INCREASING THE PERIOD OF INELIGIBILITY UNDER THE 2021 WORLD ANTI-DOPING CODE: AGGRAVATING CIRCUMSTANCES

By Dr. Jason Haynes, University of the West Indies, Barbados

The World Anti-Doping Agency (WADA) has signaled its intention to step up its fight against the scourge of doping by including aggravating circumstances in the 2021 World Anti-Doping Code.

Although aggravating circumstances were included in the 2009 edition of the Code, they were excluded from the 2015 edition, such that tribunals interpreting the 2015 Code were constrained in their imposition of sanctions even where the egregious nature of the infraction warranted an increased sanction.

This post examines how the case law of the Court of Arbitration for Sport (CAS) and the American Arbitration Association (AAA) could usefully inform tribunals’ interpretation of aggravating circumstances in the context of the 2021 World Anti-Doping Code.

Context

Under Article 10.4 of the 2021 World Anti-Doping Code, aggravating circumstances are provided for in the following terms:

“If the Anti-Doping Organization establishes in an individual case involving an anti-doping rule violation other than violations under Article 2.7 (Trafficking or Attempted Trafficking), 2.8 (Administration or Attempted Administration), 2.9 (Complicity or Attempted Complicity) or 2.11 (Acts by an Athlete or Other Person to Discourage or Retaliate Against Reporting) that Aggravating Circumstances are present which justify the imposition of a period of Ineligibility greater than the standard sanction, then the period of Ineligibility otherwise applicable shall be increased by an additional period of Ineligibility of up to two (2) years depending on the seriousness of the violation and the nature of the Aggravating Circumstances, unless the Athlete or other Person can establish that he or she did not knowingly commit the anti-doping rule violation.”

The Code, whilst indicating the anti-doping rule violations to which aggravating circumstances apply, then goes on to provide a non-exhaustive description as to what may constitute aggravating circumstances:

“Circumstances involving, or actions by, an Athlete or other Person which may justify the imposition of a period of ineligibility greater than the standard sanction. Such circumstances and actions shall include, but are not limited to: the Athlete or other Person Used or Possessed multiple Prohibited Substances or Prohibited Methods, Used or Possessed a Prohibited Substance or Prohibited Method on multiple occasions or committed multiple other anti-doping rule violations; a normal individual would be likely to enjoy the performance-enhancing  effects of the anti-doping rule violation(s) beyond the otherwise applicable period of Ineligibility; the Athlete or Person engaged in deceptive or obstructive conduct to avoid the detection or adjudication of an anti-doping rule violation; or the Athlete or other Person engaged in Tampering during Results Management. For the avoidance of doubt, the examples of circumstances and conduct described herein are not exclusive and other similar circumstances or conduct may also justify the imposition of a longer period of Ineligibility.”

Given that this provision is not exhaustive in nature, it is likely that tribunals tasked with the imposition of sanctions may exercise their discretion to consider a range of circumstances not specifically listed in the Code. They may, in this context, benefit from reliance on several doping-related cases decided upon, albeit prior to the 2021 World Anti-Doping Code, which have pointed to tribunals being empowered, in so far as the relevant anti-doping rules allow, to increase an athlete’s/athlete support person’s otherwise applicable period of ineligibility in circumstances where certain aggravating features are present. These aggravating features include:

• an athlete support personnel, such as a coach or trainer, leading an athlete into danger of using prohibited substances, rather than being a watchdog when it comes to prohibited substances;^[1]
• the existence of multiple violations and the seriousness of the offences;
• the provision of substantial help for multiple third-party anti-doping rule violations;^[2]
• being at the apex of a conspiracy to commit widespread doping spanning many years and many athletes;
• acting in bad faith and with a view to dissimulating doping practices;^[3]
• acting intentionally when undertaking the serious anti-doping violation committed;
• long-time experience in one’s position;
• undertaking seriously deceptive and obstructive actions;
• being in a position which presents the athlete/coach to young men and women as a trusted advisor and confidant, and thereafter abusing this position;^[4]
• administering highly dangerous substances, which presents a risk of grave injury or death to any athlete who use the substances; and
• the need to send a clear and deterring message to other athlete support personnel.^[5]

