Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

I.               Introduction

The COVID-19 pandemic has shaken the manner in which we approach human interactions that suppose close and prolonged physical contact. Across the world, authorities are having to design ways to resume essential activities without jeopardising participants’ health, all the while guaranteeing that other fundamental rights are paid due respect. The fight against doping is no exception. Anti-doping organizations – whether public or private – have to be held to the same standards, including respect for physical integrity and privacy, and considerate application of the cornerstone principle of proportionality.

Throughout this global crisis, the World Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing anti-doping organizations and athletes with updates and advice. On 6 May 2020, WADA issued the document called ‘ADO Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19 ‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s website, and has been last updated on 25 May 2020. This article focuses on these two latest documents, and analyses the solutions proposed therein, and their impact on athletes.

Like many public or private recommendations issued for other societal activities, the WADA COVID Guidance is primarily aimed at conducting doping control while limiting the risk of transmission of the virus and ensuing harm to individuals. More specifically, one can identify two situations of interest for athletes that are notified for testing:

1. The athlete has or suspects that they may have been infected with COVID-19, or has come in close contact with someone having COVID-19;
2. The athlete fears to be in touch with doping control personnel that may be infected with COVID-19.

Quite obviously, either situation has the potential to create significant challenges when it comes to balancing the interests of anti-doping, with individual rights and data protection concerns. This article summarises how the latest WADA COVID Guidance and Athlete Q&A address both situations. It explores how the solutions suggested fit in with the WADA regulatory framework and how these might be assessed from a legal perspective.

The focus will be on the hypothesis in which international sports federations – i.e. private entities usually organised as associations or similar structures – are asked to implement the COVID Guidance within their sport. National anti-doping organizations are strongly embedded in their national legal system and their status and obligations as public or semi-public organisations are likely to be much more dependent on the legislative landscape put in place to deal with the COVID-19 pandemic in each country. Nevertheless, the general principles described in this article would apply to all anti-doping organizations alike, whether at international or national level.

II.              Addressing the risk of the athlete tested having been exposed to COVID-19

Obviously, sample collection personnel must not be exposed to unnecessary risks as a result of collecting samples from athletes who could have come into contact with COVID-19. This concern is legitimate, whether anti-doping organizations conduct sample collection through their own doping control officer network, or outsource this task to external service providers.

A.     The solutions provided for in the WADA COVID Guidance

A first set of measures in the COVID Guidance is designed to keep individuals at risk from having to go on testing missions at all. The Guidance does so in two ways: on the one hand, by identifying categories of ‘Vulnerable Populations’ of sample collection personnel which anti-doping organizations should avoid sending on testing missions (section 3(e)), and on the other hand by making it clear that “the ADO should clearly communicate that any SCP who are not comfortable collecting samples during this time do not have to do so” (section 3(a)).

A second set of measures seeks to identify whether the individual athlete at stake presents any symptoms or heightened risk of having be exposed to COVID-19, or is even confirmed to be infected. To this effect, anti-doping organizations are invited to develop an additional Athlete Information Letter for the sample collection session, as well as appropriate information and education material.

The material should stress, in particular, that “additional personal information may be requested from athletes during sample collection. Identify the additional health information that the ADO will be asking athletes to provide to ensure their health and safety as well as that of SCP, and the manner in which this information will be used, stored and shared” (section 4(a)(iv)). The Athlete Information Letter should include “outline of the potential consequences to the athlete should they refuse to comply” (with the testing), as well as “request that the athlete contacts you (ADO) if their health situation changes”.

It is further recommended that a specific ‘COVID-19 Athlete Questionnaire’ be developed by each anti-doping organization (section 4(d)). Annex A of the COVID Guidance outlines the details:

• Athletes must be asked at the door, before proceeding with formal notification: “Are you or anyone present with you at this location/living at this residence/who lives with you, experiencing any COVID-19 symptoms” or “do you, or anyone present with you at this location/living at this residence/who lives with you, have COVID-19”?;
• Athlete who answer YES must then fill out the questionnaire: according to the WADA COVID Guidance, the sample collection personnel must “inform the athlete that they must complete this questionnaire truthfully and to the best of their knowledge and that if they purposefully provide any information which is inaccurate or incorrect, it could be construed as an anti-doping rule violation (e.g. tampering or attempted tampering) and they may be subject to a sanction of up to four years. Confirm that the athlete understands this”;
• Athletes must be informed that because they have declared they or someone close to them have COVID-19 or symptoms, “sample collection will not proceed due to the risk of infection with COVID-19”.

Beyond individual testing attempts, Section 4(f) provides that athletes who are tested and subsequently contract COVID-19 “should be encouraged” to inform the ADO. The Athlete Q&A also advises athletes, if they are concerned that they may have acquired the virus, that “you should advise your ADO of your situation with your whereabouts submission or when sample collection personal notify you for testing so that they can adjust their plans accordingly” (Question 5).

B.     Assessment of the situation in the light of data protection requirements

Through various tools (oral questions, COVID-19 Athlete Questionnaire, whereabouts submission), the COVID Guidance provides that information be obtained from athletes about whether they, or their close entourage, exhibit symptoms of COVID-19 or have been diagnosed with COVID-19. This type of information represents health data, which is sensitive data that typically enjoys special protection under data protection laws.

The question arises, then, how athletes can be required to provide such data, and what the consequences should be if they refuse to do so, or if they provide inaccurate data.

