The World Anti-Doping Code - The Fight for the Spirit of Sport - Part 3

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Sanction for Article 2.4 violation

24. Under Article 10.4.3 where there has been a violation of Article 2.4 (availability for out-of-competition tests and provision of whereabouts information), the period of ineligibility is a minimum of three months and a maximum of two years.

Provisions for eliminating or reducing the period of ineligibility

25. Article 10.5 contains the important provisions concerning the elimination or reduction of the period of ineligibility where exceptional circumstances are established. The burden lies on the athlete to establish that such circumstances exist. These provisions, while shifting the onus of proof to the athlete, mitigate the rigours of strict liability and when raised by the athlete allow a tribunal to assess the fault or negligence of an athlete in the violation. However, as the notes to the Code make clear (5), the provisions are intended to apply only in exceptional circumstances.

No fault or negligence

26. Under Article 10.5.1, if the athlete establishes, in an individual case involving an anti-doping rule violation under Article 2.1 (presence of a banned substance) or 2.2 (attempting to use a banned substance), that he or she bears no fault or negligence for the violation, the applicable period of ineligibility is to be eliminated. In order to establish no fault or negligence of this kind, the athlete has to establish how the prohibited substance entered his or her system. If this article is applied, and a period of ineligibility is eliminated, the anti-doping rule violation is not to be considered as a violation for the purpose of determining the period of ineligibility for multiple violations. The notes to the Code say that this exception can only apply in exceptional circumstances and give examples such as sabotage of an athlete’s drink by someone they would usually trust. The burden on the athlete will obviously be difficult to discharge.

No significant fault or negligence

27. Article 10.5.2 provides for the reduction of the sanction where the athlete establishes no significant fault or negligence in an individual case involving certain violations. This article only applies to anti-doping rule violations involving Articles 2.1, 2.2, 2.3 or 2.8. If the athlete establishes that he or she bears no significant fault or negligence, then the period of ineligibility may be reduced but the reduced period of ineligibility may not be less than one half of the minimum period otherwise applicable. If the minimum period is a lifetime of ineligibility, the reduced period is not to be less than eight years. Again, if the violation is under Article 2.1, the athlete has to establish how the prohibited substance entered his or her system and the element of no significant fault or negligence in order to have the period of ineligibility reduced. Again, this article is to apply in exceptional circumstances and will usually only apply where the violation does not involve purposeful intentional conduct (6).

Reduction for assistance to anti-doping organisations

28. Article 10.5.3 provides that an anti-doping organisation may reduce the period of ineligibility in an individual case where the athlete has provided substantial assistance to the organisation resulting in the organisation discovering or establishing an anti-doping violation by another person. The reduction cannot be for less than one half of the minimum period of ineligibility. Again, if the period of ineligibility would be a lifetime ban, the reduced period cannot be less than eight years.

29. The Code then sets out further core provisions concerning the sanctions for multiple violations, violations involving more than one substance, the commencement of periods of ineligibility, and the consequences for teams. Appeals are dealt with under Article 13 and will generally be to CAS (7). There is an eight year limitation period on bringing anti-doping violation allegations in Article 17.

30. As outlined above, while Governments support the Code and will be subject to a further binding commitment to do so when the Convention is finalised, the essence of the Code is that it is intended to have its effect by a range of agreements. While a State might give effect to the Code by enacting legislation, making the provisions of the Code the law of the land, that is not the scheme which the Code seeks to achieve. While the Code functions in an area which has general public importance, it relies for its effect on private agreements as the signatories adopt policies which are consistent with the Code. The process of implementing the Code will, in many countries such as New Zealand, require some statutory amendments to legislation relating to government funded testing agencies and, often the establishment of new bodies to undertake the wider role envisaged by the Code for national anti-doping organisations, but the critical changes in most Commonwealth jurisdictions will come in the agreements between the various signatories to WADA and their members, the participants in sport, which will bind the participants to the obligations under the Code.

Adopting the Code - the New Zealand example

31. In New Zealand, drug testing is currently carried out by a statutory body - the New Zealand Sports Drug Agency (“the Agency”). That body functions under an Act of Parliament although all testing is carried out on the basis of agreement because only competitors can be tested and competitors are defined (in general terms) as those who are members of national sporting organisations (8). Currently the Code has become effective in New Zealand by national sporting organisations (“NSO”) adopting model anti-doping policies based on the Code under their own rules. The national sporting organisations have also, for the most part, agreed to refer anti-doping violations to a newly founded Sports Disputes Tribunal of New Zealand (“SDT”). The way in which anti-doping violations are currently dealt with can be illustrated by the following diagram:

Testing of “competitors” by Agency (in or out-of-competition under Regulations under the Act) - determination by Board of Agency under section 14 or 16 of the Act as to whether doping infraction or refusal committed - possible appeals to District Court from determination by Agency (s 20)

Notification of determination by Agency to NSO concerned under the Act. NSO deals with matter in accordance with its rules and policies. This will often involve reference to the SDT. If not NSO, hears and imposes sanction under its own rules and policies.

Reference to SDT for hearing of allegation of anti-doping violation under rules of NSO.

SDT hears allegation of anti-doping violation under its Rules. SDT treats determination by Agency under s14 or s16B as “proven fact”. If allegation proved, SDT imposes sanction under NSO’s rules and policy or, in the absence of rules and policies, in accordance with WADA Code.

5. The Notes to various provisions of the Code are included to assist in the understanding and interpretation of the Code (see Article 24.2).
6. For a consideration of Article 10.5.2 by the New Zealand Sports Disputes Tribunal see New Zealand Rugby League Inc v Tawera SDT/12/04 which is discussed below at paragraphs 50 to 54.
7. For international level athletes on appeal to CAS from the national level Tribunal is a core provision of the Code. For National level athletes there should be an appeal process but the tribunal hearing the appeal is optional. The Notes to the Code suggest that an appeal to CAS be used and it seems likely that this option will be used in anti-doping policies.
8. See section 2 of the New Zealand Sports Drug Agency Act for the full definition of “competitor”.

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