Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Editor's note
Mike Morgan is the founding partner of Morgan Sports
Law LLP. His practice is focused exclusively on the sports sector. He
advises on regulatory and disciplinary issues and has particular experience
advising on doping and corruption disputes.
Mike acted on behalf of National Olympic Committees at
three of the last four Olympic Games and has represented other sports bodies,
clubs and high profile athletes in proceedings before the High Court, the FIFA
Dispute Resolution Chamber, the American Arbitration Association and the Court
of Arbitration for Sport.
I. Introduction
According to the World Anti-Doping Agency (“WADA”), the 2015 World Anti-Doping
Agency Code (the “2015 Code”), which came into effect on 1 January 2015, is a “stronger, more robust tool that will
protect the rights of the clean athletes”[1].
Among the key themes of the revised Code, is
the promise of “longer periods of
Ineligibility for real cheats, and more flexibility in sanctioning in other
specific circumstances”[2].
While Article 10 of the 2015 Code unquestionably
provides for longer periods of ineligibility, the validity of WADA’s claim that
the harsher sanctions will be reserved for “real
cheats” depends partly
on how one defines the term “real cheat”, and partly on how the 2015
Code’s mechanisms for reducing sanctions are to be interpreted.
This blog reflects on the totality of the
context from which the current sanctions regime arose. That is important because Article 10 will have
to be applied in a manner consistent with that context in mind if the 2015 Code
is to become the tool promised by WADA and if it is to avoid the scrutiny of
the courts.
II. Context
A. Katrin Krabbe
In the lead up to the adoption of the first version
of the WADA Code (the “2003 Code”), there was considerable debate as to what
length of sanction could lawfully be imposed on an athlete for a first
violation[3].
The decision finally to settle on a two-year ban
for first offences was heavily influenced by the findings of the Munich Courts
in the case of Katrin Krabbe, that a
suspension exceeding two years was disproportionate[4]:
(a)
The Regional Court held that a two-year suspension
imposed on an athlete for a first offence “represents
the highest threshold admissible under fundamental rights and democratic
principles”.[5]
(b)
The High Regional Court held that the three-year
ban imposed by the IAAF “was excessive in
respect of its objective. Such a rigid disciplinary measure as a sanction for a
first sports offence is inappropriate and disproportionate”.[6]
And
so it came to pass that a first violation under Article 10.2 of the 2003 Code
would be punished with a two-year sanction. Various legal opinions
procured by WADA between 2003 and 2008 affirmed the position that a two-year
sanction for a first violation (1) was a significant incursion on the rights of
the individual affected; and (2) was likely the limit of the severity that
could be imposed in the absence of aggravating circumstances[7].
B. Specified Substances
The 2003 Code proved somewhat inflexible, which
resulted in two-year bans for unintentional and minor anti-doping rule
violations. One of the starkest examples of that inflexibility arose in CAS
OG 04/003 Torri Edwards v IAAF & USATF.
Edwards had consumed glucose powder that, unbeknownst to her,
contained the stimulant nikethamide. A two-year ban was imposed on her on the
basis that she could not meet the thresholds for “No Fault” and “No Significant
Fault” and despite the fact that she had, in the words of the CAS panel, “conducted herself with honesty, integrity
and character, and that she has not sought to gain any improper advantage or to
‘cheat’ in any way”[8].
Ms Edwards’ case became a cause célèbre, leading
the IAAF to lobby WADA to have nikethamide and other similar stimulants
reclassified as Specified Substances. The then vice-president of the IAAF, Dr
Arne Lungqvist explained as follows:
I asked Torri Edwards
whether she would allow me to use her case as an example of the importance of
making some sort of differentiation between those weak stimulants that you can
get over the counter by accident, carelessness, negligence or whatever. We are not after those who are negligent.
WADA acceded to the IAAF’s lobbying and downgraded
nikethamide to the Specified Substance list in September 2005. The IAAF Council
shortly thereafter reinstated Edwards
to competition further to the doctrine of lex
mitior.
Following Edwards’ reinstatement, Dr
Lungqvist explained as follows:
The IAAF wishes to see
strong penalties for real cheats.
This was a different case, […] I did not
feel comfortable when I had to defend the then-existing rules against her at
the CAS hearing in Athens.
I
judge that Torri has paid a high price for having inadvertently taken a
particular substance at the 'wrong' time, shortly before [the reclassification]
and from now on such an intake would result in a warning only. (Emphasis added)
Four years later, WADA went one step
further and, with the introduction of the 2009 version of
the WADA Code (the “2009 Code”), broadened the list of substances that
would be categorised as Specified Substances, promising
“lessened sanctions….where the athlete can establish
that the substance involved was not intended to enhance performance” under Article 10.4[10].
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 Edwards with a two-year ban in 2004,
resulted in periods of ineligibility ranging between 0 – 6 months[11].
C. The rise and fall of “aggravating circumstances”
The primary themes
of the 2009 Code were, according to WADA, “firmness and fairness”. “Fairness”
was to be reflected by the broadening of the Specified Substance list, while “firmness”
was intended to manifest itself through the concept of “aggravating
circumstances” [12].
The presence of “aggravated
circumstances” permitted Anti-Doping Organizations (“ADOs”) to increase periods of ineligibility beyond the standard
two-year ban up to a maximum of four years[13].
A legal opinion commissioned by
WADA in relation to the “aggravated circumstances” provisions (the “Third
WADA Legal Opinion”) noted as follows[14]:
91. […] it is clear that the
intention to enhance performance is not in and-of-itself an aggravating
circumstance.
92. […]
This provision makes it clear that cheating is
an important element of the notion of aggravating circumstances.
However, the mere fact of cheating alone is not sufficient. Additional elements
are required.
93. The essence of the concept of
aggravating circumstances is thus a qualified kind of cheating, which involves an additional element. (Emphasis added)
Not only,
therefore, was actual cheating required to invoke the provision but there
needed to be something more than the mere fact of cheating. Examples provided
by the 2009 Code included being part of a doping scheme or using multiple
prohibited substances[15].
The “aggravated
circumstances” provision was rarely invoked and, when it was, it rarely resulted
in the maximum increase[16].
That ultimately led to the removal of the “aggravated circumstances”
provision from the 2015 Code and the introduction of standard four-year sanctions,
explained as follows by
WADA[17]:
There was a strong consensus among stakeholders,
and in particular, Athletes, that intentional
cheaters should be Ineligible for
a period of four years. Under the
current Code, there is the opportunity for a four-year period of Ineligibility
for an Adverse Analytical Finding if the Anti-Doping Organization can show
“Aggravating Circumstances.” However, in the more than four years since that
provision has been part of the Code, it has been rarely used. (Emphasis added)
The decision to double the standard two-year
sanctions to four years may have surprised anyone who had ever read the Third
WADA Legal Opinion, since that opinion had expressly cautioned as follows:
138. […] one should bear
in mind that a four-year ban would most often
put an end to an athlete’s (high level) career and thus be tantamount to a life
ban. Therefore, an aggravated first offence could de facto be punished as harshly as
numerous second offences (Article 10.7.1) and almost all third offences
(Article 10.7.3).
139.
This could raise problems if the ineligibility
period were automatically of four
years in the presence of aggravating circumstances. In reality, Art.
10.6 provides for an increased suspension of up to four years, which means that the adjudicating body is
afforded sufficient flexibility to take into account all the circumstances to
ensure that aggravating circumstances do not systematically result in a
four-year period of ineligibility. (Emphasis added)
D. Proportionality
The principle of proportionality plays an important
role in the determination of sanctions applicable in doping matters. The principle pervades Swiss law[18],
EU law[19]
and general principles of (sports) law[20].
The CAS itself has
consistently measured sanctions imposed on athletes against the principle of
proportionality both before the inception of the WADA Code and since.
(a)
Pre-WADA Code: the anti-doping rules of
many sports prior to the creation of the WADA Code mandated fixed sanctions
without the possibility of reductions. The CAS nevertheless sometimes reduced
these sanctions on the basis they were not proportionate.[21]
(b)
Post-WADA Code: The WADA Code introduced
mechanisms by which sanctions could be reduced or eliminated. However, the CAS has made clear that the
introduction of these mechanisms does not remove the obligation of disciplinary
panels to measure the sanctions applied in any particular case against the
principle of proportionality. In CAS 2005/A/830 Squizzato v. FINA, the CAS held
that:
10.24 […] the Panel holds that the mere adoption of the WADA Code […] by
a respective Federation does not force the conclusion that there is no other
possibility for greater or less reduction a sanction than allowed by DC 10.5.
The mere fact that regulations of a sport federation derive from the World
Anti-Doping Code does not change the nature of these rules. They are still –
like before ��� regulations of an association which cannot (directly or
indirectly) replace fundamental and general legal principles like the doctrine
of proportionality a priori for every thinkable case.
Though the 2015 Code asserts that it “has
been drafted giving consideration to the
principles of proportionality and human rights”[22],
that obviously does not mean that proportionality no longer plays a part in the
assessment of sanctions for the same reasons propounded by the CAS in Squizzato.
Indeed, the 2015 Code itself recognises that it “is intended to be applied
in a manner which respects the principles of proportionality and human rights”[23].
Moreover, the most recent CAS decisions in which the principle of proportionality was
applied concerned the sanctioning regimes of the 2003 and 2009 Code, both of
which mandated default sanctions of two years, not four years[24]. The principle of proportionality is,
therefore, arguably even more relevant now than it previously was.
III. Comment
While the 2015 Code does have more
mechanisms by which to modify the default sanctions than in previous versions
of the WADA Code, that is partly because the default sanctions with regards to
most of the violations have doubled[25]:
|
Violation
|
Default
sanction under the 2015 Code for a first offence
|
Default
sanction under the 2009 Code for a first offence
|
|
Presence
of a Specified Substance (Art. 2.1)
|
Two
years (Art. 10.2.2)
|
Two years (Art.
10.2.1)
|
|
Presence
of a non-Specified Substance (Art. 2.1)
|
Four years (Art. 10.2.1)
|
Two years (Art.
10.2.1)
|
|
Use or Attempted Use of a Specified Substance
(Art. 2.2)
|
Two
years (Art. 10.2.2)
|
Two years (Art.
10.2.1)
|
|
Use or Attempted Use of a
non-Specified Substance (Art. 2.2)
|
Four
years (Art. 10.2.1)
|
Two years (Art.
10.2.1)
|
|
Evading, Refusing or Failing to Submit to Sample Collection (Art. 2.3)
|
Four
years (Art. 10.3.1)
|
Two years (Art.
10.3.1)
|
|
Whereabouts Failures (Art. 2.4)
|
Two
years (Art. 10.3.2)
|
One to two years (Art.
10.3.3)
|
|
Tampering or Attempted
Tampering (Art. 2.5)
|
Four
years (Art. 10.3.1)
|
Two years (Art.
10.3.1)
|
|
Possession of a Specified Substance
(Art. 2.6)
|
Two
years (Art. 10.2.2)
|
Two years (Art.
10.2.1)
|
|
Possession of a non-Specified Substance (Art. 2.6)
|
Four
years (Art. 10.2.1)
|
Two years (Art.
10.2.1)
|
|
Trafficking or Attempted
Trafficking (Art. 2.7)
|
Four
years to life (Art. 10.3.3)
|
Four years to life
(Art. 10.3.2)
|
|
Administration or Attempted Administration (Art. 2.8)
|
Four
years to life (Art. 10.3.3)
|
Four years to life
(Art. 10.3.2)
|
|
Complicity (Art. 2.9)
|
Two to four
years (Art. 10.3.4)
|
Elements
of this violation previously formed part of the “Administration or Attempted
Administration” violation.
|
|
Prohibited
Association (Art. 2.10)
|
Two years (Art.
