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Breaking down the process for determining a basic sanction under the 2015 World Anti-Doping Code

Abstract

An Athlete’s fault is one of the core issues for determining the applicable period of Ineligibility under the sanctioning regime of the World Anti-Doping Code. Nevertheless, the issue is seldom addressed in a detailed and comprehensive manner that would provide a genuine insight into the role of fault in this context. This article proposes a process to determine the length of the initial period of Ineligibility associated with the basic sanction for anti-doping rule violations involving the presence of a Prohibited Substance under the 2015 World Anti-Doping Code. The authors first examine the interplay between the familiar concept of “No (Significant) Fault or Negligence” on the one hand, and the newly introduced concept of “intentional” on the other hand, advocating a mutually exclusive understanding of these two concepts for the purposes of determining a basic sanction. Based on this understanding, the article proposes a process for determining the appropriate length of period of Ineligibility for both Specified and non-Specified Substances under the 2015 World Anti-Doping Code. Throughout the discussion, the article presents comparisons to the approach taken in earlier versions of the World Anti-Doping Code, illustrated through an analysis of past Court of Arbitration for Sport awards, to demonstrate the coherence of the proposed method and evaluate how it will function in practice.

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Notes

  1. 1.

    All terms in this article that are both capitalized and italicized are defined in Appendix 1 of the 2015 Code or in the 2015 International Standards.

  2. 2.

    In this article, the term intentional when italicized is used to describe violations that are intentional according to the definition in Article 10.2.3 of the 2015 Code.

  3. 3.

    During the revision process of the 2009 Code and coinciding with the publication of version 4.0 of the 2015 Code, WADA published the Overview Document in which it grouped key amendments under seven revision themes, and an eighth “miscellaneous” category, the first of which was to “provide for longer periods of Ineligibility for real cheats, and more flexibility in sanctioning in other specific circumstances.”

  4. 4.

    Unless a specific reference is made when identifying the source of an Article of the Code, we are referring to the relevant provision in the 2015 version of the Code.

  5. 5.

    For a more comprehensive analysis of the revisions reflected in the 2015 Code, see Rigozzi et al. (2013) and Rigozzi et al. (2014).

  6. 6.

    See Rigozzi et al. (2003), p. 58, where it is explained that the genesis of these Fault-related opportunities for reduction was a legal opinion [commissioned by WADA regarding the 2003 Code, Kaufmann-Kohler et al. (2003)].

  7. 7.

    As “fault” was not a defined term in the 2009 Code, when it is used in this article in reference to fault under the 2009 Code, or as a general concept, it is not capitalized or italicized. In the 2015 Code, however, Fault is newly a defined term so when used in this article in the context of this definition it will be capitalized and in italics. See supra note 1.

  8. 8.

    This first step is set forth in the 2015 Code, Comment to Article 10.6.4 as follows: “the hearing panel determines which of the basic sanctions (Article 10.2, 10.3, 10.4, or 10.5) apply to the particular anti-doping rule violation.”

  9. 9.

    Article 10.2 of the 2015 Code applies to violations of Articles 2.1 (Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample), 2.2 (Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method), and 2.6 (Possession of a Prohibited Substance or a Prohibited Method). Article 10.3.1 sets forth a period of Ineligibility for violations of Article 2.3 (Evading, Refusing or Failing to Submit to Sample Collection) and Article 2.5 (Tampering or Attempted Tampering with any part of Doping Control) and references the definition of intentional set forth in Article 10.2.3. Accordingly, many of the concepts discussed in this article will also be relevant in the context other anti-doping rule violations, but the nuances of determining a period of Ineligibility for any of these other violations will not be specifically addressed.

  10. 10.

    Note, while the possibilities for the elimination, reduction, or suspension of a period of Ineligibility set forth in Article 10.6 of the 2015 Code are specifically referred to as being tied to “[r]easons other than Fault,” in reality, the degree of Fault is expressly considered in Article 10.6.3 (Prompt Admission of an Anti-Doping Rule Violation) in determining the magnitude of the reduction, so the inquiry might not be completely isolated from the concept of Fault.

  11. 11.

    The nature of the Code as a contractual instrument arising from private law has been discussed and confirmed by the CAS. See, e.g., USOC v. IOC, para. 8.21 which noted that “[t]he WADA Code is neither a law nor an international treaty. It is rather a contractual instrument binding its signatories in accordance with private international law.”

  12. 12.

    Specifically, it is adopted through the WADA Code Review Process, which most recently culminated in the approval and adoption of the 2015 Code by WADA’s Foundation Board at the World Conference on Doping in Sport that took place in Johannesburg, South Africa from November 12 to 15, 2013.

  13. 13.

    WADA is a foundation organized under Swiss civil law, with its seat in Lausanne, Switzerland. However, its formation and its unique governance structure aims for an “equal partnership between the Olympic Movement and public authorities.” WADA Statutes, Articles 1, 2 and 7. See also Lewis and Taylor (2014), paras B1.19–B1.25 for a discussion of the context in which WADA was created, arising from the need for a collaborative approach between the public and private sectors to successfully fight doping in sports.

  14. 14.

    As described by one legal commentator, “[w]hile the Code operates in an area of significant public interest and importance and might be likened to a private legislative regime for sport, it functions as a contractual arrangement by which sporting organisations and associations regulate themselves in the anti-doping area” (David (2013), p. 122).

  15. 15.

    UNESCO Convention, List of States.

  16. 16.

    UNESCO Convention, Article 1.

  17. 17.

    UNESCO Convention, Article 4(1).

  18. 18.

    UNESCO Convention, Article 5.

  19. 19.

    See, e.g., Pechstein v. DESG, Part 2 (A)(II)(3)(b)(bb)(1)(aaa).

  20. 20.

    UNESCO Convention, Article 4(2).

  21. 21.

    Vienna Convention, Article 2(1)(a). According to Article 2(1)(a) of the Vienna Convention, “‘[t]reaty’ means an international agreement concluded between States in written form and governed by international law.”

  22. 22.

    Vienna Convention, Part III, Section 3. Consequently, in our opinion, the Code is not directly subject to the interpretational rules outlined in the Vienna Convention.

  23. 23.

    The following portions of the Code were particularly relevant:

    • Article 10: Sanctions on Individuals (especially Articles 10.2, 10.4, 10.5, and 10.6.4);

    • Article 24: Interpretation of the Code (especially Articles 24.2, 24.3, 24.4, and 24.6);

    • Appendix 1: Definitions; and

    • Appendix 2: Examples of the Application of Article 10.

  24. 24.