A first issue that deserves analysis is whether the data can be requested pursuant to the current WADA regulatory framework and what sanctions can be attached to failing to comply based on the WADA Code.

Sample collection is governed by the WADA International Standard for Testing and Investigations (‘ISTI’). The ISTI – whether incorporated by reference or directly transposed into the anti-doping organization’s rules – is the only binding document in this context. While the term ‘guidance’ is not one that has an established status under the WADA Code, it is probably closest to the Level-3 document defined as ‘Guidelines’ (section Purpose, Scope & Organization). This type of document enshrines recommendations to anti-doping organization, but is not mandatory upon them. These documents cannot, therefore, result in amending the ISTI. Any departure from the ISTI could give rise to an objection to invalidate the finding of an anti-doping rule violation, as per the regime set forth in Article 3.2.3 WADA Code.[1]

The ISTI section 7.4.5 provides a bullet-point list of the data to be collected during the sample collection session, which is introduced as follows: “In conducting the Sample Collection Session, the following information shall be recorded as a minimum” (emphasis added). Despite this wording, it is submitted that the ISTI cannot be read as authorizing anti-doping organizations to collect additional health information on their doping control forms, certainly not subject to the penalty of an anti-doping rule violation. Athletes risk a so-called ‘failure to comply’ (e.g. tampering) violation if they refuse or provide false information at sample collection.[2] They cannot be asked to provide information that is not either listed in the ISTI, or – where the anti-doping organization has adopted its own standard – reflected in the implemented rules. Otherwise, anti-doping organizations could come up during sample collection with random additional requests for data and turn a refusal to provide such data into an anti-doping rule violation at will.

The Athlete Q&A states that “you may see enhancements that seek to strike the balance between the protection of clean competition and personal health” (emphasis added). These may include “a self-declaration concerning your health status” (Question 4). In spite of the euphemistic language used, the additional information requested and the related COVID-19 Athlete Questionnaire are purported amendments to the ISTI requirements. This is all the more concerning since the questionnaire also may also require athletes to give out health data concerning identifiable third parties.

Accordingly, the blanket statement in the COVID Guidance whereby athletes should be informed that they may be charged with an anti-doping rule violation for failing to truthfully fill in the Athlete COVID Questionnaire may prove unenforceable to a large extent. Asking for such data represents a departure from the ISTI. Applying the proof regime set forth in Article 3.2.3 WADA Code, such departures invalidate the finding of an anti-doping rule violation at the very least if they ‘caused’ the anti-doping rule violation.[3]

Furthermore, one should distinguish cases in which athletes refuse the data outright, or hide COVID-related symptoms, from the situation in which an athlete falsely states having COVID-related symptoms. Obviously, if the athlete refuses to provide a sample because of the anti-doping organization making the health data compulsory to complete sample collection, in breach of the ISTI, the departure is directly causative for the refusal, which as a result cannot be prosecuted under Article 2.3 WADA Code (refusal to submit to testing). The same would, arguably, apply if the athlete answers the questions but fails to provide genuine health data which could have led to aborting testing (e.g fails to mention COVID-19 symptoms). This could impossibly result in charges for tampering with the doping control process under Article 2.5 WADA Code, in the absence of a regulatory basis for requesting the information in the first place.[4]

The only scenario in which one could imagine charging athletes with a tampering violation is where the athlete is shown a posteriori to have invented COVID-19 symptoms or a COVID diagnosis, and deliberately used it as an excuse for not being tested. The anti-doping organization would, however, have to demonstrate intent,[5] specifically show that the athlete had no symptoms whatsoever, or that the athlete did not believe in good faith that the symptoms could be evidence of COVID-19. Such proof would probably prove impracticable in all but the most exceptional situation.

Thus, what seems most concerning about the WADA COVID Guidance in the way it informs athletes on the consequences of not filling the questionnaire truthfully, is its utterly generic wording. The Guidance is misleading insofar as it implies that athletes are under an obligation to provide the health data at stake, under the threat of disciplinary sanctions of up to four years. With respect to the equivalent self-certification recommended for the sample collection personnel as to their symptoms or contacts with COVID, the Guidance clarifies that introducing such self-certification is subject to being “permitted by applicable data protection, health, and employments laws”. Though the Guidance does not include the same caveat when it comes to the COVID-19 Athlete Questionnaire, the same reservations must obviously apply for health declarations that athletes are asked to make.

This leads over to the second issue, which is whether athletes can be compelled to provide the data and sanctioned for refusing to do so based on grounds outside the ISTI and WADA regulatory framework. There may be – in the current spread of the pandemic – state law under certain jurisdictions in which there is a legal obligation to declare COVID symptoms or COVID diagnosis, under one form or another. It seems highly unlikely, however, that this type of obligation would extend to an obligation to give out non-coded health information – including data regarding third parties – to private entities. If there is, the legal basis should be specified on the COVID-19 Athlete Questionnaire.

