Published May 16, 2007
Arbitration decisions from the Sport Dispute Resolution Centre of Canada (SDRCC) are always interesting to read – there is a compelling story in each one. Their importance, however, lies in the guidance they give. In this column we examine doping decisions that have been rendered since 2005, when doping matters first came under the jurisdiction of the SDRCC.
In this time there have been 18 doping decisions – all but one involving athletes. While coaches have been sanctioned in the past, athletes have always been the primary focus of anti-doping efforts. In all 17 cases involving athletes a doping infraction was found. In none of the cases was the athlete able to successfully argue a “reasonable justification” for a refusal to be tested or an “exceptional circumstance” justifying a reduction in the ultimate penalty.
In this column we will explore some of the emerging principles emanating from these decisions. The principles come from the wording of the Canadian Anti-Doping Policy (CADP) itself, Canadian anti-doping decisions and results of international decisions.
Why tackle this topic in a journal aimed at coaches? First, coaches are bound by the CADP just as are athletes. Secondly, coaches play a significant role in athlete decision-making around doping matters. It is clear from at least some of the decisions that athletes do not fully understand the implications of the CADP. For example, in one case and athlete did not realize that he was still subject to testing 18 months after retirement. Both his parents and his legal counsel had wrongly advised him in this regard. In other cases athletes received incorrect or partial information from friends and those around them. Ultimately, the responsibility to understand and comply with the policy rests with the individual athlete – and coaches can do much to encourage such understanding.
Table 1 summarizes all doping decisions since the SDRCC started hearing such matters and since Canada adopted a policy consistent with the WADA (World Anti-Doping Agency) World Code. This does not represent all doping infractions occurring during that time period. Some offenders waive their right to a hearing, accepting the infraction and penalty as determined by CCES. For example, CCES statistics show that between July and December 2006 there were nine infractions. Only 4 of these went to SDRCC and thus are reported in Table 1 below. The other five were doping infractions involving the use of cannabis that resulted in a “reprimand and warning” to the athlete.
Table 1: Doping Cases: 2005 (May) – 2007 (August)
|Doping Infraction (exceptional circumstances)
(Section 7.38 & 7.39)
*2005 – cannabis; 2006 – ephedrine
Refusal or avoidance
CADP, Section 7.24 – “Refusing or failing without compelling justification to submit to Sample collection after notification as authorized in applicable anti-doping rules or otherwise evading Sample collection is an anti-doping violation.
Under this rule, if the athlete can provide “compelling justification” for not submitting a sample, no infraction will be found. In Canada we have not yet had an example of a “compelling justification”. The decisions do, however, provide some insight as to what would be necessary to meet the threshold for a “compelling justification”. First, the actions or circumstances that result in a failure to give a sample must be unavoidable. Voluntary actions that result in a missed test will not meet this standard. For example, deciding to leave the testing area due to illness and thereby failing to give a sample, in and of itself, will not suffice.
Second, an athlete must do everything possible to comply with a request for sample collection. In cases where athletes have argued with a Doping Control Officer (DCO) or protested they were not aware of the rules regarding no notice testing or continuing testing requirements upon retirement is not justification for failing to submit to sample collection. Indeed, such actions have been viewed as evasive, possibly aggravating the athlete’s problems.
“Specified Substance” – no intention to enhance performance
The list of prohibited substances identifies a number of substances that are particularly susceptible to an anti-doping infraction because of their prevalence in medical products or they are less likely to be abused. Two such substances are cannabis and ephedrine. If an athlete can prove the use of such a substance was not intended to enhance performance, the penalty from the infraction may be reduced.
In one Canadian case, two international cases were cited where the adjudicators did not accept the athletes’ accounts of how the “specified substances” were ingested but still concluded there had been no intent to enhance and reduced the penalty. Nonetheless, Canadian adjudicators have taken the position that a lack of reasonable care and attention (such as in the selection of supplements and herbal products) should be reflected in the penalty. Indeed, an athlete’s conduct can be an “aggravating factor”, regardless of the intent to enhance performance – as was the case where an athlete ignored the instructions of the DCO and went off to smoke up with friends before giving a sample.
Doping Infraction - Exceptional Circumstances
If an athlete can show he or she bears no fault or negligence (CADP, section 7.38) or no significant fault or negligence (CADP, section 7.39) for the violation AND can establish how the substance entered the system, the penalty may be reduced or even eliminated.
The threshold to show “exceptional circumstance” is very high. As noted by one adjudicator, "[a]thletes are strictly liable for substances that are found in their systems and exceptional circumstances mitigating against the consequences of that strict responsibility will not be found to exist where the athlete has failed to exercise appropriate diligence and care." Practically speaking, where an athlete acknowledges intentionally, or knowingly, using a prohibited substance, it is impossible to demonstrate the use of “appropriate diligence and care”. Other adjudicators have gone further calling for “extreme caution” to avoid coming in contact with a prohibited substance. This has been particularly true with the use of supplements or other additives.
Apart from this high level of vigilance is the need for athletes to be able to establish how the prohibited substance entered the system. Canadian cases have adopted the same position as other foreign doping control agencies with one adjudicator quoting, with approval, the decision in United States Doping Agency v. Sakin: “[w]e cannot allow an athlete's lack of questioning and lack of investigation to become the standard by which athletes circumvent the anti-doping rules.”
All of this creates a conundrum for the athlete: if one knows how the substance entered the system then presumably one could have controlled the situation. If one did not know but learns after-the-fact how the prohibited substance entered the system, then the penalty can only be reduced or eliminated if the means of entry was out of the control of the athlete or if the athlete used appropriate diligence and care (or “extreme caution”). A clear circumstance of sabotage might meet this test. Mislabeling of products likely will not – particularly as the CCES now participates in the emNSF Athletic Banned Substances Certification Program/em, under which supplements that have been stringently evaluated may bear a NSF Certified For SportTM mark. The use of any other substance might suggest a lack of diligence, care or caution.
All of the cases referred to in Table 1 above can be found on the SDRCC website. The rules of CADP are available on the CCES website. The CCES has also published an easy-to-read guide for athletes about the tribunal procedures of the CADP. Athletes bear the full responsibility for understanding anti-doping rules and also bear the full consequences when the rules are misunderstood. Coaches can, and should, be up to speed on these rules to support athletes in their decision-making.
Originally published: Coaches Plan (2007) Vol. 14(2)