    In particular, as expressed in the Overview Document and the various WADA Executive Committee Meeting Minutes.

  25. 25.

    See, e.g., I. v. FIA, para 124. See also, Hondo v. WADA, para 7.3.2.

  26. 26.

    The four-step process is described in the Comment to Article 10.5.5 of the 2009 Code, and Article 10.6.4 of the 2015 Code and discussed in Sect. 4, below.

  27. 27.

    See Sect. 1, above.

  28. 28.

    Overview Document, p.1.

  29. 29.

    2009 Code, Comment to Article 10.5.5.

  30. 30.

    Article 10.3 of the 2015 Code is not discussed in this article, but provides a basic sanction for all other types of anti-doping rule violations.

  31. 31.

    The first of four steps described in the Comment to Article 10.6.4 of the 2015 Code to determine the appropriate characteristics of a sanction instructs a hearing panel to determine “which of the basic sanctions (Article 10.2, 10.3, 10.4, or 10.5) apply to the particular anti-doping rule violation.”

  32. 32.

    See in particular Sect. 1.1, above and Sect. 4.1, below, for a discussion of the available basic sanctions under the 2015 Code.

  33. 33.

    The naming convention for these two phases within the first step (Phase A and Phase B) is our own (i.e., not from the Code)—see Sect. 4.2, below for a description of these two phases.

  34. 34.

    The interpretation and application of these “default” sanctions are discussed for non-Specified and Specified Substances in Sects. 4.2.1 and 4.2.2, respectively, below. The term “default” describes the length of the period of Ineligibility that would be assigned to an Athlete in the event that the party carrying the burden of proof to establish a reduced or increased period of Ineligibility is unable to discharge this burden.

  35. 35.

    Overview Document, p. 1.

  36. 36.

    See Sect. 5.2.1, below, for a more detailed description of the process of establishing that a violation was not intentional under the 2015 Code.

  37. 37.

    See Sect. 5.2.2, below, for a more detailed description of the process of establishing intentional under the 2015 Code.

  38. 38.

    The possibility exists for this 4-year period of Ineligibility to be eliminated, reduced, or suspended under Article 10.6 of the 2015 Code, which is considered in the third step of determining an appropriate sanction, but is beyond the scope of this article and will not be specifically addressed.

  39. 39.

    Overview Document, p. 1

  40. 40.

    See Sect. 6.2.3, below, for an analysis of this new provision on Contaminated Products.

  41. 41.

    See Sect. 5.1, below, for a full discussion regarding substances Used Out-of-Competition but prohibited In-Competition only.

  42. 42.

    See, e.g., WADA v. de Goede. This case is discussed in Sect. 5.1.2.3, below.

  43. 43.

    See Sect. 6.2.2, below, for a discussion of this special assessment.

  44. 44.

    See Sect. 3.1.1, below, for a discussion of this innovation in the 2015 Code.

  45. 45.

    This new definition of Fault is discussed in Sect. 3.1.1, below.

  46. 46.

    See, e.g., Black’s Law Dictionary (2004), p. 825, definition of “intent”: “[t]he state of mind accompanying an act, especially a forbidden act. While motive is the inducement to do some act, intent is the mental resolution or determination to do it.”

  47. 47.

    WADA v. Scherf, para 9.13: “[t]he Panel finds that exceptional circumstances did exist in this case, and agrees that Ms. Scherf bears No Significant Fault or Negligence, because her fault or negligence when viewed in light of all the circumstances was not significant in relation to her anti-doping rule violation. The Panel would, however, wish to make it clear that this is a rare case in which an athlete who has failed or refused to provide a sample will be able to satisfy a CAS Panel that the sanction is to be reduced on the ground of No Significant Fault or Negligence. Such cases will not often occur.”

  48. 48.

    2015 Code, Article 10.6.3 (Prompt Admission of an Anti-Doping Rule Violation after being Confronted with a Violation Sanctionable under Article 10.2.1 or Article 10.3.1), which only applies to potentially intentional violations, allows for a reduction from a 4-year period of Ineligibility down to a 2-year period of Ineligibility depending on the Athlete’s degree of Fault.

  49. 49.

    I. v. FIA, para 114.

  50. 50.

    I. v. FIA, para 124.

  51. 51.

    I. v. FIA, para 133.

  52. 52.

    I. v. FIA, para 143.

  53. 53.

    See also Rigozzi et al. (2013), para 137 for a discussion of this new exception for Minor Athletes.

  54. 54.

    See also Rigozzi et al. (2013), Section 4.2.d for a discussion of the definition of intentional in Article 10.2.3 of the 2015 Code.

  55. 55.

    In this article, we will use the term “recklessness” to signify this concept of “indirect intent” as described in the cited CAS Award, and in reference to this portion of the definition of intentional: “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.” We understand the term intentional as encompassing both direct and indirect forms of intent within the meaning of Swiss criminal law. See the definition of “intention” in the Swiss Criminal Code, Article 12(2) as opposed to the definition of “negligence” in Article 12(3).

  56. 56.

    See Qerimaj v. IWF, para 8.14.

  57. 57.

    WADA v. Bataa, para 54.

  58. 58.

    WADA v. Bataa, para 50.

  59. 59.

    WADA v. Bataa, para 55.

  60. 60.

    See also Rigozzi and Quinn (2013) for a discussion of the reasoning adopted in Foggo v. NRL and Kutrovsky v. ITF.

  61. 61.

    WADA v. Bataa, para 57.

  62. 62.

    See Sect. 5.2.1, below for a discussion regarding interpreting the word “cheat” in this definition of intentional.

  63. 63.

    For example, the “negligence” limb is left out in the 2015 Code, Appendix 2, Example 1, para 1 and in the Overview Document, p. 2.

  64. 64.

    Overview Document, p. 6.

  65. 65.

    2015 Code, Appendix 2, Example 2, para 2: “[b]ecause the violation was intentional, there is no room for a reduction based on Fault (no application of Articles 10.4 and 10.5).” It should be noted, however, that the Examples treat establishing No Significant Fault or Negligence as “corroborating evidence” that the violation was not intentional. While the use of the term “corroborating” to modify evidence in this sense leaves the door open for the possibility that establishing No Significant Fault or Negligence does not necessarily lead to a finding of not intentional, it generally supports the notion that in most cases, it would lead to such a finding. See Example 1, para 1: “[b]ecause the Athlete is deemed to have No Significant Fault that would be sufficient corroborating evidence (Articles 10.2.1.1 and 10.2.3) that the anti-doping rule violation was not intentional.” See also, Appendix 2, Example 3, para 1 of the 2015 Code: “[b]ecause the Athlete can establish through corroborating evidence that he did not commit the anti-doping rule violation intentionally, i.e., he had No Significant Fault in Using a Contaminated Product (Articles 10.2.1.1 and 10.2.3), the period of Ineligibility would be two years (Article 10.2.2).”