Assuming the absence of extraordinary COVID-related laws, anti-doping organizations have to rely on ordinary data protection rules. In an European context, we can use as a reference the EU General Data Protection Regulation (‘GDPR’), which will be applicable to a significant amount of doping controls, and has otherwise acquired a status of ‘best practice’. According to the GDPR, health data represents ‘special-category’ data which can only be processed based on very restrictive grounds (Article 9 GDPR). One of these is consent explicitly given by the data subject (Article 9(2)(a) GDPR). This ground cannot be used based on the terms of the COVID Guidance, since consent given under threat of a four-year disciplinary sanction can hardly be considered free, and thus valid, under the GDPR.[6]

Much will then depend on whether the anti-doping organization at stake benefits from a basis in national law to process health data in the context of doping control based on public interest grounds (under Article 9(2)(e) or (i) GDPR), and how broadly such legal basis is framed. It is by far not manifest that COVID-related health data would qualify as collected for ‘anti-doping purposes’ within the meaning, in particular, of Article 5.1 WADA Code. No claims are made in the COVID Guidance that the information is necessary for the sake of reliable sample analysis. In addition, the WADA Code certainly provides no basis for collecting health information about the athlete’s entourage.

In sum, any COVID-19 Athlete Information Letter or Athlete Questionnaire should make it crystal clear that athletes cannot be compelled by their anti-doping organization to provide data regarding their current health status. If a questionnaire is introduced, athletes should be informed that they may – voluntarily – provide health information about themselves or their entourage, provided that they have obtained consent from their entourage if the data subject is identifiable. The questionnaire could be treated like consent to anti-doping research, which is declared unequivocally optional on the doping control form, with no consequences arising from an athlete refusing to provide the information requested. Athletes must receive transparent information to the effect that they cannot be charged for an anti-doping rule violation if they refuse to give such data, and that possible charges might, at most, apply if they use false COVID symptoms or a false COVID diagnosis as a pretext to avoid sample collection. If the mere optional character of the questionnaire were, depending on the local pandemic situation, considered to create inacceptable risks for the sample collection personnel and if there is no other basis in national law to request such information, testing should not resume.

III.            Dealing with the risk of sample collection personnel having been exposed to COVID

As mentioned, a second set of concerns addresses the hypothesis of athletes being endangered – or feeling endangered – by the presence of sample collection personnel. These concerns appear equally legitimate since the WADA COVID Guidance acknowledges that some situations may not allow for recommended social distancing requirements to be maintained at all times during testing.

A.     The solutions provided for in WADA COVID Guidance

The WADA COVID Guidance seeks to address these concerns through the following means:

• By defining categories of ‘Risk Groups’ of sample collection personnel (e.g. health care professionals currently employed) (section 3(e)), who should not be sent on testing missions;
• By encouraging a system of self-certification to be completed by the sample collection personnel before a testing mission, “if permitted by applicable data protection, health, and employment laws” (section 3(f));
• By providing that social/physical distancing is to be maintained “as much as possible” (Annex A), and informing athletes of the role that protective equipment (e.g. wearing masks) can play for their safety.

While the consequences of an athlete disagreeing about the anti-doping organization’s assessment of safety is not addressed in the COVID Guidance itself, it is discussed in the Athlete Q&A: “Can I refuse to be tested if I [..] do not feel that adequate precautions are being taken by sample collection personnel?”.

The answer given is that, where confinement measures are still in place, “such a scenario is unlikely as ADOs must exercise sound judgment in these unprecedented times”. The answer continues: “Unless there is a mandatory isolation/lockdown, however, you are advised to comply with testing while following the preventative measures put in place by your ADO, which should be commensurate with the risks at hand. If you refuse to be tested or if you do not complete sample collection process after notification, or if you are not able (or willing) to provide a sample due to a lack of protective measures, your refusal will follow the normal results management process, which may result in a period of ineligibility of up to four years” (Question 8; emphasis added).

B.     Assessment of the solutions proposed in light of protection of the athlete’s health

The WADA COVID Guidance arguably seeks to create a reasonable safety standard and encourages anti-doping organizations to have in place appropriate protective measures. However, WADA takes no responsibility for guaranteeing to athletes that they will suffer no prejudice if those safety standards are not maintained in individual testing attempts. Instead, the Athlete Q&A explicitly warns athletes that if they fail to submit to sample collection “due to a lack of protective measures”, they will be subject to ordinary results management.

Let us be very clear about the starting point, which goes beyond the context of the COVID-19 pandemic: no athlete should ever have to subject themselves to sample collection when they fear for their health and physical integrity.

In the CAS award WADA v. Sun Yang & FINA, the CAS panel held that “as a general matter, athlete should not take matters into their own hands, and if they do they will bear the risk of serious consequences. The proper path for an Athlete is to proceed with a Doping Control under objection, and making available immediately the complete grounds for such objection”.[7]

Though this may appear a rather peremptory statement, the panel also insisted, rejecting WADA’s claim that athletes must always allow a sample to be collected, that “it cannot be excluded that serious flaws in the notification process, or during any part of the Doping Control process, could mean that it might not be appropriate to require an athlete to subject himself to, or continue with, a sample collection session. Rather, they could invalidate the sample collection process as a whole, so that an athlete might not be perceived as having tampered with the Doping Control, or as having failed to comply with the sample collection process”.[8]

It is submitted that, where athletes express legitimate concerns about their physical integrity or broader health, they cannot be referred to submitting to testing nonetheless and subsequently file their objections against the procedure. In fact, the CAS panel in WADA v. Sun Yang & FINA did endorse past CAS jurisprudence to the effect that: “whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete”.[9] A contrario, where circumstances exist that relate to ‘physical, hygiene or moral’ hazards, the athlete should be entitled to refuse sample collection.

