The 'No Significant Fault or Negligence' Principle in Anti-Doping Litigation*
I have appeared in the last few years before the National Anti-Doping Panel at Sport Resolutions in London and the Court of Arbitration for Sport (CAS) in Lausanne, on behalf of professional athletes. Such hearings mostly concerned appeals regarding periods of ineligibility imposed against athletes as a result of positive anti-doping tests. The adverse analytical findings were the result of the use of 'contaminated' nutritional supplements, which, unbeknown to the athletes, contained prohibited substances.
Such hearings made me realise that we are a long way away from educating and protecting athletes from the dangers of the use of dietary and other nutritional supplements. It also made me realise that the regulatory framework in place may, in certain situations, cause great injustice.
Although the new WADAC 2015 still promotes the application of strict liability (it is widely accepted that without the principle, sports governing bodies might never be able to effectively prosecute anti-doping offences), in my view a purposeful interpretation of the new wording may lead us to the conclusion that the new Code offers more latitude and flexibility to adjudication panels in the application of sanctions.
The standard of proof remains 'the comfortable satisfaction of the tribunal' which CAS jurisprudence defines as below the criminal standard of proof, but above the civil standard (WADA v FIBV and Berrios CAS 2010/A/2229).
Of particular importance here is Article 10.5 of WADAC 2015, which establishes the principle of the 'No Significant Fault or Negligence.' Pursuant to this Article, if an athlete can establish no significant fault or negligence, and subject to the relevant degree of fault, the period of ineligibility can be reduced, with sanctions ranging from a reprimand (and no period of ineligibility and at the lowest end of the spectrum of fault), to a maximum of 24 months of ineligibility (at the highest end of the spectrum).
Proportionate sanctions
The important new ingredient in the interpretation of this regulation suggests that article 10.5.1 no longer requires 'specific circumstances', which means that panels will now have a greater degree of discretion in interpreting 'fault.' It also allows for a better and more purposeful application and interpretation of the principle of proportionality. On a proper construction of this principle, I suggest that the aim is to make sanctions more proportionate to the offence committed.
Medical advice
From my experience in recent anti-doping litigation, one important evidential matter concerns the athlete's reliance on a doctor's advice to use the supplement that subsequently led to the adverse analytical finding. In UCI v Kolobnev and RFC CAS 2011/A/2645 reliance on medical advice to use a supplement justified only the application of a reprimand against the athlete, with no period of ineligibility.
Although the new WADAC 2015 does not expressly distinguish between a supplement and a medicinal product (see FINA v Cielo Filho CAS 2011/A/2495), it seems evidence that can be presented to 'the comfortable satisfaction of the panel' and shows that the athlete relied heavily on a doctor's advice to use the supplement may, as a matter of fact, considerably reduce the degree of fault.
Athlete education
The new WADAC 2015 offers greater flexibility to adjudicating panels in determining the athlete's fault and, therefore, allows them to apply more proportionate sanctions. The application of the principle of proportionality comes at a time where a more relaxed approach is needed, in the interests of fairness and justice. WADA has considered the need for such approach, which offers more latitude in terms of examining the circumstances of each case, by observing the principle of proportionality.
Governing bodies must establish certain criteria and design a specific list of steps that athletes need to follow prior to the use of supplements. Athletes should not place reliance on their friends for advice.
The use of dietary and other nutritional supplements has created a multi-billion pound industry. There are a lot of different interests involved. Any proposal to have all supplements used by professional athletes banned will be met, I am convinced, with fierce opposition from those who have a stake in this industry.
It follows, therefore, that the only effective solution to this problem will be the proper education of athletes. This can only be achieved if there is appropriate and effective communication between sporting bodies and athletes. The dangers of the use of supplements in sport must not be underestimated. It is possible that when such dangers are fully described and explained to athletes, they may be able to make an informed decision as to the use of supplements.
Gregory Ioannidis, 18 February 2017
* This is a summary of the original article published in the Solicitors Journal, 19 May 2015 SJ 159/19. It can also be accessed on-line: https://www.solicitorsjournal.com/22779/contaminated-supplements-sport
Regulatory framework
Athletes cannot and should not ignore the dangers of the use of supplements. The previous World Anti-Doping Agency Code (WADAC 2009) promoted the application of strict liability, which, in turn, did not allow for too much flexibility and latitude. Once an adverse analytical finding is established during the anti-doping test, athletes have to start reconciling themselves with the idea of the provisional suspension, the subsequent period of ineligibility, the loss of earnings, and, of course, the possibility of substantial damage to their reputation.
