By Paul J. Greene
The World Anti-Doping Code (the “Code”), version 3.0, will take effect on January 1, 2015.[1] It features several new provisions that will change the legal landscape for athletes.
Prohibited Associations
A new section called “prohibited associations” makes it an anti-doping rules violation if an athlete associates with another person who has committed an anti-doping rules violation. “Associating” includes getting training advice, discussing competition strategy or technique and/or obtaining medical advice from a person who has previously been sanctioned for doping. This new section expands the limits of the Code into uncharted territory. Never before has an athlete faced sanctions for merely associating with another who has committed an anti-doping rules violation.
Default Sanction is Now 4 Years
The default sanction under the new Code will double to 4 years (increased from the current default of 2 years) for “intentional dopers” who commit anti-doping rules violations intentionally or recklessly. Athletes who intentionally fail to submit to testing can also receive a 4-year ban as can those who are trafficking or administering banned substances to others.
The 4-year ban will almost certainly be challenged as being too punitive just as the 2-year ban was challenged when the Code, version 1.0, took effect back in 2003. While a 2-year ban was deemed legal, a 4-year ban could prove to be an altogether different story because in nearly all cases involving an athlete a 4-year ban will end such athlete’s career.
Lesser Sanctions Possible for “Unintentional Dopers”
For “unintentional dopers” — athletes who unknowingly take a banned substance by, for example, ingesting an undisclosed substance in a dietary supplement, eating tainted meat or drinking tainted water — there is greater opportunity under the new Code for a reduced sanction. An athlete found to take any substance — even a steroid — who can prove that the source was a “contaminated product” could receive a sanction as low as a reprimand if the athlete establishes (i) how the substance entered their body and (ii) that they were not significantly at fault or negligent in their ingestion of the substance.
In the past, athletes were only eligible for a sanction as low as a reprimand if they took a “specified substance” (for example a stimulant) that was more likely to be taken unintentionally. Until now, athletes who even unintentionally took a non-specified substance like a steroid or a masking agent faced a minimum 1-year ban from competition. This will no longer be the case under the newest version of the Code.
This increased flexibility for sanctioning under the new Code is a concerted effort to distinguish between major violators – intentional dopers – and minor violators who fall into an anti-doping rules violation by unintentionally taking a banned substance.[2]
Increased Focus on Investigations
The new Code will place an increased emphasis on the use of “non-analytical positive evidence” — evidence other than that of a positive test — to bring cases against athletes who may have committed an anti-doping rules violation but did not test positive. Anti-doping organizations, like the United States Anti-Doping Agency, will rely more than ever on intelligence gathering like that used in the BALCO and Biogenesis scandals.
Doping Tests Now Considered “Scientifically valid”
Determinations by the World Anti-Doping Agency (“WADA”) regarding doping tests and substance detection will now be deemed presumptively valid. This new rule will make it more difficult for athletes to challenge the scientific validity of testing procedures. While these kinds of challenges have always been an uphill battle for athletes this new rule will make it an even steeper hill to climb. Some athletes have been successful challenging the scientific reliability/validity of a doping test. Most notably, in 2013, a cross-country skier from Estonia named Andrus Veerpalu was exonerated after convincing a Panel of the Court of Arbitration for Sport that WADA’s test for hGH was scientifically unreliable. The Veerpalu decision forced all anti-doping organizations to stop testing for hGH for more than a year while WADA revisited its hGH test that was just recently reinstituted under new protocols. Whether a Veerpalu type challenge by an athlete will be possible under this new heightened standard remains an open question.
As the Code 3.0 takes effect, athletes who must comply with its strict standards should be more aware than ever. Athletes now must be hyper vigilant about not only what they consume but who they associate with. The penalties for making a mistake in the world of the Code are severe. One false step and a career can be gone, or seriously derailed, in an instant.
Paul J. Greene, the founder of Global Sports Advocates, handles sports law matters, including doping cases, globally before the Court of Arbitration for Sport based in Lausanne, Switzerland. He is on the list of approved lawyers for the International Court of Arbitration for Sport, the Sports Dispute Resolution Centre of Canada and the United States Olympic Committee.
[1] The Code governs the Olympic movement and nearly all sports across the globe save for the American pro sports leagues although pro athletes in MLB, NHL, NBA and MLS must comply with the Code when they compete in international competitions like the Olympics or World Championships.
[2] The Code has a strict liability standard when it comes to whether an anti-doping rules violation was committed. Mens rea, or the intent of the athlete, is only relevant when considering length of the sanction.
