02 Sep 2021

IOC decision to withdraw doping case against Aussie Olympian sparks major changes to WADA Code

By Tim Jones, Gemma O'Connor and Chloe Hogan

Changes to the Minimal Reporting Levels for select banned diuretics, particularly those that are found in over-the-counter pharmaceuticals, will almost certainly trigger a rewriting of the WADA Code as it relates to strict liability.

The World Anti-Doping Authority has enshrined new Minimal Reporting Levels for select banned diuretics. This change has led to withdrawal by the IOC of Court of Arbitration for Sport (CAS) proceedings against Australian 2012 London Olympian Brenton Rickard, in relation to doping charges brought after minute traces of a banned substance were found on the retesting in 2020 of an historic sample from the 2012 Olympic Games. The "Rickard Rule" precedent will affect athletes around the world, prompting significant rewriting of applicable strict liability laws.

Brenton Rickard gives a test sample

In 2020, eight years after he won a bronze medal in a 4 x100 metre medley relay at the 2012 London Summer Olympic Games, Australian Olympic Swimmer Brenton Rickard was notified that a sample that had been stored and re-tested had returned a positive result for furosemide, a diuretic and masking agent (used to treat fluid build-up) that can hide the use of other banned substances. The substance had not turned up in Rickard's sample at the time it was taken.

Rickard's positive test was announced by the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) on 9 November 2020 when it published that a hearing had been held between the IOC and Rickard. The proceeding concerned an asserted anti-doping rule violation committed by Rickard following a re-analysis of his sample from the London 2012 Olympic Games whereby such sample was found to include Furosemide (Class S5 (Diuretics and Other Masking Agents) prohibited in the 2012 WADA Prohibited List). The news received significant media coverage and attracted the interest of  the international swimming and sporting communities.

Rickard's case was one of approximately 60 instances that arose during the London "re-analysis" program after samples from the 2012 Olympics were allowed to be stored for eight years and re-tested as laboratories developed better methods to tackle effective anti-doping enforcement. Rickard's sample reportedly had a tiny amount of the banned substance, with experts suggesting that it likely came from a contaminated over-the-counter medication.

Since the adoption of the World Anti-Doping Code (WADA Code) in 2004, the principle of strict liability has been applied by the IOC in its Anti-Doping Code as well as by the vast majority of pre-Code anti-doping sports rules. This principle imposes a responsibility or ‘personal duty’, on an athlete to be responsible for what they put into their body, and not to knowingly or unknowingly take any prohibited substances. As a consequence, the presence of a banned substance in a doping test is enough to establish a violation and lead to an athlete being disqualified, regardless of whether the athlete intended for that substance to be present in their system.

Accordingly, the presence of the substance in Rickard's system stood to have a significant impact, both on Rickard's tenure with Australian swimming and Australia's clean medal tally, as six Aussie Olympians stood to be stripped of their medals just days prior to when WADA's statute of limitations was due to expire.

WADA took steps in May 2021 to change the rules relating to the threshold or Minimum Reporting Level (MRL) of certain banned substances in doping samples. As a consequence, the case against Rickard was dropped and Australia's clean medal tally remains intact.

Strict liability under the WADA Code

Article 2 of the WADA Code sets out the specific circumstances and conduct which constitute anti-doping rule violations. In particularly, Article 2.1.1 states that the "presence of a prohibited substance or its metabolites or markers in an athlete's sample" will constitute an anti-doping rule violation:

"2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample

2.1.1 It is the Athletes’ personal duty to ensure that no Prohibited Substance enters their bodies. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, Negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Article 2.1."

On a strict interpretation of the Article, the presence of a banned substance in a doping test is enough to establish an anti-doping rule violation under the WADA Code. This doctrine has been referred to in various CAS decisions as one of "strict liability" in situations where samples collected from an athlete during competitions including the Olympics have produced adverse analytical results.

This means that each athlete is "strictly liable" for the substances found in his or her body, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.

Notwithstanding that an anti-doping rule violation will occur regardless of the athlete's intention, there has historically been some flexibility in the sanctioning process.  In accordance with Article 10 of the WADA Code, there are a number of factors to be considered when imposing a sanction on an athlete, including the seriousness of the athletes anti-doping rule violation and whether an athlete has tested negative in other competitions. In particularly article 10.1.1 notes that: 

"10.1.1 If the Athlete establishes that he or she bears No Fault or Negligence for the violation, the Athlete’s individual results in the other Competitions shall not be Disqualified, unless the Athlete’s results in Competitions other than the Competition in which the anti-doping rule violation occurred were likely to have been affected by the Athlete’s antidoping rule violation."

