The World Anti-Doping Code - The Fight for the Spirit of Sport - Part 2

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11. Article 2.1 underlines the principle of strict liability for the presence of prohibited substances in an athlete’s body which underpins the Code and the effectiveness of anti-doping regimes. It provides that it is the athlete’s personal duty to ensure that no prohibited substance enters his or her body. This provision also states that 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 violation under 2.1. This principle is softened by the provisions of the Code relating to sanctions which allow an athlete to apply for a reduced sanction where their conduct is shown to be without fault or without significant fault or negligence.

Proof of violations

12. Under the Code the burden falls on the Anti-Doping Organisation to prove that an anti-doping violation has occurred. The standard of proof is expressed to be that the Anti-Doping Organisation has established an anti-doping rule violation to the comfortable satisfaction of the hearing body bearing in mind the seriousness of the allegation which is made. The standard is intended to be similar to the standard which is applied in many Commonwealth countries to the proof of a charge of professional misconduct. The standard has been widely applied in doping cases before the development of the Code (4) but the need for clear proof to establish violations by evidence is likely to be of greater significance where anti-doping organisations seek to prove violations which do not involve a positive test (see paragraphs 35 to 42 below).

13. Article 3.1 provides that where the Code places a burden upon the athlete or any other person to rebut a presumption or establish facts or circumstances, the standard of proof is to be on the balance of probabilities. This standard will apply where the athlete seeks to establish exceptional circumstances for the purpose of eliminating or reducing the period of ineligibility under Article 10.5.

14. Articles 3.2 and 3.2.2 set out the methods for establishing facts and presumptions. Facts relating to the anti-doping rule violations can be established by any reliable means, including admissions. WADA accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the international standard for a laboratory analysis. An athlete can rebut this presumption by establishing that a departure from the international standard occurred. If the athlete does this, then the anti-doping organisation has the burden of establishing that the departure from the international standard did not cause the adverse analytical finding. Article 3.2.2 provides that departures from the international standard for testing which did not cause an adverse analytical finding or other anti-doping rule violation do not invalidate results. It is for the anti-doping organisation to establish that a departure from the international standard did not cause the adverse analytical finding or the factual basis for the anti-doping rule violation.

Sanctions

15. Articles 9, 10 and 11 contain the important “core” provisions relating to the imposition of sanctions on individuals and teams.

16. Article 9 provides for the automatic disqualification of individual results where there has been an anti-doping rule violation on an in-competition test. The automatic disqualification includes the disqualification of the individual result with all resulting consequences, including forfeiture of any medals, points and prizes. This is the extent of strict liability because an athlete can, without any fault or negligence, lose the result obtained in an event where he or she was found to have committed an anti-doping violation by an in-competition test.

17. Article 10 sets out the provisions relating to sanctions which are to be imposed on individuals. Where an anti-doping rule violation occurs during or in connection with an event, the ruling body of the event can decide upon a disqualification of all the athlete’s individual results obtained in that event with all attendant consequences, including the forfeiture of all medals, points and prizes (except as provided in Article 10.1.1). This is not, however, an automatic consequence.

18. Article 10.1.1 provides that, if an athlete establishes that he or she bears no fault or negligence for the violation (see Article 10.5 below), the athlete’s individual results in the other competitions shall not be disqualified, unless the athlete’s results in competitions other than the competition in which the anti-doping rule violation occurred were likely to have been affected by the athlete’s anti-doping rule violation.

Periods of ineligibility

19. Save for certain specified substances (see below at paragraph 21), the period of ineligibility imposed for a violation of Articles 2.1 (presence of prohibited substance), 2.2 (attempting to use a prohibited substance) and 2.6 (possession of prohibited substance or methods) is:

First violation: 2 years’ ineligibility.
Second violation: Lifetime ineligibility.

20. An athlete or other person facing such sanctions has the opportunity, before a period of ineligibility is imposed, to establish the basis for eliminating or reducing the sanction as provided in Article 10.5.

Sanctions for substances which are particularly susceptible to unintentional violation

21. Under Article 10.3 certain specified substances can be identified on the prohibited list, as particularly susceptible to unintentional anti-doping rule violations because they are generally available as medicinal products or are less likely to be successfully abused as doping agents. Where an athlete can establish that the use of such a specified substance was not intended to enhance performance, the period of ineligibility found in 10.2 shall be replaced with the following sanctions:

First violation: At a minimum, a warning and reprimand and no period of ineligibility from future events and, at a maximum, 1 years’ ineligibility.
Second violation: 2 years’ ineligibility.
Third violation: Lifetime ineligibility.

Again, the athlete has the opportunity to reduce or eliminate the sanction in the event of a second or third violation under Article 10.5.

Sanctions for other violations

22. Article 10.4 sets out periods of ineligibility for other violations. The periods under 10.2, namely two years for a first violation and life for a second, apply to violations of Article 2.3 (refusing to submit to sample collection) or 2.5 (tampering or attempting to tamper with doping control). For violations of 2.7 (trafficking) or 2.8 (administering substance to an athlete or assisting encouraging etc), the period of ineligibility is a minimum of four years, up to lifetime ineligibility.

23. An anti-doping rule violation involving a minor is to be considered as a particularly serious violation and, if committed by an athlete support personnel and involves substances other than specified substances in Article 10.3, will result in lifetime ineligibility for the athlete’s support personnel involved. There is an additional provision for such violations to be reported to the competent administrative professional or judicial authorities.

4. See eg. CAS decision in J.Y.U. v Fina, CAS 98-208 22/12/1998.

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