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06 September 2018

No Significant Fault – an assessment of Anti-Doping Case Law

On 26 July 2018, the National Anti-Doping Panel published its decision regarding the Anti-Doping Rule Violation (ADRV) of Ashley Johnson, the Wasps and South Africa rugby player, who had tested positive for a diuretic. In RFU v Johnson, the Panel decided that Johnson bore “no significant fault or negligence” and imposed a ban of 6 months.

This article analyses the approach taken by the Panel in applying the provisions of the World Anti-Doping Code (“the Code”) in relation to “Fault” (as defined in the Code) in the Johnson case and reviews previous decisions by anti-doping Panels regarding Fault to look for common strands of interpretation that could help athletes stay on the right side of the Code.

Sanctions under the code

There are 10 ADRVs in the current Code; a further 11th is proposed for 2021. Here we are chiefly concerned with the following ADRV:

  • The presence of a prohibited substance or its metabolites or markers in an athlete’s sample, which is assessed on a ‘strict liability’ basis.
Intention 

Intentional violations carry the most severe sanction – four years for a first offence . The 2015 Code (currently in force) clarifies that ‘“intentional” is meant to identify those Athletes who cheat’, requiring knowledge that the conduct would result in an ADRV (intent) or knowledge of a significant risk that it would result in an ADRV (recklessness).

No, or No Significant, Fault or Negligence

If an athlete can show that they bear no Fault or negligence for the ADRV, the period of Ineligibility (as defined in the Code) is eliminated altogether.

If an athlete can show that their Fault or negligence was ‘not significant’, the period of Ineligibility applicable to them may be reduced based on the degree of Fault. This can be as little as a reprimand (and no period of Ineligibility) in the case of ADRVs involving Specified Substances or Contaminated Products, or a reduction of one-half of the otherwise applicable period of Ineligibility in the case of other ADRVs.

‘Significant Fault’ and its interpretation - three key stands

The Appendix to the Code defines Fault as:

“Any breach of duty or any lack of care appropriate to a particular situation. Factors to be taken into consideration in assessing an Athlete’s degree of Fault include, for example, the Athlete’s experience, whether the Athlete is a Minor, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk.”

The Johnson case recognised that Fault and negligence are “more or less synonymous in context”. As apparent from anti-doping case law, three strands have emerged in the interpretation of ‘Fault’ and ‘Significant Fault’.

1 - Objective or Subjective Fault? 

An objective assessment of Fault is the standard of care expected of a reasonable person in the athlete’s position, whereas the subjective element considers the athlete’s mind-set and what is expected from the particular athlete in light of his or her personal capacities.

Cilic – Ineligibility: 4 months

Tennis player Marin Cilic tested positive for nikethamide (a stimulant) in 2013 after his mother bought tablets, wrongly assuming them to be glucose tablets, and his physical trainer told him that the product was suitable to take. The Panel in Cilic decided that the objective approach should be considered first in determining the basic level of fault, and that the subjective element should then be considered to move the athlete up or down on the penalty scale . The Panel suggested 5 things an athlete could do to prevent an ADRV relating to a prohibited substance:

  • Read the label of the product used
  • Cross-check all the ingredients on the label with the list of prohibited substances
  • Make an internet search of the product
  • Ensure the product is reliably sourced, and
  • Consult and diligently instruct appropriate experts before consuming the product.

If an athlete is able to demonstrate one or more of these they are more likely to demonstrate that their level of Fault was low, transpiring into a reduction in penalty.

Johnson – Ineligibility: 6 months

Rugby player Ashley Johnson tested positive for hydrochlorothiazide (a diuretic) in 2018. It was accepted that the ADRV came about after he ingested some of his wife’s fat-burning pills. Mr Johnson had confused his wife’s pills with his own supplement (which was WADA-certified), the two products having been kept in very similar containers laid out on a worktop in the couple’s kitchen.

