The 2013 World Conference on Doping in Sport and the 2015 World Anti-Doping Code: some perspectives

The 2013 World Conference on Doping in Sport and the 2015 World Anti-Doping Code: some perspectives

The  World Conference on Doping in Sport 2013 was held in Johannesburg, South Africa. Daniel Saoul, barrister at 4 New Square Chambers, shares his thoughts on the conference and the new World Anti-Doping Code, which is due to come into force on 1 January 2015.

The World Conference: Johannesburg 2013

The World Conference on Doping in Sport took place in Johannesburg from 12 to 15 November 2013. I at-tended, along with hundreds of others with an interest in the world of doping (or rather, anti-doping), includ-ing scientists, politicians, journalists, representatives from international sports federations, leaders of ath-letes' unions, members of national governing bodies, heads of national anti-doping organisations and no small number of lawyers from around the globe

This was the first time I had attended the conference, which has previously taken place in Lausanne (1999), Copenhagen (2003) and Madrid (2007). While the trip to South Africa might have sounded glitzy in theory, as a Londoner I couldn't help feeling that slightly shorter return flights for a four day trip would have been welcome, especially as there was to be no time for spotting the Big Five from the back of a Landcruiser or enjoying the beaches of the Garden Route in what were a busy few days.

Nominally the purpose of the Conference is to review and approve a new version of the World Anti-Doping Code. However with extensive consultation having taken place about revisions of the 2009 Code over the previous two years, so that the 2015 version was all but finalised in advance, in practice the formal presentations that were delivered were perfunctory and the substantial time allowed for pre-prepared three minute 'interventions' from government and sport movement representatives was neither intended to nor actually did promote any real debate or dialogue. In this sense, as I had been warned by past delegates, the planned sessions (most of which took place in an enormous conference room seating around 1000) were formulaic and once you had heard a single voice expressing profuse thanks to the outgoing WADA Chairman, John Fahey, for his work, and offering unequivocal support for the fight against doping in sport, you had heard them all. The only real excitement was seeing whether the speaker was going to finish within his allotted three minutes, with a huge electronic timer on the wall leaving one in no doubt as to who was prolix and who was prompt. Even the novelty of that mild amusement wore off pretty quickly.

The real value of the conference for those of us involved in doping work (be it prosecuting or defending) was the opportunity to meet colleagues from a variety of jurisdictions to build networks, discuss cases and exchange views and ideas about the changes to the anti-doping rules that are coming into force on 1 January 2015.

The 2015 code and inadvertent doping

For my part, probably the most interesting change to the rules lies in the increase of the mandatory ban for a first offence to four years (from two) and to changes to the rules and sanctions applicable to inadvertent doping. I have acted on a number of cases over the last two or three years involving athletes at all levels, from Olympic medallists to part-time rugby union professionals who claimed to have ingested a prohibited substance by accident and without any intention to enhance their sport performance. This has been a fertile area generally and the rules in question have been the subject of much debate.

As matters stand, such pleas fall under the auspices of WADA Code art 10.4, the construction of which generates a significant division of opinion, with international and domestic tribunals reaching materially different conclusions on important aspects of the legal tests in play (readers unfamiliar with this debate should read the two contrasting CAS decisions in the cases of USADA v Oliveira (CAS 2010/A/2107) and Foggo v National Rugby League (CAS A2/2011) by way of example ( there have been more recent cases, but these frame the debate very clearly)).

This divergence of judicial opinion on the interpretation of an important rule, which turns on whether an ath-lete has to establish whether it was the specific banned chemical that he did not intend to use for sports purposes, or whether in fact he has to establish lack of sports enhancing intent regarding the nutritional product (e.g. a sports drink or supplement) in which it was contained, is plainly highly undesirable. It renders the law unclear, means it is applied inconsistently and leaves athletes and prosecuting authorities not knowing where they stand. The UK National Anti-Doping Panel's attempt, on appeal, to take a clear position in the case of UKAD v Llewellyn was laudable in theory, but resulted in a controversial fudge with the panel taking a hard line on the interpretation issue based on doubtful reasoning and then exercising a discretion that is nonexistent under the rules to reduce the relevant athlete's ban from two years to one. The unprincipled nature of this decision has in the eyes of many resulted in the waters being muddied further rather than clarified.

