Asser International Sports Law Blog

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The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

12th round of Caster Semenya’s legal fight: too close to call? - By Jeremy Abel

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

 

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations.

2.     Applicability of the ECHR

An interesting question is how the Court will apply the ECHR to the case at hand. It has two options at its disposal. It can either use the doctrine of positive or negative obligations to resolve the case. The most logical solution would be to favour the positive obligations route. This doctrine allows the Court to hold states accountable in situations involving private parties. It obliges states to intervene in these situations and not to simply sit back and remain passive. In essence, the present case opposes two private parties: Caster Semenya on the one side and World Athletics on the other. The only connection of the case to Switzerland is a judgment by its Federal Tribunal reviewing the award rendered by the CAS. Indeed, unlike most international federations, World Athletics is registered in Monaco and not in Switzerland.

The Court’s case law also appears to favour this option. In Mutu and Pechstein, the Court indirectly stated that Switzerland’s positive obligations were at play (paras 65-67). The problem with this approach is that it makes it difficult to test a set of private regulations directly against the Convention. In its Mutu and Pechstein decision, the Court sidestepped this problem by somewhat ignoring Switzerland’s positive obligations. It simply applied the requirements of Article 6 ECHR directly to the CAS proceedings without worrying about the role of Switzerland and its Federal Tribunal.[1] Mutu and Pechstein suggests that the Court is willing to use the positive obligations doctrine and tweak it where it feels it is necessary to uphold athletes’ Convention rights. It is argued here that the Court’s approach in Semenya will be similar since the case raises several fundamental rights questions which have not been dealt with extensively by previous courts.

3.     Substantive issues

a.      Semenya’s right to private life (Article 8 ECHR)

Another crucial question is whether the Court will be willing to rely on its Article 8 ECHR case law relating to transgender persons. A.P., Garçon and Nicot is of particular importance in this context. This case was about a French law making the recognition of transgender persons’ preferred gender conditional on a sterilisation surgery or treatment. The Court stated that this law presented transgender persons not willing to undergo sterilisation with an “impossible dilemma” (para 132). They had to choose between their physical integrity or the legal recognition of their gender identity. The Court deemed this burden to be unnecessary to guarantee the principle of the inalienability of civil status and the need for consistency and reliability of civil-status records and thus in violation of Article 8 ECHR.

The Regulations create a similar dilemma. Despite having been identified by the South African State and identifying herself as a female, Semenya cannot compete in the female category unless she compromises her right to physical integrity by undergoing testosterone lowering treatment. In addition, noncompliance with the Regulations means that she cannot run the middle-distance events she excels at. It is therefore likely that she must give up her international sports career.[2]

It can be argued that both cases are comparable. While it is true that, unlike the French law, the Regulations aim her sports status and not her legal sex, both rules are not so different when one considers the specificity of her profession. As a famous athlete whose life revolves around sport, a mismatch between her legal sex and “sports” sex has major consequences on her life as a professional athlete and beyond. In these special circumstances, it is difficult to strictly differentiate the legal sex from the “sports” sex. Indeed, she finds herself in the very peculiar situation of suddenly having to explain why, after a lifetime of being female for the purposes of both sex categories, she is still female enough for one but not the other. Another distinction between the Regulations and the French law is that the latter contained a sterilization requirement absent in the former. This distinction can be relativised in two ways. Firstly, both set of rules require the same type of medical treatment: surgery or hormone treatment. Secondly, although the Regulations do not require a permanent physical change, the recommended surgical and hormonal treatment may lead to irreversible changes and ultimately sterility.[3]

b.      Semenya’s right to non discrimination (Article 14 ECHR)

Regarding the potential discriminatory nature of the Regulations in the sense of Article 14 ECHR, Semenya will most likely question why the Regulations only institute a testosterone limit for female athletes. This assertion runs up against the legal hurdle of finding an appropriate comparator. For there to be a discrimination, it must in principle be possible to compare Semenya with a class of persons who are treated more favourably. This task is not made easier by the fact that no intersex case has ever been decided by the Court.[4]

In theory, three comparisons are imaginable[5]: a comparison with male, female, or intersex athletes. The viability of each comparator depends on which definition of sex is used.[6] Sex can be understood from a civil status, gender identity or biological standpoint. It is unclear whether the Court will be convinced by World Athletics’ preference for the biological sex definition. World Athletics used this definition to argue that Semenya is “biologically male” for the purpose of athletics and must therefore be compared to male and not female athletes.[7] If the condition of participation is being “biologically female”, there is no discrimination because Semenya is being treated like all the other athletes who do not fulfil this condition.[8] However, the situation completely changes if the biological sex definition is dropped in favour of the others.