  66. 66.

    2015 Code, Comment to Article 10.6.4.

  67. 67.

    While the language in the first step as set forth in the Comment to Article 10.6.4 is not clear with regard to whether one or more basic sanctions might be applicable, the language in the second step unambiguously expects only one basic sanction to be determined in the first step. The first step instructs panels to determine “which of the basic sanctions (Article 10.2, 10.3, 10.4, or 10.5) apply” to a particular violation. Two observations arise from this wording: (i) by using the word “apply” rather than “applies” in this phrase, the possibility of multiple basic sanctions cannot be immediately excluded. This grammatical ambiguity is compounded by the change in wording from “applies” to “apply” between the 2009 and 2015 version of the Code, which could be interpreted as a purposeful modification to allow for multiple basic sanctions; (ii) The use of the word “or” in the list of possible sanctions is not conclusive either as to whether only one, or whether multiple Articles listed might be relevant in determining a basic sanction or sanctions. In spite of these observations, the second step of the overall process presented in Sect. 2.2, above, unambiguously takes as its starting point only one basic sanction. Conceptually, choosing one basic sanction over multiple basic sanctions is in any event clearer and more in line with a practical, functional, and proportionate sanctioning regime, leading us to conclude that the hearing panel must select one basic sanction only.

  68. 68.

    The interplay between the Contaminated Products provision (Article 10.5.1.2) and the Specified Substances provision (Article 10.5.1.1) is not entirely clear. However, the possibility of applying the Contaminated Products provision that in the context of Specified Substance is not excluded in the text of these provisions, as discussed in Sect. 6.2.3.1, below.

  69. 69.

    See 2015 Code, Appendix 2, Examples 1–4.

  70. 70.

    A note on naming conventions in this article: in the 2015 Code, the numbering and description of the steps to determine an appropriate sanction is not completely consistent as described in the Comment to Article 10.6.4 as compared to the Examples appearing in Appendix 2. In particular, as illustrated in Fig. 1, the Examples break up the first step as described in the Comment to Article 10.6.4 (determining a basic sanction) into two discrete sub-steps: (i) determining whether the violation was intentional, and (ii) assessing the possibility for Fault-related reductions. In this article, we refer to the first sub-step (i) as “Phase A,” and the second (ii) as “Phase B.”

  71. 71.

    See 2015 Code, Appendix 2, Examples 1–4, which describe Article 10.2 as the starting point in determining an appropriate sanction.

  72. 72.

    2015 Code, Article 3.1 sets forth the standard of proof required by Athletes as follows: “[w]here the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.”

  73. 73.

    None of the Examples in Appendix 2 of the 2015 Code specifically provide that by establishing No Fault or Negligence, an Athlete thereby establishes that the violation was not intentional. However, if an Athlete can establish that a violation was not intentional by establishing No Significant Fault or Negligence it would follow that an Athlete could likewise establish not intentional by establishing No Fault or Negligence. See 2015 Code, Appendix 2, Examples 1 and 3.

  74. 74.

    See 2015 Code, Appendix 2, Example 1, para 1: “[b]ecause the Athlete is deemed to have No Significant Fault that would be sufficient corroborating evidence (Articles 10.2.1.1 and 10.2.3) that the anti-doping rule violation was not intentional.”

  75. 75.

    The application and interrelation between these two provisions is discussed in Sect. 6.2.3.1, below.

  76. 76.

    See 2015 Code, Appendix 2, Examples 1–5.

  77. 77.

    See Sect. 2.2.1, above.

  78. 78.

    Overview Document, p. 1.

  79. 79.

    See 2015 Code, Appendix 2, Examples 1 and 3.

  80. 80.

    Violations involving cannabinoids are subject to a special assessment in Phase B, which is discussed in Sect. 6.2.2.1, below.

  81. 81.

    See 2015 Code, Appendix 2, Examples 1–4, which describe Article 10.2 as the starting point in determining an appropriate sanction.

  82. 82.

    Article 3.1 of the 2015 Code only explicitly provides a standard of proof for ADOs to establish that an anti-doping rule violation has occurred, not to establish other facts or circumstances.

  83. 83.

    See, e.g., de Ridder v. International Sailing Federation, para 114.

  84. 84.

    See 2015 Code, Appendix 2, Examples 1 and 3.

  85. 85.

    See Sect. 5.1, below, for a discussion of the special assessments in Article 10.2.3 of the 2015 Code.

  86. 86.

    See Overview Document, p. 1.

  87. 87.

    In practice, these provisions will be considered first only for violations involving Specified Substances. For non-Specified Substances, as explained in Sect. 4.2.1.3, above, a panel should first consider the Fault-related reductions described in Sect. 6, below.

  88. 88.

    WADA Executive Committee Meeting Minutes (2013a), p. 13. The full passage is as follows: “[t]he second clarification in language had to do with the following unique situation: an athlete was out of competition, used a substance that was not prohibited out of competition, so was not doing anything wrong, it was a specified substance and, lo and behold, the athlete tested positive in a later competition. The athlete could still get four years if it had been intentional, but the team had made it clear in the modified drafting that, under such circumstances, it was presumed to be a two-year violation. If it turned out that the facts were such that it would justify four years, because one could establish intent, then it could be four years but, in that unique situation whereby the athlete had been taking something at a time when it had actually been permitted, the feedback from the stakeholders had been that it would be better and fairer to create a presumption in favour of the two years that the ADO could rebut.” For further discussion on this matter, see also Rigozzi et al. (2014), Section III.1.

  89. 89.

    Article 3.1 of the 2015 Code sets forth the standard of proof required for all elements that must be established by Athletes as follows: “[w]here the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.”

  90. 90.

    WADA v. de Goede, para 7.14.

  91. 91.

    FINA v. Mellouli, paras 7–10.

  92. 92.

    FINA v. Mellouli, paras 86 & 89. Free translation of: “il n’est pas concevable qu’un athlète tel que M. Mellouli n’ait pas songé—ne serait-ce qu’une seule seconde—au risque qu’il prenait en absorbant un comprimé d’une substance dont il ignorait tout.”

  93. 93.

    FINA v. Mellouli, para 97.

  94. 94.

    FINA v. Mellouli, paras 97–98.

  95. 95.

    FINA v. Mellouli, para 88.

