Anti-Doping Rule Violations – Presence
15 December 2015 by Jason Torrance
Fisher Jones Greenwood is introducing a series of anti-doping blogs to promote the new service being offered by the firm in this niche area of law for athletes, athlete support personnel, anti-doping bodies such as National Governing Bodies and anyone else who requires expert anti-doping advice. These blogs will provide information on the key aspects of the anti-doping regulations, including the various anti-doping rule violations and sanctioning. Having worked in UK Anti-Doping’s legal directorate for over five years before joining Fisher Jones Greenwood, I have vast experience in the results management process in anti-doping matters and in providing regulatory advice.
As with all rules and regulations, a breach of them will lead to sanctions. Prior to 2015, under the old World Anti-Doping Code (the “Code”) there were 8 anti-doping rule violations (ADRVs); since the 2015 Code came into effect, this has increased to 10. The ten anti-doping rules violations are listed in Article 2 of the Code and are:
- Use or attempted use;
- Refusing, failing to comply or evasion
- Whereabouts failures;
- Tampering or attempted tampering;
- Trafficking or attempted trafficking;
- Administration or attempted administration;
- Prohibited Association.
Over the course of a number of blogs, I will take you through the mechanics of each of these violations and explain how they occur and potential sanctions.
The most common ADRV, and the easiest to prove for the results management authority, is the presence of a prohibited substance in an athlete’s sample. It should be noted that it is only athletes who can commit this offence – athlete support personnel, i.e. coaches, doctors, nutritionists, etc, are not subject to testing. Presence is a strict liability offence, meaning that if an athlete’s blood or urine sample is tested and found to contain a prohibited substance, they are guilty of committing the offence In the vast majority of cases this will lead to a ban from sport, although there are ways in which potential bans can be reduced or, in extremely rare circumstances, eliminated altogether.
A presence violation occurs when an athlete provides a urine or blood sample which is then analysed by an accredited laboratory and found to contain a prohibited substance. A prohibited substance is, simply, any substance that is listed on the Prohibited List (one of the World Anti-Doping Agency’s International Standards). Some substances are banned just in-competition, i.e. an athlete may ingest such substances whilst not competing, and other substances are banned at all times. Again, to explain the difference in simple terms, generally substances banned at all times are those which derive a long term benefit, for example steroids or growth hormones, whereas substances that are only banned in-competition are those which have short term effects, for example stimulants. However, athletes must be cautious of using substances banned in-competition only during the week whilst they are training in case there are still traces of the substance found when they compete at the weekend – this is a common source of presence violations.
Once a laboratory reports the finding to the relevant anti-doping authority, that authority will check to ensure that the testing was conducted in accordance with the International Standard for Testing and Investigations, which sets out guidelines for how athletes must be tested, and will conduct a therapeutic use exemption check, to ensure the athlete does not have a medical condition and therefore a special dispensation to use the substance. Once the anti-doping authority has confirmed these points, the athlete will be charged.
The standard sanction for a presence violation is four years. Whilst I will go into more detail on sanctioning in a later blog, if the substance the athlete tests positive for is a non-specified substance (typically these are more serious doping substances) then unless the athlete can prove that their use of the substance was not deliberate they will be facing a 4 year ban from sport. If the substance is a specified substance (which are those substances for which it is more likely that there is a non-doping explanation for their ingestion) then unless the results management authority can prove that the athlete deliberately ingested it, the athlete will be facing a 2 year ban from sport.
However, 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.
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