September 11, 2006

Justin Gatlin and WADA Code Article 10.5

This week I am taking a look at three recent high-profile doping cases in the United States, where they stand now, and what's likely to happen next. In each case I'll frame the athlete's case in terms of the WADA Code (PDF) and associated anti-doping rules. Each of the cases is being handled somewhat differently and each offers an interesting case study to a particular aspect of anti-doping rules in sport.

This is part 1 of the three-part series, concerning the case of sprinter Justin Gatlin.

Justin Gatlin is an American sprinter in athletics, Olympic and world champion and co-holder of the world record (pending IAAF review) in the men's 100 m. At an in-competition test this past spring, Gatlin tested positive for testosterone or its metabolites. He has maintained his innocence in the case and had previously proclaimed himself "clean" on numerous occasions.

Gatlin is coached by Trevor Graham, who has a long (although circumstantial) record of association with doping. Graham had never been sanctioned for an anti-doping rule violation before this case. Gatlin had previously been punished for an anti-doping rule violation in 2002, after he tested positive for a banned prescription medication (an amphetamine) at an in-competition test.

Late last month, the USADA announced that it had reached an agreement (PDF) with Justin Gatlin, in which Gatlin "agreed to the accuracy of the laboratory results from his sample collected by USADA on April 22, 2006. Gatlin has further agreed that his positive test constitutes a doping violation and has promised to cooperate in the effort to eradicate the use of drugs from sport." For its part, "in exchange for Gatlin's promise to cooperate, and in recognition of the exceptional circumstances of his prior violation," USADA agreed that the maximum period of suspension for this violation would be eight years.

Gatlin reserved the right to appeal the eight-year ban to the American Arbitration Association (AAA). He quickly announced that he intends to do so and expects to have his ban further reduced:

I have put my faith in a system that I believe will clear my name and that I believe will allow me to compete again … I expect when that process is concluded that this entire matter will be resolved favourably … I have never knowingly used any banned substance, nor have I allowed anyone to administer one to me … Cheating, in any form, is completely contrary to who I am as an athlete and a person.

The IAAF then reminded everybody that it reserves the right to review any decision handed down by the AAA, and to appeal the decision to the CAS if necessary.

In other words, we're quite a long way from the final word in Mr. Gatlin's case, and there are a number of different ways it could go. I should say right now that I'm not privy to the evidence that Gatlin will present at his arbitration hearing, and I can only go by the public statements of the various players up to this point. I still think it's instructive to consider whether the actions of USADA are consistent with the WADA Code (the IAAF follows a consistent set of rules), and whether Gatlin has a reasonable chance of having his ban reduced.

As part of the announced agreement, Gatlin has effectively confessed to a violation of Article 2.1 of the Code, "The presence of a Prohibited Substance or its Metabolites or Markers in an Athlete's bodily Specimen." In this case, the Prohibited Substance is exogenous testosterone, and according to the USADA, Gatlin has waived his right to contest the fact that it was in his bodily specimen.

Since we know Gatlin's violation, we can move directly to the question of sanctions. Sanctions for doping offenses are discussed in Article 10 of the code. Specifically, the length of Gatlin's suspension from competition is covered by Article 10.2, "Imposition of Ineligibility for Prohibited Substances and Prohibited Methods." Article 10.2 states that the period of ineligibility imposed for a first violation of Article 2.1 shall be two years, and the period of ineligibility imposed for a second violation of Article 2.1 shall be a lifetime. It then goes on to say that the athlete shall have the opportunity in each case "to establish the basis for eliminating or reducing this sanction as provided in Article 10.5."

Gatlin served only a one-year suspension for his first violation of Article 2.1, and has now been handed an eight-year suspension for his second violation. Therefore, we can conclude that Article 10.5, "Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances," was invoked in both cases. From Gatlin's public statements, it seems clear that he will attempt to have the period of ineligibility for his second offense reduced even further by arguing exceptional circumstances. Article 10.5, therefore, is now at the heart of the Gatlin case.

Article 10.5 outlines three different means whereby a period of ineligibility may be reduced or eliminated:

  • Article 10.5.1 states that the period of ineligibility will be eliminated if an athlete can establish that he bears no fault or negligence for the violation.
  • Article 10.5.2 states that the period of ineligibility may be reduced if the athlete can establish that he bears no significant fault or negligence for the violation.
  • Article 10.5.3 states that an anti-doping organization may reduce the period of ineligibility if the athlete has provided substantial assistance which "results in the discovery or establishment of an anti-doping rule violation by another person." That rule violation may involve possession, trafficking, or administration to an athlete of a prohibited substance or method.

There are three other important points that are contained in Article 10.5, each of which bears on the agreement between USADA and Justin Gatlin, and on what might happen in the months to come.

1. Gatlin's eight-year suspension is the minimum allowed, unless he is completely exonerated. The USADA announcement describes Gatlin's punishment as a "maximum period of suspension" of eight years, implying that the actual period of ineligibility might be less than eight years. Article 10.5 of the Code clearly states that where a sanction is reduced under Articles 10.5.2 or 10.5.3, the reduced period of ineligibility may not be less than one-half of the minimum period of ineligibility otherwise applicable. When that minimum period is a lifetime, then the reduced sanction may not be less than eight years. The only way to reduce the sanction further is by invoking Article 10.5.1. If Gatlin can prove no fault or negligence for his doping violation, he will serve no suspension at all. Eight years to life, or nothing; these are the only options allowed under the Code.