4.     Proportionality of the Regulations

Finally, the Court may have to engage in a delicate balancing act between the different interests at stake. On the one hand, there are the interests of World Athletics. As an international federation, it considers it is in the best position to develop the most appropriate rules for dividing females and males for the purpose of athletics. On the other hand, there are the opposing interests of Semenya and her fellow competitors. It is a classic case of competing rights which happen also to be fundamental goals of sport: inclusion vs fairness.[9] Including intersex athletes in the female category might be unfair towards the other female athletes. Contrary to other physical or genetical traits, high levels of testosterone are viewed by some to give intersex athletes an insurmountable advantage over their female competition. By adopting and defending the Regulations, it is clear that World Athletics shares this view and is sensitive to the fairness argument.

One way of avoiding this balancing of interests exercise is to decide that the Regulations are not fit for purpose. Without getting into scientific arguments, it appears safe to affirm that while most experts agree that testosterone has a positive effect on performance, there is still a lack of consensus on the degree of that effect.[10] Both the CAS and the Swiss Federal Tribunal overcame this uncertainty by giving a lot of weight to the statistical overrepresentation of women with DSDs in elite athletics.[11] A striking example of this overrepresentation is the women’s 800 m final at the 2016 Olympics where Semenya and two other athletes with DSDs occupied all three podium places thanks to the suspension of a previous version of the Regulations.

However, an alternative view is plausible. The capability of the Regulations to achieve their goal of ensuring fairness can be called into question on three fronts.

Firstly, there is a twofold problem relating to the quality of the evidence and the conclusions drawn from it. The quality of the evidence is low because in addition to there only existing few studies on the relationship between testosterone and performance, those that do exist rely on flawed data such as double counting athletes and times.[12] Irrespective of the concerns regarding the quality of the evidence used, the conclusions drawn from it are inconsistent because World Athletics’ choice to establish a testosterone limit for some, but not other athletic events is illogical.[13] According to the evidence, female athletes with high levels of testosterone have a competitive advantage in the following athletic disciplines: 400 m (2,73%), 400 m hurdles (2,78%), 800 m (1,78%), hammer throw (4,53%) and pole vault (2,94%).[14] No performance advantage was shown to exist in other athletic disciplines.[15] The inclusion of the 1500 m and one mile events into the Regulations but not the hammer throw and pole vault runs counter to the evidence and the goal of ensuring a level playing field.

Secondly, there appears to be no satisfying answer as to why there is no equivalent testosterone limit for male athletes despite their testosterone levels differing much more significantly[16].

Thirdly, the choice of using testosterone as the determining factor can be called into question. Given the wide range of physical attributes that are helpful in sport, it is not clear what makes testosterone so different from other physical attributes. Would a mix of physical attributes and parameters like the one used in Paralympics not be fairer and more inclusive?[17]

5.     Conclusion

The Semenya case has the potential to appreciably change international federations’ and Switzerland’s relationship with the ECHR. It is shown above that if the Court wants to apply the ECHR directly to the Regulations, it must bend the doctrine of positive obligations. Until now, the Court has not explained its unconventional use of the doctrine. Two explanations are at the Court’s disposal.[18] They are both premised on the idea that Semenya is in a position of dependence towards World Athletics.

