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Proceedings regarding violations of anti-doping regulations

Last week, the media circulated information about the use of doping by Cracovia player Dawid Nowak. During routine control tests that footballers of the T-Mobile Ekstraklasa undergo, prohibited substances were detected in the player's body, specifically - stanozolol, an anabolic steroid causing muscle tissue growth.

 

This is somewhat unusual, as in a sport like football, muscle strength is not an attribute that has a decisive impact on the sports result. The player demanded the testing of sample B to verify the results based on material from sample A. The case has not yet "cooled down," and the media reports another suspicion of doping, this time concerning Marcin Dołęga, a three-time world weightlifting champion. In this article, I will try to explain the issues related to proceedings regarding violations of anti-doping regulations, present the catalog of penalties that can be applied to the player and/or club, and draw attention to significant circumstances requiring proof in such proceedings.

 

Standard disciplinary proceedings concerning athletes are regulated by provisions adopted by the relevant sports association. This consequently means that each sport is governed by different regulations, which unfortunately often have a fragmentary or at least incomplete character. Sports associations usually do not use the practiced solution (for example, in disciplinary proceedings against lawyers), according to which in matters not regulated in specific regulations, the provisions of the existing code of procedure apply (e.g., criminal).

 

However, the situation is different when it comes to doping proceedings in sports, which are based on regulations common to various sports disciplines. In simple terms, this is related to the establishment of the World Anti-Doping Agency (WADA) and the adoption by Poland of the International Convention against Doping in Sport1)Journal of Laws 2007 No. 142 item 999. This resulted in the introduction of regulations in the Sports Act establishing the Commission for the Fight against Doping in Sport2)Article 44(1) of the Sports Act, Journal of Laws 2014, item 715.

 

The Commission issued a document fundamental to proceedings regarding violations of anti-doping regulations, namely the Model Anti-Doping Rules3)in accordance with the WADA Anti-Doping Code. Polish sports associations were obliged to adopt the above regulations directly or by reference to their regulatory documents, statutes, and/or regulations, thereby subjecting them to disciplinary rules and the rights and obligations of their members and participants4)e.g., the Polish Football Association in Article 78 § 2 of the PZPN Disciplinary Regulations.

 

Before discussing the individual stages of the proceedings, it requires clarification of what constitutes "doping." According to art. 2 - 2.8 of the Model Anti-Doping Rules, doping is considered to be: the presence of a prohibited substance, its metabolites, or markers in the athlete's physiological sample, the use or attempted use by the athlete of a prohibited substance or prohibited method, failure to appear or unjustified failure to appear for sample collection after receiving notification or evading sample collection in any other way, violations of the applicable requirements for athlete whereabouts, including failure to provide required whereabouts information and failure to submit to testing (three unexcused missed tests and/or failure to provide whereabouts information within a period of 18 months), trafficking or attempted trafficking of any prohibited substances or methods, administering or attempting to administer/apply any prohibited substance to or by an athlete during competitions or outside of competitions, as well as aiding, abetting, facilitating, inciting, concealing, and any other forms of involvement in violations of anti-doping rules. In addition to the use of prohibited substances, penalties also apply to behaviors and acts that aim to impede the detection of the use of these substances, as well as those involving non-compliance with the applicable rules, such as regarding testing.

 

Perhaps the most surprising is the obligation to provide whereabouts information, but according to art. 5.5.1 of the Model Rules, this applies only to a specific group of athletes designated by the Commission (usually the qualifying factor for an athlete to be in the registered group subject to the obligation is their sports performance, e.g., all medalists, top of the world ranking, or World Cup standings, etc.). Focusing significantly on the case of detecting prohibited substances in this article, we will trace the stages of such proceedings.

 

The reason for initiating proceedings is usually the detection of a prohibited substance in the physiological sample taken from the athlete. At that point, the competent authority (usually the Anti-Doping Commission in Sports for national sports events) notifies the relevant Polish sports association. What needs to be demonstrated during the proceedings and who bears the burden of proof?

 

To establish a violation of anti-doping rules in the case at hand, it is only necessary to prove that the athlete's body contained a specific substance from the list of prohibited substances. The lack of intent or fault on the part of the athlete is only relevant in determining the extent of the penalty. It should be noted that this is an atypical situation compared to standard proceedings against an accused or charged individual. For example, in criminal proceedings, the assignment of criminal liability for an act requires fault on the part of the perpetrator. It can be assumed that this difference in doping proceedings stems from the fact that the protected interest is the sporting result. The consequence of establishing a violation of anti-doping rules by an athlete in a test conducted during competitions is the automatic nullification of individual results, even if no penalty is imposed. Since the purpose of organizing sports competitions is fair competition and determining the winner, only athletes who meet the same criteria can be classified. The burden of proof that a violation occurred lies with the Commission.

Referring to the aforementioned case of an Ekstraklasa football player, let's examine the possible scenarios for the situation to unfold.

