Civil Law

Introduction

On 21 February 2023, the World Anti-Doping Agency (“WADA”) issued a statement confirming that it was appealing the decision of the disciplinary tribunal of the Russian Anti-Doping Agency (“RUSADA”) in the case of Kamila Valieva to the Court of Arbitration for Sport (“CAS”). Although the full decision has not been published, the RUSADA tribunal found that the teenage figure skater bore ‘no fault or negligence’ (“NFON”) in testing positive for a banned heart drug, Trimetazidine, in December 2021 and, as such, no period of ineligibility was imposed.

Based on information in the public domain relating to the sample in question, and the explanation reportedly provided on behalf of Valieva (discussed below), WADA’s decision to appeal is unsurprising. Indeed, pleading NFON is notoriously difficult under the WADA regime and, whilst WADA does not provide specific data of the incidence of inadvertent doping, statistics for 2017 showed that only 4% of positive tests resulted in no sanction at all.[1] As well as looking at the background of the Valieva case, I examine below:

• the requisite legal hurdles that an athlete must overcome to establish NFON;
• the types of cases where the threshold has been deemed to be met;
• why ‘no significant fault or negligence’ (“NSFON”) awards are more commonplace for inadvertent anti-doping rule violations (“ADRVs”); and
• what other factors might enable an athlete to eliminate their sanction.

The Valieva case

Valieva was one of the major stories of the 2022 Beijing Winter Olympics – both on and off the ice. Just 15 years old at the time, she had wowed crowds (sensationally the first female athlete to land a quadruple jump) as part of the victorious Russian Olympic Committee team in the short program, before the medal ceremony was postponed pending an official investigation into possible doping. It subsequently materialised that a doping control sample provided by Valieva at another competition six weeks before had come back positive.

According to the New York Times, Valieva’s 25 December 2021 sample contained a trifecta of substances that could be used to treat heart conditions – the prohibited drug Trimetazidine (commonly used to treat angina), as well Hypoxen and L-Carnitine (which were both permissible).[2] We do not know the extent of the defence ultimately put forward but, at the time of the positive test, Valieva’s legal team reportedly said that her grandfather had been using Trimetazidine medication and this had been inadvertently ingested (potentially coming from a glass of water containing trace amounts).[3]

In the midst of the Beijing Games, the CAS Ad Hoc Division had ruled that Valieva’s provisional suspension should be lifted (pending full determination on the merits in due course), highlighting the age of the athlete and the “irreparable harm” that could otherwise be caused to her if she was prevented from competing in the individual competition. This was not the end of the controversy, as Valieva subsequently fell multiple times in her individual routine, before appearing to be publicly berated by her coach. 

It was only in January 2023, nearly a year on from the Beijing Games that the decision on the merits of the case was communicated by the RUSADA tribunal – something that WADA described as an “unacceptable delay”. Rightly or wrongly, the Valieva decision has been met with a tremendous amount of cynicism in the anti-doping community; fuelled in part by the nationality of the athlete and the fact that RUSADA, in the recent past, had be a key instrument in Russia’s state-sponsored doping programme.[4]

It is difficult (and frankly premature) to jump to conclusions without knowing the precise factual evidence and legal submissions put forward on behalf of the athlete. Nevertheless, based on what we know to date, the provisions of 2021 WADA Code (“WADC”) and existing anti-doping jurisprudence, just how difficult will it be for Valieva to meet the NFON criteria before the CAS?

Pleading ‘no fault or negligence’ under Article 10.5

Athletes bear sole responsibility for the presence of any prohibited substance (and/or its metabolites or markers) in their system: a strict liability regime that can leave them facing an uphill task from the outset. Trimetazidine is a S4.4 (Hormone and Metabolic Modulator) non-specified substance that is prohibited both in and out-of-competition.[5] Under Article 10.2.1 of the WADC, Valieva is therefore liable for a four-year suspension[6] for a first offence, unless she can establish that the ADRV was unintentional. In the case the latter, the starting point would be a two-year period of ineligibility[7], but this could be (i) materially reduced under WADC Article 10.6 if she bears NSFON for the ADRV, or (ii) eliminated in its entirety under WADC 10.5 if she establishes NFON. The RUSADA tribunal determined the latter.

