Tips for athletes when delegating their Prohibited List duties

Sharapova is expected to be back on court (this time the tennis court) in April 2017, having successfully managed to reduce the doping ban that was imposed on her by the International Tennis Federation in June 2016.¹ However, the Court of Arbitration for Sport’s ("CAS") appeal decision of 4 October 2016² casts light on the issues that can arise when an athlete delegates his or her duty to check the World Anti-Doping Code's Prohibited List (the "Prohibited List"). 

Accordingly, this article looks at the following issues and questions:

• The background to strict liability in doping.
  
  
• The Sharapova case: In circumstances where an athlete has delegated their Prohibited List duties, a breach occurs, and the athlete argues that there is “no significant fault or negligence” ("NSF") on their part: 
  
  
  • Whose fault is to be assessed (is it that of the athlete or the delegate)?
    
    
  • Where is the bar set for demonstrating “no significant fault or negligence” (should it be lower than if the athlete performed the task themselves)?
    
    
• Tips for athletes when delegating duties to check the Prohibited List.

Background to strict liability in doping

At the heart of the World Anti-Doping Agency's ("WADA") 2015 World Anti-Doping Code ("the Code") is the principle that an anti-doping rule violation ("ADRV") can be established without demonstrating fault. Article 2.1.1 of the Code states as follows: 

"It is each Athlete's personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Athlete's part be demonstrated in order to establish an anti-doping violation under Article 2.1".

In other words, a violation of Article 2.1.1 of the Code is a "strict liability" offence. 

The comments to the Code explicitly state that whether or not an athlete is at fault can only be considered when determining the sanctions of the rule violation, not when considering whether or not a rule violation has occurred.³

The strict liability principle is a practical necessity for WADA’s system to work. If the burden of proof lay on WADA to demonstrate intention and/or a required level of fault in every case, it would be inoperable. However, the Code’s obligations sit within the reality of an athlete’s day-to-day life. It is easy to understand why athletes such as Sharapova may wish to delegate certain tasks under the Code to any number of people, allowing them more time to concentrate on their performance. This applies, in particular, to those of an administrative nature, such as:

1. checking substances against the Prohibited List; and
   
   
2. filing of and updating whereabouts information⁴.

However, both the decision of CAS in relation to the alleged use of a prohibited substance by 32 Australian Football League Players who played for Essendon Football Club and the recent Sharapova decision serve as timely reminders of the dangers of delegation for athletes.⁵ In the Essendon case, the players were found to have been injected with a Prohibited Substance, having consented to the injections on the basis that they were informed by the club's coach and sports scientist that the injections were "in compliance with current WADA anti-doping policy and guidelines".⁶ CAS held that the players' reliance on assurances by the club's personnel was not a sufficient plea in mitigation, and it was not enough for their sanction to be reduced.⁷ The players could have, but failed, to check the content of the injections with the club's doctor.

For an in depth analysis of the Essendon case, please see here⁸ 

When considering the appeal of Sharapova, CAS considered in particular the case of Al Nahyan v International Federation for Equestrian Sports (FEI).⁹ Al Nahyan is an equestrian case (which has caused some commentators to criticise CAS' reliance on the decision)¹⁰ in which the horse was found to have a banned substance in its system. The rider was subsequently sanctioned with a period of ineligibility of two years and three months. The vet (whom the rider employed) was found to have been negligent in administering medication to the horse without inquiring about the content of the medication. 

In the Al Nahyan case, CAS held that

"the misdeed of [the vet] is objectively imputed to the [rider], regardless of the presence of intent, fault or negligence or even knowledge of the use on the part of the [rider]. The [rider] cannot avoid strict liability for the anti-doping violation by saying that he or she relied on others or delegated responsibility away from himself or herself…."¹¹ 

Sharapova’s plea in mitigation