Although the new WADAC 2015 still promotes the application of strict liability (it is widely accepted that without the principle, sports governing bodies might never be able to effectively prosecute anti-doping offences), in my view a purposeful interpretation of the new wording may lead us to the conclusion that the new Code offers more latitude and flexibility to adjudication panels in the application of sanctions.
The wording of the new Code recognises the necessity of the application of the principle of proportionality and gives emphasis to the application of human rights. This is a significant development and it characterises the need for the protection of athletes' rights. However, practice and jurisprudence in this field suggest that we are a long way away from creating clarity and consistency. This is because the level of fault on part of the accused athlete required for the application of sanctions is usually interpreted with a very narrow and inconsistent approach by different adjudicating panels.
The Degree of Fault
The degree of fault can be established with the application of the two-stage test. For the athlete to have the period of ineligibility eliminated or reduced, they need to establish:
- How the substance entered their body; and
- That they did not intend to enhance their performance with the use of such substance.
The standard of proof remains 'the comfortable satisfaction of the tribunal' which CAS jurisprudence defines as below the criminal standard of proof, but above the civil standard (WADA v FIBV and Berrios CAS 2010/A/2229).
Of particular importance here is Article 10.5 of WADAC 2015, which establishes the principle of the 'No Significant Fault or Negligence.' Pursuant to this Article, if an athlete can establish no significant fault or negligence, and subject to the relevant degree of fault, the period of ineligibility can be reduced, with sanctions ranging from a reprimand (and no period of ineligibility and at the lowest end of the spectrum of fault), to a maximum of 24 months of ineligibility (at the highest end of the spectrum).
Proportionate sanctions
The important new ingredient in the interpretation of this regulation suggests that article 10.5.1 no longer requires 'specific circumstances', which means that panels will now have a greater degree of discretion in interpreting 'fault.' It also allows for a better and more purposeful application and interpretation of the principle of proportionality. On a proper construction of this principle, I suggest that the aim is to make sanctions more proportionate to the offence committed. Medical advice
From my experience in recent anti-doping litigation, one important evidential matter concerns the athlete's reliance on a doctor's advice to use the supplement that subsequently led to the adverse analytical finding. In UCI v Kolobnev and RFC CAS 2011/A/2645 reliance on medical advice to use a supplement justified only the application of a reprimand against the athlete, with no period of ineligibility.
Although the new WADAC 2015 does not expressly distinguish between a supplement and a medicinal product (see FINA v Cielo Filho CAS 2011/A/2495), it seems evidence that can be presented to 'the comfortable satisfaction of the panel' and shows that the athlete relied heavily on a doctor's advice to use the supplement may, as a matter of fact, considerably reduce the degree of fault.
Athlete education
The new WADAC 2015 offers greater flexibility to adjudicating panels in determining the athlete's fault and, therefore, allows them to apply more proportionate sanctions. The application of the principle of proportionality comes at a time where a more relaxed approach is needed, in the interests of fairness and justice. WADA has considered the need for such approach, which offers more latitude in terms of examining the circumstances of each case, by observing the principle of proportionality.
Governing bodies must establish certain criteria and design a specific list of steps that athletes need to follow prior to the use of supplements. Athletes should not place reliance on their friends for advice. The use of dietary and other nutritional supplements has created a multi-billion pound industry. There are a lot of different interests involved. Any proposal to have all supplements used by professional athletes banned will be met, I am convinced, with fierce opposition from those who have a stake in this industry.
It follows, therefore, that the only effective solution to this problem will be the proper education of athletes. This can only be achieved if there is appropriate and effective communication between sporting bodies and athletes. The dangers of the use of supplements in sport must not be underestimated. It is possible that when such dangers are fully described and explained to athletes, they may be able to make an informed decision as to the use of supplements.
Gregory Ioannidis, 18 February 2017
* This is a summary of the original article published in the Solicitors Journal, 19 May 2015 SJ 159/19. It can also be accessed on-line: https://www.solicitorsjournal.com/22779/contaminated-supplements-sport
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