Inadvertent doping and the CAS: Part II

The present article follows on from the recently published “Inadvertent Doping and the CAS: Part 1”, a review of CAS jurisprudence on the interpretation of Article 10.4 of the WADA Code (WADC), which reads as follows: 

Where an Athlete […] can establish how a Specified Substance entered his or her body […] and that such Specified Substance was not intended to enhance the Athlete’s sport performance or mask the use of a performance-enhancing substance, the period of Ineligibility found in Article 10.2 shall be replaced with the following:

First violation: at a minimum, a reprimand and no period of Ineligibility [and] at a maximum, two (2) years of Ineligibility.

To justify any elimination or reduction, the Athlete […] must produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance or mask the use of a performance enhancing substance. The Athlete[’s …] degree of fault shall be the criterion considered in assessing any reduction of the period of Ineligibility.

By way of recap, Part I concluded that CAS Panels to date (though not without some express limitations¹) have shown a clear preference for the so-called “Oliveira approach”.

The Oliveira approach essentially accepts that: 

[Article 10.4] does not explicitly require the athlete to prove no intent to enhance sport performance through the use of a product itself rather than a specified substance therein [and] Article 10.4 provides a broader range of flexibility (i.e. zero to two years ineligibility) in determining the appropriate sanction for an athlete’s use of a specified substance because “there is a greater likelihood that Specified Substances, as opposed to other Prohibited Substances, could be susceptible to a credible, non-doping explanation.²

Whilst the WADC is set to be completely overhauled in 2015, the  reality is that arbitrators and practitioners alike will be required to continue to interpret the nature and effects of Article 10.4 until such time as the new WADC takes effect.³

Therefore, and in an attempt to demonstrate why there is such a clear preference for the Oliveira approach, the present article shall consider: (i) the relevance of the substance (as opposed to the product) when Article 10.4 was originally inserted into the WADC; (ii) the concept of “doping-related intent” and the central nature of this concept to the interpretation of Article 10.4; and (iii) the flexibility provided for in Article 10.4 by sanctioning the athlete according to his or her “degree of fault”. The authors shall also briefly consider the proposed amendments to the 2015 version of the WADC in order to determine whether this problematic area might finally be resolved. 

Background to the introduction of Article 10.4 into the WADC