The stakes here reach far beyond the potential to obstruct collection of evidence to support disciplinary proceedings for anti-doping purposes. They concern the rights of an individual asked to provide biological materials, in a way that is either highly intrusive of their intimate sphere (urine sampling), or represents an actual medical act (blood sampling).[10] Filing objections and documenting concerns a posteriori are not measures capable of achieving the goal of protecting those rights where the threat emanates directly from the sample collection process, as opposed to its potential detrimental disciplinary consequences.

Previous guidance issued by WADA on 20 March 2020 included some more details about how cases arising from refusal to submit to testing due to (alleged) lack or preventative measures should be treated:

“If a potential refusal or failure to submit to sample collection is submitted to the ADO, the typical results management process should be followed and the athlete will have the opportunity to submit their defense, including any reasons why they believe their refusal or failure to complete the process was justified. This information will be taken into account when: 1) the ADO determines if a potential anti-doping rule violation should be asserted, and 2) the disciplinary panel hears the case”.

A typical results management process for refusing to submit to sample collection would be handled as a failure to comply under Annex A of the ISTI, according to which the sample collection personnel will submit a report to the anti-doping organization and athletes will be asked to provide explanations.

The claim that the anti-doping organization did not ensure appropriate protective measures should be analysed initially as a departure from the ISTI and treated in accordance with the regime set forth in Article 3.2.3 of the WADA Code. Annex D.1 of the ISTI indeed provides that its objective is: “To collect an Athlete’s urine Sample in a manner that ensures: a) consistency with relevant principles of internationally recognised standard precautions in healthcare settings so that the health and safety of the Athlete and Sample Collection Personnel are not compromised. The same statement is provided for blood sample collection in Annex E.1.

If it becomes apparent that, objectively, no adequate precautions were taken with respect to the risk of COVID-19 (or indeed any other health hazard) during the sample collection session, this represents a departure from the ISTI which – to use the wording of Article 3.2.3 WADA Code – could “reasonably have caused” a refusal. The burden then shifts to the anti-doping organization to establish, to the comfortable satisfaction of the hearing panel (Article 3.1 WADA Code), that this departure was not in reality what led the Athlete to refuse sample collection. If the anti-doping organization cannot discharge this burden – and discharging it should prove difficult once established that safety was objectively lacking – no finding of an anti-doping rule violation can occur.

Whether adequate precautions were taken should be analysed based on the local situation and applicable public health guidelines at the time of collection in the relevant country. The anti-doping organization may reach the conclusion that the standards were inadequate spontaneously when reviewing the failure to comply, or the conclusion may be drawn by the hearing panel. The WADA COVID Guidance can serve as a minimum benchmark, since athletes can legitimately expect that anti-doping organizations would at least comply with these. However, stricter local guidelines in place should always prevail, since doping control cannot claim exemption from the rules that would otherwise apply to medical or similar acts requiring close interpersonal contact. Athletes who are of the view that they are not offered adequate protective measures would be well-advised to document the exact circumstances, the concerns they voiced and the measures that were proposed by the sample collection personnel to alleviate these concerns.

Even if it can be demonstrated, a posteriori, that the safety measures were objectively adequate at the given site and time, and thus no departure from the ISTI occurred, this should not be the end of the assessment. Article 2.3 WADA Code reserves the presence of “compelling justification” for refusing testing.[11] If athletes can demonstrate, by a balance of probabilities (Article 3.1 WADA Code),[12] that their doubts about the protective measures proposed by the anti-doping organizations were legitimate at the time and given the circumstances, this should qualify as a compelling justification. Again, the consequence will be that the finding of an anti-doping rule violation must be rejected.

The regime proposed above seeks to avoid athletes putting their health at risk for fear of facing disciplinary sanctions. It strikes an appropriate balance with the interests of doping control and appears sufficient to prevent athletes using fake safety concerns as an excuse to escape testing. At the very least, they will have to demonstrate plausibly that they were reasonably entitled to hold such concerns.

Hearing panels will inevitable retain considerable latitude in their judgment, since the WADA COVID Guidance leaves ample room for interpretation, and so will most public authorities’ guidelines. Hence, athletes who choose to refuse testing will need to accept the risk that they may be erring about what protective measures should be in place, especially if they claim that the measures should go beyond those advocated in the COVID Guidance. Conversely, they can certainly not be invited to assume and trust a priori that the anti-doping organization is necessarily taking measures “commensurate with the risks at hand”, as the COVID Guidance suggests. Importantly, the athlete’s individual circumstances must be taken into consideration. It is worth recalling that some athletes, just like sample collection personnel identified in the COVID Guidance, may belong to a vulnerable population category, including for reasons that they feel unable to communicate to the sample collection personnel in detail (e.g. because of a chronic condition that would lead them to reveal highly sensitive health data). The assessment of what constituted ‘understandable’ concerns should therefore not be too strict, but should be made in light of the ambient anxiety and scientific uncertainty prevailing during the pandemic.

IV.            Conclusion

The WADA COVID Guidance represents a commendable attempt to strike a balance between maintaining doping control during the COVID-19 pandemic, and safeguarding the health of all participants, sample collection personnel and athletes alike.

Anti-doping organizations will, however, have to apply the Guidance with caution and discernment. As shown above, the Guidance walks a thin line when it comes to athlete privacy and physical integrity. This is all the more so since athletes have no option to ‘take a break’ from exposure to the risks going along with testing,[13] in contrast to sample collection personnel who are given a choice to refrain from participating in missions if they feel uncomfortable.

