Rethinking the Burden of Proof for 'Not Intentional' Doping Cases & the 2027 WADA Code

The Court of Arbitration for Sport (CAS) has recently rendered and published the award in CAS 2024/A/10655 World Anti-Doping Agency v. Japan Anti-Doping Agency & Masaki Toyoda.^[1] This represents the first case where an arbitral award of the Japan Sports Arbitration Agency, established in 2003, was appealed to and adjudicated by the CAS.

The principal issue in the dispute was how to evaluate whether a violation is not “intentional” under Article 10.2.1.1 of the Japan Anti-Doping Code (JADC), which mirrors to Article 10.2.1.1 of the World Anti-Doping Code (“WADA Code). This case is significant because the Athlete successfully proved lack of intention despite being unable to establish the source of the prohibited substance. During the consultation phase for the revision to the WADA Code scheduled to take effect on 1 January 2027, the case not only provided an interpretation of the relevant provisions of the current WADA Code but also raised important questions regarding the future direction of the WADA Code revision.

This article outlines the background of this case and the findings of three panels hearing this case and proposes an appropriate approach to the assessment of “not intentional” under the current WADA Code, together with recommendations concerning the relevant provisions in the 2027 WADA Code.

Article Outline

• Background of the Case
• First Instance: Japan Anti-Doping Disciplinary Panel
  • Source of the Prohibited Substance
  • Assessment of Intention
  • JADDP Decision
• Appeal before the Japan Sports Arbitration Agency
• Proceedings before CAS
  • Arguments by the parties
  • The Sole Arbitrator’s Analysis
• The Current Free Assessment of Evidence Approach
• Potential Risks Posed by the Second Draft of the 2027 WADA Code
  • Restriction on scope of admissible evidence to prove lack of intention
  • Impact of the amendment on athlete’s ability to prove lack of intention
  • Stakeholder concerns regarding the amendment
  • Suggested Amendment
• Conclusion