  96. 96.

    For easy reference the definition of intentional from Article 10.2.3 of the 2015 Code is as follows: “[a]s 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.”

  97. 97.

    WADA v. de Goede, paras 2.2 & 2.6.

  98. 98.

    WADA v. de Goede, para 2.5.

  99. 99.

    WADA v. de Goede, para 7.17.

  100. 100.

    WADA v. de Goede, para 7.17.

  101. 101.

    WADA v. de Goede, para 7.16.

  102. 102.

    WADA v. de Goede, paras 7.19–7.20.

  103. 103.

    UCI v. Contador, para 493.

  104. 104.

    For two examples (both stemming from failure on the part of the relevant authority to communicate the Athletes’ anti-doping obligations) where the Athletes’ lack of knowledge regarding their obligations under the Code excused an anti-doping rule violation, see WADA v. Mannini and the Lee & Kim case.

  105. 105.

    Indeed, WADA’s Athlete Reference Guide, relies on this terminology to explain the consequences of intentional violations, stating that “[i]f you intended to cheat, whatever the substance, the period of Ineligibility is four years” and “[a] strong consensus has emerged worldwide, and in particular among athletes, that intentional cheaters should be ineligible for four years.” WADA Athlete Reference Guide (2014a), p. 17.

  106. 106.

    See, e.g., WADA Executive Committee Meeting Minutes September (2013b), pp. 21–22: “[s]ome of those cases said that that qualified for no significant fault, because the athlete had not meant to cheat, and the other cases said that the athlete had intended to enhance performance and should have known better when taking the substance.”; See also WADA Executive Committee Meeting Minutes September (2012), p. 18: “[t]here were some changes that were there to make things clearer and more simple, some that were there to provide more flexibility in dealing with people who violated the rules but were not real drug cheats, and then lots of changes that addressed more effective ways of dealing with those people who were real drug cheats.”; WADA Executive Committee Meeting Minutes May (2013c), p. 28: “it was necessary to look at these cases as some athletes were really cheating and deserved a two-year sanction, so the automatic excuse that there was no intent to enhance performance because athletes had been taking supplements did not fly”; BOA v. WADA, para 5.54 quoting the BOA chairman: “[i]t is the BOA’s belief […] that the willful, consistent, and illicit use of banned performance enhancing drugs use [sic] is the most heinous reprehensible form of cheating in sport and so in this specific case the toughest sanctions should apply”; and A.C. v. FINA para 30(a): “[h]aving seen and heard the Appellant, we entirely agree that the Appellant should not suffer any suggestion that by reason of what we consider to have been a technical breach of the rules he is therefore a cheat or a liar. We are satisfied he is neither. …There should be no such stigma attaching to him”.

  107. 107.

    See, e.g., Qerimaj v. IWF, para 8.11(3): “[g]enerally, the greater the potential performance-enhancing benefit, the higher the burden on the Athlete to prove lack of an intent to enhance sport performance” quoting the IWF ADR. See also, UCI v. Georges, para 110: “[l]a Formation est consciente que des substances plus dopantes que l’Heptaminol figurent sur la Liste CMA et que leur dépistage entrainerait automatiquement une suspension de deux ans ainsi que l’imposition d’une amende.”

  108. 108.

    See WADA v. Hardy; See also UCI v. Contador, where the panel accepted that the most likely origin of clenbuterol in the cyclist’s system was through contaminated supplements.

  109. 109.

    See, e.g., UKAD (2012), which details WADA’s warning to Athletes regarding meat potentially contaminated with clenbuterol, especially in China and Mexico.

  110. 110.

    See the Overview Document, p. 1.

  111. 111.

    See, e.g., IAAF v. Kokkinariou, para 99.

  112. 112.

    See, e.g., de Ridder v. International Sailing Federation, para 114.

  113. 113.

    2015 Code, Comment to Article 4.2.2.

  114. 114.

    See, e.g., I. v. FIA, para 124. See also, Hondo v. WADA, para 7.3.2: “[o]n ne voit d'ailleurs pas très bien comment un coureur cycliste pourrait démontrer son absence de négligence ou de négligence significative s'il n'est pas en mesure d'établir de quelle manière la substance interdite s'est retrouvée dans son organisme.”

  115. 115.

    UCI v. Contador, para 254. The panel in this case described the following two situations where such difficulty may arise: “[a] cause for the latter may be that the relevant information is in the hands or under the control of the contesting party and is not accessible to the party bearing the burden of proof (cf ATF 117 Ib 197, 208 et seq). Another reason may be that, by its very nature, the alleged fact cannot be proven by direct means. This is the case whenever a party needs to prove ‘negative facts’.”

  116. 116.

    See, e.g., UCI v. Contador, para 262. The Contador Panel held that the ADO complied with this obligation of cooperation by “submitting and substantiating two additional (alternative) routes as to how the prohibited substance could have entered the [cyclist’s] system.”

  117. 117.

    See Kaufmann-Kohler and Rigozzi (2007), Section III.2 for a discussion of issues relating to the privilege against self-incrimination in anti-doping proceedings.

  118. 118.

    See 2015 Code, Appendix 2, Examples 1–5.

  119. 119.

    See supra note 65, the Examples in Appendix 2 of the 2015 Code demonstrate that establishing a Fault-related reduction, such as Article 10.5.2 (No Significant Fault or Negligence) [and presumably Article 10.4 (No Fault or Negligence as well)] is “sufficient corroborating evidence” that a violation is not intentional. See in particular Appendix 2, Examples 1 and 3 of the 2015 Code.

  120. 120.

    2015 Code, Article 3.1: “[w]here the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.” According to the CAS panel in WADA v. Gasquet, para 5.9, this standard is interpreted as follows: “[i]n other words, for the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51 % chance of it having occurred.”

  121. 121.

    2015 Code, Comment to Article 10.4: “…No Fault or Negligence would not apply in the following circumstances: (a) a positive test resulting from a mislabeled or contaminated vitamin or nutritional supplement (Athletes are responsible for what they ingest (Article 2.1.1) and have been warned against the possibility of supplement contamination); (b) the Administration of a Prohibited Substance by the Athlete’s personal physician or trainer without disclosure to the Athlete (Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance); and (c) sabotage of the Athlete’s food or drink by a spouse, coach or other Person within the Athlete’s circle of associates (Athletes are responsible for what they ingest and for the conduct of those Persons to whom they entrust access to their food and drink). However, depending on the unique facts of a particular case, any of the referenced illustrations could result in a reduced sanction under Article 10.5 based on No Significant Fault or Negligence.”

