CAS Award: CAS 2014/A/3615, WADA v. Lauris Daiders, Jànis Daiders, and FIM, January 30, 2015

While the fact pattern in this case – the unexplained presence of a Prohibited Substance allegedly attributable to supplement contamination – is not out of the ordinary, the thoroughness of the legal discussion undertaken by the CAS panel does stand out. The CAS award carefully describes the legal principles involved in an Athlete’s task to establish the origin of a substance in order to benefit from a fault-related reduction of the sanction. The award is significant because it presents some defined views of the anti-doping organization’s and the Athlete’s respective roles in establishing facts related to the origin of the substance, in particular in reference to the Swiss law doctrine of Beweisnotstand first described and applied in the Contador case.

This reasoning is especially pertinent leading into the first cases that the CAS will hear concerning the application of the new sanctioning regime in the 2015 World Anti-Doping Code (the “Code”). It elaborates on legal points that will be pivotal to the new threshold question in determining the initial length of the Ineligibility period for non-Specified Substances: whether the Athlete was able to establish that the anti-doping rule violation was not “intentional”.

FACTS

This case involves a positive test for Clenbuterol and an Athlete who was unable to establish its origin applying the requisite standard of proof. During the FIM Sidecar World Championship July 2013, Lauris Daiders, while participating as a passenger for pilot Jànis Daiders, was randomly selected to provide a urine Sample.[1] The analysis of the A Sample revealed the presence of Clenbuterol, a substance prohibited under category S.2 (anabolic agents) of the WADA Prohibited List.[2] On August 31, 2013, the day after Lauris Daiders was notified of the positive test, he was provisionally suspended from competition.[3] The side-car passenger neither sought to lift this provisional suspension nor did he contest the results of the analysis by requesting a confirmatory analysis of the B Sample.[4] At this point, the Daiders’ file was referred to the FIM International Disciplinary Court (the “CDI”) for sanctioning.

CDI PROCEEDINGS

Lauris Daiders convinced the CDI that the Clenbuterol present in his Sample must have entered his system through a food additive, without providing evidence beyond his own assertions. In his first written statement, Lauris Daiders attested to his absence of “will, desire, [or] intention…knowingly to use Clenbuterol”.[5] He also wrote of his surprise and shock at receiving notice of the anabolic agent’s presence in his sample. He characterized “allowed” food additives as the only possible route by which the substance might have entered.[6] Accompanying this statement, he provided a descriptive list of food additives.[7] At the hearing, with the help of a family-friend translator, he highlighted one particular product on the submitted list, an “Herbalife” weight loss product that he had been taking at a “high dose” before the race during which he was tested and without first consulting a sports doctor. He stated that he later stopped using this product when he finally did seek the advice of a sports doctor.[8] In the week following the hearing, Lauris Daiders was invited to supplement his written submission and provide “any further evidence”.[9] The side-car passenger affirmed in an email that he added a new second possibility to his exclusive list of possible sources of the substance: that someone intentionally added Clenbuterol to his food.[10] He did not offer any further details in support of his new sabotage theory.

The CDI agreed with Lauris Daider’s assessment, accepting that on the balance of probability, the sports additive “must have been” the source of the positive test.[11] The CDI also found that “Mr Daiders’ fault or negligence was not significant”,[12] thus under Article 10.5.2 of the FIM Anti-Doping (AD) Code, fifteen months was an “appropriate sanction”. [13] In addition, the CDI decided that according to the applicable competition rules Lauris and Jànis Daiders, as passenger and pilot, respectively, should be considered as a team for the purposes of anti-doping sanctions. Thus, the results of both the passenger and the pilot were disqualified for a series of competitions, beginning with the Championship race during which the Sample was collected extended through the beginning of his provisional suspension.

Jànis Daiders, the driver, played only a marginal role in the CDI proceedings. There is no notation in the Daiders CAS award that he participated in the CDI hearing, nor that he entered any written submissions on his behalf. There is a mention of a telephone conference that took place over two months after the hearing and exactly one month before the CDI rendered its final decision, during which he had the opportunity to be heard.[14] No details are provided about his position or his defense during the telephone conference, if any. In the CDI decision, in addition to the Disqualification of his results due to the presence of Clenbuterol in his passenger’s system, Jànis Daiders was responsible for one quarter of the costs of the case.[15]

CAS PROCEEDINGS

WADA appealed the CDI decision to the CAS. Both WADA and FIM agreed that the threshold question in order to potentially benefit from a reduction in a sanction under Article 10.5.1 or 10.5.2 (of the FIM AD Code) was whether the Athlete could discharge his burden of proof to establish the origin of the substance found in his sample, but the two organizations disagreed on what evidence was required in order to meet the standard.

