29th December 2020

Brent Naden’s sanction: a test for ‘substances of abuse’ provision

Brent Naden will be free to return to action on 1 January 2021, despite a 25 October 2020 test after the Australian National Rugby League (NRL) Grand Final returning an adverse analytical finding (AAF) for metabolites of cocaine. ‘Having established that the ingestion of the cocaine was out-of-competition and not for performance enhancing purposes, Naden is sanctioned in accordance with new provisions of the incoming World Anti-Doping Code 2021 which permit a one-month period of ineligibility for qualifying athletes who also undertake an approved rehabilitation program’, read an NRL statement. However, as the sanction is backdated to the 1 December date of his provisional suspension, the Penrith Panthers player will be free to resume competition on 1 January.

Definition of ‘in competition’ from WADC commentary…

On the face of it, as Naden tested positive after the Grand Final, it would appear logical that he returned an AAF ‘in competition’. However, the 2021 Code provides a new definition of ‘in competition’ based on when the prohibited substance was ingested. It is considered to be the period commencing at 11:59pm the day before an event. 

Under the 2021 Prohibited List, cocaine is a non-specified substance that is also categorised as a ‘substance of abuse’. WADA has previously clarified that a four year ban is still the starting point for an athlete who tests positive for a non-specified substance of abuse. However under the 2021 Code, if an athlete can establish that use occurred outside of competition and was unrelated to sports performance, then the sanction can be reduced to three months or one month, if the player completes a treatment programme.

So in order to be able to benefit from the sanction reductions under the 2021 Code ‘substances of abuse’ clause, Naden had to demonstrate that his use occurred prior to game day. It is understood that Naden told Sport Integrity Australia (SIA) that he had taken cocaine the day before the Grand Final for recreational purposes. SIA accepted his explanation, concluding that for cocaine to be performance enhancing, Naden would have needed to take it much closer to kick off.

The 2021 Code comes into effect on 1 January. The 2021 Prohibited List categorised cocaine as a ‘substance of abuse’ when it was published on 30 September however as with the 2021 Code, it doesn’t come into effect until 1 January. A 2 October statement from the World Players Association (WPA) led The Sports Integrity Initiative to question WADA on whether the ‘substances of abuse’ clause could be applied to cases occurring after 30 September 2020, but before 1 January 2021.

‘If you are referring specifically to a reduction based on Code 2021 Article 10.2.4 (substances of abuse), then this Article is not applicable until the Code goes into effect on 1 January 2021’, clarified WADA in an email. ‘The current Code allows for reductions otherwise’. It would therefore appear that Naden has been incorrectly sanctioned under the 2021 Code before it comes into effect. Under the 2015 Code, he could have expected a two year ban if he could prove that his ADRV was used outside of competition and was not related to sport performance.

Yet athletes whose sanction expires after 1 January 2021 can apply for a review of their case under the new ‘substances of abuse’ rules, WADA confirmed. ‘Under the 2021 Code, in a case of an athlete serving a suspension following an AAF involving a substance of abuse, if an athlete’s suspension ends after 1 January 2021, he or she may apply to the anti-doping organisation that rendered the Decision for a reduction of the sanction previously imposed’, wrote WADA. ‘If the conditions of Article are met, the results management authority may amend the Decision and reduce the sanction’. 

Athletes whose sanction expires after 1 Jan. 2021 can apply for a reduction under the 2021 Code ‘substances of abuse’ rules…

Article 27.3 of the Code (see right) specifically makes provision for this. Due to the expiration of Naden’s sanction on 1 January 2021, there would be little point in applying for such a reduction. If he had been sanctioned with a longer period of ineligibility under the 2015 Code, then he would have been eligible for such a reduction since it is likely his sanction would have expired after 1 January 2021. As such, issuing a longer sanction under the 2015 Code would have been pointless.

Given WADA’s clarification that the ‘substances of abuse’ clause doesn’t come into effect until 1 January, it will be interesting to see if it appeals Naden’s sanction. Such a move is likely to be unpopular with athletes and anti-doping organisations (ADOs), who have been forced to sanction athletes who had no intention of cheating with lengthly bans due to the lack of a ‘substances of abuse’ provision in the 2015 Code. What is certain is that in 2021, ADOs can expect a raft of cases and anti-doping lawyers can expect a bonanza from athletes still serving sanctions for ‘substances of abuse’, who can apply for a reduction in their sanction.

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