  122. 122.

    See Rigozzi et al. (2013), Section 4.3.D for a more detailed discussion of the added flexibility in the No Significant Fault or Negligence standard in the context of Contaminated Products and Specified Substances.

  123. 123.

    See, e.g., Wada v. Hardy, para 117: “[t]wo principles are usually underlined with respect to the possibility to find an athlete’s negligence to be “non significant”: a period of Ineligibility can be reduced based on no significant fault or negligence only in cases where the circumstances are truly exceptional and not in the vast majority of cases…”; See also FINA v. Cielo, para 8.6: “[t]he relevant comments to the Rule are as follows: (a) it is only to have an impact in circumstances ‘that are truly exceptional and not in the vast majority of cases’.”

  124. 124.

    The relevant part of the Comment to Article 10.4 of the 2015 Code is as follows: “[t]his Article and Article 10.5.2 apply only to the imposition of sanctions; they are not applicable to the determination of whether an anti-doping rule violation has occurred. They will only apply in exceptional circumstances, for example, where an Athlete could prove that, despite all due care, he or she was sabotaged by a competitor.”

  125. 125.

    See e.g., Kutrovsky v. ITF, Section 9.C where the panel applied Article 10.5.2 of the 2009 Code after finding that Article 10.4 did not apply because the Athlete was unable to establish a lack of performance enhancing effect. In contrast, see WADA v. de Goede, para 7.12 where the single arbitrator noted that Article 10.5.2 should not be available if Article 10.4 does not apply, as follows: “in cases where the prerequisites for a reduction under art. 10.4 WADC are not fulfilled, logically there is no room for a reduction based on the more restrictive provision in art. 10.5.2 WADC.”

  126. 126.

    Armstrong v. World Curling Federation, paras 1.1 & 2.2.

  127. 127.

    Armstrong v. World Curling Federation, para 8.24.

  128. 128.

    Armstrong v. World Curling Federation, paras 8.17–8.18.

  129. 129.

    Armstrong v. World Curling Federation, para 8.50.

  130. 130.

    Oliveira v. USADA, para 9.60. In the Oliveira case, the panel conducted a rather detailed evaluation and held that Ms. Oliveira, an elite cyclist, had a significant level of fault (para 9.27), but due in particular to the steps that she did take and her lack of anti-doping education, she was nevertheless entitled to a reduction in her length of period of Ineligibility from 2 years down to 18 months (paras 9.33–9.47).

  131. 131.

    Armstrong v. World Curling Federation, para 8.26. The Panel noted that it was comfortably satisfied, though the relevant standard was a balance of probability.

  132. 132.

    The possibility that James Armstrong could have acted with No Significant Fault or Negligence under the 2015 Code seems especially open given that this new provision (Article 10.5.1) does not require “exceptional circumstances” for a finding of No Significant Fault or Negligence.

  133. 133.

    He would receive a 2-year period of Ineligibility because it was clear from the case that his Use of the Prohibited Substance was by accident, and therefore not intentional. We are assuming that under the circumstances of the case, his storage of his medicine alongside his wife’s would not qualify as “reckless.”

  134. 134.

    Overview Document, p. 2.

  135. 135.

    According to the Comment to Article 4.2.2 of the 2015 Code, while Specified Substances should not be considered as “less important or less dangerous,” they are identified as being “more likely to have been consumed by an Athlete for a purpose other than the enhancement of sport performance.”

  136. 136.

    See Sect. 6.2, above, for a discussion of the enhanced flexibility of the No Significant Fault or Negligence standard in the context of Specified Substances and Contaminated Products under the 2015 Code.

  137. 137.

    Oliveira v. USADA, para 9.60. Flavia Oliveira received an 18-month period of Ineligibility from the CAS panel, a 6-month reduction from the 2-year period of Ineligibility she had originally received from the AAA panel, in spite of a finding that her degree of fault was significant (para 9.27).

  138. 138.

    WADA Executive Meeting Minutes, November (2013a), p. 14. Mr. Gottlieb questioned Mr. Young whether the intent of adding the specific reference to marijuana was preserving the status quo (i.e., a 6–9 month period of Ineligibility, as in his view, he did not think there was an “appetite” to increase the associated sanction to a standard 2-year period of Ineligibility. Mr. Young confirmed that his understanding was correct.

  139. 139.

    UNI Global Union & EU Athletes Study, pp. 78–79. According to this European study, cannabinoids are the most frequently used Prohibited Substance, accounting for 18.7 % of all violations reported in the study period.

  140. 140.

    See, e.g., WADA TD2014DL, which reflects an almost tenfold increase in the decision limit for carboxy-THC as compared to the 2012 version of this Technical Document (i.e., 180 ng/mL as compared to 19 ng/mL in the 2014 and 2012 versions, respectively).

  141. 141.

    See, e.g., WADA Executive Committee Meeting Minutes September (2013b), pp. 23–24 for a discussion on some of the reasons that the Committee had hesitated to remove drugs subject to recreational Use (especially marijuana) from WADA’s purview.

  142. 142.

    In the first two versions of the 2015 Code, there was a provision that provided a special sanctioning regime for so-called substances of abuse (including a maximum penalty of a 1-year period of Ineligibility). See Rigozzi et al. (2013), Section 4.3.E for a discussion of the treatment of “substances of abuse” in the versions 1.0 through 3.0 of the 2015 Code. This provision was removed completely and permanently in version 3.0 of the 2015 Code. In versions 4.0 and 4.1 of the 2015 Code (which to our knowledge are no longer available on WADA’s website) a special assessment was added for substances prohibited In-Competition only, which include the most common recreationally-Used drugs. Then, in the final version 4.1 of the 2015, the drafters added a Comment to the definition of No Significant Fault or Negligence with an aim to provide an easier pathway to establish that violations involving cannabinoids were committed with No Significant Fault or Negligence.

  143. 143.

    WADA Executive Meeting Minutes November (2013a), p. 13. According to Mr. Young of the 2015 Code drafting team, they had “tried really hard to avoid a direct reference to marijuana” in the 2015 Code, but their attempts to do so had only “messed up the definition of no significant fault.” He continued to explain that the difficulty lies in marijuana’s unique situation, in that it is something typically taken intentionally, so it was difficult to work within the framework of the definition of No Significant Fault or Negligence, without the risk of creating an “automatic” sanction for these types of violations.

  144. 144.

    See Rigozzi et al. (2014), para 20 for a discussion on these standards in the context of this provision.

  145. 145.

