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Kutrovsky and Qerimaj; Oliviera and Foggo: these are cases all too familiar to sports lawyers representing athletes who have accidentally (or allegedly accidentally) fallen foul of the anti-doping regime. These cases represent two conflicting branches of Court of Arbitration for Sport (“CAS”) authority on the proper approach to intent and reductions of periods of ineligibility when an athlete says that he accidentally consumed certain prohibited substances, and they have continued to exercise the National Anti-Doping Panel in recent cases.
Specified Substances under the WADA Code
The problem stems from the special provision under the World Anti-Doping Agency (“WADA”) Code for the consequences of a doping offence in respect of certain “specified” prohibited substances (being a particular subset which is only banned in competition). If an athlete fails a drug test for a specified substance he or she may be able to argue that he or she should benefit from one of either rule 10.4 or 10.5 of the WADA Code, which allow for a lesser penalty than the usual penalty for a first time doping offence of 2 years’ ineligibility.
Rule 10.4 provides that where a doping offence relates to a specified substance and the athlete can show how it came into his body and/or came into his possession then the athlete may qualify for an elimination or reduction of the period of ineligibility - to somewhere between a reprimand and no period of ineligibility up to a maximum period of ineligibility of 2 years - if the athlete can establish “to the comfortable satisfaction of the hearing panel, the absence of intent to enhance the Athlete’s sport performance or mask the Use of a performance-enhancing substance.”
This test has led to a number of conflicting decisions on the question whether for an athlete to benefit from Rule 10.4 the correct question was whether he intended to take the specified substance to enhance his performance or whether he intended to take the product which contained the specified substance to enhance his performance. If, for example, an energy drink contains amphetamines, is the correct approach to ask whether the athlete intended to enhance his sporting performance (a) in taking the energy drink or (b) in taking the amphetamines?
CAS Decisions: Oliviera and Qerimaj
In Oliviera, the CAS Panel hearing the case opted for the second of these potential answers, holding (at paragraph 9.14): “The Panel does not read clause two of Article 10.4 as requiring Oliveira to prove that she did not take the product (i.e., Hyperdrive 3.0+) with the intent to enhance sport performance. If the Panel adopted that construction, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADC, would render Article 10.5 inapplicable even if the particular supplement that is the source of the positive test result contained only a specified substance…” This reasoning was agreed with by two further CAS Panels in the subsequent cases of Kolobnev (29 February 2012) and Lapikov (10 July 2012).
In Qerimaj (decided on 12 September 2012; shortly before Kutrovsky) another CAS Panel followed Oliviera in holding that nutritional supplements are usually taken for performance-enhancing purposes, which is not per se prohibited and that “…the primary focus can obviously not be on the question whether or not the athlete intended to enhance his sport performance by a certain behaviour (i.e. consuming a certain product), but moreover if the intent of the athlete in this respect was of doping-relevance.”
CAS Decisions: Foggo and Kutrovsky
By contrast, a subsequent CAS Panel in Kutrovsky (3 October 2012) elected not to follow the Oliveira, Kolobnev, Lapikov decisions, and instead to follow the earlier case of Foggo (3 May 2011), in concluding that the mere fact that an athlete did not know that a product contained a specified substance did not itself establish the relevant absence of intent under Rule 10.4. This had not produced particular harshness in the Foggo case, as the CAS Panel concluded that Mr Foggo’s use of an energy drink called Jack3d was not intended to enhance his sporting performance. Likewise in Kutrovsky, the CAS Panel concluded that although the athlete could not come within Rule 10.4 (despite his ignorance that the Jack3d contained a specified substance), he could still benefit from Rule 10.5.2 on the basis that he was not significantly at fault.
Tough Love before the National Anti-Doping Panel (“NADP”)
The Oliveira-Qerimaj line of authority was therefore promising for athletes who had failed doping tests in cases where they were unaware that the product contained a specified substance. Unfortunately for those athletes, in recent cases the NADP has rejected the attempt to rely on that line of authority and has instead endorsed the Foggo-Kutrovsky line, adopting a strict approach to the interpretation of Rules 10.4 and 10.5 (which allows for a reduction of the sanction in cases where the athlete was not or “not significantly” at fault).
In the case of Whyte (NADP Decision 22 January 2013) a Panel of the NADP (noting that the prospective draft of the WADA Code and Commentary favours the Foggo/Kutrovsky approach) applied the Kutrovsky approach to find that the athlete had intended to enhance his sporting performance in using the same energy drink (Jack3d) as had been in issue in Foggo and accordingly that he could not benefit from Rule 10.4. However, contrary to the decision in Kutrovsky, the Panel concluded that the athlete could not benefit from a reduction on the basis of no significant fault under Rule 10.5.2 either, by reference to his inadequate investigations into Jack3d. Mr Whyte appealed to an Appeal Tribunal of the NADP. The Appeal Tribunal dismissed the appeal noting the duty of utmost caution imposed on athletes in the advisory opinion in FIFA v WADA (CAS 2005 IC.976 & 986). The Appeal Panel expressed doubt as to how the CAS Panel in Kutrovsky had reached its decision that Mr Kutrovsky was not significantly at fault, and dismissed Mr Whyte’s appeal on the basis that the inadequate inquiries made meant he could not benefit from a reduction for no significant fault under Rule 10.5.2. The Appeal Panel also set out a general warning and reminder stating:
“This case emphasises, yet again, the dangers of athletes taking supplements which contain MHA. These risks have been the subject of a public warning by UKAD following the publication of the decision in UKAD v Wallader made on 29th October 2010. A number of sports governing bodies have issued warnings about MHA. On 28th August 2012 the Medicines and Healthcare Products Regulatory Agency removed Jack3d containing MHA from the UK market, following serious concerns about the safety of this substance. A list of supplements which have been tested to proper standards is available at www.informed-sport.com. Any athlete who uses a supplement which is not on that list is running a serious risk of attracting a doping violation.”
In similar vein, in the case of Llewellyn (14 February 2013) an eminent Appeal Tribunal composed of three Queen's Counsel rejected the Qerimaj approach and took the exceptional step of expressly doubting the CAS decisions in both Oliviera and Qerimaj, stating at paragraph 5.42, “Suffice it to say that the Appeal Tribunal is of the view that Qerimaj and Oliviera should not in future be followed.” This is a comment which James Segan has already discussed in his blog post on the need for a Grand Chamber of CAS to avoid the confusion of conflicting CAS decisions – see here. Despite having no power to overrule a decision of CAS, the NADP has therefore sent a clear message of its tough new intent. Some will argue this is the tough love the anti-doping system needs to be effective; others that this is harsh justice for individual athletes who through ignorance or naivety test positive for a prohibited substance through use of an energy drink or similar product.
Members of Blackstone Chambers have been involved in a number of the cases above. Nick De Marco and Tom Mountford acted for the athlete in the NADP’s first decision in Whyte; Ian Mill QC and James Segan acted for the athlete in Lapikov; Robert Englehart QC was a member of the Appeal Tribunal in Llewellyn; Charles Flint QC was the Chairman of the Appeal Tribunal in Whyte; and Michael Beloff QC was a member of the CAS Panel in Kutrovsky.
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