WADA’s argument in support of its request to set aside the CDI’s decision was two-fold: first, that Lauris Daiders did not submit sufficient evidence to establish the origin of the Clenbuterol found in his sample; and second, that the CDI erred in its application of the balance of probability standard. WADA argued that Lauris Daiders must rely upon “concrete and persuasive evidence” to establish the origin of the substance, whereas his theories were “vague and unsubstantiated throughout,” not coming “close to establishing to the requisite standard the origin of the clenbuterol in his system”.[16] In particular, WADA argued that Lauris Daiders “did not provide any evidence that the Herbalife product contains clenbuterol or was contaminated with clenbuterol”. [17] WADA also criticized the manner in which the CDI applied the balance of probability standard. It characterized the CDI’s approach as follows: “The CDI…devised a number of theoretical possibilities, weighed them up in terms of relative likelihood and concluded that supplement contamination is the most likely explanation”.[18] This approach, according to WADA was flawed, because (i) the hearing panel inappropriately identified potential explanations that were not submitted by the parties; (ii) a panel may not dismiss “deliberate ingestion…simply on the basis that there is no evidence of it”; and (iii) the balance of probability standard requires that Athletes establish that “their explanation is more likely than not to be correct, not that their explanation is more likely than any other competing explanation”.[19]

FIM disagreed with WADA’s position about the inherent insufficiency of the evidence Lauris Daiders submitted. Rather, it argued that neither the FIM AD Code, nor Swiss law sets forth an obligation for an Athlete to produce more “persuasive and concrete” evidence than an assertion.[20] Under the FIM AD Code, according to the FIM, an Athlete is not required to “identify a particular supplement by which the product entered his body,” in contrast, he is only required to “explain how the substance entered his body”.[21] FIM argued that according to Swiss law on the assessment of evidence, “questioning and statements of the parties” are admissible evidence, and it is left to the panel (in this case the CDI) to freely assess the sufficiency of the evidence. It also mentioned WADA’s obligation to “collaborate in the investigation and clarification of the facts of the case because of the difficulty for the athlete to prove negative facts”. [22]

Lauris Daiders only participated in the CAS proceedings to the extent that he filed a request for legal aid to seek the assistance of a pro bono counsel. This request was first rejected, refiled, and then partially granted. [23] The CAS Court Office ultimately offered him a pro bono counsel, contingent upon whether the CAS panel decided to hold a hearing. [24] No reasons are provided in the award as to why he would only be entitled to legal representation should a hearing be held. Be that as it may, Lauris Daiders failed to respond to this offer, [25] and neither Athlete engaged in any further correspondence with the CAS Court Office or the CAS panel, nor made any other submissions, [26] despite numerous extensions[27] and invitations to participate in the proceedings. [28] Jànis Daiders did not participate in the CAS proceedings at all.

MERITS OF THE AWARD

The only issue that the CAS panel faced was whether Lauris Daiders was eligible to benefit from a reduction in the standard period of Ineligibility by applying either Article 10.5.1 (No Fault or Negligence) or Article 10.5.2 (No Significant Fault or Negligence) of the AD Code. More specifically, the case revolved around the question of whether Lauris Daiders established the origin of Clenbuterol in his system to the requisite standard of proof. To resolve this issue, the CAS panel embarked on a legal analysis of first, the application of the burden of proof in general (i), and then whether Lauris Daiders discharged the burden in the case at stake (ii).

(i) The Burden of Establishing How the Substance Entered the Athlete’s Body

Before reaching the conclusion that Lauris Daiders did not provide “an adequate (or indeed any) explanation” for the source of the substance, the CAS panel recounted the legal principles applicable to establishing the origin of the substance under the WADC, even delving into policy justifications for the rule itself. The CAS panel’s reasoning can be summarized, as follows:

