by Markus Manninen
Generally, the principle of “tempus regit actum” (the principle of no retroactivity) applies in adjudicating suspected anti-doping rule violations (ADRV).
There are, however, a few exceptions to the main rule. The most important one is the doctrine of “lex mitior”, according to which new substantive rules shall be applied when they are more favourable to the accused than the rules in force at the time of the alleged wrongdoing. It has been applied by the Court of Arbitration for Sport (CAS) from very early stages and is now codified in art. 25.2 of the World Anti-Doping Code (Code).
The applicability of “lex mitior” is not limited to cases that have not yet been fully resolved. Instead, it may also be utilised when a final ruling has been rendered but the sanction has not yet been fully served. This aspect of the doctrine has been provided for in art. 25.3 of the Code since 2009. In the 2015 version of the Code, the stipulation reads as follows:
“25.3 Application to Decisions Rendered Prior to the 2015 Code
With respect to cases where a final decision finding an anti-doping rule violation has been rendered prior to the Effective Date, but the Athlete or other Person is still serving the period of Ineligibility as of the Effective Date, the Athlete or other Person may apply to the Anti-Doping Organization which had results management responsibility for the anti-doping rule violation to consider a reduction in the period of Ineligibility in light of the 2015 Code. Such application must be made before the period of Ineligibility has expired. […] The 2015 Code shall have no application to any anti-doping rule violation case where a final decision finding an anti-doping rule violation has been rendered and the period of Ineligibility has expired.”
From time to time, anti-doping organisations receive requests concerning the reduction of ongoing ineligibility periods. In Finland, the issue is particularly topical. Said provision was introduced to the national anti-doping code at the beginning of 2015, and during the subsequent 21 months no less than seven persons have applied for a reduction. Three of them were involved in the notorious Lahti 2001 doping scandal concerning six top-level cross-country skiers.
The purpose of this article is to identify and address some potential challenges faced by anti-doping tribunals when applying the provision. The Code does not contain comments on art. 25.3, and there seems to be very little literature on the subject. Therefore, the review is based on case law.
The most important part of art. 25.3 entitles anti-doping organisations “to consider a reduction in the period of Ineligibility in light of the 2015 Code”. This wording raises at least the following questions of particular interest and importance.
First, do anti-doping organisations have the full power to consider a reduction, including dismissing an application, even if the new rules were more lenient for the applicant?
Second, are anti-doping organisations mandated to reassess a case on the basis of any amendment in the anti-doping regime, including international standards, WADA guidelines, and legal practice, or is the reassessment by the panels limited to the amendments made to the Code itself?
Third, are anti-doping organisations entitled to take into account any changes made to the Code, for example, that a former violation has been legalised, or is their mandate limited to only considering shortened bans for punishable acts?
These issues are addressed below.
The International Tennis Federation (ITF) brought charges against the Spanish tennis player Laura Pous Tio at the ITF Independent Anti-Doping Tribunal because she had tested positive for two prohibited substances, hydrochlorothiazide (HTC) and amiloride, in June 2007. The Tribunal found that the player had clearly failed to comply with the duty of utmost caution or to exercise any reasonable level of care to comply with the anti-doping programme. Therefore, the Tribunal declined to reduce the mandatory period of ineligibility of two years due to exceptional circumstances.
The player filed an appeal with the CAS and requested that the two-year period of ineligibility be reduced. The CAS concluded that the decision of the ITF’s Tribunal was the correct one and upheld it in its Award rendered on 22 August 2008. The Panel accepted that there existed no circumstances in the case that would warrant the elimination or reduction of the presumptive two-year ban.
However, the Panel took note of the upcoming 2009 WADC provision regarding specified substances as HCT and amiloride, were to be classified as such substances as from 1 January 2009. The Panel recommended that the player submit an application to the ITF for reconsideration of the sanction and that “the ITF look favourably upon a reconsideration of the length of the sanction and at least seriously consider the possibility of an early reinstatement for the Player if a request is received”. The CAS did not provide any reasoning to support its recommendation.
Unsurprisingly, the player submitted an application for early reinstatement as suggested by the CAS. No argument in support of the application was provided. The ITF considered it in accordance with art. A.6.4 of the 2009 Tennis Anti-Doping Programme (art. 25.3 of the WADC) and found that the prerequisites for a reconsideration were fulfilled. The ITF did not analyse art. A.6.4 in detail but simply proceeded to adjudicate the case under the 2009 rules. The ITF shortened the sanction from 24 to 18 months by a decision rendered on 23 December 2008.
