Proportionality of sanctions under the WADA Code: a case study from the Czech Republic

Acting in breach of Art. 2.3 of the WADA World Anti-Doping Code 2015¹ (WADC) is a severe doping offence that rightly deserves to be sanctioned.

In light of a recent case arising in the Czech Republic (Handball case)² however, this author would like to explore the proportionality of sanctions for such a breach (and more generally), together with the question of whether adjudicating panels should be given any discretion, when sanctioning, to eliminate, reduce or suspend any ineligibility period on the merits of the case³ when the case does not otherwise fall under the purview of any of Articles 10.4, 10.5 and 10.6 WADC.

Facts

The Handball case involves an Athlete competing in the major Czech Handball League. During one of the matches, the Athlete was selected to undergo a doping control test. After the match, the Athlete, together with 5 other athletes who were also selected, followed doping control officers to a room for the doping control. The doping control was problem-free for the other athletes (all of whom tested negative); however, a problem occurred with the Athlete. The Athlete was not able to produce a urine sample that would meet the specific gravity requirements under the Regulations for Doping Control and Sanctions in Sports in the Czech Republic (the “Regulations”)⁴ - i.e. his urine was too diluted. The specific gravity of his urine was measured by a refractometer and reached from 1.003 to 1.004.

He tried to produce a valid sample six times over a period of some four hours, but none of the samples met the gravity requirements. The Athlete then got desperate, lost his nerve, tore the doping control form into pieces, and left the doping control room without permission. He had earlier asked the doping control officers if he could leave soon, as he needed to be at work and the whole team was waiting outside the hall for him in the bus. His request however was denied by the doping control officers, who insisted that he had to give them the required sample, and if did not, he would be acting in breach of Regulations.

The next day, the Athlete, after realising that he could have committed an anti-doping rule violation, immediately apologised for his behaviour and offered his assistance to try to rectify the situation. He eventually underwent a voluntary toxicological control in the hospital, proving the presence of no banned substances in his body.

Breach

The case occurred in 2014, and accordingly the previous versions of the Regulations and the WADC applied. However, aside from the relevant sanctions under the 2015 Regulations and the WADC (which have been increased from 2 up to 4 years), the other applicable provisions remain materially the same for the purposes of the case.

Article 2.3 of the Regulations (previous version) stated that the following constitutes an anti-doping rule violation:

"Refusing or failing without compelling justification to submit to Sample collection after notification as authorized in applicable anti-doping rules, or otherwise evading Sample collection."

In terms of the required gravity of Samples, Article 5.12.5 of the Regulations states:

"If the value of specific gravity of the first Sample is outside of the required values (lower than 1.010 or 1,005 in case of measuring by refractometer), the Athlete shall be obliged to stay in the Doping Control Station until he/she provides another Sample having Suitable Specific Gravity for Analysis. If the Athlete refuses to meet this obligation this shall be considered a refusal to submit a Sample under Article 2.3."

According to Art. G., Annex G of the ISTI, for Urine Samples that do not meet the requirement for Suitable Specific Gravity of Analysis, the procedure to follow is:

"The DCO shall determine that the requirements for Suitable Specific Gravity for Analysis have not been met (G.4.1).

The DCO shall inform the Athlete that he/she is required to provide a further Sample (G.4.2).

The DCO should continue to collect additional Samples until the requirement for Suitable Specific Gravity for Analysis is met, or until the DCO determines that there are exceptional circumstances which mean that for logistical reasons it is impossible to continue with the Sample Collection. Such exceptional circumstances shall be documented accordingly by the DCO (G.4.6).

If it is determined that none of the Samples collected from the Athlete meets the requirement for Suitable Specific Gravity for Analysis and the DCO determines that for logistical reasons it is impossible to continue with the Sample Collection Session, the DCO may end the Sample Collection Session (G.4.9).

The DCO shall send to the laboratory for analysis all Samples which were collected, irrespective of whether or not they meet the requirement for Suitable Specific Gravity for Analysis (G.4.10).

The laboratory shall determine, in conjunction with the Testing Authority, which Samples shall be analyzed (G.4.11)."