Defining intentionality

The WADC clarifies that the “the term ‘intentional’ is meant to identify those Athletes or other Persons who engage in conduct which they knew constituted an [ADRV] or knew that there was a significant risk that the conduct might constitute or result in an [ADRV] and manifestly disregarded that risk”.[8] Therefore, it is where athlete knows their conduct would result in an ADRV (i.e. intent, in strict sense) or knew that there was a significant risk that it may (i.e. recklessness).

Interestingly, the previous (2015) iteration of the WADC clarified that “‘intentional’ is meant to identify those Athletes who cheat” – however, reference to “cheating” was removed from the current (2021) edition. As such, once direct intent or indirect intent (recklessness) is established by a tribunal, there is no additional requirement to prove that an athlete took the substance with the aim of enhancing their performance.[9]

The words “drug cheat” are often bandied around, particularly by the media, when an athlete tests positive or is charged with an ADRV (and in some instances that is ultimately a fair label to attach), but anti-doping cases can often be more nuanced. Indeed, a study by de Hon and van Bottenburg (2017) suggested that, whilst “intentionality is extremely difficult to quantify in legal terms… it is quite possible that up to 40% of all athletes who are caught by an [Adverse Analytical Finding] did not intentionally violate the [WADC]” [10], which is a significant proportion.

In the case of an unintentional Article 2.1 ‘presence’ ADRV, an athlete wishing to plead NFON would need to satisfy two core thresholds:

• Demonstrating how the banned substance entered their system; and
• Proving that they used ‘utmost caution’ to keep their system clear of prohibited substances.

Threshold One: Proving source

Strict liability is the cornerstone of the WADA regime and, before an athlete’s level of fault for the presence of a banned substance can be assessed, they will need to demonstrate, to the comfortable satisfaction of the hearing panel, on the balance of probabilities[11] how it entered their body. The jurisprudence is clear that this is a ‘condition precedent’ to arguing NFON, or NSFON for that matter.[12]

To meet the burden, the athlete will need to provide specific, objective and persuasive evidence[13]; it is not enough to simply deny wrongdoing and plead a speculative innocent explanation, good character and/or an unsubstantiated hypothesis.[14] The athlete must show the type of administration (e.g. oral, topical, etc), when/how the substance was ingested[15], and that the pharmacokinetics of the substance (e.g. the rate of metabolism in the body) corroborates the factual explanation.[16]

Applied to the Valieva case, assuming the reported explanation provided by her lawyer at the time was maintained, the types of evidence the athlete might need to produce would include (amongst other things):

• proof that her grandfather was taking Trimetazidine at the relevant time (e.g. a contemporaneous doctor’s note/prescription);
• proof that she spent time with her grandfather in the lead-up to the sample collection;
• how she may have ingested the substance (did they share a waterglass, when/where did that happen, etc?); and
• that the concentration of the substance in the sample is consistent with ‘contamination’ (i.e. trace amounts).

Threshold Two: Proving ‘Utmost Caution’

If the athlete can show how the substance entered their system, it would next be incumbent on them to establish that they bear NFON for that occurrence, which is defined in the WADC as (emphasis added):

“The Athlete… establishing that he or she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had Used or been administered the Prohibited Substance…”[17]

In other words, there is a duty on the athlete “to do everything in his or her power to avoid ingesting any Prohibited Substance”.[18] Historically, this has proved a rigorous threshold to meet and “will only apply in exceptional circumstances”.[19] The stringency of the test is illustrated, for example, by the fact that athletes are not only responsible for their own acts and omissions, but also those of their friends, relatives, coaches, doctors and other members of their entourage to whom they delegated any part of their anti-doping responsibilities.[20] Indeed, there are numerous instances of athletes relying on the bona fide advice of a trainer or team doctor (who have indicated a product is suitable to take, when it was not), and ending up with suspensions – such as in the cases of ITF v Cilic, CAS (four-month ban) and FIS v Johaug & NIF, CAS 2017/A/5015 and 5110 (18-month ban).