Art. 25.3 of the WADC refers to the amendments in the Code itself. According to the definitions of the WADC, “the Code” denotes “The World Anti-Doping Code”, which does not encompass, for example, International Standards including the Prohibited List. However, Pous Tio’s case lends support to the view that any amendment in the applicable anti-doping regime – e.g. amendments in the elements of an ADRV, reclassification of substances, or shorter bans on violations – authorises the competent panel to consider a reduction. The decision further indicates that the anti-doping organisation has the power to truly consider whether a reduction is justified without an obligation to grant relief. With regard to this, the ITF stated as follows:
“[…] despite its serious misgivings due to the abject conduct of the Player, and her failure to take virtually any steps to comply with her anti-doping obligations under the Programme, the ITF considers that it is appropriate in this case to reduce the two-year sanction imposed by the Tribunal. It draws support for this conclusion from the remark of the CAS Panel that the ITF should “look favourably” on an application for reduction of the length of the ban imposed on the Player by the Tribunal.”
The amendments to be considered by the relevant anti-doping organisation and the extent of the organisation’s discretionary power also emerged in the case concerning Mr Cecil Russell, a Canadian swimming coach, adjudicated by the Sport Dispute Resolution Centre of Canada (“SDRCC”). It is examined in the following section.
Mr Russell had been serving a lifetime ban since 1997 for importing and selling prohibited substances outside organised sport. He filed an application with the SDRCC by virtue of section 1.26 of the 2009 Canadian Anti-Doping Program (CADP, this corresponds with art. 25.3 of the WADC) and requested a reduction in his ineligibility period. Mr Russell submitted that the penalty was excessive and that, accordingly, it would be appropriate to reduce the length of the sanction to somewhere between four and eight years from the time of the imposition of the sanction. The respondents, the Canadian Centre for Ethics in Sport (CCES) and Swimming Natation Canada objected to Mr Russell’s application.
The sole arbitrator in the case found that the lifetime ineligibility period was disproportionate to the violation by Mr Russell. However, because Mr Russell had been deemed to have breached the ban, the sole arbitrator did not find an immediate lifting of the sanction justified. Instead, he reduced the lifetime ban to a further three years from the time of the commencement of the hearings in the matter.
The sole arbitrator addressed the application of section 1.26 of the CADP in different parts of the Award as follows:
“56. The application that triggered this arbitration procedure was made under the transition provision found at Section 1.26 of CADP 2009. That section permits an application to the CCES to consider “a reduction in the period of Ineligibility in light of the Canadian Anti-Doping Program […]. The phrase “in light of the CADP” means that I must make the decision within principles enunciated in the CADP – i.e. proportionality, fairness and due process.”
“71. The transition rule in Article 1.26 states that I am to consider a “reduction in eligibility in light of the CADP”. The key words are “in light of”. The WADA Code is not adopted for purposes of redefining the historical contractual ban or in the expression of what is prohibited. It is merely to be used to assist in the administration of the ban in the very different sports world of today.”
“92. I note that if the infraction were to occur under the current CADP 2009, the period of Ineligibility is now a range of between 4 years and a lifetime ban (rather than the old rules absolute lifetime ban). The parties in their Joint Submission are agreed that under today’s rules and the relevant jurisprudence, if Russell were to have committed the same offence, a lifetime ban would be excessive. However, this case must be viewed through the prism of the [anti-doping rules] 1997 not that of the CADP 2009.”
As shown by the above quotations, the sole arbitrator found that the language of section 1.26 of the CADP allowed him to consider not only the provisions of the CADP but also the underlying principles and the jurisprudence regarding the anti-doping rules. The award shows that the anti-doping organisations are not bound merely by the amendments of the Code (or its equivalent), but that they may in fact consider any other changes in the anti-doping regime as well. Furthermore, the award indicates that the anti-doping organisations have the full power to consider whether a reduction is justifiable.
UK Anti-Doping (UKAD) charged Mr Vasyl Kruk, a British weightlifter, with breaches of applicable anti-doping rules, because he had tested positive for three anabolic androgenic steroids. This was Mr Kruk’s second ADRV. Because of the circumstances of the case – i.e. the use of three prohibited substances with the intention to improve performance – UKAD sought a lifetime period of ineligibility for Mr Kruk.
