Liz Riley discusses a recent CAS decision looking at the important question of when an athlete’s conduct during anti-doping proceedings will exceed the boundaries of a legitimate defence to a doping charge, and will instead amount to a second offence of tampering (for example, due to an athlete’s submission of a forged document).
These two related cases concern the international long-distance athlete Ms Rita Jeptoo. Ms Jeptoo tested positive for the prohibited substance recombinant erythropoietin (rEPO) following an out-of-competition urine test on 25 September 2014. Ms Jeptoo was subsequently charged with the commission of an anti-doping rule violation (ADRV) under the IAAF anti-doping rules (which at that time were based on the 2009 version of the World Anti-Doping Code).
The charge was heard at first instance by Ms Jeptoo’s national federation, Athletics Kenya (AK), which found that Ms Jeptoo had committed an ADRV and imposed a period of ineligibility of two years. The IAAF subsequently appealed that decision to the Court of Arbitration for Sport (CAS), requesting (among other things) an increase in the period of ineligibility due to the presence of so-called aggravating circumstances (see Article 10.6 of the 2009 World Anti-Doping Code). The CAS upheld the IAAF's appeal and imposed a period of ineligibility of four years, based on the following aggravating factors: Ms Jeptoo’s repeated use of rEPO as part of a lengthy doping scheme (as demonstrated by her athlete biological passport profile); Ms Jeptoo’s deceptive and obstructive conduct, which was designed to avoid the detection and proper adjudication of her ADRV; the significant sporting and financial benefits obtained by Ms Jeptoo’s behaviour; and the considerable damage inflicted on Ms Jeptoo’s competitors. (See CAS 2015/A/3979, paragraphs 154-163).
Ms Jeptoo also appealed the first instance decision, submitting that she bore no fault or negligence for her positive test. In support of that plea she submitted a fabricated ‘medical report’, which purported to show that she had been injected with rEPO by a doctor as emergency treatment for ‘profuse bleeding’ following a life-threatening road accident. Following further investigations, the IAAF then charged Ms Jeptoo with a second ADRV of attempted tampering (Article 2.5 of the 2015 World Anti-Doping Code). That charge was considered in separate proceedings (CAS 2015/O/4128), and the key issue was whether Ms Jeptoo’s conduct during the course of the proceedings relating to the first ADRV was capable of constituting attempted tampering for purposes of Article 2.5.
A legitimate defence vs tampering
As a general principle, the CAS found that the World Anti-Doping Code definition of ‘tampering can also cover an athlete’s behaviour in the course of a first instance or appeal hearing’, noting that the non-exhaustive list of examples of tampering in the IAAF anti-doping rules includes ‘intentionally interfering or attempting to interfere with a Doping Control official, providing fraudulent information … or intimidating or attempting to intimidate a potential witness’ (CAS 2015/O/4128, paragraph 146).
However, in this context the CAS also found that an athlete has the right to defend themselves and to make submissions in support of their defence, and that the mere exercise of that right would not, of itself, amount to tampering. In other words, the athlete must do more than simply put the prosecuting authority to proof of its case (CAS 2015/O/4128, paragraphs 147 and 150).
In particular, the CAS held at paragraphs 148 and 151 that ‘the threshold of legitimate defence is trespassed and, thus, a “further element of deception” is present where the administration of justice is put fundamentally in danger by the behaviour of the athlete. This is the case where a party to the proceedings commits a criminal offence designed to influence the proceedings in his or her favour.’ In that respect the CAS found that ‘forging a document for the use of a judicial proceeding is a criminal offence not only in Monegasque law … but also under Swiss law… This surely exceeds the above threshold of legitimate defense’. Accordingly, on the facts the CAS held that ‘the Athlete has committed tampering … when submitting the forged document’ (paragraph 153). The CAS left unanswered the question of whether lying as party in a proceeding would also constitute a criminal offence (see paragraph 152).
In relation to sanction, somewhat fortuitously for Ms Jeptoo the CAS found, on the facts, that her conduct fell to be considered under the previous IAAF anti-doping rules (implementing the 2009 World Anti-Doping Code) rather than the current rules (implementing the 2015 World Anti-Doping Code). Accordingly, her conduct fell to be considered as part of the aggravating circumstances discussed above, rather than (as would now be the case under the 2015 rules) as a second ADRV that would carry a significantly higher sanction (here, a further period of ineligibility of eight years). The CAS nevertheless made it very clear that ‘had the Athlete submitted the forged document as an isolated event in 2015, the Panel would have qualified this behaviour not only as tampering, but would have issued a separate period of ineligibility for this ADRV in line with the provisions for a second offence’ (paragraphs 167-169).
Lessons for the future
Under the current 2015 World Anti-Doping Code it is clear that, depending on the facts, it is possible to charge an athlete with a second ADRV of tampering under Article 2.5 in respect of the athlete’s conduct during the proceedings relating to a first ADRV.
Such a charge should, however, be carefully considered, and one key question will be whether the athlete has exceeded the boundaries of a legitimate defence. In that respect an athlete must do more than (say) put the prosecution to its proof, or advance a defence that is not accepted by a tribunal because it does not meet the applicable standard of proof. On the other hand, it is clear from the CAS awards in the Jeptoo case that an athlete’s commission of a criminal offence in order to influence the proceedings in his/her favour will cross the line (in that case, through the submission of a forged document). Another example of conduct that might similarly cross the line is where an athlete suborns perjury from a witness.
It is worth noting that the ability to bring such a tampering charge is a vital component of an anti-doping organisation’s arsenal in the fight against doping. That is particularly so following the removal of the ‘aggravating circumstances’ concept in the 2015 World Anti-Doping Code, meaning that conduct such as Ms Jeptoo’s can only now be dealt with by way of a tampering charge. Absent that possibility, there would otherwise be no meaningful deterrent to such behaviour, and a strong and effective upfront deterrent is imperative given that anti-doping organisations often lack the powers and resources necessary to fully and properly investigate the bona fides of evidence provided to them.