Although these factors are not exhaustive, it should be noted that the fact of their existence in a particular case may not automatically result in an increased sanction. Indeed, tribunals have a discretion, when weighing and balancing relevant mitigating and aggravating features of a particular case, to make an appropriate decision, depending on the facts of the case, as to a sanction that is both justifiable and proportionate in the circumstances.^[6]

By way of example, in IAAF v. ARAF & Vladimir Mokhnev,^[7] although the Russian athletics coach had systematically and knowingly advocated the use of, administered and procured prohibited substances to his athletes, advised his athletes as to how and when to use prohibited substances, intentionally and knowingly participated in a doping programme, paid amounts, or arranged for amounts to be paid to third parties in order for positive tests not to be reported, and, in general, repeatedly committed different anti-doping rule violations over a period of at least seven years, whilst continuing to deny any involvement with prohibited substances, the CAS felt that, in the interest of proportionality, a lifetime period of ineligibility was too severe. In this context, the CAS pointed out that the imposition of a lifetime ban is only justified where the seriousness of the offence is most extraordinary, such as where the party in question is one of the ringleaders in the widespread use of banned substances or methods. Where, however, it is just and fair to provide the Coach/Athlete with an opportunity to better his life and to continue his career after having served his period of suspension, a tribunal may not impose a lifetime period of ineligibility, even where aggravating circumstances are present.

In short, to date, cases in which aggravating features have resulted in an increase in the period of ineligibility include blood doping;^[8] the use of multiple anabolic steroids of different varieties on several occasions;^[9] and deceptive and obstructive conduct aimed at avoiding anti-doping control after ingesting a banned substance, demonstrating ‘planning, guidance and attention.’^[10]

Tribunals hearing cases under the 2021 Code would find great value in considering these cases which remain good law.

Dr Jason Haynes may be contacted by e-mail at ‘This email address is being protected from spambots. You need JavaScript enabled to view it.’

^[1] USADA v. Drummond, AAA No. 01-14-0000-6146 (2014), 22-23.

^[2] Hoch v. FIS & IOC, CAS 2008/A/1513 (2009) [8.8.4].

^[3] WADA v. Jamaludin, et al., CAS 2012/A/2791 (2013) 14.

^[4] USADA v. Stewart, AAA No. 77 190 110 10 (2010) 6.

^[5] USADA v. Block, No. 77 190 00154 10 (2011) [9.6]; USADA v. Geert Leinders, AAA No. 77 20 1300 0604 (2015) [118].

^[6] CAS 2015/A/3915 Iago Gorgodze v. IPC, award of 3 February 2016.

^[7] CAS 2016/O/4504, award of 23 December 2016.

^[8] CAS 2012/A/2773 IAAF v. SEGAS & Irini Kokkinariou, award of 30 November 2012. The CAS held that aggravating features which involve a doping plan or scheme and a repetitive and sophisticated use or possession of a prohibited substance or method are likely to be regarded as aggravating circumstances which require a substantial increase over the standard sanction.

^[9] CAS 2013/A/3373 International Association of Athletics Federations (IAAF) v. Turkish Athletics Federation (TAF) and Nevin Yanit 6 March 2015. The Athlete had been administered with not one but two distinct exogenous anabolic steroids (stanozolol and testosterone) in this case, and this was accordingly considered an aggravating circumstance.

^[10] CAS 2014/A/3668 Maxim Simona Raula v. RADA, award of 4 June 2015. The Athlete engaged in deceptive and obstructive conduct in order to avoid the anti-doping control, which amounted to a clear attempt to avoid the detection of the EPO (and subsequent violations). She also lied about alleged travels from the time she left the training camp until the time she reported for the sample collection. This was considered to be an aggravating circumstance.