Against this background, the changes brought in, which seek to draw bright lines between 'intentional' cheating (which will always carry a four year ban as a starting point) and non-intentional positives (where a sanction could be as light as a reprimand), are a welcome development. Very few people object to longer bans for cheats, but there has always been a risk of treating accidents too harshly and the goal of distin-guishing between the two, and treating them differently, cannot be criticised.

The new rules: some concerns

My concern though is that the new rules will not achieve all that is hoped of them and in particular will not clarify the position for athletes nor avoid tribunals scratching their heads over how they should decide cases. Much as Prof Dr Ulrich Haas, the lead draftsman of the new rules, tried to present them as transparent when addressing the congregation in Johannesburg, the reality (as exemplified by his fiendishly complicated PowerPoint slides) is very different.
For example, the burden of proving intention (or lack thereof) shifts depending on the nature of the sub-stance ingested, with further rebuttable presumptions in play depending on when the substance was ingest-ed and why; the relevant passages of the new Code do not make straightforward reading even for the most hardened of lawyers.

Perhaps even more crucially, the definition of 'intentional' cheating is itself likely to result in further debate. The taking of a banned substance is considered intentional if an athlete engaged in conduct which they knew constituted an anti-doping rule violation or if they knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and they manifestly disregarded that risk.

The objective of capturing both those who dope deliberately and those who dope recklessly is a sound one, but from an English lawyer's perspective at least we may be heading for a minefield of decisions about the definition of knowledge which sits at the crux of the new articles.

Indeed, in English civil law 'knowledge' (not to mention the often associated notion of dishonesty) is a highly nuanced concept and, depending on the wrong or tort concerned, it might or might not extend to constructive knowledge (ie what the individual concerned ought to have known), suspicions, or what they appreciated might be the probable consequences of their actions (even if those consequences were not directly intended). In other instances, knowledge will be limited to what was subjectively in the relevant person's mind at the time. Criminal law too faces vexed questions of this kind, with some academics heavily criticising, for example, the concept of 'oblique intention' that has been developed in the context of murder, manslaughter and grievous bodily harm.

Away from the UK, the Court of Arbitration for Sport is likely to resolve these dilemmas by reference to Swiss law. This may well drive tribunals to face similarly tough questions, since Swiss criminal law expressly includes as intentional those outcomes which a party appreciated were possible consequences of his conduct, although the civil provisions don't include explicit language to this effect and, in any case, one must still decide whether an athlete who insists he did not personally appreciate the risks in play should be treated as non-intentional even if a reasonable athlete in their position would have done, something upon which the 2015 Code is silent. Of course, drafting rules of this kind is no easy task and one must also recognise that in legislative terms the WADA Code is still in its infancy, having only come into force in its first iteration in 2004.

The way ahead

It remains to be seen how these issues will play out and of course, in practice, much will turn on the de-meanour of athletes giving evidence on the day. One can expect tribunals to interpret the rules in such a way as to achieve what they consider to be a fair outcome on a case-to-case basis; that is certainly what history suggests. The difficulty is that the lack of clear and consistent guidance and principles emanating from the CAS and domestic tribunals can result in one athlete being treated very differently from another (because the composition of tribunals can vary significantly), with the wider population of competitors unable, through no fault of their own, to understand or rely on the very Code that is intended to protect them.

The one thing we can almost certainly rely on, however, is that anti-doping lawyers are likely to be kept busy into 2015 and beyond.

Daniel Saoul is a barrister at 4 New Square Chambers. This article was originally published on 2 December 2013 by 4 New Square and is reproduced here with permission. Additonally, this article was published on Lexis®PSL Arbitration on 16 January 2014. Click here for a free 24 trial of Lexis®PSL.

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About the author:
Daniel is a barrister at 4 New Square. He has a broad practice encompassing all types of commercial disputes (including costs) and sports law.