After having tackled, in our previous post, the regulatory and institutional tools that have been created, since the late 1990s, to tackle the doping phenomenon, it is now time to analyze a more specific aspect: the food contamination.
In the complex world of sports law, the Court of Arbitration for Sport (CAS) has consistently wrestled with cases involving athletes and Anti-Doping Rule Violations (ADRVs) where food contamination has been the core of the dispute.
Often, this results in a fascinating intersection of law, sport, and science.
In this blog post, we delve into the landmark CAS rulings that have shaped the jurisprudence around food contamination and its impact on athletes’ careers.
Relevant CAS jurisprudence on food contamination
Plenty of CAS Panels dealt with cases where Athletes that were found to have committed an ADRV – as one or more Prohibited Substances were detected in their bodies – claimed that they had ingested them by way of eating alleged contaminated food(being meat in the vast majority of cases).
In such cases, Athletes usually maintained that their conduct was notIntentional under the applicable anti-doping regulations, to generally limit the period of ineligibility to 2 years instead of 4.
Athletes usually claim the application of either the No Fault or Negligence or the No Significant Fault or Negligence provision, so that the period of ineligibility imposed on them could potentially be further reduced or fully eliminated.
According to consistent CAS jurisprudence (e.g. CAS 2017/A/5248 and CAS 2018/A/5570), an Athlete in principle needs to clarify how the substance(s) entered his/her body in order to establish his/her lack of intention while only in “extremely rare cases” an ADRV may be deemed unintentional if an athlete has failed to prove the source of a Prohibited Substance.
An Athlete would thus be able to successfully rebut the presumption of intentionality without establishing the origin of the prohibited substance but only passing through the so-called “narrowest of corridors” to discharge the burden that lies upon him (e.g. CAS 2016/A/4534).
In other words, an Athlete cannot rely on simple assertions of innocence o mere speculations as to what must have happened but must adduce robust, concrete and persuasive evidence to prove, on a balance of probabilities, his lack of intent.
More specifically, in cases of alleged meat contamination, it is therefore usually necessary “to trace the specific source of the meat and to demonstrate the likelihood that it was contaminated” (CAS 2019/A/6313).
However, this serves just as a minimum requirement which may not be considered enough by the adjudicating Panel as it happened for instance in the Contador Case (CAS 2011/A/2384-2386) where the CAS considered that the burden of proof lying on the athlete to establish contaminated meat as the origin of the adverse finding was not satisfied despite the famous cyclist had successfully traced “the piece of meat he ate to a farmer whose brother had been convicted for illicit use of the prohibit substance in question” (as reported in CAS 2019/A/6313).
A number of CAS Panels have accepted such general legal concepts so that they have become leading principles that apply in food contamination cases to properly assess the intentionality of an Athlete’s demeanour and whether or not the burden of proof is discharged in the light of the constantly different particularities of each case.
Food Contamination in Sports: Case Studies and their Implications
The resilience of this system seems to have been tested in two recent famous precedents: the Lawson Case (CAS 2019/A/6313) and Jamnicky Case (CAS 2019/A/6443-6593).
In the Lawson case, the Athlete appealed with the CAS the decision of the IAAF Disciplinary Tribunal that had sanctioned him with a 4-year period of ineligibility due to an ADRV involving a non-specified substance prohibited in-and-out competition at all times. He claimed that the he had ingested the prohibited substance by eating a contaminated teriyaki beef bowl at a certain restaurant in New York.
The Panel, after stating that an Athlete is strictly liable for the substances found in his/her body, that he/she has the possibility to avoid or reduce sanctions if he/she can establish to the satisfaction of the panel how the substance entered into his/her system and demonstrate that he/she was not at fault or significant fault, underlined that it was presented with a “rare set of facts whereby the Panel was tasked with examining the strict liability principle on balance against the Athlete thorough, documented and diligent attempts to establish the source of the prohibited substance present in his sample” (CAS 2019/A/6313, para. 66-70).