 

If it turns out that the results of the sample B test taken from the player are negative, then the overall test result is considered negative, and if no charge of intent to use a doping substance is formulated against the player, the proceedings are concluded. However, it is already known that the sample B tests confirmed the presence of the substance.

 

Currently, the only5) exception is when an athlete with a documented illness requiring the use of a prohibited substance has previously obtained permission to use the substance for therapeutic purposes - TUE, although this situation is purely hypothetical as such permits are issued by the Anti-Doping Commission in Sports or another Anti-Doping Organization. The method of establishing that no violation of anti-doping rules occurred is to demonstrate that the conducted tests, the documentation of which should be provided to the interested party, are inconsistent with the International Standard for Laboratories. In this case, there is still the possibility for the Commission to demonstrate that the violation of standards did not affect the test result, but in such a case, the burden of proof is reversed.

 

If the aforementioned situation does not occur, the athlete will be interrogated6) unless they refuse, which they have the right to do, or if they do not admit to violating the rules. During the proceedings, the athlete has the right to a fair hearing7)as detailed in section 8.3 of the Model Rules, which includes the right to: present evidence, have a defense lawyer present8) terminology used in the Model Rules, and question witnesses. Interestingly, the disciplinary body may admit evidence from witness statements given in writing or over the phone.

 

The primary penalty that can be imposed on an athlete for the detection of prohibited substances in the body is a two-year ban from competitions (disqualification). However, there are circumstances whose demonstration affects the extent of the penalty, including even refraining from imposing it.

 

In the event that the athlete demonstrates how the substance entered their body and that the substance was not used to improve sports performance, the disciplinary body imposes a penalty ranging from a reprimand to a two-year ban from competitions, which can be significantly mitigated. Although the Model Rules in section 10.4 use the term "prove," in the case of how the substance entered the body, it would be more appropriate to assume that likelihood is sufficient, as proving this circumstance in practice could prove impossible. One can speculate whether in the case of Dawid Nowak, the fact that the substance he used causes muscle growth, thus increasing strength, which is not a decisive attribute in football matches, will prove significant.

 

Another possible line of defense is to demonstrate that the athlete is not at fault for introducing the prohibited substance into their body, which does not exempt them from the obligation to show how the substance entered the body. In such a situation, it is even possible to refrain from imposing a ban from competitions. If the athlete is at fault, but the fault is not significant, then the penalty can be reduced to even half of the period of the ban from competitions. It is emphasized, however, that a professional athlete is responsible for the food and supplements they consume even if they were provided by other individuals. Refraining from imposing a penalty applies to completely exceptional cases, and for example, taking dietary supplements provided by the club doctor is not a circumstance that allows refraining from imposing a penalty.

 

Reducing the penalty to 3/4 of the prescribed penalty is possible in the case of significant assistance in detecting or establishing violations of anti-doping rules by other individuals. Mitigating the penalty and its extent depend on the type of violation disclosed and the weight of the assistance provided by the athlete.

 

At this point, it is difficult to predict how this specific procedure will end, but it is known that in case of a negative decision by the disciplinary body, the athlete has the right to appeal to the Arbitration Tribunal at the Polish Olympic Committee 9)an appeal to the Court of Arbitration for Sport is available in the case of international sports events.

 

Even if the proceedings result in the disqualification of the Cracovia player - the team in which the player participated - there is no risk of disciplinary action against the team, such as negative points, as the requirement for penalizing the team is the finding of doping use by more than two players from the club. However, if the allegations against the player are confirmed, the club will be entitled to request the Chamber for the Resolution of Sports Disputes to terminate the contract due to the player's fault10) in accordance with Article 14(13) of the PZPN resolution on the rules governing the relationship between the sports club and the professional player.

 

During the proceedings, the player will be suspended11) based on Article 7.6 of the Model Rules.

 

I woz ere / photo on flickr

CC-BY-ND 2.0

 

  1. Journal of Laws of 2007 No. 142 item 999
  2. Article 44(1) of the Act on Sport of 2014, consolidated text Journal of Laws of 2014 No. 715
  3. in accordance with the World Anti-Doping Agency (WADA) Code
  4. for example, the Polish Football Association in Article 78 § 2 of the Disciplinary Regulations of the PZPN
  5. an exception occurs when an athlete with a documented illness requiring the use of a prohibited substance has previously obtained permission to use the substance for therapeutic purposes – TUE, however, this situation is purely hypothetical as such permissions are granted by the Anti-Doping Commission in Sport or another Anti-Doping Organization
  6. unless he refuses, which he has the right to do, or if he does not admit to violating the rules
  7. principles described in detail in section 8.3 of the Model Rules
  8. terminology used in the Model Rules
  9. appeal to the Court of Arbitration for Sport is available in the case of international sports events
  10. Article 14(13) of the PZPN resolution on the rules governing the relationship between the sports club and the professional player
  11. based on Article 7.6 of the Model Rules