21st March 2019

Two cases put ‘substances of abuse’ Code change under scrutiny

Two cases involving cocaine taken outside of competition are set to put planned changes to the 2021 World Anti-Doping Code regarding ‘substances of abuse’ under further scrutiny. Today, UK Anti-Doping (UKAD) confirmed that Josh Yorwerth has been issued with a four year ban for refusing an out of competition drugs test, as ‘he had been using cocaine the previous weekend and believed that if he was tested he would face a two-year suspension’. Meanwhile, it is reported that the Professional Footballers Association of Australia is preparing an appeal against a four year ban issued to Kerem Bulut, after he admitted to taking cocaine in a recreational context.

The 2021 Code (PDF of draft below) includes Article 10.2.4, which mandates that when an anti-doping rule violation (ADRV) involves a Substance of Abuse, and the athlete can establish that the use occurred out of competition and was unrelated to sporting performance, then an athlete can reduce a sanction down to one month, if they agree to completion of a substance abuse programme. A ‘Substance of Abuse’ includes prohibited substances that are abused in society outside of the context of sport, and are identified as ‘Substances of Abuse’ on upcoming editions of the Prohibited List.

However, under the current 2015 World Anti-Doping Code and the 2019 Prohibited List, no such provisions exist. As such, both athletes have been sanctioned with four year bans, despite agreement by all parties that the circumstances of both cases did not involve an attempt to enhance performance or cheat on the field of play.

As mentioned above, Yorwerth admitted he had evaded sample collection as he believed he would report an adverse analytical finding (AAF) for cocaine taken the previous weekend. The FA Commission’s decision (PDF below) points out that FA Regulation 52 mandates a four year ban for evasion of sample collection, unless the player can prove that such evasion was not intentional. Although there was no suggestion that his test refusal wasn’t intentional, Yorwerth’s legal representative attempted to argue that the FA Commission had discretion to impose a shorter ban.

Unfortunately for Yorwerth, the FA Commission disagreed, and imposed a four year ban. Peterborough United had already confirmed the ban in a statement issued after sacking Yorwerth earlier this month. ‘This Regulatory Commission can see that the deprivation of the opportunity of playing and making his living (and quite a good living) as a professional footballer is going to be a stressful and depressing prospect for the Player’, read the FA Commission decision. ‘In particular, there is a risk that it will make it more difficult for him to overcome his acknowledged difficulties with alcohol’. 

Kerem Bulut was sanctioned with a four year ban by the Turkish football federation (TFF) following an AAF for cocaine on 15 April 2018. It is understood that Bulut’s sanction was issued despite his admission that he had taken cocaine at a party. His ban began on 28 May 2018, and will expire on 27 May 2022, which will mean that he will miss what arguably could be considered the best years of his football career.

Initially, the decision seems harsh when compared to the 14 month ban issued to Paolo Guerrero, after he tested positive for a metabolite of cocaine. However, in issuing its sanction to Guerrero, the Court of Arbitration for Sport (CAS) agreed with the FIFA Appeals Committee’s assessment that his AAF was caused by ingestion of tea containing the metabolite. Guerrero was able to reply on evidence that the hair of mummified Inca children contained the same substance – and this was before cocaine was isolated or produced in 1859. Guerrero recently failed in an appeal to the Swiss Federal Tribunal in an attempt to get his ban reduced. 

Strict liability and lack of flexibility

Although the circumstances of every doping case are different, two of the three situations highlighted above show that there is a lack of clarity and flexibility regarding how to sanction athletes for recreational drugs taken outside of competition. In all three cases, there is no suggestion that any of the athletes intended to cheat at sport. Yet two have been given four year bans, the same as would be issued to somebody who has intentionally doped with erythropoietin (EPO) in order to cheat at sport. And there are plenty more examples.

Unfortunately for Yorwerth and Bulut, they have both admitted intentional violations of the 2015 World Anti-Doping Code. Under the ‘strict liability’ provisions it imposes, there is little scope for either to reduce their ban. Whether this it fair to athletes is an issue that the 2021 Code will need to consider before the World Conference on Doping in Sport in November.

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