The National Anti-Doping Panel (NADP) rendered its decision on the case on 11 August 2014 and took note that, had the case been determined after 1 January 2015, the maximum period of ineligibility that could be imposed would be eight years. In addition, contrary to the rules of 2009, there is no range of sanctions available in respect of a second ADRV in the 2015 version of the WADC. Mindful of this, and considering that the athlete would be entitled to request UKAD to reduce the ineligibility period under art. 25.3 of the WADC, the NADP imposed a period of ineligibility of eight years.
Although the NADP emphasised that the Kruk case is not intended to provide guidance on the application of art. 25.3, it touched upon the issue as follows:
“There may well be circumstances when the case is so serious or certain factors exist whereby it would not be appropriate to reduce a substantially higher period of Ineligibility merely because of the changes to the Code.”
This brief remark clearly shows that, in the NADP’s view, the adjudicating body has a wide discretion to consider and to even reject an application on reduction, despite such approach running counter to the principle of “lex mitior” and irrespective of the contrast between the lengths of the ongoing and the anticipated ban.
The differences between the actual “lex mitior” provision, i.e. art. 25.2 of the Code, and art. 25.3 of the Code were addressed in more detail in case Gemmell, which is examined in the following section.
Mr Gemmell, a triathlete from New Zealand, had allegedly committed a whereabouts violation by having missed two tests and by having one filing failure during an 18-month period from August 2012 onwards. However, the Sports Tribunal of New Zealand did not find that Drug Free Sport New Zealand (DFSNZ) had established one of the missed test violations and exonerated the athlete. DFSNZ appealed to the CAS.
The CAS upheld DFSNZ’s appeal. The CAS found that the athlete had committed two missed tests and one filing failure within an 18-month period and imposed a ban of 15 months commencing on 12 February 2014. The CAS chose not to apply “lex mitior” for two reasons.
Firstly, the new rules were not yet in force at the time of rendering the Award on 1 December 2014. Secondly, the panel noted that the principle applies to sanctions and not to the elements of a violation:
“112. […] Panel is of the view that it applies to sanctions only and not to the elements of the violation. This view is based on the origin of the lex mitior principle, namely a rule to allow a criminal to be sentenced under a more lenient regime, which is in force at the date of sentencing and is reinforced by the manner in which the Court of Arbitration for Sport has applied the principle.”
“115. […] in this Panel’s view, it is appropriate that the principle only applies to sanctions as there is a need to protect the principles of the level playing field. It is inappropriate to apply what would in effect be a modified lex mitior principle.”
Soon after the CAS award, Mr Gemmell requested DFSNZ to consider a reduction in the sanction. The basis for his request was that the 2015 anti-doping rules truncated the 18-month observation period to 12 months. Put differently, to breach the 2015 rule concerning a whereabouts violation, there has to be a combination of three missed tests and/or filing failures within a 12-month period. Mr Gemmell’s failures fell outside this time frame and as from 1 January 2015 would not have constituted an ADRV. The case was again referred to the Sports Tribunal.
DFSNZ submitted that rule 18.1.2 of the relevant anti-doping rules (art. 25.3 of the WADC) should be interpreted narrowly so as to only apply where the new rules reduce the sanction period applicable to the violation and not where the new rules have been so altered that the facts previously constituting a violation would no longer be a violation. According to DFSNZ, the WADA considered that the narrow approach to the rule would be more appropriate, because the article was drafted to cover situations where a given violation is sanctioned in a different fashion under the new Code.
The Sports Tribunal did not concur with DFSNZ and the WADA. In fact, it noted that the critical phrase is “in light of the 2015 Rules” and that neither the phrase itself nor its synonyms suggest any limitation or qualification as to what aspect of the “2015 Rules” is to be taken into account. The Tribunal could discern nothing in the text or context of rule 18.2.1 that would limit the plain meaning of the phrase “in light of” to exclude the Tribunal’s jurisdiction to consider all changes included in the 2015 rules.
The Tribunal proceeded to consider whether a reduction in the period of ineligibility is justified in light of the change in the 2015 rules, which would no longer characterise Mr Gemmell’s conduct as a violation. The Tribunal noted that allowing rule 18.1.2 to apply where rule changes reduce sanctions or alter the substantive elements of a violation does not undermine the anti-doping regime, provided that the discretion under the rule is exercised appropriately.
The Tribunal noted that any change to the period of ineligibility does not change the fact that the athlete had been found to have committed an ADRV of the rule as it existed at the time. However, the fact that the WADA sporting community had decided that the rule under which Mr Gemmell was subject to a 15-month period of ineligibility was too onerous justifies some reduction in the ban. The ineligibility period was reduced to 12 months, equivalent to the minimum period that could have been imposed for Mr Gemmell’s violation under the old rules.