An athlete has the possibility to avoid or reduce sanctions if he or she can establish to the satisfaction of the CAS tribunal:

  • how the substance entered an athletes system;
  • that the athlete was not at fault or significant fault; or
  • that the athlete did not intend to enhance their sport performance (noting that some exceptions apply).

The burden of proof under Article 10 is on the athlete.

While strict liability may seem harsh (in Rickard's case, he was being forced to defend an allegation 8 years after the event), it has been consistently considered by the CAS and WADA as 'necessary and proportionate’ and ultimately considered essential to combatting doping in sport. Until the IOC's decision to withdraw its doping case against Rickard, the "strict liability" principle set forth in the WADA Code had been consistently upheld in CAS decisions and the Swiss Federal Court.

Arguments for strict liability

In anti-doping rule violation cases it is very difficult, if not impossible, to prove whether an athlete acted without fault or negligence with the defence of many athletes being, effectively "I do not know how that substance got in my body". WADA have continued to maintain that without the presence of a strict liability policy, athletes would go "unpunished" and the integrity of sport and competition would be compromised.

This position was affirmed by the case of Quigley v UIT CAS 94/129, in which the CAS gave the following rationale for automatic disqualification when a prohibited substance is found in athletes sample during a competition:

“It is true that a strict liability test is likely in some sense to be unfair in an individual case…where the athlete may have taken a medication as the result of mislabelling or faulty advice for which he or she is not responsible…but it is also in some sense unfair for an athlete to get food poisoning on the eve of an important competition. Yet in neither case will the rules of competition be altered due to the unfairness. Just as the competition will not be postponed to await an athlete’s recovery, so the prohibition of banned substances will not be lifted in recognition of its accidental absorption…”

"Rickard Rule" precedent

The IOC's decision to drop its charges against Rickard followed a change to the rules relating to the threshold or Minimum Reporting Level (MRL) of certain banned substances in doping samples.

By way of a stakeholder notice dated 1 June 2021, WADA stated that following extensive consultation with the Contaminants Working Group, changes were being made to its reporting requirements for certain diuretics:

“The new MRL for the six diuretics (acetazolamide, bumetanide, furosemide, hydrochlorothiazide, torasemide, and triamterene)… will minimize the risk of sanctioning Athletes who test positive due to the use of contaminated medications, without undermining the fight for clean sport.”

The new rules now permit for up to 20 ng/ml to be present in an athletes system (with the exception of those athletes participating in a sport or discipline that uses a weight class) before WADA will report it as an Adverse Analytical Finding or as an Atypical Finding, and consequently sanction an athlete.

The decision of the IOC to drop its case against Rickard is the first of its kind regarding an Australian athlete. WADA's blanket strict liability principle had minimal flexibility, and this is the first time an athlete who tested positive to a banned diuretic and was facing an almost definite sanction by the CAS ADD  has been able to overcome the strict liability laws that have formed the basis for the anti-doping system for decades.

What's next?

These changes to the MRL for select banned diuretics, particularly those that are found in over-the-counter pharmaceuticals, will almost certainly trigger a rewriting of the WADA Code as it relates to strict liability. The amendments also suggest a subtle acknowledgement by WADA that absolute and rigid rules can operate unfairly against an athlete with potentially devastating consequences. 

The amendments also signify a move by WADA to acknowledge advancements in testing procedures, and amend the rules where appropriate. For many athletes, strict liability can be very challenging as it means that athletes have to ensure that they understand all the rules against doping and that their family, friends, coaches and support personnel understand them too. As was proven in Rickard's case, even the use of over-the-counter medication is a risky undertaking.

The amendments to the MRL take a monumental step towards making it easier for athletes to adhere to WADA requirements. Whilst athletes will still have to implement strict measures to make sure that they do not have prohibited substances in their body, the risk of an athlete falling foul to contaminated pharmaceuticals has been reduced without undermining the fight for clean sport.

Related Knowledge

Get in Touch

Get in touch information is loading

Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.