Fault is defined in the WADC as “[a]ny breach of duty or any lack of care appropriate to a particular situation. Factors to be taken into consideration in assessing an Athlete’s degree of Fault include, for example, the Athlete’s experience, whether the Athlete is a Minor, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk”.[21] Nonetheless, anti-doping tribunals have not always been consistent in how fault is assessed. By and large they have taken an objective approach, but there has been an increasing willingness of tribunals to be steered by the athlete’s personal circumstances in assessing the degree of fault (see below). A subjective assessment of whether an athlete ‘exercises utmost caution’ may assist the athlete to a certain extent, but a NFON finding will still only be upheld in the most extreme scenarios.[22]

The types of cases where ‘no fault or negligence’ has been determined

Although NFON cases are rare, they are not impossible. Indeed, the types of cases where the Article 10.5 threshold has been deemed met include the following:

• ‘Kissing’ (or ‘intimate contact’) cases – notably, ITF v Gasquet[23], where the CAS panel accepted that the athlete ingested a tiny amount of cocaine by kissing a girl who (unbeknownst to him) had just administered the drug. Similar NFON findings were made in WADA v Roberts[24] and CCES v Barber[25] regarding the inadvertent passing of banned substances via saliva.

• Medication cases – where the athlete is found to have done all that could reasonably be asked of them. For example, ATP v Perry[26], where a tennis player had a therapeutic use exemption for Terbutaline to treat his asthma but was erroneously given a different beta-2 agonist (Salbutamol), also to be taken by inhaler, by the ATP tournament doctor. Meanwhile, in Vassivel v FIBT & BBTF[27], an athlete was given a banned substance (beyond their control and sphere of influence) as part of his post-operative care after undergoing an emergency hernia operation.  

• Morphine cases – where morphine metabolised from codeine contained in two Nurofen Plus tablets (as confirmed by expert evidence in Softball New Zealand v Potae[28]), or it derived from consumption of a commercially-produced, gluten free, poppy-seed bread (DFSNZ v O’Grady [29]).

• Spiking cases – the comment to WADC Article 10.5 expressly states that a NFON plea may be upheld “where an athlete can prove that, despite all due care, he or she was sabotaged by a competitor”. This was the case in Van Snick v IJF[30], where the athlete demonstrated that a rival had laced her supplement powder (which was accessible to competitors in a warm-room whist she was competing) with cocaine.

• Contaminated food or drink – for example, where athletes have unwittingly consumed meat containing trace amounts of growth promoters, such as Clenbuterol (World Rugby v Perinchief[31]), Boldenone (ITF v Farah[32]) and Zeranol (Ajee Wilson[33]). Historically, growth promoters in cattle have been commonly used in countries/regions such as China, Mexico and South America. In the highly unusual case of Burke v Cycling Canada and UCI[34], banned diuretic Hydrochlorothiazide (“HCT”) was found to have entered an athlete’s system by drinking contaminated well water (due to the local population taking HCT as blood pressure medicine).

• Contaminated supplements – in instances of contaminated supplements, a tribunal will almost always find a modicum of fault, as athletes are aware (or should be aware) of the inherent risks. Indeed, the comment to WADC 10.5 expressly states that NFON will not apply where there has been “a positive test resulting from a mislabelled or contaminated vitamin or nutritional supplement (Athletes are responsible for that they ingest (Article 2.1) and have been warned against the possibility of supplement contamination).” However, there have been very occasional instances where panels have accepted a NFON plea – for instance, where an unlisted ingredient is included in a certified (or batch tested) supplement (i.e. contaminated at the manufacturer level) and there is no way the athlete could or shown have known.[35]

‘No significant faut or negligence’ a lower (and more realistic?) threshold to meet

Given the fact-specific nature of anti-doping decisions, it is difficult to properly evaluate, without reading the RUSADA decision and/or defence submissions put forward, the prospects of Valieva securing a NFON award at the CAS. Nevertheless, the jurisprudence will be stacked against Valieva when she seeks to show she took all the practicable and realistic care she could have taken.