2. The exceptional circumstances of Gatlin's prior violation can have no role in determining the period of ineligibility for his second violation. In its public statements, USADA has claimed that Gatlin's ban was reduced from a lifetime to eight years because he agreed to cooperate with their anti-doping efforts, and because of the exceptional circumstances of his first violation. The former justification may be allowed by Article 10.5.3, but the second is clearly not allowed under the WADA Code.

When a period of ineligibility is eliminated under Article 10.5.1, the doping offense is not counted as a first violation when determining the period of ineligibility for any future violations. In other words, the athlete's slate is wiped clean, at least when it comes to determining the lengths of suspensions, so your next violation would result in a two-year ban. It is important to note that this same consideration is not applied when a sanction is reduced under Articles 10.5.2 or 10.5.3.

It's clear that Gatlin successfully argued that he bore no significant fault or negligence for his first offense (you can read the AAA decision (PDF) in that case here). Described in terms of the current WADA Code, the IAAF applied Article 10.5.2 in determining Gatlin's sanction, and gave him the minimum sentence allowed. They did not, however, agree that Gatlin bore no fault or negligence — they did not apply Article 10.5.1. As I noted above — and as the IAAF stated at the time (PDF, p.2) — under the WADA code this finding has no impact on determining the period of ineligibility imposed for the second violation.

3. Gatlin faces an extremely heavy burden of proof going forward. At the present time, there is no reason for Gatlin to pursue a defense of no significant fault or negligence, since the USADA has already agreed to reduce his sentence to the eight-year minimum allowed under that article. Gatlin's only viable strategy is to argue that he had no fault or negligence for the violation as described in Article 10.5.1. If he is successful in that defense, then his sanction will be eliminated completely.

The chances of that happening are very slim. First of all, the WADA Code states that in order to successfully have a sanction reduced under Articles 10.5.1 (no fault or negligence) or 10.5.2 (no significant fault or negligence) the athlete must establish how the Prohibited Substance entered his or her system. That's difficult enough, but it's conceivable that Gatlin has a story ready. Perhaps he has some evidence to support Trevor Graham's theory that a disgruntled massage therapist sabotaged him on the day in question, or perhaps he has some evidence to present against Graham himself. Since he has promised to cooperate with USADA, it's reasonable to assume that he has something to bargain with.

However, I don't believe that either of these two hypothetical examples would get him off the hook. Here is some text excerpted from the notes to Article 10.5 of the WADA Code (emphasis mine):

To illustrate the operation of Article 10.5, an example where No Fault or Negligence would result in the total elimination of a sanction is where an athlete could prove that, despite all due care, he or she was sabotaged by a competitor. Conversely, a sanction could not be completely eliminated on the basis of No Fault or Negligence in the following circumstances: (a) a positive test resulting from a mislabeled or contaminated vitamin supplement …; (b) the administration of a prohibited substance by the Athlete's personal physician or trainer without disclosure for the Athlete …; and (c) sabotage of the Athlete's food or drink by a spouse, coach, or other person within the athlete's circle of associates. … However, depending on the unique facts of a particular case, any of the referenced illustrations could result in a reduced sanction based on No Significant Fault or Negligence.

It seems clear that Gatlin cannot satisfy Article 10.5.1 by proving that his positive test was his coach's fault, even if Gatlin did not know what Graham was doing at the time. It also seems doubtful that he could use the massage therapist as an excuse. It is a basic principle of the WADA Code that the athlete is partially responsible for the actions of those he chooses to surround himself with; if a doping violation results from their actions, the athlete's fault is reduced but not eliminated.

In Gatlin's case, a reduction of fault doesn't get him any further ahead than he is right now, which is serving an eight-year ban from competition.

It's possible that this might go in completely the opposite direction, although I doubt it. The IAAF and WADA might question whether Gatlin's agreement to cooperate is anything more than a convenient escape mechanism for USADA. The wording in Article 10.5.3 is quite specific: Gatlin must now provide assistance that results in the discovery or establishment of an anti-doping rule violation by another person. Gatlin's sanction cannot be reduced based on a promise to cooperate; it can be reduced based on the result of that cooperation. It remains to be seen whether he can deliver on his side of the agreement. I think it's unlikely that the IAAF would appeal an eight-year ban on the grounds that Gatlin hasn't actually cooperated; the practical difference between eight years and a lifetime is almost zero, and an appeal would make USADA look pretty bad. And if Gatlin is successful in arguing no fault or negligence, then his previous agreement to cooperate becomes irrelevant, anyway.

The USADA's agreement with Gatlin does smell a bit bad, in my opinion. Had they simply banned him for life, what would have happened next? Well, pretty much what's happening now. If Gatlin really has any evidence against anybody, then he'll have to present it to the appeals panel. If he wants his ban reduced, he has to argue that somebody else was responsible for his positive test; furthermore, he has to prove who it was, and how they did it. By presenting evidence against this hypothetical other person (or persons), Gatlin might succeed in having his ban reduced to as little as eight years. He might, of course, succeed in having his sanction eliminated altogether — but his chances, and his strategy, would be essentially the same as they are right now. Either way, USADA gets their evidence, and Gatlin serves whatever sentence the appeals panel feels is appropriate.

In fact, the only thing USADA appears to get out of this deal — other than the opportunity to make Gatlin somebody else's problem — is the concession from Gatlin that his positive test constitutes a doping violation. On the surface there wouldn't seem to be much doubt about that, but the point is not conceded by the athlete in every case.

But that's a subject best left for part 2.

No comments: