Issues relating to doping matters William Sternheimer Managing Counsel & Head of Arbitration Table of contents I. Introduction II. Proof of doping III. Sanctions on individuals IV. Consequences to teams V. Conclusion I. Introduction • In 2003, the World Anti-Doping Code was adopted • The WADA Code was amended in 2009 • A new revision of the WADA Code is scheduled for 2015 • Under Article 13.2.1 of the WADA Code, in cases arising from participation in an international event or in cases involving international-level athletes, the decision may be appealed exclusively to CAS in accordance with the provisions applicable before such court • Approximately 35% of the cases before the CAS are related to doping • The present presentation will focus on the main issues which may arise before the CAS in relation to doping matters • It is each athlete’s personal duty to ensure that no prohibited substance enters her/his body. Athletes are responsible for any prohibited substance or its metabolites or markers found to be present in their samples. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation (Article 2.1.1) I. Introduction • The delegation of the athletes’ anti-doping duties does not excuse the athletes from their responsibility. It would indeed be to the severe detriment of the fight against doping if athletes were in a position to assign their obligations to third persons and consequently to avoid any liability for the presence of a prohibited substance in their sample (CAS OG 04/003 Torri Edwards v. IAAF, CAS 2006/A/1032 Sesil Karatancheva v. ITF, CAS 2012/A/2763 IAAF v. AFI & Akkunji Ashwini, Priyanka Panwar, Tiana Mary Thomas & Sini Jose) • All the anti-doping rule violations concerning athletes are provided under: Article 2.2 - use or attempted use by an athlete of a prohibited substance or method Article 2.3 – refusing or failing without compelling justification to submit to sample collection, or evading sample collection Article 2.4 – violation of applicable requirements regarding athlete availability for out- of-competition testing, including failure to file required whereabouts information and missed tests (three within 18 months) I. Introduction Article 2.5 – tampering or attempted tampering with any part of doping control Article 2.6 – possession of prohibited substances and methods Article 2.7 – trafficking or attempted trafficking of any prohibited substance or method Article 2.8 – administration or attempted administration to any athlete in- competition or out-of-competition of any prohibited substance or method, or assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an anti-doping rule violation or any attempted violation II. Proof of doping • The anti-doping organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the ADO has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof is greater than a mere balance of probability but less than proof beyond a reasonable doubt (Article 3.1) • Where the WADA Code places the burden of proof on the athlete alleged to have committed an anti-doping rule violation to rebut a presumption, the standard of proof shall be by a balance of probability, except if provided otherwise (Article 3.1) • Facts related to anti-doping rule violations may be established by any reliable means, including admissions (Article 3.2) Testimonies (CAS 2004/O/645 USADA v. Tim Montgomery, CAS 2004/O/649 USADA v. Chryste Gaines) Athlete’s biological passport (CAS 2010/A/2174 Francesco De Bonis v. CONI & UCI, CAS 2010/A/2235 UCI v. Tadej Valjavec & OCS) DNA analysis (TAS 2009/A/1879 Alejandro Valverde c. CONI) II. Proof of doping • WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the international standard for laboratories. The athlete may rebut this presumption by establishing that a departure from such standard occurred which could reasonably have caused the AAF. If the athlete rebuts this presumption, then the ADO shall have the burden to establish that such departure did not cause the AAF (Article 3.2.1) Some athletes have failed to rebut this presumption: CAS 2005/A/884 Tyler Hamilton v. USDA & UCI, CAS 2007/A/1394 Floyd Landis v. USADA, TAS 2007/A/1444 & 2008/A/1465 UCI c. Iban Mayo & RFEC Others succeeded: TAS 2006/A/1119 UCI c. Iñigo Landaluce, CAS 2008/A/1607 Varis v. IBU, CAS 2009/A/1752 & 1753 Devyatovskiy & Tsikhan v. IOC, CAS 2010/A/2161 Wen Tong v. IJF • The same applies to other standards (Article 3.2.2) • The hearing panel may draw an inference adverse to the athlete who is asserted to have committed an anti-doping rule violation based on her/his refusal to appear at the hearing and to answer questions from the hearing panel (Article 3.2.4) III. Sanctions on individuals • The period of ineligibility imposed for a first violation of Articles 2.1, 2.2 or 2.6 shall be 2 years, unless the conditions for eliminating or reducing the period of ineligibility or the ones for increasing it, are met (Article 10.2) • For violations of Articles 2.3 or 2.5, the period of ineligibility imposed shall be 2 years unless the conditions for eliminating the period of ineligibility or the ones for increasing it, are met (Article 10.3.1) • For violations of Articles 2.7 or 2.8, the period of ineligibility imposed shall be a minimum of 4 years up to lifetime unless the conditions for eliminating the period of ineligibility are met (Article 10.3.2) • For violations of Article 2.4, the period of ineligibility imposed shall be at a minimum 1 year and at a maximum 2 years based on the athlete’s degree of fault (Article 10.3.3) III. Sanctions on individuals • Article 10.4 – Elimination or reduction of the period of ineligibility for specified substances under specific circumstances Where an athlete can establish how a specified substance entered her/his body or came into her/his possession and that such specified substance was not intended to enhance the athlete’s sport performance, the period of ineligibility of Article 10.2 shall be replaced by, at a minimum, a reprimand and, at a maximum, 2 years of ineligibility To justify any elimination or reduction, the athlete must produce corroborating evidence 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 degree of fault shall be the criterion considered in assessing any reduction of the period of ineligibility • Examples of cases where Article 10.4 has been applied and where the intent to enhance sport performance was not an issue (the sports-body agreed to the absence of intent to enhance performance): CAS 2011/A/2495 FINA v. Cielo & CBDA, CAS 2011/A/2518 Robert Kendrick v. ITF III. Sanctions on individuals • On the intent to enhance sport performance, there are some contradictory CAS awards: CAS 2010/A/2107 Flavia Oliveira v. USADA: the athlete did not know she was taking a prohibited substance as it was labelled on the product differently than on the WADA list of prohibited substances. Only the use of the substance should be taken into consideration when assessing the intent (CAS 2011/A/2645 UCI v. Alexander Kolobnev & RCF) CAS A2/2011 Kurt Foggo v. National Rugby League: the use of the product shall be taken into consideration when assessing the intent, not only the substance CAS 2012/A/2804 Dimitar Kutrovsky v. ITF: an athlete’s knowledge or lack of knowledge that he has ingested a specified substance is relevant to the issue of intent but cannot of itself decide it. Foggo approach must be followed • When the Panel does not have to address the issue of intent, it automatically looks at the product itself and not the substance (CAS 2011/A/2495 FINA v. Cielo & CBDA) • The first draft of the WADA Code for 2015 clearly states that the Oliveira approach should not be favored. WADA now seems to go towards a deletion of the intent III. Sanctions on individuals • Article 10.5 – Elimination or reduction of period of ineligibility based on exceptional circumstances Article 10.5.1 No fault or negligence If the athlete establishes that she/he bears no fault or negligence, the otherwise applicable period of ineligibility shall be eliminated. The athlete must also establish how the prohibited substance entered her/his system (for Article 2.1 cases). If this article is applied, the anti-doping rule violation shall not be considered a violation for the purpose of determining the period of ineligibility for multiple violations under Article 10.7 Cases where CAS held that the athlete proved how the substance entered her/his system and established the she/he bears no fault or negligence: CAS 2005/A/990 Oleksandr Pobyedonostsev v. IIHF, CAS 2009/A/1926 & 1930 ITF & WADA v. Richard Gasquet III. Sanctions on individuals Article 10.5.2 No significant fault or negligence If an athlete establishes that she/he bears no significant fault or negligence, the otherwise applicable period of ineligibility may be reduced but such reduction may not be less that one-half of the period of ineligibility otherwise applicable. If the otherwise applicable period of ineligibility is a lifetime, the reduced period may not be less than eight years.