    2015 Code, Appendix 1, definition of In-Competition. See, e.g., FINA Doping Control Rules, Appendix 1, definition of Competition Period, where the In-Competition period is defined as the “time between the beginning of the opening ceremonies and the end of the closing ceremonies.”

  146. 146.

    P. v. Swiss Olympic, p. 2.

  147. 147.

    P. v. Swiss Olympic, para 35.

  148. 148.

    P. v. Swiss Olympic, para 36–37.

  149. 149.

    This case was decided under the 2003 Code regime. Accordingly, the range of available sanctions was different than it would have been under the 2009 Code (or the 2015 Code), namely a maximum of a 1-year period of Ineligibility.

  150. 150.

    See WADA TD2013DL (as compared to WADA TD2012DL).

  151. 151.

    See Glaesner v. FINA, para 78 for an example of a description of lex specialis in the context of anti-doping rule violations: “[a]ccording [to the principle of lex specialis derogat generali] the (more) specific rule prevails over the more general rule, since the lex specialis is presumed to have been drafted having in mind particular purposes and taking into account particular circumstances.”

  152. 152.

    Another doping-specific standard is the concept of “cheating,” see, in particular, Sects. 3.1.2 and 5.2.1, above.

  153. 153.

    While it is not inconceivable that the definition could be considered through a subjective lens, i.e., asking the question of whether the Athlete actually took these two precautions, this approach has complicated implications. For one, it would then become unclear what additional elements would be expected to establish No Significant Fault or Negligence.

  154. 154.

    See, e.g., Despres v. CCES, para 7.8.

  155. 155.

    See, e.g., Knauss v. FIS, para 7.3.6.

  156. 156.

    See Viret and Wisnosky (2014) for a more detailed discussion of the Cilic case.

  157. 157.

    Cilic v. ITF, para 74.

  158. 158.

    Cilic v. ITF, para 75.

  159. 159.

    Cilic v. ITF, paras 76–77.

  160. 160.

    Cilic v. ITF, para 97.

  161. 161.

    WADA v. Hardy, para 114.

  162. 162.

    WADA v. Hardy, para 119.

  163. 163.

    WADA v. Hardy, para 112.

  164. 164.

    WADA v. Hardy, para 119.

  165. 165.

    WADA v. Hardy, para 120.

  166. 166.

    WADA v. Hardy, para 14.

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Acknowledgements

This article is part of a research project at the University of Neuchâtel in Switzerland, supported by the Swiss National Science Foundation (SNSF) to create a commentary of the World Anti-Doping Code. The authors would like to thank Audrey Cech (University of Neuchâtel) for her invaluable assistance on this article and to the SNSF WADC Commentary project.

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Correspondence to Antonio Rigozzi.

Appendices

Appendix 1: The full text and Comments to Articles 10.2, 10.4, 10.5.1, 10.5.2, 10.5.5 (except the Examples), and 10.6 of the 2009 Code

10.2 Ineligibility for Presence, Use or Attempted Use, or Possession of Prohibited Substances and Prohibited Methods

The period of Ineligibility imposed for a violation of Article 2.1 (Presence of Prohibited Substance or its Metabolites or Markers), Article 2.2 (Use or Attempted Use of Prohibited Substance or Prohibited Method) or Article 2.6 (Possession of Prohibited Substances and Prohibited Methods) shall be as follows, unless the conditions for eliminating or reducing the period of Ineligibility, as provided in Articles 10.4 and 10.5, or the conditions for increasing the period of Ineligibility, as provided in Article 10.6, are met:

First violation: Two (2) years Ineligibility.

[Comment to Article 10.2: Harmonization of sanctions has been one of the most discussed and debated areas of anti-doping. Harmonization means that the same rules and criteria are applied to assess the unique facts of each case. Arguments against requiring harmonization of sanctions are based on differences between sports including, for example, the following: in some sports the Athletes are professionals making a sizable income from the sport and in others the Athletes are true amateurs; in those sports where an Athlete’s career is short (e.g., artistic gymnastics) a two-year Disqualification has a much more significant effect on the Athlete than in sports where careers are traditionally much longer (e.g., equestrian and shooting); in Individual Sports, the Athlete is better able to maintain competitive skills through solitary practice during Disqualification than in other sports where practice as part of a team is more important. A primary argument in favor of harmonization is that it is simply not right that two Athletes from the same country who test positive for the same Prohibited Substance under similar circumstances should receive different sanctions only because they participate in different sports. In addition, flexibility in sanctioning has often been viewed as an unacceptable opportunity for some sporting organizations to be more lenient with dopers. The lack of harmonization of sanctions has also frequently been the source of jurisdictional conflicts between International Federations and National Anti-Doping Organizations.]

***

10.4 Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances

Where an Athlete or other Person can establish how a Specified Substance entered his or her body or came into his or her Possession and that such Specified Substance was not intended to enhance the Athlete’s sport performance or mask the Use of a performance-enhancing substance, the period of Ineligibility found in Article 10.2 shall be replaced with the following:

First violation: At a minimum, a reprimand and no period of Ineligibility from future Events, and at a maximum, two (2) years of Ineligibility.

To justify any elimination or reduction, the Athlete or other Person must produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance or mask the Use of a performance-enhancing substance. The Athlete’s or other Person’s degree of fault shall be the criterion considered in assessing any reduction of the period of Ineligibility.

[Comment to Article 10.4: Specified Substances are not necessarily less serious agents for purposes of sports doping than other Prohibited Substances (for example, a stimulant that is listed as a Specified Substance could be very effective to an Athlete in competition); for that reason, an Athlete who does not meet the criteria under this Article would receive a two-year period of Ineligibility and could receive up to a four-year period of Ineligibility under Article 10.6. However, there is a greater likelihood that Specified Substances, as opposed to other Prohibited Substances, could be susceptible to a credible, non-doping explanation. This Article applies only in those cases where the hearing panel is comfortably satisfied by the objective circumstances of the case that the Athlete in taking or Possessing a Prohibited Substance did not intend to enhance his or her sport performance. Examples of the type of objective circumstances which in combination might lead a hearing panel to be comfortably satisfied of no performance-enhancing intent would include: the fact that the nature of the Specified Substance or the timing of its ingestion would not have been beneficial to the Athlete; the Athlete’s open Use or disclosure of his or her Use of the Specified Substance; and a contemporaneous medical records file substantiating the non sport-related prescription for the Specified Substance. Generally, the greater the potential performance-enhancing benefit, the higher the burden on the Athlete to prove lack of an intent to enhance sport performance. While the absence of intent to enhance sport performance must be established to the comfortable satisfaction of the hearing panel, the Athlete may establish how the Specified Substance entered the body by a balance of probability.