COVID-19 confronts anti-doping organizations with tough dilemmas. Continued and comprehensive testing is viewed by many, including athletes, as a prerequisite for ensuring that they can return to competition in a level playing field. This does not mean that we can forgo compliance with mandatory standards of law. Where testing proves impracticable in accordance with the law and with applicable sports regulations, and in a way that guarantees safety for all participants, such testing must not take place. As important as the quest for clean sport may be, it cannot override legitimate health concerns and basic privacy rights.

[1] Reference is made here to the currently applicable 2015 version of the WADA Code. Note that the 2021 version purports to restrict even further the athlete’s options for invalidating an anti-doping rule violation based on procedural departures.

[2] Failure to Comply is defined in the ISTI as: “A term used to describe anti-doping rule violations under Code Articles 2.3 and/or 2.5”. Article 2.3 targets refusal to submit to testing, whereas Article 2.5 targets a violation of tampering.

[3] Article 3.2.3 WADA Code reads (2015 version) : “Departures from any other International Standard [i.e., other than the ISL] or other anti-doping rule or policy set forth in the Code or Anti-Doping Organization rules which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such evidence or results. If the Athlete or other Person establishes a departure from another International Standard or other anti-doping rule or policy which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding or other anti-doping rule violation, then the Anti-Doping Organization shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation”.

[4] In any event, it is questionable whether refusal to give health data could ever qualify as impeding sample collection, since the athlete’s silence enabled sample collection which could otherwise not have proceeded.

[5] Tampering is no strict liability violation under Appendix 1 WADA Code and requires proof of an intentional conduct on part of the athlete.

[6] On this, see also Viret Marjolaine, How Data Protection Crystallises Key Legal Challenges in Anti-Doping, International Sports Law Blog, 19 May 2019.

[7] CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 209.

[8] CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 208.

[9] CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 206.

[10] On this, see more broadly Viret Marjolaine (2016), Evidence in Anti-Doping at the Intersection of Science & Law, Springer, e.g. pp 218 & 682.

[11] In CAS 2016/A/4631, Brothers v. FINA, para. 78, the panel cited as hypotheses of justification in relation to health: “if the athlete were to faint unconscious on the floor upon seeing the DCO’s needle, or if he were stone drunk or would experience an epileptic fit at the time of the test.”

[12] Though Article 2.3 does not explicitly so provide, CAS panels typically place the burden of proof on athlete to show the existence of compelling justification (see e.g. CAS 2016/A/4631, Brothers v. FINA, para. 76; or already CAS 2005/A/925, de Azevedo v. FINA, para. 68 & 78).

[13] The WADA Athlete Q&A explicitly warns athletes that they remain subject to testing at any time and anywhere unless public authorities have put in place physical mobility restrictions (Question 1).

Part Two of this series looked at the legal challenges FFP has faced in the five years since the controversial ‘break even’ requirements were incorporated. Those challenges to FFP’s legality have been ineffective in defeating the rules altogether; however, there have been iterative changes during FFP’s lifetime. Those changes are marked by greater procedural sophistication, and a move towards the liberalisation of equity input by owners in certain circumstances. In light of recent statements from UEFA President Aleksander Čeferin, it is possible that the financial regulation of European football will be subject to yet further change.

FFP from 2010 to 2015 

FFP was integrated into UEFA’s licensing requirements in the Club Licensing and Financial Fair Play Regulations Edition 2010.  In the 2010 Edition, implementation of FFP was to be overseen by the UEFA Club Financial Control Panel. Disciplinary action was carried out by the UEFA Control and Disciplinary Body, whose decisions could be appealed to the UEFA Appeals Board.

In the Club Licensing and Financial Fair Play Regulations Edition 2012, the oversight and disciplinary procedure of FFP was amended. The functions of the Club Financial Control Panel, Control and Disciplinary Body, and Appeals Board were replaced with a two-tier Club Financial Control Body (CFCB). The two chambers of the CFCB are the Investigatory Chamber, which actively monitors FFP compliance; and the Adjudicatory Chamber, which levies sanctions for non-compliance.

Under Article 53.1 of the 2012 Edition rules, the CFCB “carries out its duties as specified in the present regulations and the Procedural rules governing the UEFA Club Financial Control Body” (the Procedural Rules). The bespoke Procedural Rules establish a framework for the composition of the CFCB, the decision making processes of both the Investigatory and Adjudicatory Chambers, and the rules applicable to the whole proceedings. Like the Club Licensing and FFP Regulations, the Procedural Rules have gone through iterative changes (2014, and 2015 editions).

The Procedural Rules are a welcome development to FFP, ensuring the independence of the CFCB (Articles 6 and 7); bestowing broad investigatory powers upon the Investigatory Chamber (Article 13); and setting clear parameters for disciplinary action and process, including setting out potential disciplinary measures (Article 29). Overall, the Procedural Rules increase the legal sophistication of the end-to-end FFP process, and in doing so reduce the risk of irrational or arbitrary outcomes.  This protects clubs and UEFA; clubs who are in breach of FFP have clear guidance on the process that will be followed; clubs who adhere to FFP are reassured that those clubs who breach the rules will be put through a sophisticated investigation and (if necessary) disciplinary process (and additionally, pursuant to Article 22, where third party clubs and member associations are affected and have a legitimate interest in joining proceedings before the Adjudicatory Chamber, may do so); and UEFA, in having a clear and detailed rules governing procedure, helps to insulate FFP from legal challenge.