  • The Athlete carries the burden of proof when it comes to establishing the origin of the substance. The CAS panel noted that this statement is supported by attributing the “ordinary and natural meaning” to the relevant articles and by CAS case law.[29]
  • Establishing the origin of the substance is a “condition precedent” to the evaluation of an Athlete’s level of fault or negligence. In other words, if the Athlete is unable to establish the origin of the substance, then the CAS panel must not – indeed is not in a position to – consider whether the violation was committed with No (Significant) Fault or Negligence.[30]
  • The policy justification for placing the burden on the Athlete arises from the “disparity between the parties in terms of access to relevant information”.[31] The CAS panel described the Athlete’s obligation to be aware of what food and other products (supplements, drinks or medicine) they have ingested or in the “circumstances in which it could have, without his knowledge, been administered”[32] According to the CAS panel, anti-doping organizations do not generally have access to such knowledge, thus the person being charged with an anti-doping rule violation bears the burden of proof.
  • The Athlete must overcome a “plausible inference” of deliberate ingestion by “establishing the source to the relevant standard of proof”.[33] In light of the fact that Prohibited Substances generally either have a performance enhancing or masking effect, the CAS panel described the regulations as structured in such a manner to infer that the Athlete ingested the substance for one of these two purposes. The CAS panel noted that in its experience it is “rare for a person charged with a doping offense to admit deliberate ingestion”. This rarity, according to the CAS panel, means that an “outright denial” of doping does not carry much weight, since “it is as likely to be the approach taken by a person who is guilty as by one who is not”.[34] So, the CAS panel reasoned that by placing the burden of proof on Athletes, the system imposes on them an inference of deliberate doping. This inference, in the view of the CAS panel, relieves the anti-doping organization of the need to make a “positive case” of deliberate doping.[35]
  • Anti-doping Organizations have a good faith obligation to disclose information they might have – whether “particular to this case or derived from relevant research” – that would assist Athletes in discharging their burden. The CAS panel referenced the Contador award and its discussion of the principle of Beweisnotstand that in the context of Swiss law, according to the Daiders panel, comes into play when one party is faced with the difficult task of establishing “negative facts”. Such difficulties may create a duty on the opposing party to cooperate: “[i]f the person charged has provided an explanation for the source of the substance, and which, if unanswered would discharge the burden then it will be for the person charging if willing and able to do so, to seek to rebut the explanation”.[36] However, a refusal to cooperate is merely taken into consideration in the CAS panel’s evaluation of the evidence on the record. It does not reallocate the risk (i.e. the burden of proof) to the contesting party: “the evidential burden will have shifted, although the legal burden will remain where it was”.[37] The CAS panel explicitly rejected an interpretation of the principle whereby the anti-doping organization would have a burden to “explain the source of the substance detected in the system of the person charged”.[38] In the case at hand, the argument of the FIM was that WADA had failed in its duty of collaboration. The CAS panel observed, however, that FIM did not explain “what information or evidence is in WADA’s possession (or otherwise available to it), that WADA) [] has failed to provide”,[39] that Lauris Daiders did not request WADA’s collaboration to for the “investigation and clarification of the facts in the case”, that WADA was not a party in the CDI proceedings, and that Lauris Daiders holds the burden of proof to show how Clenbuterol entered his system. [40]

Thus, the CAS panel concluded that Lauris Daiders failed to establish the source of the Clenbuterol in his system.

(ii) Discharging the Burden of Proof Under the Balance of Probability Standard

The CAS panel further conducted a review of the balance of probability standard, focusing first on the defining the minimum threshold of evidence required to establish the origin of the substance. The CAS panel illuminated three approaches an Athlete might take that are insufficient to establish the origin of the substance to the requisite standard.

First, it held that unsuccessful “reasonable efforts to establish the source” of the substance are not sufficient. The CAS panel recognized that there will be times when, through no fault of his or her own, an Athlete is not able to establish the origin of the substance to the balance of probability standard. However, the CAS panel, referring to the Gibbs CAS award,[41] underscored that this reality does not “violate human rights norms or basic principles public policy [sic.]” since the rules are “drafted to advance a broader public purpose, namely the commitment to clean competition”.[42]

Second, it found that a “mere assertion as to what the source is, without any supporting evidence” will necessarily fall short.[43] The CAS panel warned that allowing an Athlete to establish the origin of a substance by “little more than a denial that he took it would undermine the objectives of the Code and Rules”. [44] It would also deprive this condition precedent for benefitting from a fault-related reduction of “effectiveness or utility”.[45] It highlighted that two of the “prevalent explanations” offered for the presence of a Prohibited Substance – contamination and sabotage – are easy to assert, especially without supporting evidence.