Firstly, it is possible to extend the reasoning behind Mutu and Pechstein according to which the CAS (a private Court) must, in situations involving forced arbitration, offer the same fair trial guarantees as a state court, to all types of sports regulations.[19] Indeed, if one accepts that sports arbitration clauses are compulsory, it becomes very difficult to argue that sports regulations in general are not compulsory since the former are contained in the latter.[20]

Secondly, the Court can treat international federations analogous to state-like entities.[21] The relationship between Semenya and World Athletics is akin to that between regular citizens and a state due to the size, power, and monopolistic position it holds in the sport of athletics.[22] The Semenya case exemplifies this power imbalance well. World Athletics’ monopoly means that it can impose the Regulations upon Semenya. She cannot object to this effectively since giving up her international athletics career is not an option as she would put her livelihood at risk.[23]

In the present case, the first explanation is more fitting because World Athletics’ seat is in Monaco and not in Switzerland. If, as argued here, the Court bends the positive obligations doctrine to properly engage with the arguments raised by Semenya, this would give it the opportunity to explain its unusual approach. But even if the Court does not take this opportunity, its unconventional use of the doctrine of positive obligations would still send a message to international federations and Switzerland that they must take ECHR considerations seriously in spite of the private nature of international sports disputes.

Beyond the question of the applicability of the Convention, the Semenya case has the potential to have far-reaching consequences for the world of sports. This is because of the wide-ranging reach of the Court’s decisions and the fact that World Athletics’ policy on intersex athletes is based on a recommendation made by the International Olympic Committee (IOC). As the supreme governing body of global sports, the IOC’s policy on this matter influences sports regulations at all levels throughout the world.

Finally, the case is infused with highly relevant but difficult scientific, sports and societal issues. The discussions around the definition of sex are particularly sensitive in today’s society. The complexity and sensitive nature of the case as well as the clash between two fundamental goals of sport are all ingredients for an extremely contentious fight which will ultimately come down to the judges’ scorecards. Whilst a split decision is likely, controversy is certain.


[1] Franck Latty, "Le TAS marque des points devant la CEDH" (2018) issue 192 Revue juridique et économique du sport 31, 32.

[2] Unless she competes in disciplines not covered by the Regulations. After contemplating competing in events without testosterone limits, Caster Semenya had to give up trying to qualify for the 2020 Olympics in Tokyo.

[3] Mandates of Special Rapporteurs and the Working Group “Special Procedures Communication to the IAAF” (18 September 2018) OL OTH 62/2018 5.

[4] Although this is due to change soon. See C Delrave “Medical “normalisation” of intersex persons: third-party intervention to the ECTHR in the case of M. v. France” (Strasbourg Observers, 7 April 2021).

[5] See generally Robert Wintemute, "Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes" (1997) vol 60 issue 3 The Modern Law Review 334, 334-336.

[6] Janis Block, Geschlechtergleichheit im Sport – Mit besonderer Berücksichtigung der Diskriminierung von trans- und intersexuellen Sportlerinnen unter den Voschriften des Allgemeinen Gleichbehandlungsgesetzes (Schriften zur Gleichstellung Band 39, Nomos 2014) 328-329.

[7] Mokgadi Caster Semenya v International Association of Athletics Federations [2019] Court of Arbitration for Sport 2018/O/57294 para 295.

[8] The same considerations apply under German law (see endnote 6).

[9]The battle over trans athletes in American schools heats up – Inclusivity bumps up against fairnessThe Economist (London, 5 September 2020).

[10] Mokgadi Caster Semenya v International Association of Athletics Federations paras 473-538.

[11] ibid para 527 and Judgment of DSD Regulations [2020] Swiss Federal Tribunal 4A_248/2019 and 4A_398/2019 para 9.8.3.4.

[12] Roger Pielke Jr, Ross Tucker and Erik Boye, “Scientific Integrity and the IAAF testosterone regulations” (2019) vol 19 issue 1-2 International Sports Law Journal 18, 21-22.

[13] See also Matthieu Maisonneuve, "Tribunal arbitral du sport, Mokgadi Caster Semenya & Athletics South Africa c/ International Association of Athletics Federations (IAAF) c/ Suisse, sentence du 30 avril 2019" (2019) issue 3 Revue de l’Arbitrage 941, 955.

[14] Mokgadi Caster Semenya v International Association of Athletics Federations para 338.

[15] ibid.