(By way of aside, in light of the changes to the procedure governing FFP sanctions, it is noteworthy that Bursaspor, in CAS 2014/A/3870 Bursaspor Kulübü Derneği v. Union des Associations Européennes de Football, argued that Control and Disciplinary Body and Appeals Board were “not professional on financial subjects”, although the Turkish club was unsuccessful in its appeal, and UEFA’s rebuttal was to highlight that the Club Financial Control Panel was made up of “financial and legal experts” and that the creation of the CFCB was “principally motivated by a desire to streamline the process”.)

Amongst the Procedural Rules, Article 33 stipulates that decisions of the Adjudicatory Chamber are to be published (subject to redaction to protect confidential information or personal data), which has the effect not just of increasing the transparency of UEFA’s decision making, but also of increasing the transparency of the financial affairs of European club football.

Settlement Agreements

One of the more dramatic changes implemented by the Procedural Rules was the implementation of ‘Settlement Agreements’, which are “aimed at ensuring that clubs in breach of the break-even requirement become compliant within a certain timeframe and are designed to be effective, equitable and dissuasive.”

Settlement Agreements have been described as “basically a plea bargain”. Redolent of the settlement procedures in many competition law or white collar crime regimes, Settlement Agreements are consensual agreements entered into between a party who has breached FFP and the CFCB, which avoid the need for a breach to be referred to the Adjudicatory Chamber (Article 15.1).   Settlement Agreements have been viewed by the CAS as effectively giving clubs a ‘second chance’ to comply with FFP (CAS 2016/A/4692 Kardemir Karabükspor v. UEFA), albeit with more stringent conditions applied.

Settlement Agreements may include sanctions and timeframes for compliance (Article 15.2) and are monitored by the CFCB Chief Investigator (Article 15.4). If there is a breach of a settlement agreement, the matter is then referred to the Adjudicators Chamber.

FFP from 2015

The next major changes to FFP were implemented in the Club Licensing and Financial Fair Play Regulations Edition 2015.

Introduction of Voluntary Agreements 

In contrast to the ex post compliance approach of Settlement Agreements, Voluntary Agreements are an ex ante mechanism for clubs to derogate from the normal FFP standards, with the ultimate aim of complying with the break-even requirement. Voluntary Agreements are defined as being “a structured set of obligations which are individually tailored to the situation of the club, break-even targets defined as annual and aggregate break-even results for each reporting period covered by the agreement, and any other obligations as agreed with the UEFA Club Financial Control Body investigatory chamber” (Edition 2015, Annex XII A.5). They can last for up to four reporting periods (Annex XII A.3).

In order to enter into a Voluntary Agreement, a club must adhere to certain procedural requirements. These include submitting a long-term business plan “based on reasonable and conservative assumptions” (Annex XII B.2(a)).

On the face of it, the concept of the Voluntary Agreements–allowing clubs with new owners to incur debts on the promise of future FFP compliance–sounds like a recipe for sort of financial peril FFP was created to avoid.  However, in order to be allowed to enter into a Voluntary Agreement, there must be put in place “an irrevocable commitment(s) by an equity participant(s) and/or related party(ies) to make contributions for an amount at least equal to the aggregate future break-even deficits for all the reporting periods covered by the voluntary agreement” (Annex XII B.2(c)).

Break Even Limit Increase

Another significant change implemented by the Club Licensing and Financial Fair Play Regulations Edition 2015 was a variation to the quantum of the break even limits in certain circumstances. The limits were increased from €5m to €45m for assessment periods 2013/14 and 2014/15, and €30m for assessment periods 2015/16, 2016/17 and 2017/18  “if it is entirely covered by a direct contribution/payment from the club owner(s) or a related party” (Article 61.2).

This balance between short-term losses, guaranteed in the event of financial failure (per the Voluntary Agreement process) or offset by owner input, against long term sustainability are superficially congruent with the objectives identified by UEFA for its licensing regime, which include “to introduce more discipline and rationality in club football finances; to encourage clubs to operate on the basis of their own revenues; to encourage responsible spending for the long-term benefit of football; and to protect the long-term viability and sustainability of European club football” (Article 2 (c)-(f)).  But this takes a somewhat narrow view of the impact of spending in football. A club’s spending affects not just a buying and selling club in a market transaction for a player’s registration, but affects the overall market in football players.

Inflation in the market for player registrations far outstrips inflation across the broader economy (by one estimate, inflation in football transfer fees runs ten times higher than inflation in the “normal” economy – and those figure were calculated before Paris Saint Germain doubled the record transfer fee with the purchase of Neymar in the summer of 2017. Player wage growth runs at over 10% per annum. Voluntary Agreements and increased owner investment may contribute to this vertiginous inflation. This runs in contrast to some of UEFA’s messaging around FFP. For example, it has previously been stated that FFP was intended to “decrease pressure on salaries and transfer fees and limit inflationary effect”.

Of course, it should be borne in mind that there is nothing inherently wrong with inflation where it is sustainable; but when considered in an environment where capital is accruing to the wealthy elite (top 15 European clubs) at a quicker rate than the rest of the market (see UEFA’s Financial Fair Play Regulations and the Rise of Football’s 1% by van Maren for further analysis), there is a risk of bifurcation of the financial capabilities of football clubs, with inflation marginalising the non-elite.  European clubs have seen revenue growth at over 9% per annum on UEFA’s figures, although since 2009, the average English Premier League club has added “five times more revenue than the average Italian Serie A or French Ligue Un club”. Inflation, if not intrinsically problematic, certainly has the potential to cause problems; and UEFA, in administering and approving Voluntary Agreements, and in weakening its stance on owners offsetting losses, should consider the impact on inflation and stability. Voluntary Agreements and financial input by owners are potentially gateways to the elite level; however, this should not be at the expense of those who do not have wealthy owners or pre-existing wealth.