Given the innate challenges of arguing NFON, the majority of athletes will argue NSFON under WADC Article 10.6, in the alternative to and alongside NFON, which can still allow for a reduction in sanction. One would expect Valieva’s legal team to do the same. Threshold One above (proving how the prohibited substance entered their body) is also a condition precedent for pleading NSFON, but rather than need to meet the ‘utmost caution’ standard, an athlete will need to prove that any fault they bear in relation to the ADRV is not significant “when viewed in the totality of the circumstances and taking into account the criteria for [NFON]”.[36] The athlete must show that their departure from the standard was not significant (objective fault) and/or that there were understandable reasons for doing so (subjective fault).[37]

This article does propose to go into the case law on NSFON but, for the vast majority of inadvertent doping cases, the panel will need to determine where on the spectrum of fault the ADRV lies – given that the sanctioning range afforded by the Article 10.6 is fairly broad (the starting point being a 24-month suspension).

Other factors that could eliminate sanction

We understand that Valieva received no sanction (beyond disqualification of the competition results when the sample was taken) from the RUSADA tribunal on the basis she bore NFON – however, even if she is deemed liable of some degree of fault, there are still means by which she could (hypothetically) receive no suspension:

• “Protected Persons” – the 2021 WADC created a new category of “Protected Persons”, which (amongst other things) encompasses athletes under the age of 16 (Valieva was 15 years old at the relevant time). “Protected Persons” can benefit from more flexible rules regarding sanctioning, as set out in Article 10.6.1.3 (emphasis added):

“Where the anti-doping rule violation not involving a Substance of Abuse is committed by a Protected Person or Recreational Athlete, and the Protected Person or Recreational Athlete can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two (2) years Ineligibility, depending on the Protected Person or Recreational Athlete’s degree of Fault.”

We know from the decision of the Ad Hoc CAS panel on the narrow issue of the provisional suspension, when they applied the status of Valieva as a “Protected Person” favourably to the athlete, that her age has already be considered a mitigating factor in this case.

• Proportionality – the doctrine of proportionality pervades Swiss law[38], EU law[39], Council of Europe Resolutions[40], and general principles of sports law (or so-called lex sportiva).[41] However, there is a lack of uniformity amongst CAS (and first instance) panels as to whether this principle can be applied, on occasion, over and above the regulations or national law material to the dispute. CAS panels are generally reluctant to depart from the mandated minimum sanctions set out in the WADC[42] – however, some panels have deemed it necessary (i) “to fill a gap or lacuna in the WADC”[43],or (ii)if strict adherence to the WADC would result in disproportionate punishments.[44] If, for instance, Valieva was under extreme stress or psychiatric impairment at the time, this is the type of thing that could be taken into account – however, The FA v Livermore[45] case shows that this is reserved for the most “extreme and unique” cases and “is not intended to set a precedent”.[46]

• ‘Substantial Assistance’ –under WADC Article 10.7.1, substantial assistance is when a person who committed an ADRV cooperates with anti-doping organisation, a criminal authority or a professional disciplinary body to discover or establish a wrongdoing by another. It is essentially a ‘plea-bargaining’ mechanism which could allow for up to a 75% reduction in the period of ineligibility (or, in exceptional cases and with WADA’s approval, a complete elimination). There are strict criteria in the WADC about the eligibility and application of substantial assistance (and, in the case of Valieva, would effectively mean her admitting to intentionally taking a banned substance and providing details of involvement of other individuals in connection with that ADRV and/or other breaches of the WADC). This would involve Valieva changing her entire story; a highly unlikely eventuality.

Conclusion

Whatever the circumstances of Valieva’s ADRV may be, given her age and the media spotlight, it is hard not to feel slightly sorry for her. However, one would not expect WADA’s legal team to show much sympathy in appeal proceedings, and we will wait and see if they seek a four-year ban or accept that the ADRV was inadvertent.

Given the inherent difficulty in pleading NFON, it is not beyond the realms of possibility that the CAS panel could find Valieva bore some level of fault for the violation but, by applying a different provision (e.g. Article 10.6.1.3 rather than Article 10.5) end up with same sanction at first instance. Conversely, if the panel deem that the athlete deliberately ingested Trimetazidine, it is hard to imagine that a 15-year-old would have acted unilaterally without the knowledge or direction of her entourage.

