Anti-Doping Rule Violations – Use
14 January 2016 by Jason Torrance
This is the second in a series of blogs detailing the 10 anti-doping rule violations. The first violation, for the presence of a prohibited substance in an athlete’s urine or blood sample, was the only analytical violation, i.e. the only violation that derives directly from analysis of a sample. The remaining 9 violations are all classified as non-analytical violations.
The second violation is for the use or attempted use of a prohibited substance or method by an athlete, and is often closely related to a presence violation. To prove a use violation a positive sample is not necessarily required, however it logically follows that if an athlete is found to have a prohibited substance in their sample then they must also have used that prohibited substance. However, caution must be exercised when using this thought process in the case of those substances that are banned in-competition only, such as stimulants – athletes are permitted to use such substances out-of-competition. If the substance is one which is banned at all times, then in theory if an athlete’s sample is analysed and found to contain that substance then they must also have committed a violation for use.
Unless the rules of the organising body of the particular event or the International Federation provide otherwise, “In-Competition” means the period beginning twelve hours before a competition in which an athlete is scheduled to participate to the end of that competition and the sample collection process related to that competition.
It has historically been rare in the UK for athletes who have tested positive for a steroid, for example, to be charged with both presence and use – any sanction imposed would not increase (under the 2015 Code it cannot increase, and under the 2008 Code aggravated circumstances would not have applied). Where charging an athlete with both presence and use may be of particular importance is, for example, if an athlete claims to have retired prior to providing their sample and claiming as a defence that the sample was therefore not taken whilst they were still bound to any anti-doping rules. To put this into a practical scenario then, if an athlete is tested on a Thursday and his sample is analysed and tests positive, the athlete’s defence to a presence charge is that he had retired on the Wednesday and there was no authority to take the sample in the first place. In such a scenario, that athlete could then be charged with the presence and use of a prohibited substance and even if a Tribunal did find in favour of the athlete in respect of the presence violation, scientific evidence would support use of the same prohibited substance prior to the date on which the sample was collected, at which time the athlete was bound to the anti-doping rules.
Perhaps the most common types of use cases now are those involving the athlete biological passport (ABP). In simple terms, the ABP works by collecting samples from athletes over a sustained period of time so that an athlete’s natural biological markers can be determined. If a sample is taken that, when analysed, spikes outside of these markers, further investigation is undertaken to determine whether this spike was a result of potential doping. If this is the proposed reason for the spike, the athlete in question will be notified and given an opportunity to explain the reason for this spike. Examples could be illness or special training at high altitudes.
If the athlete’s explanation is not scientifically viable or the anti-doping authority does not accept it, the matter will be sent for independent review. Any potential anti-doping rule violation that is a non-analytical offence must pass independent review before the anti-doping authority can formally charge. The evidence is sent to, typically, a solicitor or barrister to assess whether, in accordance with the UK National Anti-Doping Policy and the anti-doping rules, there is a case to answer. If the matter passes independent review, the person in question will be charged with the commission of an anti-doping rule violation and the matter will go through the normal results management process.
The standard sanction for a use violation, as with a presence violation, is four years. Again, depending upon the circumstances, there are ways in which such bans may be reduced. If you are an athlete or an athlete support personnel and require detailed information or advice on this or any other anti-doping topic, please contact us and we will be able to assist.