Without entering in too many details, the Panel first considered that, due to the particularity of the case, it was impossible for the Athlete to adduce “actual evidence” to prove the origin of the substance found in his system, yet accepted that it was reasonably plausible that his positivity resulted from consumption of contaminated beef.
Then, the Panel took into consideration several other elements such as the Athlete’s approach to training and competition, his disdain for cheating, his impeccable history and attitude to clean sport, the result of a hair test and the outcome of his polygraph to conclude that this was one of the rare cases where the impossibility of proving scientifically that the meat consumed did contain the prohibited substance could not prevent the Athlete form establishing his lack of intent.
In view of the above reasoning the Panel CAS annulled the first-instance decision and along with it also the relevant entire ineligibility period of the athlete.
In the Jamnicky Case, both the Athlete and the Canadian Centre for Ethics in Sport (CCES) appealed with the CAS the decision of the first instance Tribunal that had imposed on her the sanction of a reprimand.
The Athlete submitted that the source of her positivity was contaminated meat and that she bore No Fault or, in the alternative, No Significant Fault.
Ms Jamnicky offered extensive evidence as to the likelihood of the occurrence of meat contamination and, with the help of some experts, ruled out all the other possible explanation of the ADRV.
The Panel, in view of the Athlete’s effort, held that the case was “unique” and, after weighing all the evidence brought by the Parties, including the absolute absence of any suggestion of intentional doping or cheating, it was satisfied that meat contamination was more likely than not to have occurred and that Ms Jamnicky, on a balance of probability, had established how the prohibited substance entered her system.
As a consequence of the above, the Panel found that the Athlete bore No Fault in relation to her ADRV and eliminated the otherwise applicable two-year sanction.
The outcome is however not always the same.
In the recent Iannone Case (CAS 2020/A/6978-7068) the famous rider and WADA both appealed with the CAS the decision of the FIM International Disciplinary Court that had previously sanctioned the athlete with a period of ineligibility of 18 months.
The Athlete claimed that he had also consumed contaminated meat and, by drawing a parallel between his case and the ones involving Lawson and Jamnicky, requested the Panel to eliminate or reduce the sanction.
The Panel rejected Mr Iannone’s defensive allegations, finding that he did not establish on a balance of probabilities that the ADRV was unintentional and condemned the Athlete to a 4-year period of ineligibility in view of the acceptance of the WADA’s appeal.
To support its conclusion, the Panel underlined that the Athlete’s failure to pursue with due diligence the lines of inquiry to support his case stood in sharp contrast to the Lawson and Jamnicky Cases where the athletes had done everything that was in their possibility to prove by bank statements and restaurants receipts the type of meat consumed and the part of the animal that they had eaten.
The Panel added even that if Mr Iannone had been able to establish the consumption of a particular meat, the outcome would have been the same as he failed to prove, on a balance of probabilities, that any meat consumed in Singapore and/or Malaysia could have been contaminated by the prohibited substance found in his system.
Conclusions
In doping cases it is certainly possible that the ADRV is caused by food contamination.
In such case, the Athlete who is able to prove the specific source of contamination is facilitated in establishing the unintentionality of the intake, which is the first step to take to demonstrate the lack of Fault or Negligence or the occurrence of a situation of No Significant Fault or Negligence, which may result in the elimination or the reduction of sanctions.
However, in extremely rare cases an Athlete may also be able to prove his “innocence” even without establishing the source of the contamination.
In this regard, the Lawson and Jamnicky decisions, which aroused a lot of criticism because in the past CAS Panels had almost always rejected the appeals of athletes based on the unintentionality of their conduct lacking the proof of the route of ingestion of the prohibited substance, can surely represent a concrete application of the “narrowest of corridors” principle rather than a deviation from the previous consistent CAS jurisprudence.
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At Elite Law we specialize in navigating the intricacies of sports law, including anti-doping regulations and their possible violations, including (food) contaminations. If you, or an athlete you represent, are facing similar challenges, we encourage you to reach out to us for expert advice and representation.
