Contaminated supplements in sport

I have appeared in the last two years before
the National Anti-Doping Panel at Sport Resolutions in London and the Court of Arbitration for Sport (CAS) in Lausanne on
behalf of professional athletes. Such hearings mostly concerned appeals regarding periods
of ineligibility imposed against athletes as a
result of positive anti-doping tests. The adverse analytical findings were the result of the use of ‘contaminated’ nutritional supplements, which, unbeknown to the athletes, contained prohibited substances.

Such hearings made me realise that we are a long way away from educating and protecting athletes from the dangers of the use of dietary and other nutritional supplements. It also made me realise that the regulatory framework in place may, in certain situations, cause great injustice.

Several cases before national anti-doping panels, as well as before the CAS, serve as a reminder that supplements are not safe. In the majority of these cases, the athletes in question had no knowledge that the supplements they were using contained prohibited substances.

Although the regulatory framework allows
for a reduction (or even elimination) of the
period of ineligibility, when exceptional/specific circumstances can be established, the anxiety and stress caused by the subsequent disciplinary procedures should not be dismissed.

A careful and closer examination of this topic identifies several important considerations. Athletes need to understand that some of these supplements pose not only dangers to one’s health, but also dangers in terms of producing adverse analytical findings in anti-doping tests.

Some athletes tend to ignore the latter
situation, as they usually take into consideration
the misplaced notion of the ‘legality’ of such supplements. It is true that some of the supplements could be used by athletes without restrictions. But such use poses many dangers due to the actual content of the supplement and its chemical composition.

Regulatory framework

Athletes, therefore, cannot ignore the dangers
of the use of supplements. The previous World Anti-Doping Agency Code (WADAC 2009) promoted the application of strict liability, which, in turn, did not allow for too much flexibility and latitude.
Once an adverse analytical finding is established during the anti-doping test, athletes have to start reconciling themselves with the idea of the provisional suspension, the subsequent period of ineligibility, the loss of earnings, and, of course, the possibility of substantial damage to their reputation.

Although the new WADAC 2015 still promotes the application of strict liability (it is widely accepted that without the principle, sports governing bodies might never be able to effectively prosecute anti-doping offences), in my view a purposeful interpretation of the new wording may lead us
to the conclusion that the new code offers more latitude and flexibility to adjudicating panels in
the application of sanctions.

The wording of the new code recognises the necessity of the application of the principle of proportionality and gives emphasis to the application of human rights. This is a significant development and it characterises the need for the protection of athletes’ rights.

However, practice and jurisprudence in this field suggest that we are a long way away from creating clarity and consistency. This is because the level of fault on the part of the accused athlete required for the application of sanctions is usually interpreted with a very narrow and inconsistent approach by different adjudicating panels.

The test is two-fold, and although the new WADAC does not specifically state the well-established threshold criteria, I suggest that the panels of judges will continue to apply the two-stage test. Under the current regulatory framework, once an adverse analytical finding is established, and the substance found in the athlete’s sample is a ‘specified substance’ (as stated in the WADAC), the athlete is deemed to have committed an anti-doping violation, a strict liability offence with a maximum penalty of a two-year period of ineligibility.

However, the legislators have considered the situation where some athletes could, as a matter
of fact, be innocent. They have created, therefore, specific regulations whereby athletes can reduce, or even eliminate, the two-year period of ineligibility: articles 10.4 and 10.5 of the WADAC.

To do this, athletes must establish that they
bear ‘no fault or negligence’ or that they bear
‘no significant fault or negligence’. The necessity
of the creation of such regulations relates to the application of the principle of proportionality and the parameters in which this principle operates. At the same time, the legislation requires the accused athlete to establish the level of their culpability and the degree of fault.

Degree of fault

The degree of fault can be established with the application of the two-stage test. For the athlete
to have the period of ineligibility eliminated or reduced, they need to establish:

1. How the substance entered their body; and

2. That they did not intend to enhance their performance with the use of such a substance.

The standard of proof remains ‘the comfortable satisfaction of the tribunal’, which CAS jurisprudence defines as below the criminal standard of proof, but above the civil standard (WADA v FIBV and Berrios, CAS 2010/A/2229). The appropriate legislation depends on the evidence, its evaluation and analysis, and the athlete’s degree of fault. There
are two options:

• No fault or negligence: Here, if an athlete can show no fault or negligence, the period of ineligibility can be eliminated, pursuant to article 10.4. Prerequisite for the complete elimination of any period of ineligibility would be evidence that there are exceptional circumstances. As the WADAC 2015 states, these must be truly exceptional – for example, the athlete’s sample or the supplement they were using was sabotaged by a competitor. Advisers must also pay attention to the explicit instruction by the World Anti-Doping Agency (WADA) that a sanction cannot completely be eliminated if the positive finding was the result of the use of a contaminated supplement, as the principle of no fault or negligence would not apply in such a case.
• No significant fault or negligence: Pursuant to article 10.5, if an athlete can establish no significant fault or negligence, and subject to the relevant degree of fault, the period of ineligibility can be reduced, with sanctions ranging from a reprimand (with no period of ineligibility and at the lowest end of the spectrum of fault) to a maximum of 24 months of ineligibility (at the highest end of the spectrum).

