Anti-Doping Rule Violations – Evading, Refusing or Failing to Submit
9 March 2016 by Jason Torrance
The first two blogs covering the various anti-doping rule violations dealt with the presence and use of prohibited substances, two violations that are often closely related given their nature. The third violation, under Article 2.3, is for evading, or refusing or failing to submit to sample collection without compelling justification.
Refusing and failing to submit are similar in the sense that both require an athlete to be notified that they must provide a sample and that the end result of both is that the athlete does not provide a sample. A refusal is generally a more deliberate breach given that a failure to submit generally occurs when an athlete makes an attempt to provide a sample but is unable to do so, as opposed to not even attempting to provide a sample. For both, if an athlete can show that they had compelling justification for not providing a sample then no offence will have been committed.
Compelling justification has been argued on numerous occasions by athletes charged under Article 2.3. One argument often advanced is that of jurisdiction, either that the person in question is not contractually bound to anti-doping rules or that the athlete’s season has finished in their particular sport and as such they are no longer bound to anti-doping rules, meaning that there is no authority to test them. Whilst many sports do have a clear “off-season”, for example team sports such as football or rugby, the majority of player contracts will stipulate that an athlete is signed to their respective club for a period of time, often a number of years, and at the very least for one year. This means that the athlete will still be bound to the anti-doping rules even when it is deemed the sport’s off-season. Indeed, a landmark case in the UK found that even if an athlete, or in this particular case an athlete support personnel, was not officially under contract or a member of their National Governing Body, they could still be bound to their sport’s anti-doping rules by way of their actions so they could still be charged and prosecuted.
To demonstrate how high the compelling justification bar is, a UK athlete was banned for 2 years from sport after the following situation arose. The athlete had been competing in a match and upon its conclusion was informed he had been randomly selected to provide a urine sample. The athlete went to the doping control station and attempted to provide a sample for over an hour, but was unable to do so. At this point he informed the doping control officer that he had to leave. He explained that his father had his own business and that he had the work van and had to get to a job some distance away. He was encouraged to leave by his club CEO, who had previously worked for the sport’s governing body. The athlete was subsequently charged with a violation of Article 2.3. After an appeal hearing, and despite having produced evidence of the scheduled work and providing financial accounts for the business demonstrating that there was a reasonable chance that if he had not attended the job that his father would have gone out of business, the athlete was still banned for 2 years, the highest sanction possible at the time. Indeed, case law provides that explanations including the requirement to attend work and religious reasons do not amount to compelling justification.
An evasion differs from refusing or failing to submit in that it can only occur if an athlete has not been notified that they must provide a sample. A simple example of an athlete evading sample collection is when a doping control officer turns up at a squad training session, an athlete discovers that they are there and deliberately leaves training to avoid being tested. Despite evasion being an offence that will generally require intent on behalf of the athlete, to date in the UK, there has only been one athlete successfully charged with evasion.
The standard sanction for a violation of Article 2.3, as with a presence or use violation, is now four years. However, there have been a number of such cases in the UK where the standard sanction has been 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.