In assessing the Athlete’s or other Person’s degree of fault, the circumstances considered must be specific and relevant to explain the Athlete’s or other Person’s departure from the expected standard of behavior. Thus, for example, the fact that an Athlete would lose the opportunity to earn large sums of money during a period of Ineligibility or the fact that the Athlete only has a short time left in his or her career or the timing of the sporting calendar would not be relevant factors to be considered in reducing the period of Ineligibility under this Article. It is anticipated that the period of Ineligibility will be eliminated entirely in only the most exceptional cases.]

10.5 Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances

  1. 10.5.1

    No Fault or Negligence

    If an Athlete establishes in an individual case that he or she bears No Fault or Negligence, the otherwise applicable period of Ineligibility shall be eliminated. When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Article 2.1 (Presence of Prohibited Substance), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility eliminated. In the event this Article is applied and the period of Ineligibility otherwise applicable is eliminated, the anti-doping rule violation shall not be considered a violation for the limited purpose of determining the period of Ineligibility for multiple violations under Article 10.7.

  1. 10.5.2

    No Significant Fault or Negligence

    If an Athlete or other Person establishes in an individual case that he or she bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable. If the otherwise applicable period of Ineligibility is a lifetime, the reduced period under this Article may be no less than eight (8) years. When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Article 2.1 (presence of a Prohibited Substance or its Metabolites or Markers), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility reduced.

    [Comment to Articles 10.5.1 and 10.5.2: The Code provides for the possible reduction or elimination of the period of Ineligibility in the unique circumstance where the Athlete can establish that he or she had No Fault or Negligence, or No Significant Fault or Negligence, in connection with the violation. This approach is consistent with basic principles of human rights and provides a balance between those Anti-Doping Organizations that argue for a much narrower exception, or none at all, and those that would reduce a two-year suspension based on a range of other factors even when the Athlete was admittedly at fault. These Articles apply only to the imposition of sanctions; they are not applicable to the determination of whether an anti-doping rule violation has occurred. Article 10.5.2 may be applied to any anti-doping rule violation even though it will be especially difficult to meet the criteria for a reduction for those anti-doping rule violations where knowledge is an element of the violation. Articles 10.5.1 and 10.5.2 are meant to have an impact only in cases where the circumstances are truly exceptional and not in the vast majority of cases. To illustrate the operation of Article 10.5.1, an example where No Fault or Negligence would result in the total elimination of a sanction is where an Athlete could prove that, despite all due care, he or she was sabotaged by a competitor. Conversely, a sanction could not be completely eliminated on the basis of No Fault or Negligence in the following circumstances: (a) a positive test resulting from a mislabeled or contaminated vitamin or nutritional supplement (Athletes are responsible for what they ingest (Article 2.1.1) and have been warned against the possibility of supplement contamination); (b) the administration of a Prohibited Substance by the Athlete’s personal physician or trainer without disclosure to the Athlete (Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance); and (c) sabotage of the Athlete’s food or drink by a spouse, coach or other Person within the Athlete’s circle of associates (Athletes are responsible for what they ingest and for the conduct of those Persons to whom they entrust access to their food and drink). However, depending on the unique facts of a particular case, any of the referenced illustrations could result in a reduced sanction based on No Significant Fault or Negligence. (For example, reduction may well be appropriate in illustration (a) if the Athlete clearly establishes that the cause of the positive test was contamination in a common multiple vitamin purchased from a source with no connection to Prohibited Substances and the Athlete exercised care in not taking other nutritional supplements.) For purposes of assessing the Athlete’s or other Person’s fault under Articles 10.5.1 and 10.5.2, the evidence considered must be specific and relevant to explain the Athlete’s or other Person’s departure from the expected standard of behavior. Thus, for example, the fact that an Athlete would lose the opportunity to earn large sums of money during a period of Ineligibility or the fact that the Athlete only has a short time left in his or her career or the timing of the sporting calendar would not be relevant factors to be considered in reducing the period of Ineligibility under this Article. While Minors are not given special treatment per se in determining the applicable sanction, certainly youth and lack of experience are relevant factors to be assessed in determining the Athlete’s or other Person’s fault under Article 10.5.2, as well as Articles 10.3.3, 10.4 and 10.5.1 Article 10.5.2 should not be applied in cases where Articles 10.3.3 or 10.4 apply, as those Articles already take into consideration the Athlete’s or other Person’s degree of fault for purposes of establishing the applicable period of Ineligibility.]

***

  1. 10.5.5

    Where an Athlete or other Person Establishes Entitlement to Reduction in Sanction Under More than One Provision of this Article.

    Before applying any reduction or suspension under Articles 10.5.2, 10.5.3 or 10.5.4, the otherwise applicable period of Ineligibility shall be determined in accordance with Articles 10.2, 10.3, 10.4 and 10.6. If the Athlete or other Person establishes entitlement to a reduction or suspension of the period of Ineligibility under two or more of Articles 10.5.2, 10.5.3 or 10.5.4, then the period of Ineligibility may be reduced or suspended, but not below one-fourth of the otherwise applicable period of Ineligibility.

[Comment to Article 10.5.5: The appropriate sanction is determined in a sequence of four steps. First, the hearing panel determines which of the basic sanctions (Article 10.2, Article 10.3, Article 10.4 or Article 10.6) applies to the particular anti-doping rule violation. In a second step, the hearing panel establishes whether there is a basis for suspension, elimination or reduction of the sanction (Articles 10.5.1 through 10.5.4). Note, however, not all grounds for suspension, elimination or reduction may be combined with the provisions on basic sanctions. For example, Article 10.5.2 does not apply in cases involving Articles 10.3.3 or 10.4, since the hearing panel, under Articles 10.3.3 and 10.4, will already have determined the period of Ineligibility based on the Athlete’s or other Person’s degree of fault. In a third step, the hearing panel determines under Article 10.5.5 whether the Athlete or other Person is entitled to elimination, reduction or suspension under more than one provision of Article 10.5. Finally, the hearing panel decides on the commencement of the period of Ineligibility under Article 10.9… [Examples omitted]]

10.6 Aggravating Circumstances Which May Increase the Period of Ineligibility

If the Anti-Doping Organization establishes in an individual case involving an anti-doping rule violation other than violations under Articles 2.7 (Trafficking or Attempted Trafficking) and 2.8 (Administration or Attempted Administration) that aggravating circumstances are present which justify the imposition of a period of Ineligibility greater than the standard sanction, then the period of Ineligibility otherwise applicable shall be increased up to a maximum of four (4) years unless the Athlete or other Person can prove to the comfortable satisfaction of the hearing panel that he or she did not knowingly commit the anti-doping rule violation.

