The flexibility of sanctions under the 2015 WADA Code

“Tribunals are now freed to do justice…”¹

The 2015 World Anti-Doping Code² (2015 Code) is more flexible when it comes to sanction. This matters greatly as it is this issue upon which most doping cases turn. The relative strictness of the liability regime means that for most respondents the exercise is one of damage limitation. This article explores some key features of the 2015 Code when it comes to sanction, comparing and contrasting the position with the 2009 Code.

Article 10.5: Cases where ‘no significant fault or negligence’ is established

Under the 2009 Code, for a first violation where the Athlete could establish how a ‘Specified Substance’³ had entered his body and that this was not intended to enhance performance (or mask the use of a performance enhancing substance), the potential sanction ranged from 0 to 2 years, depending on the ‘degree of fault’ of the Athlete (article 10.4).

Curiously, by contrast, where an Athlete was guilty of a violation not concerning a Specified Substance, if he could establish that he bore ‘no significant fault or negligence’, the potential sanction ranged from 1 to 2 years (article 10.5.2).

Notwithstanding the differing sanctions available under articles 10.4 and 10.5.2 of the 2009 Code, the assessment of fault was based on exactly the same factors. There was a very real question as to why, if an Athlete could establish (a) a lack of performance enhancing intent, and (b) no significant fault or negligence, why the minimum period should nonetheless be 1 year, due to the substance not being Specified (particularly so, if the substance came into his body via a contaminated supplement).

This curious position has been addressed by the 2015 Code:

1. Article 10.5.1.1 provides that in a case concerning a ‘Specified Substance’, the potential sanction ranges from a reprimand and 0 to 2 years, where the Athlete can establish no significant fault or negligence.
2. Article 10.5.1.2 provides that in a case concerning a ‘Prohibited Substance’ which came from a ‘Contaminated Product’⁴ the potential sanction ranges from a reprimand and 0 to 2 years, again where the Athlete can establish no significant fault or negligence.

In each case the applicable sanction ranges based on the ‘degree of fault’. In other cases, where article 10.5.1 is not applicable, the range of sanctions remains from 1 to 2 years (article 10.5.2).

Now that panels are free to reduce the sanction to below one year in cases concerning contaminated products, there is early evidence of this opportunity to “do justice” being taken. In UKAD v Warburton and Williams⁵, a case concerning a ‘Contaminated Product’, the respondent athletes received periods of ineligibility of six and four months respectively. Both athletes tested positive after taking a supplement named ‘Mountain Fuel’, where something had “gone wrong” during the blending, manufacturing or packaging process.⁶ In the case of each athlete they had taken either ‘considerable’ or ‘very considerable’ investigations into nature and legitimacy of the supplement.⁷