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The 2015 WADA Code, with its potential four-year sanctions for a first violation based on whether or not the anti-doping rule violation was intentional, now makes the question of intent an important issue in virtually every anti-doping case. In cases that do not involve “Specified Substances” the athlete carries the burden of proving “no intent” to avoid the application of a four-year default sanction. In these cases, the athlete is required to prove that he or she did not intentionally violate the anti-doping rules. It is therefore important to consider what will happen to the athlete who did not knowingly ingest the prohibited substance, and who, despite investigation, is unable to prove the source of the prohibited substance. In a series of recent CAS cases, the tribunals have begun to analyse this issue, and the level of proof that will be required for an athlete to avoid a finding that he intentionally violated the anti-doping rules, in the absence of proof of the source of the prohibited substance in his specimen. These cases have now clarified that an athlete is not per se required to establish the source of the prohibited substance as a prerequisite of establishing lack of intent to violate the anti-doping rules under Article 10.2.1.1 WADA Code, while at the same time acknowledging the difficulty in meeting this burden of proof without proving the source of the prohibited substance. Future CAS cases will likely provide further guidance on the circumstances under which athletes can and cannot prove that they did not intend to violate the anti-doping rules, where they are unable to prove the source of the prohibited substance in their sample.
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- CAS 2016/A/4439, Thomasz Hamerlak v. International Paralympic Committee, Award of 4 July 2016, CAS 2016/A/4676, Arijan Ademi v. Union of European Football Associations, Award of 24 March 2017 and CAS 2016/A/4534, Mauricio Fiol Villanueva v. Fédération Internationale de Natation, Award of 16 March 2017
Howard L. Jacobs
- T.M.C. Asser Press
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