The Panel again considered the objective standard first. The Panel recognised that “this arrangement [of different pills in similar boxes in close proximity] ran an obvious risk that some kind of muddle would occur”. The Panel went on to note that his wife’s pills were “bought over the internet from an unidentified or unspecified producer… All sensible people (and certainly every informed and reasonable sportsperson) would regard such a product as exactly the sort of thing to avoid.”

In considering the subjective standard, the Panel took into consideration some of Mr Johnson’s personal circumstances, namely the “generally chaotic circumstances in which the family breakfasted” , although it is clear that these had comparatively little impact on the decision. The Panel stated that “chaotic circumstances are hardly an excuse: the more chaotic the circumstance is, the greater the risk that pills might get mixed up”. The Panel concluded that Mr Johnson’s Fault was not significant and accordingly imposed a period of six months’ Ineligibility.

Johaug – Ineligibility: 18 months

Therese Johaug, multiple World Champion and Olympic medallist skier, tested positive in 2016 for Clostebol (a synthetic anabolic–androgenic steroid). The ADRV occurred because Ms Johaug, in following the advice of her team doctor who immediately resigned following news of the positive test, used a lip balm which contained the banned substance. The sanction of 18 months’ Ineligibility caused Ms Johaug to miss the 2018 Winter Olympics.

The Panel found the Cilic approach “instructive”, assessing objective factors with reference to the 5 “preventative methods” to determine a degree of Fault, before considering subjective factors. Here, the Panel found it “striking” that the Athlete had not performed a check of the product label (which carried a red doping warning) . Only once the Panel had decided on a “normal” level of Fault and a suitable range of 16-20 months Ineligibility did it then consider Ms Johaug’s submissions as to her own actions. Ms Johaug had submitted that: she was “extremely distressed as she was in severe pain”; she was “obliged, pursuant to her team contract, to follow the team doctor’s guidance”; and that she “did not see herself as more competent than [her doctor] in this regard”. The period of Ineligibility imposed has been criticised on proportionality grounds, particularly as it led to Ms Johaug’s missing the Winter Olympics. However, it is a striking reminder of the need for oversight by the athlete even when anti-doping responsibilities are delegated to a coach, trainer, or doctor.

Bailey – no Ineligibility

In an extraordinary case decided earlier this year, Ryan Bailey, a rugby league player for Toronto, was approached for testing in May 2017 but ultimately refused to give a sample. After training, Mr Bailey was offered bottles of water bought that morning at a supermarket by the testers. Mr Bailey drank two of these, but became concerned on trying a third and fourth bottle that they did not “crack”. The refusal to provide a sample amounted to an ADRV.

The results of an objective examination of this case would have been clear. As explained by the Panel: “If our conclusion depended on the standard of the reasonable man, we would be quite unable to say that there was No, or No Significant Fault or Negligence. Any ordinary rational person would not have refused to provide a sample because he had drunk from a water bottle which did not ‘crack’”. However, the Panel adopted a subjective test, particularly highlighting the part of the definition of Fault in the Code which directed them to “special considerations such as impairment”.

Mr Bailey’s representatives highlighted the unique circumstances of the case to the Panel and adduced detailed psychiatric evidence to show that Mr Bailey could not process the information that his refusal to submit would be an ADRV.

Whilst the Panel rejected the objective approach here, this decision is highly exceptional and far from the usual approach of tribunals to take an objective approach primarily and be guided by subjective factors if appropriate.

2 - The Meaning of "Significant" 

Johnson

In Johnson, the Panel felt the need to consider how much Fault would be “significant”. In making this decision, the Panel took a “purposive” approach to give effect to the scheme of the Code, as opposed to a “literal” approach. Given its plain English meaning, “significant” would be construed as “anything more than de minimis”. If this were the case, any given athlete’s Fault would either be none (engaging a separate provision), de minimis, or significant (disallowing any reduction). Such an interpretation would give no scope for the flexibility of sanction envisaged in Article 10.5 of the Code and seen in cases such as Cilic and Johaug, which the Panel considered was one of the primary purposes of the No Significant Fault Article in the Code. The Panel in Johnson followed an earlier decision in Turley, which stressed the importance of not setting such a high bar “that in practice reductions in sanction are rendered unavailable.”