In January 2023, the Head of the US Anti-Doping Agency, Travis Tygart, described the RUSADA tribunal decision as “self-serving”, and that “justice demands a full, fair, public hearing outside of Russia.”[47] WADA’s subsequent appeal to the CAS will involve a full (de novo) hearing outside Russia (CAS being based in Lausanne, Switzerland) and one would hope that fairness of the decision-making process is not in contention. It will be interesting to see if WADA request that the hearing is held in public but, even if they do, all parties would need to be in agreement[48] (as occurred in WADA v Sun Yang & FINA[49]). One would imagine Valieva’s legal team may wish to protect the young athlete from the glare of cameras and frenzy of the global media but, either way, the panel’s determination will be eagerly anticipated.  

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[1] David Mottram and Neil Chester, Drugs in Sport (8^th Edition: Routledge, 2022), p.408

[2] Tariq Panja, ‘Kamila Valieva’s sample included three substances sometimes used to help the heart. Only one is banned’ (The New York Times, 15 February 2022): https://www.nytimes.com/2022/02/14/sports/olympics/valieva-drug-test-heart-medications.html#

[3] For example, see Robert Hart, ‘Kamila Valieva argues contamination with grandfather’s heart drug caused failed test, IOC says’ (Forbes, 15 February 2022) https://www.forbes.com/sites/roberthart/2022/02/15/kamila-valieva-argues-contamination-with-grandfathers-heart-drug-caused-failed-test-ioc-says/

[4] WADA had previously declared RUASDA as non-complaint with the WADC, and was it was only reinstated by WADA’s Executive Committee on 20 September 2018, subject to strict conditions.

[5] In accordance with the 2021 WADA Prohibited List applicable at the time.  Incidentally, Trimetazidine’s categorisation has remained the same in the subsequent 2022 and 2023 iterations.

[6] Note, in the case of aggravating factors, the period of ineligibility could hypothetically be increased by an additional two years in accordance with WADC Article 10.4. This provision was absent in the previous (2015) iteration of the WADC.

[7] WADC Article 10.2.2

[8] The previous (2015) edition of the WADC states that “‘intentional’ is meant to identify those Athletes who cheat”, but this wording has since been removed.

[9] Adam Lewis QC and Jonathan Taylor QC, Sport: Law and Practice (4th Edition, London: Bloomsbury, 2021), para. C17.2, citing WADA v TFF & Kuru, CAS 2016/A/4512.

[10] Oliver de Hon and Maarten van Bottenburg, ‘True Dopers or Negligent Athletes? An analysis of Anti-Doping Rule Violations reported to the World Anti-Doping Agency 2010-2012’ (Substance Use & Misuse, 25 July 2017), p.18

[11] WADC Article 3.1.

[12] Schwazer v IAAF, NADO Italia, FIDAL & WADA, CAS 2016/A/4707, at para. 103: “The finding of the Panel that the Appellant could not demonstrate how the prohibited substance entered his system automatically exclude any elimination of the sanction based on No Fault or Negligence or a reduction of the sanction based on No Significant Fault or Negligence”.

[13] IRB v Kayter, CAS/2006/A/1067, at para. 13; FIFA v STJD & CBF & Ricardo Dodo, CAS 2007/A/1370, at para. 70

[14] WADA v Daiders, Daiders & FIM, CAS 2014/A/3615, at para. 58

[15] La Barbera v IWAS, CAS 2010/A/2277, para. 4.26

[16] UCI v Kolobnev, CAS 2011/A/2645, at para. 75; WADA v Roberts, CAS 2017/A/5296, at para. 54

[17] Appendix 1 (Definitions) of the WADC

[18] Kendrick v ITF, CAS 2011/A/2518, at para. 10.14

[19] Comment to WADC Article 10.5

[20] Adam Lewis QC and Jonathan Taylor QC, Sport: Law and Practice (4th Edition, London: Bloomsbury, 2021), para. C18.17, citing Errani v ITF, CAS 2017/A/5301, at para. 198, and Stroman v FEI, CAS 2013/A/3318, at para. 72