The article also contains two subsections: article 10.5.1 deals with specified substances and 10.5.2 deals with contaminated supplements. Both require the same analysis with regards to the degree of fault on the part of the accused athlete: article 10.5.1 states: ‘Where the anti-doping rule violation involves a specified substance, and the athlete or other person can establish no significant fault or negligence, then the period of ineligibility shall be, at a minimum, a reprimand and no period of ineligibility, and at a maximum, two years of ineligibility, depending on the athlete’s or other person’s degree of fault.’

Proportionate sanctions

The important new ingredient in the interpretation of this regulation suggests that article 10.5.1 no longer requires ‘specific circumstances’, which means that panels will now have a greater degree of discretion in interpreting ‘fault’. It also allows
for a better and more purposeful application and interpretation of the principle of proportionality. On a proper construction of this principle, I suggest that the aim is to make sanctions more proportionate to the offence committed.

At this point, practitioners must be aware of
the dangers of relevant submissions regarding the degree of fault and the strategy they need to follow towards establishing a low degree of fault. The analysis here is always fact specific, and the degree of fault of the athlete depends on the different steps they took to ensure that the prohibited substance did not enter their body. In other words, the purposeful interpretation of the relevant regulation creates a spectrum of fault, in which the lowest end of the spectrum guarantees a simple reprimand and no period of ineligibility and the highest end triggers a 24-month period of ineligibility.

Practitioners are best advised to collect substantial evidence and evaluate its probity before making use of the relevant regulations. Given that the new WADAC 2015 promotes the application of the principle of proportionality, any submissions in favour of the application of this principle would very much depend on what the athlete did or ought to have done to ensure that the prohibited substance did not enter their body. Interpretation of these steps tends to be very subjective, depending on the different panels. As the new WADAC 2015 may allow panels greater flexibility in interpreting ‘fault’, it is advised that practitioners pay attention to specific pieces of evidence, should such pieces exist.

Medical advice

From my experience in recent anti-doping litigation, one important evidential matter concerns the athlete’s reliance on a doctor’s advice to use the supplement that subsequently led to the adverse analytical finding. In UCI v Kolobnev and RFC (CAS 2011/A/2645), reliance on medical advice to use a supplement justified only the application of a reprimand against the athlete, with no period of ineligibility.

Although the new WADAC 2015 does not expressly distinguish between a supplement
and a medicinal product (see FINA v Cielo Filho, CAS 2011/A/2495), it seems evidence that can be presented to ‘the comfortable satisfaction of the panel’ and shows that the athlete relied heavily on a doctor’s advice to use the supplement may, as
a matter of fact, considerably reduce the degree of fault.

Similarly, advisers must file submissions outlining the athlete’s reasonable and practically possible steps prior to the use of the supplement/medicinal product, in a clear and concise manner. Such evidence must be corroborated with witness statements that would add credibility to the athlete’s submissions. CAS panels pay enormous attention to the diligence employed by the athlete in question. In WADA v Sterba (CAS OG 12/07),
the athlete did everything practically possible
to ensure he did not ingest a prohibited substance and so received a reprimand. The panel stated:
‘It is very difficult to see what, if anything, else
the applicant could have done reasonably or practically to avoid the positive test result.
Anything else, other than the steps performed by the applicant, would have forced him to embark upon a disproportionately expensive and time consuming precaution. It is difficult to reconcile how, such any other steps, could have [lessened] any fault of the applicant, who had actually consulted a medical doctor’.

Similarly, in FIFA and WADA (Advisory Opinion, CAS 2005/C/976 and 986), ‘the panel reminds the sanctioning bodies that the endeavours to defeat doping would not lead to unrealistic and impractical expectations as to what athletes have to come up with’.

The athlete’s character is another important factor (see, for example, WADA v USADA (CAS 06/001)), in which a 12-month sanction was applied against the applicant where no medical advice was sought and no extensive research was conducted but the athlete ‘has a good and honest character and had acted from the very beginning in the utmost of good faith’.

Athlete education

The new WADAC 2015 offers greater flexibility to adjudicating panels in determining the athlete’s fault, and therefore allows them to apply more proportionate sanctions. The application of the principle of proportionality comes at a time where a more relaxed approach is needed, in the interests of fairness and justice. WADA has considered the need for such an approach, which offers more latitude in terms of examining the circumstances of each case, by observing the principle of proportionality.

Governing bodies must establish certain criteria and design a specific list of steps that athletes need to follow prior to the use of supplements. Athletes should not place reliance on their friends for advice. They must conduct research on the internet to ensure that the product they are using does not contain any prohibited substances. They must purchase their supplement from licensed sources and not on the ‘black’ market. They must consult a medical doctor and/or a physiotherapist. If they can, they must test the product to ensure its safe chemical composition. But the best solution would simply be not to take such supplements at all.

The use of dietary and other nutritional supplements has created a multi-billion pound industry. There are a lot of different interests involved. Any proposal to have all supplements used by professional athletes banned will be met,
I am convinced, with fierce opposition from those who have a stake in this industry.

It follows, therefore, that the only effective solution to this problem will be the proper education of athletes. This can only be achieved if there is appropriate and effective communication between sporting bodies and athletes. The dangers of the use of supplements in sport must not be underestimated. It is possible that when such dangers are fully described and explained to athletes, they may be able to make an informed decision as to the use of supplements. SJ

Dr Gregory Ioannidis is a sports lawyer with experience in high-profile anti-doping litigation. He is a senior lecturer in law at Sheffield Hallam University and an academic associate at Kings Chambers in Manchester. He wishes to acknowledge Peter Charlish for his assistance with this article.

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