[16] The normal range for men is 8-30 nmol/L compared to 0.1-1.8 nmol/L for women. See “What Caster Semenya’s case means for women’s sportThe Economist (London, 8 May 2019).

[17] Maayan Sudai “The testosterone rule – constructing fairness in professional sport” (2017) vol 4 issue 1 Journal of Law and the Biosciences 181, 193.

[18] Maisonneuve (n 13) 964-965.

[19] Björn Hessert, “Cooperation and reporting obligations in sporting investigations” (2020) issue 3-4 International Sports Law Journal 145, 149.

[20] ibid.

[21] Latty (n 1) 32.

[22] French authors speak of the similarity between the "Sporting power" and "State power". See for instance Clémentine Legendre, "La soumission de la Puissance sportive à la Convention européenne des droits de l’homme: réflexions à partir de l’arrêt Mutu et Pechstein" (2020) issue 11 Recueil Dalloz 618.

[23] Hessert (n 20) 149.

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Asser International Sports Law Blog | Blog Symposium: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code. By Howard L. Jacobs

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Blog Symposium: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code. By Howard L. Jacobs

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 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note

Howard Jacobs is solo practitioner in the Los Angeles suburb of Westlake Village, California. Mr. Jacobs has been identified by various national newspapers and publications as one of the leading sports lawyers in the world. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of athletes charged with doping offenses.Mr. Jacobs has represented numerous professional athletes, Olympic athletes, world record holders,  and amateur athletes in disputes involving doping, endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters.  He is at the forefront of many cutting edge legal issues that affect athletes, winning cases that have set precedents that have benefited the athlete community. More information is available at www.athleteslawyer.com.


Introduction

Historically, under the anti-doping rules of most organizations (including the World Anti-Doping Code), the concept of “strict liability” has meant that the proof of intent (or lack thereof) was irrelevant to the issue of whether or not the athlete has violated the anti-doping rules. However, so long as the rules provide for sanction ranges instead of a set sanction for all offenses, the issue of intent to dope has always been somewhat relevant to the issue of sanction length. The 2015 World Anti-Doping Code, with its potential four-year sanctions for a first violation based on whether or not the anti-doping rule violation was intentional, will make the question of intent an important issue in virtually every anti-doping case. This article analyzes these new rules allowing for four-year sanctions for a first violation, in the context of how intent (or lack of intent) will be proven.


I.         Why Intent Matters under the 2015 World Anti-Doping Code

It should be remembered that under the 2015 World Anti-Doping Code (“WADC”). intent is still irrelevant to the issue of whether or not an athlete has committed an anti-doping rule violation.  This is clear from the Comment to Article 2.1.1: “An anti-doping rule violation is committed under this Article without regard to
an Athlete’s Fault. This rule has been referred to in various CAS decisions as “Strict Liability”. An Athlete’s Fault is taken into consideration in determining the Consequences of this anti-doping rule violation under Article 10. This principle has consistently been upheld by CAS.”

Article 10 of the WADC – dealing with length of sanction, has always taken “intent” into account in determining whether or not a sanction should be reduced[1]. In other words, a sanction that would ordinarily be 2 years could be reduced to no sanction where the athlete had no fault or negligence whatsoever, or could be reduced to some degree if the athlete was not significantly at fault or negligent. In this way, intent is indirectly relevant to the issue of how much, if at all, an otherwise applicable sanction (sometimes referred to as the “default sanction”) could be eliminated or reduced. This is because an athlete who can prove that he or she did not intend to violate the anti-doping rules would be much more likely to establish a lack of significant fault or negligence in committing the violation in the first place.

Now, however, the 2015 WADC makes the issue of intent directly relevant to the first issue of the length of the default sanction itself. Therefore, intent is now not only relevant to the issue of reducing the default sanction, but is also relevant to the threshold issue of what the default sanction is in the first place.

Specifically, Art. 10.2.1 of the 2015 WADC provides: 

“The period of Ineligibility shall be four years where:

10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the athlete or other Person can establish that the anti-doping rule violation was not intentional.

10.2.1.2 The anti-doping rule violation involves a Specified Substance and the anti-doping organization can establish that the anti- doping rule violation was intentional.”