An Athlete or other Person can avoid the application of this Article by admitting the anti-doping rule violation as asserted promptly after being confronted with the antidoping rule violation by an Anti-Doping Organization.

[Comment to Article 10.6: Examples of aggravating circumstances which may justify the imposition of a period of Ineligibility greater than the standard sanction are: the Athlete or other Person committed the anti-doping rule violation as part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit anti-doping rule violations; the Athlete or other Person Used or Possessed multiple Prohibited Substances or Prohibited Methods or Used or Possessed a Prohibited Substance or Prohibited Method on multiple occasions; a normal individual would be likely to enjoy the performance-enhancing effects of the anti-doping rule violation(s) beyond the otherwise applicable period of Ineligibility; the Athlete or Person engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation.

For the avoidance of doubt, the examples of aggravating circumstances described in this Comment to Article 10.6 are not exclusive and other aggravating factors may also justify the imposition of a longer period of Ineligibility. Violations under Articles 2.7 (Trafficking or Attempted Trafficking) and 2.8 (Administration or Attempted Administration) are not included in the application of Article 10.6 because the sanctions for these violations (from four years to lifetime Ineligibility) already build in sufficient discretion to allow consideration of any aggravating circumstance.]

Appendix 2: The full text and Comments to Articles 10.2, 10.4, 10.5, and 10.6.4 of the 2015 Code

10.2 Ineligibility for Presence, Use or Attempted Use or Possession of a Prohibited Substance or Prohibited Method

The period of Ineligibility for a violation of Article 2.1, 2.2 or 2.6 shall be as follows, subject to potential reduction or suspension pursuant to Article 10.4, 10.5 or 10.6:

  1. 10.2.1

    The period of Ineligibility shall be four years where:

  2. 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.

  3. 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.

  4. 10.2.2

    If Article 10.2.1 does not apply, the period of Ineligibility shall be two years.

  5. 10.2.3

    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.

***

10.4 Elimination of the Period of Ineligibility where there is No Fault or Negligence

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.

[Comment to Article 10.4: This Article and Article 10.5.2 apply only to the imposition of sanctions; they are not applicable to the determination of whether an anti-doping rule violation has occurred. They will only apply in exceptional circumstances, for example, where an Athlete could prove that, despite all due care, he or she was sabotaged by a competitor. Conversely, No Fault or Negligence would not apply in the following circumstances: (a) a positive test resulting from a mislabeled or contaminated vitamin or nutritional supplement (Athletes are responsible for what they ingest (Article 2.1.1) and have been warned against the possibility of supplement contamination); (b) the Administration of a Prohibited Substance by the Athlete’s personal physician or trainer without disclosure to the Athlete (Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance); and (c) sabotage of the Athlete’s food or drink by a spouse, coach or other Person within the Athlete’s circle of associates (Athletes are responsible for what they ingest and for the conduct of those Persons to whom they entrust access to their food and drink). However, depending on the unique facts of a particular case, any of the referenced illustrations could result in a reduced sanction under Article 10.5 based on No Significant Fault or Negligence.]

10.5 Reduction of the Period of Ineligibility based on No Significant Fault or Negligence

  1. 10.5.1

    Reduction of Sanctions for Specified Substances or Contaminated Products for Violations of Article 2.1, 2.2 or 2.6.

  1. 10.5.1.1

    Specified Substances

    Where the anti-doping rule violation involves a Specified Substance, and the Athlete or other Person can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years of Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.

  1. 10.5.1.2

    Contaminated Products

    In cases where the Athlete or other Person can establish No Significant Fault or Negligence and that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.

[Comment to Article 10.5.1.2: In assessing that Athlete’s degree of Fault, it would, for example, be favorable for the Athlete if the Athlete had declared the product which was subsequently determined to be contaminated on his or her Doping Control form.]

  1. 10.5.2

    Application of No Significant Fault or Negligence beyond the application of Article 10.5.1

    If an Athlete or other Person establishes in an individual case where Article 10.5.1 is not applicable, that he or she bears No Significant Fault or Negligence, then, subject to further reduction or elimination as provided in Article 10.6, the otherwise applicable period of Ineligibility may be reduced based on the Athlete or other Person’s degree of Fault, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable. If the otherwise applicable period of Ineligibility is a lifetime, the reduced period under this Article may be no less than eight years.

    [Comment to Article 10.5.2: Article 10.5.2 may be applied to any anti-doping rule violation, except those Articles where intent is an element of the anti-doping rule violation (e.g., Articles 2.5, 2.7, 2.8 or 2.9) or an element of a particular sanction (e.g., Article 10.2.1) or a range of Ineligibility is already provided in an Article based on the Athlete or other Person's degree of Fault.]

    ***

  2. 10.6.4

    Application of Multiple Grounds for Reduction of a Sanction

Where an Athlete or other Person establishes entitlement to reduction in sanction under more than one provision of Article 10.4, 10.5 or 10.6, before applying any reduction or suspension under Article 10.6, the otherwise applicable period of Ineligibility shall be determined in accordance with Articles 10.2, 10.3, 10.4, and 10.5. if the Athlete or other Person establishes entitlement to a reduction or suspension of the period of Ineligibility under Article 10.6, then the period of Ineligibility may be reduced or suspended, but not below one-fourth of the otherwise applicable period of Ineligibility.

[Comment to Article 10.6.4: The appropriate sanction is determined in a sequence of four steps. First, the hearing panel determines which of the basic sanctions (Article 10.2, 10.3, 10.4, or 10.5) apply to the particular anti-doping rule violation. Second, if the basic sanction provides for a range of sanctions, the hearing panel must determine the applicable sanction within that range according to the Athlete or other Person’s degree of Fault. In a third step, the hearing panel establishes whether there is a basis for elimination, suspension, or reduction of the sanction (Article 10.6). Finally, the hearing panel decides on the commencement of the period of Ineligibility under Article 10.11.

Several examples of how Article 10 is to be applied are found in Appendix 2.]

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Rigozzi, A., Haas, U., Wisnosky, E. et al. Breaking down the process for determining a basic sanction under the 2015 World Anti-Doping Code. Int Sports Law J 15, 3–48 (2015). https://doi.org/10.1007/s40318-015-0068-6

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Keywords

  • Anti-doping
  • Sanctioning
  • 2015 World Anti-Doping Code
  • No significant fault or negligence
  • No fault or negligence