On 8th September 2017, Zak Hardaker (“the respondent”) was selected for in-competition testing after a match between Castleford Tigers RLFC and Leeds Rhinos RLFC.
A notice of charge under article 2.1 of the WADA code was served on the respondent on 5th October 2017, after the sample he provided returned an adverse analytical finding (‘AAF’) for benzoylecgonine, a metabolite of cocaine. Cocaine is classified as a non-specified stimulant under S.6(a) of the WADA 2017 prohibited list and is prohibited in-competition only. The purpose of article 2 is to specify the circumstances and conduct which constitutes an anti-doping rule violation. Article 2.1 confirms the following is a violation:
“2.1 presence of a prohibited substance or its metabolites or markers in an athlete’s sample, unless the athlete established that the presence is consistent with a TUE granted in accordance with article 4.”
Article 2.1.1 places a duty on the athlete to ensure that no prohibited substance enters his/her body. It is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violence under article 2.1; nor is the lack of intent, fault, negligence or knowledge a valid defence. In plain terms, the mere fact that a prohibited substance is found to be present in his/her sample is a violation of the code.
On 23rd October 2017, the respondent accepted that he had committed an anti-doping rule violation through the deliberate ingestion of cocaine, but that in the circumstances there was no fault or negligence pursuant to article 10.4, or no significant fault or negligence under article 10.5 of the code.
Article 10.4 gives discretion to a disciplinary panel to eliminate the period of ineligibility for the violation if the athlete is said to bear no fault or negligence for the violation. The respondent also submitted an alternative which under article 10.5, allows a panel to reduce the period of ineligibility if it is determined that an athlete bears no significant fault or negligence. The discretion is limited insofar as the period of ineligibility may not be less than one-half of the period of ineligibility otherwise applicable, which in the respondent’s case was a period of two years.
The respondent gave evidence that the violation had occurred following the anniversary of an event which had caused him great distress. The respondent had ultimately had gone out with his friends and consumed a large volume of alcohol. During this intoxicated state, he was offered cocaine and he accepted that he took four of five lines. The respondent also offered medical evidence to the panel regarding a diagnosis which was ultimately agreed by a secondary medical expert.
In relation to no fault or negligence under article 10.4, an athlete must demonstrate that:
“he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used or been administered the prohibited substance or prohibited method or otherwise violated an anti-doping role.”
The panel considered the oral evidence from the respondent and did not consider that this provision applied after the respondent accepted that he was aware that he was taking cocaine and understood that this was a prohibited substance.
In considering the relevance of article 10.5, the court considered the UCI anti-doping tribunal case of UCI v Paolini and the Court of Arbitration (“CAS”) for sport case of FIFA v CONMEBOL. At page 69 of the latter, the CAS panel concluded on the issues of no significant fault or negligence that:
“…in cases where an athlete established that he or she consumed cannabinoids in a recreational/social context unrelated to sport performance, the athlete qualifies for no significant fault.”
In both of the cited cases, the respective bans were reduced.
The case of the FA v Livermore was also cited within the panel’s decision. The case involved a professional footballer who had taken cocaine on the anniversary of the traffic death of his child. The FA commission in this case found that the respondent was not negligent or at fault in any real sense but held that no fault or negligence was inapplicable. This meant that they were only permitted to reduce the ban to one year, as within the respondent’s case. However, the commission rule that on proportionality grounds, which is not referred to in the WADA code, that it would be unconscionable to impose any period of suspension at all. This decision was appealed to the FA appeal board who took the decision not to interfere with the decision of the commission.
In the recent decision in UKAD v Bailey, the tribunal stated that in considering the no fault, and no significant fault, that the test does not depend on how a reasonable man would have behaved. It would be an assessment of the individual circumstances of the individual who committed the violation, which would include special considerations such as impairment.
The panel considered the Livermore decision and stated that the commission’s decision should be treated as a decision on its own facts and should not be followed. However, despite one of the panel members stating that the decisions in Paolini and CONMEBOL were not consistent with either the scheme or plain language of the WADA code, it was determined that it would not be fair to the respondent to depart from those principles. Therefore, the panel made a finding of no significant fault or negligence as there was no question of performance enhancing benefit; and reduced the Respondent’s two year ban to a period of 14 months.
The decision itself ultimately leaves an anti-doping disciplinary panel with discretion to reduce the mandatory two-year ban, if it can be demonstrated that the context of the use of a substance prohibited in-competition is unrelated to sport performance.
Stephensons Solicitors LLP have experience of defending sports professionals before a number of disciplinary tribunals. If you require specialist advice regarding a disciplinary matter, please contact our team, in confidence, on 01616 966 229.
By Martin Haisley, paralegal in the regulatory department