Art. 10.2.2 of the 2015 WADC goes on to state that “if Article 10.2.1 does not apply, the period of Ineligibility shall be two years.” Therefore, under the 2015 WADC, the default sanction is determined as follows: 

1.        where the violation does not involve a “Specified Substance,” the default sanction is four years unless the athlete can prove that the violation was “not intentional;” if the athlete meets this burden of proving “lack of intent,” then the default sanction is two years.

2.        where the violation involves a “Specified Substance,” the default sanction is two years unless the National Anti-Doping Organization (“NADO”) or the International Federation (“IF”) can prove that the violation was “intentional;” if the NADO or IF meets this burden of proving “intent,” then the default sanction is four years.

In either case, “intent” is now directly relevant to the length of the default sanction; the only difference is who bears the burden of proving “intent” or “lack of intent,” depending on whether or not the substance involved is a Specified Substance.

 

II.        How will the NADO / IF prove “intent” in cases involving “Specified Substances”?

Many older CAS cases have discussed the difficulty that a NADO or IF faces in proving that an athlete “intended” to use a prohibited substance, in their discussions of the justification of the “strict liability” rule.[2]

While this difficulty in proving that an athlete “intended” to use a prohibited substance to enhance their sport performance has not changed in theory, it has changed in practice with the definitions that WADA provided for proving “intent” within the meaning of Art. 10.2.1 of the 2015 WADC.  Specifically, Art. 10.2.3 now provides the following definition of “intent:” 

“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. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall be rebuttably presumed to be not “intentional” if the substance is a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.”

Therefore, for the purpose of proving “intent” within the meaning of WADC Art. 10.2.1, in the case of Specified Substances, the NADO / IF can meet its burden by proving simply that the athlete engaged in conduct where the athlete “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.” However, practical realities of this “proof” must be considered against the following questions:

(i)             How will this definition of “intent” contained in WADC Art. 10.2.3 be read in connection with the seemingly contradictory comment to 2015 WADC Art. 4.2.2 that specified substances are “substances which are more likely to have been consumed by an Athlete for a purpose other than the enhancement of sport performance”?

(ii)           How will an athlete who knowingly takes a “risky supplement” without knowing that the supplement contained a banned “Specified Substance” be viewed in connection with this definition of “intent” contained in WADC Art. 10.2.3?

Furthermore, in cases where an athlete intentionally used a supplement, but the athlete did not know that the supplement contained a prohibited substance (and where the lack of knowledge was reasonable, such as in cases involving misleading ingredient lists), what will the NADO /IF be required to prove? Will the burden be to prove that the athlete knew or should have known that the supplement contained a prohibited substance, or will it be sufficient to prove that the type of supplement or the supplement manufacturer itself could be viewed as risky, such that the athlete’s use of the supplement could be considered as a manifest disregard of a significant risk, for which the athlete should receive a four-year sanction? The manner in which CAS tribunals resolve this use could dramatically impact the applicable “default sanction” in cases involving nutritional supplements.

 

III.       How does the athlete prove “no intent” in cases not involving “Specified Substances”?

In cases that do not involve “Specified Substances,” the athlete carries the burden of proving “no intent” to avoid the application of a four-year default sanction. In many cases, therefore, this burden of proof will mean the difference between a career-ending sanction and one from which an athlete could potentially return. Therefore, the manner in which this burden of proof is applied by the arbitral tribunals will be critical.

As mentioned above, Art. 10.2.3 of the 2015 WADC provides that “an anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.” Therefore, in cases involving non-specified stimulants, an athlete can avoid a “default sanction” of four years by proving that the stimulant was used out-of-Competition in a context unrelated to sport performance. This raises a number of important issues:

            a)         will arbitral tribunals accept a low concentration level of the prohibited stimulant in the anti-doping test, which low levels would be inconsistent with the purposeful use of the stimulant “in Competition,” as sufficient proof of out-of-Competition use?

            b)        will arbitral tribunals accept a polygraph finding that the athlete was truthful in stating that he did not use the prohibited substance at issue on the day of the competition at issue as sufficient proof of out-of-Competition use ? [3]

            c)         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, arguments can be made that virtually any substance that an athlete consumes, including food, is done in a context related to sport performance.  Therefore, in order to avoid an analysis that renders this phrase meaningless, arbitral tribunals must apply a common-sense and realistic meaning to the issue of when something is consumed in a context that is actually related to sport performance, as opposed (for example) to consuming a product for general health purposes.

