Sports Integrity Initiative: Substantial Assistance – WADA’s carrot to its stick?

Just last week professional cyclist David Millar, who was banned for two years in 2004 after admitting to doping, condemned the manner in which the fight against doping was being administered.

At the Tackling Doping in Sport conference, Millar said that athletes were being put off coming forward with information. He criticised in particular the strict liability four-year ban that the World Anti-Doping Code has imposed since 1 January 2015 for doping offences.

His comments were supported by Mike Morgan, the Founding Partner of Morgan Sports Law LLP. Morgan spoke about how provisions within the World Anti-Doping Code, which allow athletes to potentially reduce a sanction for providing assistance to anti-doping bodies, ‘Substantial Assistance’, provide no guarantee to the athlete that they will be respected.

“In my experience, ‘Substantial Assistance’ has not been great so far”, said Morgan. “I just don’t know what will happen when I argue Substantial Assistance […]. ADOs [anti-doping organisations] openly tell me that they don’t like the idea of Substantial Assistance […] Once the genie is out of the bottle, the athlete has no guarantee.”

Morgan’s view that ‘Substantial Assistance’ is an incentive for a charged athlete in name but not in nature is one shared no doubt by many athletes, who in turn avoid even approaching that avenue. Other sports lawyers agree, claiming that four-year bans are often indiscriminately handed out without much thought as to the athlete’s degree of fault, nor taking into consideration any mitigating factors, like Substantial Assistance.

Reduced sanctions in practice

Yesterday however, British sprinter Bernice Wilson received a 75% reduction in her sanction, from 40 months to 10 months, after being charged with a second anti-doping rule violation. WADA, the World Anti-Doping Agency, and the ADOs under the code, want to show that it is serious about this carrot it is offering.

Wilson, who was sanctioned by UK Anti-Doping (UKAD) alongside her former athletics coach Dr George Skafidas who received a lifetime ban, has received the biggest reduction that WADA can offer; “No more than three- quarters of the otherwise applicable period of Ineligibility may be suspended,” reads the Code (Article 10.6.1.1). In one of the examples of the “Application of Article 10 (sanctions to individuals)”, upon the approval of WADA in ‘exceptional circumstances’, the ‘maximum suspension of the period of Ineligibility for Substantial Assistance may be greater than three-quarters’. There is yet to be a case in which an athlete has had their sanction reduced by more than 75%.

Screen Shot 2016-03-18 at 11.33.26
//An extract from the World Anti-Doping Code 2015//

Only by satisfying several conditions will the 75% reduction be recommended. Wilson’s assistance to the doping authorities, in their efforts to convict Skafidas, was substantial.

Has Morgan perhaps spoken too soon? There are several other examples of reduced sanctions. WADA agreed to end early the sanction of Russian distance runner Liliya Shobukhova in August last year, shortening her initial ineligibility period of 3 years and 2 months by seven-months, an 18% reduction. ‘The assistance that can be provided by athletes and support personnel in uncovering anti-doping rule violations is vital for the IAAF’, read a statement at the time from the world governing body for athletics, the International Association of Athletics Federations.

Felipe Pena, an athlete in Brazilian Jiu-Jitsu who tested positive for a prohibited substance in May 2015, had his two-year sanction halved to one year by the US Anti-Doping Agency (USADA) for providing Substantial Assistance. It’s not just athletes either; David Savic, a Serbian tennis coach and former player, who was given a life ban from tennis in 2011 for match-fixing, was allowed to return to coaching (although not playing) this month for providing Substantial Assistance to the Tennis Integrity Unit (TIU). There are other examples, and the incentives provided by WADA and national anti-doping organisations (NADOs) are increasing.

A marked improvement

It’s easy to forget that it was only in 2006 that Justin Gatlin, on being sanctioned for an anti-doping offences, was told by a Panel of the American Arbitration Association that he had ‘provided substantial assistance to the United States Government in investigating doping in sport. He immediately cooperated with the IRS without hesitation. He made undercover calls. He wore a wire, putting himself at risk…’

That investigation reportedly led to five criminal convictions and more than a dozen bans for athletes. However, after some protracted proceedings, the Court of Arbitration for Sport (CAS) found in 2008 that Gatlin ‘did provide assistance to authorities and offered himself up readily’ but was ‘unable to equate his level of assistance to that of being ‘substantial’. Instead, Gatlin found himself condemned for his ‘lack of contrition’. In now codifying ‘Substantial Assistance’, WADA provides an assurance to athletes that previously did not exist to the same degree.

SubstantialAssistance

A difficult juggling act

That said, and despite Wilson’s reduction in sanction, both Millar’s and Morgan’s words continue to resonate among a number of athletes. In increasing the minimum ban for doping to four years while simultaneously encouraging athletes to come forward with information, WADA are performing a very difficult juggling act. It’s a fine balance in any situation – whether to push the carrot or the stick; WADA will argue they’ve judged it to perfection, pushing both ends; Millar and Morgan perhaps otherwise.

The case of Sandor Earl, rightly or wrongly, adds another dimension to the debate – the extent to which ‘Substantial Assistance’ should exonerate a convicted athlete. Sandor Earl, an Australian National Rugby League player, was handed a four-year ban in October last year for a number of violations of the NRL’s anti-doping policy. It is understood that Earl had offered to assist both the Australian Sports Anti-Doping Agency (ASADA) and the NRL in order to reduce his ban. His ban wasn’t reduced.

“If you are going to seek a reduction in an anti-doping sanction by providing ‘Substantial Assistance’, you must be willing to be entirely truthful, full and frank in relation to your own and other people’s violations”, said ASADA CEO Ben McDevitt in a statement. The tribunal did not believe some of Earl’s claims. The matter ended there and then.

It’s not easy being WADA; as with any law enforcement or regulating body, moderation is key, as is covering all the loopholes that are there to be exploited, as Earl allegedly sought to do. In reducing Wilson’s sanction by 75% however, UKAD – and by extension WADA – believe that they are demonstrating the correct path to drug free sport.

Conversion of a theory

In codifying Substantial Assistance there is, in theory, the possibility of creating a win-win situation out of any anti-doping infringement – both the athlete and the fight against doping can benefit. A further caveat however, is that the translation of theory into practice isn’t always that straight forward. One observation of the cases in which athletes have had their sentences reduced through Substantial Assistance, is that most are high profile. Lawyers, as in every facet of life, are expensive, and any plea involving Substantial Assistance, with the threat of a four year ban looming over an athlete’s head, needs careful navigation. Which needs money.

As with match-fixing, a large proportion of doping offences occur at the lower rungs of competitive sport, without the big names, big money and headlines. It would be interesting to know how many lower profile athletes have provided assistance to anti-doping authorities, but failed to receive any reduction of note.

WADA receives both praise and criticism – not least from these pages – in the manner in which it looks to tackle anti-doping. It’s a tough gig. It’s important to remember however that Millar, as a reformed anti-doping campaigner, Morgan, as a lawyer representing those athletes charged, and WADA, as the world’s anti-doping police force, are on the same side in the fight against doping in sports – the difficulty, however, is negotiating the correct route.

• This article was originally published in the Sports Integrity Initiative internet journal on 18 March 2016. To access the original, please click here.

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