Joseph Bryan reviews two recent decisions of the National Anti-Doping Panel turning on the application of the ‘no fault or negligence’ and ‘no significant fault or negligence’ defences.
Anti-doping is rarely out of the international headlines these days, not least in light of the high-profile decision by the CAS to overturn the lifetime bans imposed on 28 Russian athletes by the IOC. Publication of the full reasons for that (expedited) ruling is eagerly awaited. In the meantime, and more locally, there have recently been two notable arbitral decisions concerning sanctions for anti-doping rule violations (each an “ADRV”) which shed light, in particular, on the application of the fault and negligence defences.
UKAD v Grady
The ADRV was the presence of a prohibited substance, namely carboxy-THC (a metabolite of cannabis), and the athlete, Grady, a professional basketball player, admitted the violation. He contended, however, that the period of ineligibility should be reduced on the grounds of ‘no significant fault or negligence’ under art. 10.5 of the UK Anti-Doping Rules (the “ADR”).
The essence of Grady’s fault or negligence was his lack of understanding or knowledge of the ADR; and, the tribunal observed, the duty on professional athletes to comply with the ADR and act with the utmost caution is rigorously applied. At first sight, then, Grady’s failure (a) to take responsibility for the substance he ingested and (b) to comply with the ADR gave rise to a “clear and high degree of culpability”.
Nonetheless, the tribunal found no significant fault or negligence and reduced the period of ineligibility to 15 months. The essential reasoning was as follows:
Of particular interest to practitioners will be the tribunal’s willingness to make a finding of “likely depression” absent any medical evidence. Previous authorities (see UKAD v Duffy) indicated the need, ordinarily, to adduce medical diagnosis of cognitive impairment. Duffy was here distinguished on the basis that Grady’s financial circumstances made it “fanciful” that he could have obtained such evidence.
UKAD v Bailey
Bailey, a professional rugby league player, was found to have committed an ADRV in refusing to submit to a sample collection, contrary to ADR, art. 2.3.
On 30 May 2017 drugs testers approached a training session of Bailey’s rugby league club, intending to test him (and others). One of the testers, Mr Taylor, had that morning bought at a supermarket several bottles of water for the purposes of the test and placed them in cooler bags. Mr Taylor offered Bailey one of these bottles when they met on the training pitch and Bailey drank it. In the dressing room, before the test, Bailey took and drank another bottle. Shortly afterwards, he took a third bottle but, when he opened it, thought it did not “crack”, and thought the same on trying a fourth bottle.
Despite Mr Taylor’s reassurances and warnings that refusal to provide a sample could amount to an ADRV, Bailey refused to take the test on the basis that the water could have been contaminated. The tribunal found that this behaviour was entirely irrational: “Any ordinary rational person would not have refused to provide a sample because he had drunk from a water bottle which did not ‘crack’.”
The tribunal held, however, that the test for ‘no fault or negligence’ “does not depend on how a reasonable man would behave”: it is a subjective test. So, in the circumstances – where there was no doubt Bailey’s reason to refuse was genuine, albeit perverse – he bore no fault or negligence. The period of ineligibility was eliminated.
Although the tribunal was at pains to emphasise that its decision was on “truly exceptional” facts (which included psychiatric evidence redacted from the public judgment), the case is a stark reminder that the question of fault or negligence is always directed to an assessment of the individual circumstances of the individual committing the ADRV.
Sports law practitioners in the UK, especially those advising or representing respondents to proceedings before the National Anti-Doping Panel, will be aware of the importance of leading evidence of the full circumstances of an athlete’s alleged ADRV. The Grady and Bailey decisions reinforce that proposition.
The fault and negligence defences are essential components of a respondent’s arsenal: conducting a careful analysis of the surrounding circumstances specific to the individual athlete may unveil helpful matters to substantiate such a defence.