The World Anti-Doping Code - The Fight for the Spirit of Sport - Part 6

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47. However, a CAS Panel, in a recent decision (19) involving an appeal by an experienced Austrian skier who had tested positive for a steroid which had come from a contaminated nutritional supplement, left open the possibility that proportionality might still have a role to play in reaching an appropriate sanction where the Articles which provide for a reduced or eliminated sanction did not assist the athlete.

7.5.3 Insofar as the WADC prevents specific circumstances to be taken into account for the benefit of the athlete, the admissibility of such provisions is doubted again and again. In the opinion by Gabrielle Kaufmann-Kohler, Antonio Rigozzi and Giorgio Malinverni, the rigid systems of fixed sanctions in the WADC considerably restricts the doctrine of proportionality, but is nevertheless compatible with human rights and general legal principles (see notes 175-185). These experts justify this characteristic by citing the legitimate aim of harmonising doping penalties (see notes 171-174).
7.5.4 Whether the conclusions to be drawn from these experts are correct in such finality can be left unanswered here (see also CAS 2004/A/690) Hipperdinger v/ ATP Tour Inc [24.3.2005] marg. No. 89); for the case at hand does not require an in-depth decision of the issue. At least in the opinion of the Swiss Federal Tribunal, sports bodies can limit in their rules the circumstances to be taken into account when fixing sanctions and thereby also restrict the application of the doctrine of proportionality (Decision dated 31 March 1999 in re. N. et al./FINA, see Digest of CAS Awards, Volume II, 2002, p. 775, in particular p. 780, cons. 3.c). However, in the opinion of the Federal Tribunal, the sport associations exceed their autonomy if these rules constitute an attack on personal rights, the nature and scope of which is extremely serious and totally disproportionate to the behaviours penalised. In the Panel’s opinion, this threshold has not been exceeded in the present case. The Appellant has not convinced the Panel that the FIS-Rules, by failing to take into consideration his age, his persona sporting career or the particularities of the type of sport, inflict such an extraordinary disadvantage upon him setting the period of his ineligibility that the Panel is justified in departing from the central premise of the WADC, namely the harmonisation and standardisation of doping sanctions across all types of sports and athletes (see the Introduction to the WADC). (Emphasis added)

48. In the particular case, the CAS panel, on appeal, did not reduce the sanction imposed by the sporting body (FIS) which found that the athlete had been negligent (and so could not eliminate the sanction) but that the athlete could show no significant negligence or fault with the result that the sanction was reduced from two years to 18 months. The possibility that the principle of proportionality may still have a role to play, where the requirements in Articles 10.5.1 and 10.5.2 are not satisfied, introduces an unwelcome element of uncertainty into the application of the Code relating to sanctions which, it is submitted, was not intended when the Articles were introduced.

The need for consistency

49. The Code will be interpreted and applied by a wide range of national tribunals and by CAS. Like international conventions in areas such as international trade, those who interpret and apply the Code will need to remain conscious of the need to adopt an approach to interpretation which is consistent and readily understood by other tribunals (20). The Knauss decision introduces the possibility that, notwithstanding the words of the Articles, principles such as proportionality may be used to reach an outcome which a tribunal believes is appropriate. While the Articles are designed to introduce flexibility, care needs to be taken not to remove that flexibility, from the words of the Articles and the general purpose expressed in the Notes, namely that the elimination and reduction Articles, are for exceptional circumstances.

50. Recently there was a case in New Zealand where the Sport’s Disputes Tribunal had to consider the provisions of Article 10.5.2 in the context of a refusal to provide a sample which illustrates the difficult issues which can arise in interpreting and applying the Articles for reducing the sanctions.

51. Mr Tawera is a rugby league player. He was selected for testing after a game in a South Pacific tournament in Auckland. At the time of the test he was anxious to go home to his partner who was pregnant. The drug testing procedures were properly carried out. In the course of giving the required urine sample, Mr Tawera dropped the sample and, in spite of warnings, left the drug collection area. In doing that, he committed a doping infraction under the applicable Regulations. After being out of the room for a couple of minutes he came back and offered to give a test. The Agency officials carried out the test, making it clear that the first refusal would be reported.

52. The Board of the Agency determined that there had been a refusal without reasonable excuse. The Sports Disputes Tribunal had to decide whether, notwithstanding the finding that Mr Tawera did not have reasonable cause to fail to provide a sample, he could still establish that he bore no significant fault or negligence. The SDT found that Mr Tawera had acted intentionally or purposefully (although in a hot-headed manner). The question was, could Article 10.5.2 still apply? Could there be no significant fault or negligence where there was no reasonable excuse and purposeful conduct? The SDT found that, while Mr Tawera was clearly at fault, there was an exceptional circumstance, namely the negative second test, which meant that had the first test been given, it would have been negative. It found that this exceptional circumstance allowed Mr Tawera to show no significant fault or negligence “in the totality of the circumstances”.

53. It is submitted that this kind of approach, although understandable, presents some difficulties given the words of the Article and the Notes. Can the conduct involved in the refusal, given the finding of no reasonable excuse and purposeful conduct, be described as showing no significant fault or negligence “in connection with the violation”? Should this kind of refusal be regarded as giving rise to “unique” circumstances? (21)

54. It is submitted that national tribunals and CAS will have to remain conscious of the overall aims and purposes of the anti-doping regime in the Code, to respect the words used in the Articles and the explanations in the notes to the Code and remain aware that outcomes in individual cases may have a broader effect on the interpretation of the Code in other cases internationally.

Concluding comment

55. The Code is a significant international agreement under which sporting bodies, both nationally and internationally, have agreed on a common approach to a problem which strikes at the heart of sport. The Code will, over time, create consistency but it is to be anticipated that, in each of the areas identified, there will be significant challenges for those working to give effect to the Code. If these challenges can be met, the Code will fulfil its fundamental goal of upholding the spirit of sport and eliminating cheating by the taking of performance enhancing substances.

Paul David
September 2005

19. CAS 2005/A/847 H Knauss v FIS, 20 June 2005
20. For well known dicta in this regard in the area of construction of the Hague Rules relating to the carriage of goods by sea, see eg. Stag Lene v Foscolo Mango [1932] AC 328 per Lord Atkin at p 343, per Lord MacMillan at p 350.
21. See Notes to Article 10.5.2.

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