Perhaps more significantly, there is a normative dimension to the introduction of Voluntary Agreements and the relaxation of financial input from benefactors. The message behind FFP was one of “revolutionising European football”, with then President of UEFA Michel Platini saying that UEFA would “never [be] going back on this.” Quite conversely, the changes brought about by the 2015 Edition of FFP were welcomed with a message of FFP being “eased”. This is disappointing because, on UEFA’s own figures, FFP has had a considerable positive impact on the European football financial landscape. On one view, allowing equity input from owners is a pro-competitive encouragement of exogenous investment; on another, it is rowing back from a positive and successful policy initiative at the expense of those not fortunate enough to have a benefactor owner.

The impact of FFP

In defence of its loosening of the restriction on loss-making, UEFA would doubtless point to the positive impact the FFP has had to date,^[1] which, perhaps, creates financial latitude that once did not exist.

As a part of FFP, the clubs under UEFA’s direct jurisdiction report standardised, audited, financial information. UEFA publishes annual benchmarking reports, which draw upon the information clubs submit. Since the introduction of FFP, there has been a general positive trend in European clubs’ finances.

For example, UEFA’s 7th Benchmarking Report, covering the financial year 2014, showed wage growth to have slowed to its “lowest rate in recent history” at 3%. Overdue payables (essentially debts that clubs owe but have not paid on time) had reduced by 91%. The most recent report published by UEFA, its eight Club Licensing Benchmarking Report, covering the financial year 2015, indicates that clubs “have generated underlying operating profits of €1.5bn in the last two years, compared with losses of €700m in the two years before the introduction of [FFP]”; whereas “Combined bottom-line losses have decreased by 81% since the introduction of [FFP]”.

Of course, there are methodological problems in ascribing the improvement in European clubs’ finances exclusively to FFP when in reality there are a combination of factors at play. However, what we can comfortably say is that there is an evident correlation between FFP and the stabilisation of the football financial landscape.

There is also a second-order effect of FFP at play. UEFA, in its position as the game’s regulator, in introducing FFP, has had a hegemonic influence on the governance of the game at national level.  For example, in England, domestic iterations of FFP have been instituted in the Football League, and the Premier League has introduced its own Short Term Cost Control Measures.

Thus, by setting the tone of sustainability expectations, UEFA has influenced the financial stability of clubs outside of its jurisdiction. This is highlighted neatly in the following passage from UEFA’s eight Benchmarking Report:

“The centrepiece of financial fair play, the break-even rule, may not directly address small and medium-sized clubs with costs and incomes below €5m, but financial fair play has other direct and indirect impacts on these clubs. Direct in that UEFA and the Club Financial Control Body pass their eyes over detailed financial data from all clubs competing in UEFA competitions and in particular take careful, regular note of all overdue payables. And indirect in that financial fair play has resulted in a significantly higher level of scrutiny of club finances and the actions of club owners and directors. In addition, some countries, such as Cyprus, have introduced their own versions of financial fair play, tailored to their clubs and the scale of their financial activities.” 

So, whilst UEFA can legitimately point to the more secure position across the financial landscape as a good reason that Voluntary Agreements or wider economic input from owners will do no harm, it should continue to reflect on the message this loosening of FFP may send to the wider football market.

FFP Exemptions

One area of change for which UEFA should be applauded is in its use of certain exemptions from the FFP ‘break even’ calculation. These include areas such as infrastructure and youth football, both essential to the game’s long-term sustainability. By exempting these areas from the break even calculation, clubs’ owners are incentivised to invest (by equity rather than debt) in the game’s future, without an impact on short-term competitiveness.

More recently (from 2015), UEFA has moved to exclude expenditure on women’s football from the break-even calculation (Annex X C(i). Again, UEFA should be praised for taking positive steps to encourage growth across less wealthy areas of the game.

The Future of FFP after Neymar

Over the summer of 2017, public interest in FFP has reignited. The rules are now becoming synonymous with Neymar and his new club, Paris Saint Germain, after the Brazilian player’s reported €222m release clause was activated, doubling the world record fee for a player transfer.   This move, followed by French player Kylian Mbappe joining Paris Saint Germain from Monaco for similarly large fee, has upset some in the game.

These events pose a significant problem for UEFA. It is not yet known whether PSG are in breach of FFP (and, of course, it is conceivable that they have sufficient financial capabilities to fund the purchases without any breach of the rules); however, the transactions have raised questions, including La Liga President Javier Tebas stating that he believed PSG were guilty of “infringing on UEFA regulations, financial fair play and EU laws”, and Arsenal manager Arsène Wenger saying that “it looks like we have created rules that cannot be respected…there are too many legal ways to get around it.” 

The public grievances around FFP precipitated by PSG’s spending do, to an extent, seem to conflate simply spending large sums of money with breaching FFP. The rules do not prohibit spending large sums on transfers or otherwise; rather, they limit how much debt can be incurred by a club, assessed over a three year rolling period, with only limited equity input from an owner. The rules were not designed to prevent a €222m transfer per se (with the fee amortised across the length of the contract period, as is standard practice in the football industry); rather, they were designed to ensure that any such spending was sustainable, and did not put clubs at risk.

