Breaking Down the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping Code / Antonio Rigozzi, Ulrich Haas, Emily Wisnosky, Marjolaine Viret. - (International Sports Law Journal 15 (2015) 1-2 (2 June) : page 3-48). - doi:10.1007/s40318-015-0068-6
Anti-Doping,
Sanctioning,
2015 World Anti-Doping Code,
No Significant Fault or Negligence,
No Fault or Negligence
Abstract
An Athlete's fault is one of the core issues for determining the applicable period of Ineligibility under the sanctioning regime of the World Anti-Doping Code. Nevertheless, the issue is seldom addressed in a detailed and comprehensive manner that would provide a genuine insight into the role of fault in this context. This article proposes a process to determine the length of the initial period of Ineligibility associated with the basic sanction for antidoping rule violations involving the presence of a Prohibited Substance under the 2015 World Anti-Doping Code. The authors first examine the interplay between the familiar concept of 'No (Significant) Fault or Negligence' on the one hand, and the newly introduced concept of 'intentional' on the other hand, advocating a mutually exclusive understanding of these two concepts for the purposes of determining a basic sanction. Based on this understanding, the article proposes a process for determining the appropriate length of period of Ineligibility for both Specified and non-Specified Substances under the 2015 World Anti-Doping Code. Throughout the discussion, the article presents comparisons to the approach taken in earlier versions of the World Anti-Doping Code, illustrated through an analysis of past Court of Arbitration for Sport awards, to demonstrate the coherence of the proposed method and evaluate how it will function in practice.
Content:
1 Introduction
1.1 Scope of this article
1.2 Interpreting the Code
2 Comparison of the four steps to determine an appropriate sanction under the 2009 and 2015 versions of the Code
2.1 The four steps to determine an appropriate sanction under the 2009 Code
2.2 The four steps to determine an appropriate sanction under the 2015 Code
2.3 Focus on step one of the 2015 Code
3 The interplay among the concepts of Fault, negligence, and ‘‘intention’’ under the 2015 Code
3.1 Definitions
3.2 The proposed mutually exclusive relationship between intentional violations and No (Significant) Fault or Negligence violations
4 Overview of the process for determining a basic sanction
4.1 Available basic sanctions
4.2 Overview of Phases A and B to determine a basic sanction
5 How to distinguish between intentional and nonintentional violations (Phase A)
5.1 Special assessment for substances prohibited In-Competition only (Article 10.2.3)
5.2 Definition of intentional in Article 10.2.3
6 How the sanction can be reduced for Fault-related reasons (Phase B)
6.1 No Fault or Negligence (Article 10.4)
6.2 No Significant Fault or Negligence (Article 10.5)
7 Conclusion
Appendix 1: The full text and Comments to Articles 10.2, 10.4, 10.5.1, 10.5.2, 10.5.5 (except the Examples), and 10.6 of the 2009 Code
Appendix 2: The full text and Comments to Articles 10.2, 10.4, 10.5, and 10.6.4 of the 2015 Code
https://ssrn.com/abstract=2631425