Third, it rejected the possibility that an Athlete might be able to discharge his burden of proof by simply offering up several alternative scenarios, “without seeking to establish that one source is more probable than the others”.[46] It held that the balance of probability standard, as defined in the Gasquet award,[47] requires the Athlete to establish that “one of the three [offered scenarios] is the probable cause,” which is an entirely different exercise than simply offering a few alternative possibilities for the origin of the substance.[48]

In light of these general principles, and a negative inference that it drew from Lauris Daiders non-participation,[49] the CAS panel concluded that the Athlete did not establish how Clenbuterol entered his system. It characterized his defense as built upon “his own statements and declarations” that did “not come close” to establishing the means by which Clenbuterol came to be in his system.[50] It faulted the side-car passenger for simply offering alternative scenarios (i.e. supplement contamination or sabotage) for the source of the substance, unsupported by evidence suggesting with what “means and under which circumstances” either of these scenarios might have occurred. It differentiated Lauris Daiders’ approach to those taken by the Athletes in the Contador, Gasquet, and Schleck cases,[51] on the basis that the Athletes in the other cases provided “evidence that went well beyond mere denial by the person charged.”[52]

The CAS panel even went so far as to describe the types of evidence that Lauris Daiders might have offered, including “investigations and enquiries with the manufacturers of the food additives he ingested, along with corroborating evidence as to the concentration of clenbuterol in his tested sample urine and the date and quantity of ingestion of product [sic.] suspected to have been contaminated”.[53] Since Lauris Daiders did not establish the origin of the substance to the balance of probability standard, the CAS panel held that he could therefore not benefit from a fault-related reduction of his sanction.

Thus, the CAS panel increased the side-car passenger’s sanction from a fifteen month period of Ineligibility to a two-year period of Ineligibility. In addition, it noted that none of the parties disputed that a side-car passenger and pilot fall under the definition of a “team” in the relevant FIM regulations, so all competition results that the Daiders’ achieved together, were also disqualified.[54]

COMMENTS

This case, though straightforward in its fact pattern and not controversial in its result, nevertheless touches upon a number of unsettled issues in anti-doping. Accordingly, in our comment we selected five especially pertinent issues, likely to arise again in CAS jurisprudence to discuss in more detail.

The Instrument of Beweisnotstand in CAS Jurisprudence

The Daiders’ award provides some insights into the manner in which CAS panels receive and perpetuate the Beweisnotstand doctrine introduced by the Contador panel, some welcome, some more questionable.

On one hand, the Daiders’ award rejected the notion that an Anti-Doping Organization must establish alternative scenarios in all cases, thereby avoiding the excesses that the Van Snick award might have created if improperly perpetuated.[55] The Van Snick award – a case of alleged sabotage through spiking of a sports drink – created the impression that Anti-Doping Organizations could now systematically be required (in the sense of having an evidential burden to do so) to present alternative scenarios, and the CAS panel would simply compare which of the scenarios presented was more likely. The Daiders’ panel makes it clear that the legal burden of proof remains in any event on the Athlete.

On the other hand, the Daiders panel could be read as drawing severe boundaries around the Beweisnotstand doctrine. The award supports an interpretation of the doctrine that is narrower than the Swiss law approach as described in the Contador award. As explained in the Contador award, the Beweisnotstand expressed a situation of “evidence necessity” and refers to certain types of situations in which a party is bound to face “a serious difficulty in discharging its burden of proof”[56]. The Contador panel identified two types of situations, which are those traditionally recognized under Swiss law:

  • The first, is when “relevant information is in the hands or under the control of the contesting party and is not accessible to the party bearing the burden of proof”.
  • The second is when a party must establish a negative fact, which inherently “cannot be proven by direct means.’”[57] In this latter case, the Contador panel, referencing the Swiss Supreme Court, explained that “principles of procedural fairness demand that the contesting party must substantiate and explain in detail why it deems the facts submitted by the other party to be wrong”[58] (emphasis added).

The two types of situations are different in their nature and rationales. In the first the evidence necessity arises from the circumstance that the relevant evidence is under the sole control of the opposing party, in the second, from the intrinsic nature of the fact to be proven, The Daiders panel, mentioned each of these two situations without clearly indicating which situation draws the consequences defined, or if both must be present. The CAS panel also seemed to limit the reach of the Beweisnotstand doctrine by implying that the party bearing the burden of proof must in any case become proactive, i.e. that the Anti-Doping Organization’s duty to cooperate arises only upon request of the Athlete.[59] This prerequisite may be true when the Beweisnotstand lies in the fact that the evidence is claimed to be under the control of the opposing party, in which case the Athlete must file a request for production of evidence with the CAS panel. By contrast, no such obligation exists when the Beweisnotstand lies in the nature of the fact to be proven. In this situation, it is sufficient for the Athlete to put forward a credible scenario and make it apparent that he or she is deprived of any means of obtaining more direct evidence due to the very nature of the scenario asserted. At most, the CAS panel itself may feel obliged to warn the Anti-Doping Organization that it will be inclined to draw adverse inferences and conclude that the Athlete discharged his or her burden in case the Anti-Doping Organization has no doping-related alternative scenario to propose.