Hardaker – Ineligibility: 14 months

Rugby League international Zak Hardaker tested positive in 2017 for benzoylecgonine (a stimulant and metabolite of cocaine). This case falls into a separate category of case law that has emerged where athletes have tested positive for cocaine and its metabolites having knowingly ingested the substance, often at difficult times in their personal lives. Other cases include Paolini (concerning a professional cyclist) and CONMEBOL (concerning a football player). Cases in this category seem to have been decided upon a new basis that where there was no question of performance enhancing benefit in the use of cocaine, the finding was one of No Significant Fault or Negligence. The Panel in Hardaker admitted serious misgivings as to the jurisprudence, citing cases such as Paolini and CONMEBOL as being at odds with either the language or the scheme of the Code. For now, we must view this class of cases as distinct, even if the Code does not.

Aside from cases such as Hardaker, Paolini and CONMEBOL, tribunals have generally taken a purposive approach in assessing the principle of No Significant Fault. Given the impending 2021 review of the Code, WADA invited discussion as to whether different classifications of cases should be codified moving forward (without clarifying which classifications) or whether No Significant Fault should be left as a more general principle, as is the case in the current Code. The first “redline” version of the proposed 2021 Code seems to favour the latter approach. Whilst the Code should reflect that there will always be unique circumstances based on the particular facts of any case, a lack of clarification or codification has proved troubling. In its current form, it could lead to more cases such as Hardaker where Panels cannot reconcile their decision or past decisions with the Code, but follow case law in order to “be fair to [the Athlete] by [not departing] from the principles set out in such cases”. It seems that it would be much easier for athletes to follow a codified set of rules than to expect them to be familiar with emerging case law.

3 - Athlete's Responsibility 

The Johnson case highlights the fundamental principle of anti-doping law, formalised in Article 2.2.1 of the Code, that “it is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body and that no Prohibited Method is used”.

Case law supports this when assessing Fault; of those cases discussed above the principle set out in Article 2.2.1 is particularly significant in the Johaug and Cilic decisions. Tribunals regularly emphasise this principle, highlighting the “rigorous standard of utmost caution required of all players” (Evans) and underscoring that an Athlete’s Fault is “measured against the fundamental duty which he or she owes under the [Code] to do everything in his or her power to avoid ingesting any Prohibited Substance” (Kendrick).

Conclusion

We have seen that Panels favor an objective approach to assessing Fault, but are prepared to be guided by the athlete’s personal circumstances. A purposive approach is taken ahead of a literal approach when assessing how significant the Fault is in order to provide flexibility when applying sanctions; however, it appears that Panels in certain classes of cases, such as those involving cocaine, have made decisions which reject a literal meaning but also cast doubt over the purposive application of the Code in those scenarios. Throughout anti-doping case law is affirmation that an athlete is ultimately responsible for ensuring that they do not commit an ADRV.
Athletes sign up to the Code to govern their anti-doping responsibilities; it is only fair that the statute is as comprehensive as possible in informing athletes how they should act and what is expected of them. Athletes should not be expected to follow evolving case law, particularly where we have seen that certain decisions can be at odds with the Code. The more clearly the Code sets out what athletes must do to comply with their responsibilities, the easier it will be to follow for athletes and to apply for Panels. Potential changes to the Code are being considered and codification of a number of the principles discussed above would be welcome. For now, what remains clear is that athletes should take responsibility for how they act in the anti-doping sphere, and when it comes to new or unknown substances, the five preventative methods in Cilic should always be borne in mind.


If you require further information in relation to the points raised in this article you should contact Jonathan Hyman. Jonathan can be contacted on +44 (0)20 7438 2201 or at Jonathan.Hyman@crsblaw.com.

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