However, FFP is a reactive, not a proactive tool. Clubs report spending after the event; they are not required to seek permission from UEFA to make a capital investment. This ex post approach does perhaps reveal a flaw in managing any egregious short-term infractions that should arise, the impact of which will be felt by other clubs before UEFA, through the CFCB, can have its say.

The broader problem associated with PSG’s spending is one of opacity. PSG is owned by Oryx Qatar Sports Investments, which is an investment vehicle for the state of Qatar. There were contemporary (unconfirmed) reports that the deal would be structured to take place off of PSG’s accounting books, with Neymar being paid the value of his release clause directly for agreeing to become an ambassador to the Qatar World Cup, so that he could in turn pay his own release clause.  If true, this would notionally take the release clause fee off of PSG’s books, but would almost certainly qualify as a related party transaction with the meaning of FFP’s Annex X F and thus remain examinable by the CFCB. Similarly, it was reported that PSG’s loan-come-purchase of Kylian Mbappe was “complex”. While complicated transfer arrangements are to be expected in a game that is going through increasing commercial sophistication, there are evidently some suspicions that PSG are attempting to circumvent FFP (or, more colourfully, ‘peeing in the pool’).

However, UEFA anticipated clubs employing ‘creative’ tactics to superficially comply with FFP, and gave the CFCB jurisdiction to consider “at all times…the overall objectives of these regulations, in particular to defeat any attempt to circumvent these objectives” (Article 72.1). (At this stage, one can only speculate as to what, if any, FFP objectives PSG may have breached, but the CFCB will surely consider Article 2.2 (a) and (c) - (f)).

UEFA has publicly stated that it is investigating PSG’s FFP compliance, saying “The investigation will focus on the compliance of the club with the break-even requirement, particularly in light of its recent transfer activity”. Of course, this should not be particularly surprising given the CFCB annually examines the finances of each club that enters into UEFA competitions under the standard FFP procedure, but it will be interesting to observe how CFCB’s investigation progresses, and, if PSG is found to have breached FFP in letter or in spirit, what punishment is meted out to PSG. 

Whether PSG’s aggressive spending was emboldened by UEFA’s weakening of the more restrictive elements of FFP will remain unknown.  Similarly, one can only speculate as to whether the dilution of FFP, through changes such as the implementation of Settlement Agreements and Voluntary Agreements, came about as a result of legal challenges already brought and defended by UEFA; or whether UEFA is insulating itself from further legal challenges; or whether UEFA is simply altering the rules for the good of the game. As detailed in Part One of this series, the legality of FFP will rest on its proportionality. These changes have moved FFP towards a more flexible, and arguably more proportionate, proposition; but, given the public exposure that PSG’s spending has precipitated,UEFA will surely wish to ensure that FFP is not seen as a paper tiger.

The matter is on UEFA’s agenda. Even before the events involving PSG in the summer of 2017, incoming UEFA president, Aleksander Čeferin, spoke about the possibility of a fixed wage cap and closing the gap between the game’s haves and have nots. Such changes would certainly make FFP more congruent with its name. FFP is not about being ‘fair’ in the sense of being egalitarian or introducing a level playing field. It is a gentle brake applied to the rate of growth in the game, aimed predominantly at reducing long-term loss making and insolvency. Perhaps the rules might have been less controversial from the outset, and might not have been a mechanism for the frustration ventilated by sum following PSG’s purchase of Neymar and Mbappe, if instead of being called FFP, the rules were called ‘financial management rules’, and absolved themselves from the pretence of ‘fairness’.

Alternatively, UEFA could revisit FFP, implementing a genuinely egalitarian set of rules – a hard salary cap, a luxury tax, the abolition of the transfer market, or some combination of those things and others. This would, however, undoubtedly engender its own set of legal challenges, as we have seen with FFP. 

Whilst the challenges to various aspects of FFP have been largely ineffective in defeating FFP (see for example CAS 2016/A/4692 Kardemir Karabükspor v. UEFA; CAS 2016/A/4492 Galatasary v. UEFA; CAS 2014/A/3870 Bursaspor Kulübü Derneği v. UEFA; CAS 2014/A/3533 Football Club Metallurg v. UEFA; CAS 2013/A/3067 Málaga CF SAD v. UEFA; CAS 2012/A/2824 Beşiktaş JK v UEFA; CAS 2012/A/2821 Bursaspor Kulübü Dernegi v. UEFA; CAS 2012/A/2702 Györi ETO v. UEFA ), the rules have, against the backdrop of repeated disputes about their legality, iteratively changed, including a move towards greater liberalisation in respect of equity input into clubs by owners. 

And so UEFA finds itself at a crossroads. FFP, bombarded with legal challenges (which it has to date ridden) has gradually developed and liberalised as financial stability in European football has improved. Now, with the transfer market having escalated, the efficacy of the rules has come into question. UEFA must decide on the path it wishes to take; whether to liberate the market altogether,  whether to institute a truly ‘fair’ system, or whether to continue on FFP’s current centrist ground. Aleksander Čeferin, a lawyer by extraction, is certain to face a legal and political struggle in whichever direction he turns.

^[1] For further discussion on the efficacy of FFP, see Neil Dunbar (2015) "The union of European football association’s club licensing and financial fair play regulations - are they working?" ISSN 1836-1129 http://epublications.bond.edu.au/slej/27

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).