In practice, the real dilemma for CAS panels will lie on distinguishing situations (i) in which the Athlete simply fails to discharge his or her burden of proof, in spite of having made all reasonable efforts to do so, because there was not sufficient evidence available in the particular case, from those, (ii) in which the Athlete is in a situation of Beweisnotstand, because it is the nature of the fact to be not accessible to direct evidence. In the Contador award, the CAS panel insisted that the specificity of the case was in the fact that the alleged contaminated product (meat) had been consumed by the Athlete (and none of his teammates who also ate the meat were also tested), so that the Athlete had not realistic possibility to establish the contamination directly, and would be pushed into proving an indefinite negative fact. It is unclear whether the same type of reasoning could apply to the allegation of a contaminated sports supplement raised in Daiders.

In order for the Beweisnotstand doctrine to enter into play, the Athlete must have made a prima facie case sufficiently strong to call for an answer on the part of the Anti-Doping Organization. In a situation of Beweisnotstand, the Contador panel proposed that the Anti-Doping Organization’s obligation to answer (i.e. “contribute through substantiated submissions to the clarification of the corresponding facts of the case”) is triggered if the Athlete shows that his scenario is “possible”. [60] In the Daiders case, regardless of whether the Athlete was in a situation of Beweisnotstand, one could argue that his efforts did in any event not reach this crucial threshold above which the Anti-Doping Organization ought to become proactive in order to avoid the CAS panel to find that requisite standard of proof had been reached. Since the appreciation of this threshold leaves considerable discretion to the panel as part of its evaluation of the evidence, CAS panels can only be advised to warn the Anti-Doping Organization when, absent a different plausible scenario and counter-evidence, they might be inclined to rule in favor of the Athlete.

Establishing the Origin of the Substance to the Balance of Probability Standard

Without delving into the technicalities and history of CAS panels’ interpretation of the balance of probability standard, the Daiders’ award shows that the application of the standard is still far from being straightforward in the presence of multiple (i.e. more than two) scenarios. In the particular matter, however, the Athlete had merely raised two hypotheses, without substantiating either of them and there were no scenarios posited on part of the Anti-Doping Organization. The CAS panel was thus easily able to conclude that the standard of proof had not been reached, given that the Athlete had submitted not evidence whatsoever in favor of either hypothesis. As a general lesson, the CAS panel’s reasoning acts as a useful reminder that it will be very difficult for an Athlete to build an effective defense if presenting more than one scenario to the CAS panel. Since the Athlete must prove than the factual background alleged is more likely than not to have occurred (i.e. more than 50%), presenting several scenarios automatically undermines the credibility of efforts towards reaching that threshold for one of these scenarios.

In an interesting development, the CAS panel provided “examples” of the evidence the Athlete could have submitted in support of his scenario in case of an alleged contaminated supplement. In addition to enquiries with the manufacturer, the CAS panel mentioned “corroborating evidence as to the concentration of Clenbuterol in his tested sample urine and the date and quantity of ingestion of product suspected to have been contaminated”.[61] This proposed step reveals the growing importance of additional data on the analytical findings, beyond the mere identification of a substance in the Sample. If such steps are expected from the Athlete, this presupposes that the Athlete can obtain access to such data. Currently, for Non-Threshold Substances such as Clenbuterol, the International Standard for Laboratories does not provide for a measurement of the concentration. However, the laboratory is, upon request of the relevant Anti-Doping Organization, to provide an approximate concentration. If the Athlete is to discharge his or her standard of proof, the same right of obtaining the approximate concentration is to be recognized to the Athlete. The CAS panel’s remark also presupposes that the Athlete has the resources to obtain expert evidence to make the required extrapolations based on the concentrations recovered in the Sample and the alleged timing of ingestion. If the expectations on the Athlete reflected in the Daiders’ award are to be implemented, the only realistic path forward for an Athlete with limited resources would be to file a request for production of all data that could be necessary to support the defense arguments, along with an application for the CAS panel to appoint an expert (if he or she cannot afford his or her own expert).