[21] Appendix 1 (Definitions) of the WADC

[22] Alabbar v FEI, CAS 2013/A/3124, at para 12.18; WADA v Salmon & FIVB, CAS 2012/A/296, at para. 67

[23] IFT v Gasquet, CAS 2009/A/1926

[24] WADA v Roberts, CAS 2017/A/5296

[25] CCES v Barber[25], SDRCC decision dated 11 August 2016

[26] ATP v Perry, Anti-Doping Tribunal decision dated 30 November 2005

[27] Vassivel v FIBT & BBTF, CAS 2006/A/1041

[28] Softball New Zealand v Potae, Sports Tribunal New Zealand decision dated 27 February 2008

[29] Drug Free Sport New Zealand v O’Grady, Sports Tribunal New Zealand decision dated 21 March 2011

[30] Van Snick v IJF, CAS 2014/A/3475

[31] World Rugby v Perinchief, Board Judicial Committee decision dated 2 October 2013

[32] ITF v Farah, ITF decision dated 10 February 2020

[33] Ajee Wilson, USADA press release dated 19 June 2017

[34] Burke v Cycling Canada and UCI, SDRCC decision dated 2 October 2013

[35] In Clifton Promise and Clifton Pinot, separate FEI Tribunal decisions both dated 6 August 2014, the fact that the supplement had been used multiple times in the past, and multiple testing had occurred for prohibited substance, was tantamount to an independent third party testing authority.

[36] Appendix 1 (Definitions) of the WADC

[37] Adam Lewis QC and Jonathan Taylor QC, Sport: Law and Practice (4th Edition, London: Bloomsbury, 2021), para. C18.20

[38] FIFA & WADA CAS 2005/C/976 & 986, para 124

[39] Meca-Medina & Majcen v Commission Case C-519/04P [2006] ECR I-6991, paras. 47-48

[40] Final Resolutions of the 14th Council of Europe Conference of Ministers responsible for Sport (29 November 2016): “Recognising that all anti-doping organisations must comply with the rules of good governance and the principle of proportionality, while respecting the fundamental rights of the individuals subjected to the anti-doping regulations…”

[41] Squizzato v FINA CAS 2005/A/830 (paras. 10.23-10.26); I v FIA CAS 2010/A/2268 (paras. 139-142); Chand v Athletics Federation of India & IAAF CAS 2014/A/3759 (p.66).  The applicability of general principles of law and principles specific to sport were described in AEK Athens and SK Slavia Prague / UEFA CAS 98/200 (para 156): “The Panel is of the opinion that all sporting institutions, and in particular all international federations, must abide by general principles of law.”

[42] For example, Salmond v International Ice Hockey Federation CAS 2018/A/5885 and WADA v International Ice Hockey Federation & Salmond CAS 2018/A/5936, para 246

[43] Puerta v ITF CAS 2006/A/1025, at para 11.7.29.

[44] For example, FINA v Mellouli and Tunisian Swimming CAS 2007/A/1252, at paras. 91-97

[45] The FA v Livermore, FA Regulatory Commission decision dated 8 September 2015, at paras. 32-34

[46] Mr Livermore took cocaine as a coping mechanism on the anniversary of his son’s death. The FA Commission held that “the incident only occurred as a result of the severe impairment of Mr Livermore’s cognitive functions and judgement caused by the Circumstances of which he was in no way at fault” (para. 14).  Whilst Mr Livermore’s plea of ‘no fault or negligence’ was rejected, it was held to be “wholly unfair as well as evidently and grossly disproportionate” to impose any sanction (para. 32).

[47] Sean Ingle, ‘WADA ‘concern’ as RUSADA clears Valieva of wrongdoing over doping scandal’ (The Guardian, 13 January 2023) https://www.theguardian.com/sport/2023/jan/13/wada-concern-after-valieva-cleared-wrongdoing-over-doping-scandal

[48] Rule 44.2 of the CAS Code

[49] WADA v Sun Yang & FINA, CAS 2019/A/6148

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