Art. 25.3 of the Code is essential in eliminating the potential injustice related to the timing of adjudicating ADRVs, which sometimes may be purely coincidental. In addition to its transitional nature, it provides protection to athletes and other persons under long-lasting bans when anti-doping sanctions are lightened.
The legal practice seems to be consistent in finding that anti-doping organisations are free to take any amendments in the anti-doping regime into account when considering the grounds for reducing ineligibility periods. As a counterbalance, even if the new rules provided for a milder sanction – or no sanction at all – in the case of the specific circumstances, the panels have full discretion to contemplate whether a reduction is justified.
 The author is a CAS member. He also serves as the chairman of the Finnish Anti-Doping Agency’s Supervisory Board and as a member of the IBU Anti-Doping Hearing Panel and UFC Arbitration Panel.
 See advisory opinion TAS 94/128 Union Cycliste Internationale (UCI) & Comité National Olympique Italien (CONI) of 5 January 1995, paragraphs 33-34, available at http://jurisprudence.tas-cas.org/Shared%20Documents/128.pdf (accessed on 26 November 2016), advisory opinion CAS 2005/C/841 Comitato Olimpico Nazionale Italiano (CONI) paragraph 52, available at www.doping.nl/media/kb/150/CAS%202005_C_841%20Advisary%20Opinion%20CONI%20S-FS.pdf (accessed on 26 November 2016), arbitral award in case CAS 2009/A/1817 & CAS 2009/A/1844 paragraph 134 (available at https://wada-main-prod.s3.amazonaws.com/resources/files/cas-2009-a-1817-cfa-eranosian-marques-medeiros.pdf) (accessed on 26 November 2016), and Paul David, A Guide to the World Anti-Doping Code – The Fight for the Spirit of Sport (2013) p. 46.
 The stipulation is practically identical with its predecessor from 2009. The language of the rules of different anti-doping organisations may deviate from the exact wording of the Code, but the essential content is mostly the same. See, for example, Rule 49.2 of the IAAF Competition Rules, chapter 3: Anti-Doping and Medical Rules in force as from 1 January 2015, available at www.iaaf.org/about-iaaf/documents/anti-doping (accessed on 26 November 2016), and DC 20.6.4 of the FINA Doping Control Rules, available at www.fina.org/content/dc-206 (accessed on 26 November 2016).
 See Prof. Jens Adolphsen’s short remark in his article “Challenges for CAS decisions following the adoption of the new WADA Code 2009”, in: CAS Bulletin 1/2010, p. 5-6., available at http://www.tas-cas.org/fileadmin/user_upload/Bulletin01112010.pdf (accessed on 26 November 2016).
 CAS 2008/A/1488 P. v. International Tennis Federation (ITF), award of 22 August 2008. The award is available online at http://www.centrostudisport.it/PDF/TAS_CAS_ARCHIVIO/248.pdf. The panel was composed of Mr Hans Nater (president) as well as Prof. Richard McLaren and Mr Jose J. Pinto.
 Paragraph 23 of the Award.
 Paragraph 3.14 of the Decision.
 Award by the SDRCC of 24 October 2012, available at http://www.crdsc-sdrcc.ca/resource_centre/pdf/English/0_SDRCC%20DT%2012-0177.PDF (accessed on 26 November 2016). The case was adjudicated by prof. Richard McLaren.
 The content of the ineligibility, i.e. which actions are prohibited because of a ban, was also addressed in the Finnish Sports Arbitration Board’s case P v. Finnish Powerlifting Federation & FINADA (14/2016). In the Board’s view, the principle of “lex mitior” requires that the content of the ban is not affected by anti-doping rule amendments unless they are more lenient for the person in question.
 The National Anti-Doping Panel in the matter of proceedings brought under the anti-doping rules of the British Weightlifting Association, final decision dated 11 August 2014, available at http://www.ukad.org.uk/anti-doping-rule-violations/current-violations/search/P40 (accessed on 26 November 2016).
 Paragraph 23 of the Decision.
 CAS 2014/A/2, Drug Free Sport New Zealand v. Kris Gemmell, Award of 1 December 2014. The panel was composed of Mr David Williams, QC (president) as well as Mr Barry Paterson, QC, and Mr Alan Sullivan, QC. Available at http://drugfreesport.org.nz/uploads/site/assets/Final_Award_dated_01.12.2014.PDF (accessed on 26 November 2016).