10.3.5)
|
This violation did not
exist under the 2009 Code.
|
Athletes accused of committing a violation
under Articles 2.1, 2.2, 2.3 or 2.6 are now in a position in which they are
required to meet the Article 10.2 thresholds regarding “intent” simply to get
them back to the two-year default sanctions that would have applied under previous
versions of the Code[26].
If the 2015 Code is to become the tool
promised by WADA and if it is to avoid or survive legal challenges, tribunals
will need to ensure that their interpretations of the reduction mechanisms,
such as those contained at Article 10.2, do not result in disproportionate
sanctions.
The parameters within which the proportionality of a
sanction falls to be measured were described as follows by the panel in CAS 2005/C/976 & 986 FIFA &
WADA:
139. A long
series of CAS decisions have developed the principle of proportionality in
sport cases. This principle provides that the severity of a sanction must be
proportionate to the offense committed. To be
proportionate, the sanction must not exceed that which is reasonably required
in the search of the justifiable aim. (Emphasis
added)
The evaluation of
whether a sanction is proportionate therefore begins with the identification of
the “justifiable aim”. According to
WADA, the increased sanctions were intended to target “intentional cheats”. That is echoed by the wording of Article
10.2.3 of the 2015 Code, which provides
as follows:
As used in Articles 10.2
and 10.3, the term “intentional” is meant to
identify those Athletes who cheat. The term, therefore,
requires that the athlete or
other Person engaged in conduct
which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct
might constitute or result in an anti-doping rule violation and manifestly
disregarded that risk [….] (Emphasis added)
The final sentence emphasised above is,
arguably, open to interpretation. However,
the first line identifies the overarching aim of the provision – i.e. “the term ‘intentional’ is meant to identify
those athletes who cheat”.
According to the Oxford Dictionary, a “cheat” is a “person who behaves dishonestly in order to
gain an advantage” and the act of “cheating”
amounts to “a fraud or deception”. A reasonable inference, therefore, is that
athletes who “cheat” are athletes who
have acted knowingly and dishonestly to gain an unfair advantage.
Article
10.2 cannot, therefore, be intended
to punish careless athletes. Bearing in
mind the limits pronounced by the courts in Krabbe
and bearing in mind the “justifiable aim”,
any interpretation of the provision that would result in a four-year ban for
nothing more than careless – or even reckless, but otherwise honest - conduct would
risk inviting the sort of scrutiny exercised by the German courts in the Pechstein[27]
and Krabbe cases.
Likewise, the interpretation of the other
reduction mechanisms, such as Article 10.5 (“No Significant Fault or Negligence”), will require the same degree
of pragmatism. If the parameters for “No Significant Fault” were to be applied
as strictly today as they were in the Edwards
case, anti-doping would end up right back to where it was in 2004, when the
Code’s sanctioning regime was perceived to be so inflexible that it had to be
overhauled in 2009. Assuming that the aim of the 2015 Code is not to take 11
years’ worth of backward steps, tribunals will have to ensure that “No Significant Fault” is interpreted in
a manner that fulfils WADA’s promise of “greater
flexibility”, particularly in
cases involving Specified Substances and Contaminated Products[28].
IV. Concluding Remark
The 2015 Code has
the potential to become the fairest WADA Code to date. However, it also has the
potential to be the cruelest. Interpreting it in a manner consistent with the
totality of the context from which it was conceived is the surest way to ensure
that the right version prevails.
[22] See page 11 of the 2015
Code - “Purpose, Scope and Organization
of the World Anti-Doping Program and the Code”
[26] Note
that article 10.2 only applies to those violations. For a detailed assessment
of Article 10.2, see Rigozzi, Antonio and Haas, Ulrich and
Wisnosky, Emily and Viret, Marjolaine, Breaking Down
the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping
Code (June 10, 2015). ISLJ, (2015) 15:3-48