to be proportionate to the offense committed. To be ensure that ‘‘No Signiﬁcant Fault’’ is interpreted in a proportionate, the sanction must not exceed that manner that fulﬁls WADA’s promise of ‘‘greater ﬂexibil- which is reasonably required in the search of the ity’’, particularly in cases involving Speciﬁed Substances justiﬁable aim (Emphasis added). and Contaminated Products. The evaluation of whether a sanction is proportionate 6.4 Concluding remark therefore begins with the identiﬁcation of the ‘‘justiﬁable aim’’. According to WADA, the increased sanctions were The 2015 Code has the potential to become the fairest intended to target ‘‘intentional cheats’’. That is echoed by WADA Code to date. However, it also has the potential to the wording of Article 10.2.3 of the 2015 Code, which be the cruelest. Interpreting it in a manner consistent with provides as follows: the totality of the context from which it was conceived is As used in Articles 10.2 and 10.3, the term ‘‘in- the surest way to ensure that the right version prevails. tentional’’ is meant to identify those Athletes who Open Access This article is distributed under the terms of the cheat. The term, therefore, requires that the athlete Creative Commons Attribution 4.0 International License (http://crea or other Person engaged in conduct which he or tivecommons.org/licenses/by/4.0/), which permits unrestricted use, she knew constituted an anti-doping rule violation distribution, and reproduction in any medium, provided you give or knew that there was a signiﬁcant risk that the appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were conduct might constitute or result in an anti-doping made. rule violation and manifestly disregarded that risk (Emphasis added) […] See Landesgericht (LG) Mu¨nchen, Claudia Pechstein v. DESG and ISU, 26. February 2014, 37 O 28331/12; and Oberlandesgericht The ﬁnal sentence emphasised above is, arguably, open (OLG) Mu¨nchen, Claudia Pechstein v. DESG and ISU, 15 January to interpretation. However, the ﬁrst line identiﬁes the 2015, Az. U 1110/14 Kart. overarching aim of the provision—i.e., ‘‘the term ‘inten- WADA, 2015 World Anti-Doping Code, https://www.wada-ama. tional’ is meant to identify those athletes who cheat’’. org/en/questions-answers/2015-world-anti-doping-code, accessed 22 According to the Oxford Dictionary, a ‘‘cheat’’ is a April 2016. ‘‘person who behaves dishonestly in order to gain an Notably, the concept of ‘‘No Signiﬁcant Fault or Negligence’’ in previous versions of the Code was limited to ‘‘exceptional circum- advantage’’ and the act of ‘‘cheating’’ amounts to ‘‘a stances’’. That limitation has been removed in the context of fraud or deception’’. A reasonable inference, therefore, Speciﬁed Substances and Contaminated Products under Article 10.5.1 of the 2015 Code. Thus, it should now be easier for athletes to trigger the application of ‘‘No Signiﬁcant Fault’’ in those types of cases than Note that article 10.2 only applies to those violations. For a it previously was. See Sect. 6.2 of Rigozzi et al. (2015a, b) for a detailed assessment of Article 10.2, see Rigozzi et al. (2015a, b). detailed discussion of the point. 123 Int Sports Law J (2016) 16:99–117 117 Rigozzi A, Viret M and Wisnosky E (2013) Does the World Anti- References Doping Code revision live up to its promises? Jusletter. ISSN 1424-7410 Casini L (2009) Global hybrid public-private bodies: the World Anti- Rigozzi A, Haas U, Wisnosky E, Viret M (2015a) Breaking down the Doping Agency (WADA). Int Organ Law Rev 6(2):421–446 process for determining a basic sanction Under the 2015 World Kaufmann-Kohler G, Rigozzi A, Malinverni G (2003) Doping and Anti-Doping Code. Int Sports Law J 15/1–2:3–48 fundamental rights of athletes: comments in the wake of the Rigozzi A, Viret M, Wisnosky E (2015b) Switzerland anti-doping adoption of the World Anti-Doping Code. Int Sports Law Rev reports. Int Sports Law Rev 2/15:31–44 3:39–52 Vereinigung fur deutsches und internationals Sportrecht (1999) The Oswald D (1999) A lesson to the moralizers. Olymp Rev 26:21–22 position of Germany. Olymp Rev 26:22–23 Reeb M (2001) Digest of CAS awards I, 1986–1998. Wolters Kluwer Viret M (2015) Evidence in anti-doping at the intersection of science Law and Business and law. Asser Press, Springer, Berlin

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