Beginning of April 2014, the Colombian Olympic
Swimmer Omar Pinzón was cleared by the Court of Arbitration for Sport (CAS) of
an adverse finding of Cocaine detected in a urine sample in 2013. He got lucky.
Indeed, in his case the incredible mismanagement and dilettante habits of Bogotá’s
anti-doping laboratory saved him from a dire fate: the two-year ban many other
athletes have had the bad luck to experience.
Contrary to a social drug
like cannabis, cocaine is not a specified substance under the World Anti-Doping
Code (WADC) and therefore does not enjoy a lenient status. The sanctions
endured in case of a positive cocaine test under the WADC are severe, i.e. in
the absence of any exceptional circumstances a strict two-year ban. But,
cocaine is not a normal drug either; its powdered form is widely consumed in a
social and festive context, whereas the coca leaves are still used in South
Thus, it is not very
surprising that it is also one of the most widely detected stimulants in the
framework of the fight against doping. How does one differentiate between an
unlucky fellow and an outright cheat? You just don’t! As a principle, the CAS
has adopted a strict interpretation of the WADC and shifts a heavy burden of
justification on the athlete’s shoulders.
In theory, the World Anti-Doping Code 2009 foresees in article 10.5 that an ineligibility
could be annulled, in case of ‘[n]o fault or negligence’ (10.5.1) or
reduced in case of ‘[n]o significant fault or negligence’ (10.5.2).
However, in practice the CAS interprets very strictly the scope of these provisions. One of the few exceptions was the Gasquet case. On this occasion, the CAS acknowledged
that the athlete was not at fault for having ingested cocaine. This was due
mainly to the very specific factual circumstances: Gasquet was found to have been
contaminated through a fatal kiss.
In general, the ‘no (significant) fault or negligence’-standard
is quasi impossible to reach. We have found a certain number of examples in the
CAS case-law to illustrate this point. In its first award involving cocaine, the
CAS considered that an athlete, who was unknowingly given coca tea to drink and
coca leaves to chew during a trip in the Andes, had acted negligently and
therefore could not see his ineligibility reduced (CAS 2004/A/690). Later on, the CAS refused to consider as
probable the fact that a spiked cocaine cigarette could have been given to an
athlete, thus triggering the contamination (CAS 2006/A/1130). Moreover, it also rebuffed, the “peer pressure” argument put
forward by a young football player (CAS 2007/A/1364).
So far, CAS panels have refused to consider the
fact that the consumption occurred out of competition as a mitigating factor (CAS 2008/A/1479). But arbitrators also rejected more
sophisticated arguments, such as the ones advanced by Simon Daubney, an
America’s cup sailor, who argued that his contamination was due to a spiked
drink prepared by supporters of a rival team. Concretely, the panel considered
that “[a]s an experienced athlete, he could not ignore that he should pay
attention to what he was drinking and from whom he got the drinks, which he did
not” (CAS 2008/A/1515). The consumption of cocaine “in a moment of
euphoria but not with the intention to increase his athletic performance
capability” was definitely not meeting the ‘[n]o significant fault or negligence’ standard
(CAS 2008/A/1516). Smoking a joint of cocaine, at a party, four
days before a competition, was likewise considered significantly negligent (CAS 2009/A/2012). Finally, a Brazilian football player arguing
that he was addicted to cocaine, did not convince the panel either. The arbitrators doubted that he could not have taken
precautions to avoid using cocaine during ‘in-competition’ periods (CAS 2011/A/2307).
All the above-mentioned athletes have faced a
two-year ban. In short, the CAS remained ice-cold when dealing with athletes
having ingested, voluntarily or not, cocaine.
The new WADC entering into force in 2015 will not change
much for an athlete who tested positive for cocaine. In fact, he still has to
demonstrate that he acted without (significant) fault or negligence to obtain a
reduced ban. Thus, unless the CAS shifts its interpretation in this regard, the
hurdle will remain very high. But is it fair that an athlete, who has not
intentionally taken cocaine and could not profit from it to improve his sporting
performance, gets a two-year ban? One can doubt it. Such a strict reading of
the WADC by the CAS can only lead to the piling up of judicial vendettas by
athletes drawn to the national or European courts seeking revenge and justice.
This state of play might, sooner or later, bring the whole anti-doping system
to its knees (the edifice has already started to tremble with the recent Pechstein ruling). Hence, for the sake of preserving a
global anti-doping regime, it is high time that the CAS adopts a lenient
interpretation of the ‘no (significant) fault or negligence’-standard and
starts adapting the level of the sanctions to the responsibility of the
A longer version of this post is available