Non-intentional anti-doping rule violations: Does a new trend in evidence provision suffice?

Abstract

In recent years the Court of Arbitration for Sport (CAS, Lausanne, Switzerland) has issued decisions on a regular basis that it was not possible for an athlete to claim his/her anti-doping rule violation to be non-intentional if there was no source of the prohibited substance identified, even though there is no such requirement in the World Anti-Doping Code 2015 (WADC). The CAS modified this reasoning in the matter of Villanueva v. FINA by offering the transgressor an opportunity to disprove intent by simple assertion of innocence, provided overall circumstances of the case supported it. This article is to demonstrate that, while the said decision set forth a new trend in CAS jurisprudence, it did not affect the earlier established approach of the panels per se. In particular, Part I addresses the issue of the lack of certainty in defining and interpreting the concept of non-intentional violations in WADC. It does so by analyzing the definition of intentional violation (Sect. 1.1) and its historical background in WADC 2009 (Sect. 1.2) and by showing that recognition as a “non-cheater” in the sense of Art. 10.2.3 WADC lacks any significance (Sect. 1.3) as the athletes still need to show how the prohibited substance entered their bodies. This requirement was proved to be a cornerstone element to successfully discharge the burden of proof (Sect. 1.4). Part II analyzes the impact of the Villanueva award on the CAS panels in their attempts to rationalize the evidential burden allocated on the athletes (Sect. 2.1). The process seems to be stagnating due to the high standards of evidence provision the athletes have to comply with. Thus, it is proposed that there is a need for a realistic approach to the evaluation of evidence by CAS (Sect. 2.2) and more pragmatic application of the standard on the balance of probabilities (Sect. 2.3). Finally, upon review of the WADC 2021 (a second draft as of November 2018) the author concludes that the future revision of the code only partially addresses the issues mentioned above and fails to reduce uncertainty for the athletes. As a result, the athletes are still faced with the anti-doping regulation that makes little to no difference in the assessment between non-intentional violations and violations with NFN & NSFN when there is no source of the prohibited substance identified. Based on the analysis, the author proposes that the WADC 2009 appears more proportionate than WADC in that it warranted a 2-year ban for intentional violations with no need to show the source of the prohibited substance and have an option to lift the bar in case of aggravating circumstances. Moreover, the author encourages the arbitrators to develop the interpretation given in Abdelrahman and Villanueva to the point when rebutting the intentional doping without showing the means of ingestion is a reality and not a case in the extreme.