For substances that are banned at all times, such as anabolic agents, the analysis of “in-competition” vs. “out-of-Competition’ use will be unnecessary. In these cases, in order to avoid a “default sanction” of four years, the athlete will be required to prove that he or she did not take the substance intentionally. It is therefore critical to consider what will happen to the athlete who has no idea what caused his or her positive test, and who, despite investigation, is unable to prove the source of the prohibited substance. For these athletes, how will arbitral tribunals analyze this issue, which could mean the difference between a career-ending four-year sanction and a “default sanction” of two years?  Some important questions arise:

            a)         Will the athlete’s failure to prove how the prohibited substance entered his or her system (within the meaning of 2015 WADC Art. 10.4 and Art. 10.5.2) automatically result in a 4-year default sanction? Arbitral tribunals should recognize the difference between (i) proving the source of the prohibited substance as a pre-condition to receiving a reduction in the “default sanction,” and (ii) the requirement of proving “no intent” in order to avoid the application of a “default sanction” of four years. An athlete should be able to prove “no intent” without proving the source of the prohibited substance, at least in the abstract.

            b)        Assuming that the failure to prove how the prohibited substance entered the athlete’s system is not automatically equated with intent to use the prohibited substance, how will the athlete who cannot prove the source of the prohibited substance prove lack of intent? Will it be sufficient, for example, for an athlete to submit a polygraph finding that the he was truthful in stating that he did not knowingly use the prohibited substance at issue, as sufficient proof of lack of intent, such that the applicable “default sanction” is two years instead of four? Or, even in the absence of a polygraph exam, could an athlete establish “no intent” within the meaning of 2015 WADC Art. 10.2.1.1 solely through her own credible testimony that she did not knowingly ingest the prohibited substance at issue? These will be important evidentiary issues for arbitral tribunals to consider, and the manner in which they are determined will have a significant impact on the sanction length for many athletes under the 2015 WADC.

 

IV.       Conclusion

The concept of giving longer sanctions to athletes who intend to cheat, and shorter sanctions to those athletes who do not have such an intent, is certainly laudable, and the 2015 WADC has introduced a number of new legal and evidentiary issues in an effort to further differentiate between intentional and non-intentional “dopers.” However, as is often the case, the 2015 WADC has provided very broad concepts, which the arbitral tribunals will have to interpret and apply to real-world situations. How these general concepts are applied in reality will – for many athletes – mean the difference between a two-year sanction that is “merely” devastating and a four-year sanction that is career ending. In those cases where an athlete has no idea where the prohibited substance came from, the arbitral tribunals must be very careful in how they apply these new concepts.

 These new concepts related to “intent” will change the manner in which arbitral tribunals address the preliminary issue of the applicable “default sanction”. They will not materially affect the manner in which these tribunals address the issues related to the reduction in the “default sanction.” However, because of the limitations in how much the “default sanction can be reduced (in cases of no significant fault, the maximum reduction in the “default sanction” is 50 percent), the determination of this new “intent” issue as related to the “default sanction” will be doubly important in cases where the older “exceptional circumstances” rules are being asserted as a basis for sanction reduction.


[1] See, e.g., 2015 WADC Art. 10.4: “if an athlete or other Person establishes in an individual case that he or she bears no fault or negligence, then the otherwise applicable period of Ineligibility shall be eliminated”; and Art. 10.5 on the Reduction of the Period of Ineligibility based on No Significant Fault or Negligence.

[2] See, e.g., C. v. FINA (CAS 95/141) Digest of CAS Awards, Vol. 1, at 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”.

[3] Prior arbitral tribunals have already accepted that polygraph test results are admissible in anti-doping proceedings. See, e.g., UCI v. Contador (CAS 2011/A//2384).

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