Abstract
Novel and other non-listed performance-enhancing substances are a challenge for the fight against doping. The World Anti-Doping Agency (WADA) and its stakeholders have implemented a number of regulatory measures and tools to seek to tackle these challenges. These measures and tools include the prohibition of substances by category (e.g., to automatically include non-listed substances similar to explicitly listed substances), the identification of metabolites and other markers to lengthen the detection window, the longitudinal monitoring of blood and steroid markers to detect doping based on the physiological changes it induces, retesting programmes years after the event with the benefit of the most up-to-date analytical instruments and intelligence-led investigations. This chapter also addresses some of the particular issues that arise in terms of sanctioning new forms of doping.
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Notes
- 1.
CAS 2009/A/1805 & 1847 IAAF v. RFEA & Onyia
- 2.
See CAS 2019/A/6574 WADA v. RANAD & Mineran, para. 62
- 3.
In addition, where a substance neither falls under a specific class prohibited in the Prohibited List nor has a “similar chemical structure or similar biological effect(s)” to the substances in a class, it will still be prohibited if it has “no current approval by any governmental regulatory health authority for human therapeutic use (e.g., drugs under pre-clinical or clinical development or discontinued, designer drugs, substances approved only for veterinary use)” under S0 of the Prohibited List
- 4.
International Standard for the List of Prohibited Substances and Methods. Available at: https://www.wada-ama.org/en/content/what-is-prohibited
- 5.
CAS 2009/A/1805 & 1847 IAAF v. RFEA & Onyia, para. 94
- 6.
Methylhexaneamine is an adrenergic drug classified as a stimulant that was used as a therapeutic nasal decongestant until discontinued in the early 1970s
- 7.
Whereas higenamine was added to examples of beta-2 agonists expressly set out on the Prohibited List in 2017, it did not feature on the Prohibited List up to and including 2016
- 8.
CAS 2019/A/6574 WADA v. RANAD & Mineran, para. 77
- 9.
CAS 2009/A/1805&1847 IAAF v. RFEA & Josephine Onyia, para. 90
- 10.
CAS 2009/A/1805&1847 IAAF v. RFEA & Josephine Onyia, para. 91
- 11.
CAS 2017/A/4984 Nesta Carter v. IOC, para. 152
- 12.
CAS 2017/A/4984 Nesta Carter v. IOC, para. 153
- 13.
CAS 2019/A/6574 WADA v. RANAD & Mineran, para. 67
- 14.
More information is available at: https://www.wada-ama.org/sites/default/files/resources/files/tl13_trimetazidine_eng_2021_1.pdf
- 15.
An example is the presence of further metabolites of the prohibited substance
- 16.
In CAS 2016/A/4803, 4804 & CAS 2017/A/4983, when confronted with the argument that the M3 of oral Turinabol could be confused with the long-term metabolite of other prohibited substance and therefore the testing method was not valid, the Panel rejected the argument and confirmed that the detection method was a valid one “for the purpose for which it is intended, namely the detection of prohibited substances and prohibited substances only” (para. 141)
- 17.
This is normally happening in results obtained with respect to the haematological module. So far the steroid module has mainly served to target potential analytical cases. Before a case is referred to a panel of experts, the data obtained serves to identify suspicious samples. The results are subject to an Atypical Passport Finding Confirmation Procedure Request (ATPF-CPR). In other words, the suspicious sample will undergo an analytical procedure (in particular IRMS). If such additional analysis identifies the presence of a prohibited substance, the case then proceeds as a usual case based on the presence of a prohibited substance. In this context, the ABP actually serves as a targeting tool and brings supporting evidence. Although the possibility exists, no case has so far proceeded solely on the basis of an abnormal steroidal profile in the absence of confirmed analytical results
- 18.
See Comment to article 2.2 of the Code, which specifically refers to the ABP
- 19.
See, for instance, CAS 2012/A/2773 IAAF v. SEGAS & Kokkinariou (para. 13): “Systems which make use of these longitudinal profiles have evolved to become widespread and highly effective means of detecting EPO doping”; CAS 2014/A/3614 & 3561 IAAF & WADA v. RFEA & Ms. Marta Dominguez (para. 278) – “the ABP Model is a reliable and a valid mean of establishing an ADRV”
- 20.
For another example of new methods amongst others: CAS 2018/A/5654 & 5655 Zemliak & Povh v. UAF & WADA. Of note, the analytical method had not been approved by WADA yet. The CAS found that it could be relied upon to establish an anti-doping rule violation. The fact that a method is not validated only means that it does not benefit from a presumption of validity under article 3.2.1 of the Code, which did not exclude it being used as reliable evidence
- 21.
See article 6.6 of the Code: “After a laboratory has reported a Sample as negative, or the Sample has not otherwise resulted in an anti-doping rule violation charge, it may be stored and subjected to further analyses for the purpose of Article 6.2 at any time exclusively at the direction of either the Anti-Doping Organization that initiated and directed Sample collection or WADA”
- 22.
See in particular article 10.7 and 10.8 of the Code
- 23.
See article 10.7.1 of the Code
- 24.
See, for instance, CAS 2016/A/4486 IAAF v. Poistogova, CAS 2016/O/4488 IAAF v. ARAF & Bazdyreva, CAS 2016/O/4481 IAAF v. ARAF & Savinova-Farnasova (as well as on appeal: CAS 2017/A/5045), CAS 2016/O/4504 IAAF v. ARAF & Mokhnev, CAS 2016/A/4480 IAAF v. ARAF & Kazarin, CAS 2018/A/4487 IAAF v. Melnikov, CAS 2016/O/4575 IAAF v. ARAF & Portugalov
- 25.
Comment to article 4.2.2 of the Code clarifies that Specified prohibited substances or methods are “simply Substances and Methods which are more likely to have been consumed or used by an Athlete for a purpose other than the enhancement of sport performance”
- 26.
Article 10.2.1.1 of the Code
- 27.
Article 10.2.1.2 of the Code
- 28.
In addition, the Code provides for another category of substances, i.e. the Substances of Abuse (article 4.2.3 of the Code), which are subject to a more lenient regime of sanctions (article 10.2.4 of the Code). The Substances of Abuse are those “frequently abused in society outside of the context of sport” and include, for instance, cocaine or THC
- 29.
See article 10.4 of the Code
- 30.
A contaminated product is defined in the Code as a product “that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search”
- 31.
CAS 2014/A/3820 WADA v. Damar Robinson & JADCO, para. 80
- 32.
See CAS 2010/A/2277 La Barbera v. IWAS, para. 31; see also CAS 2017/A/5369 WADA v. SAIDS and Gordon Gilbert
- 33.
CAS OG 12/007 ICF v. Sterba, para. 40
- 34.
CAS OG 12/007 ICF v. Sterba, para. 37
- 35.
CAS OG 12/007 ICF v. Sterba, para. 37
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Morand, JP., Wenzel, R., Zbinden, N. (2022). Tackling New Forms of Doping: The Legal Challenges. In: Rabin, O., Corazza, O. (eds) Emerging Drugs in Sport. Springer, Cham. https://doi.org/10.1007/978-3-030-79293-0_7
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