Finally, the CAS panel’s remarks on the “plausible inference” that can be drawn from an Adverse Analytical Finding, for the Athlete to rebut, also open an interesting line of reasoning. In the eyes of the CAS panel, “given that prohibited substances are generally either themselves performance enhancing or masking agents of other substances which have that propensity, the scheme established provides for the inference that such substances were ingested for one of those two purposes”.[62] In reality, such inference is already undermined by the fact that performance-enhancing effect is not a mandatory criterion for placing a Prohibited Substance on the WADA Prohibited List. In addition, the inference that the 2009 Code regime implicitly draws from the detection of a substance in a Sample is not one of deliberate ingestion for purposes of performance enhancement. The inference that results from the sanctioning regime under the 2009 Code is that the substance was ingested either intentionally or with significant negligence. No inferences are made as to the purpose of such ingestion.

The Daiders panel’s reasoning could be seen as an anticipation of the new 2015 Code regime, in which non-Specified Substances such as Clenbuterol are indeed presumed to have been used intentionally (Article 10.2.1). However, even in the context of the 2015 Code the case must be referenced with caution. Under the 2015 Code, Athletes newly hold the burden to establish that a violation was not “intentional” for violations involving the presence of a non-Specified Substance. If they are unable to show that the violation is not intentional, then they will be sanctioned with a standard four-year period of Ineligibility. The Daiders case suggests that the presumption of “deliberate ingestion” must be overcome by establishing the source of the substance. While perhaps this is sensible in the context of determining the source of the substance for the purposes of establishing that a fault-related reduction should apply, it is not necessarily the case for establishing that a violation is not “intentional”. As we argued in our recent article (available HERE),[63] while establishing the source of a substance is often a critical element of evaluating an Athlete’s level of fault, it is not a critical element of establishing that a violation was not intentional in this context. Since the Code is silent on the issue, CAS panels have the flexibility to come to evaluate all the circumstances of the case, and assign a sanction that is appropriate (which is to say proportional) under the circumstances.

Disqualification at the CAS

With respect to the Disqualification, the award seems to perpetuate an often-held position that Disqualification is not to be regarded as a sanction, so that it can be pronounced without involvement of the party concerned. In the particular matter, Disqualifications as requested in the prayer for relief, and granted in the operative part of the award, were pronounced against “Lauris Daider – whether alone or as part of a team”. No comments are made in the award regarding the possibility of pronouncing a Disqualification against unidentified third parties, i.e. the other team members (or if there were any beyond Jànis Daiders). The Swiss Supreme Court has long held that, in the context of modern sports competition, a Disqualification along with withdrawal of prizes and prize money affects the personality rights of the person disqualified.[64] It is unfortunate that no broader discussion took place on this aspect. The situation regarding Disqualification might have been different if Jànis Daiders had been participating and represented in the proceedings, which could have also led to a broader debate of defining the proper respondents in CAS appeal proceedings (see our previous blog, available HERE for a more in-depth discussion on this issue).

Missing Respondents and Legal Representation

The Daiders case highlights another recurring issue at the CAS: the difficulty in determining how to deal with a respondent who either participates minimally (such as Lauris Daiders) or does not participate at all (such as Jànis Daiders). This case is just one among a recent spate of CAS awards that involve WADA as an appellant and at least one Athlete respondent who does not fully participate in the CAS proceedings. Indeed, in the last ten cases with WADA as an appellant, six involved Athlete respondents who either did not communicate in any fashion with the CAS or, if they did, did not file a formal answer to WADA’s statement of appeal.[65] The significance of this recent trend turns on the reasons for the Athlete’s limited participation, which is by its nature a symptom whose underlying cause is difficult to diagnose. The trend is more troublesome if a systematic issue is discouraging Athlete participation – such as (perceived or actual) high costs of arbitration, communication deficiencies, or inadequate access to legal representation – than if it represents a coincidental cluster of isolated incidents involving Athletes who make an informed decision not toparticipate.

In either case, CAS panels, which need to rely on the careful argumentation presented by opposing parties to help them reach the optimal conclusion in any given dispute, only hear one side of the story.[67] Since the side that CAS panels repeatedly hear is that of the sport organizations, the situation raises questions of precedential value of awards rendered without participation of Athletes, and this even though these panels are to consider and apply issues of law ex officio.

One option that would help to mitigate the risks related to systematic non-participation, and could generally enhance the procedural fairness of CAS anti-doping arbitration, is to take a more proactive approach to offering the Athlete legal representation. [68]An Athlete, uninformed of the risks of non-participation in a proceedings or unaware of lower cost options for participation, such as video conferencing, might be less likely to take part in a proceedings. Without the benefit of knowing the reasons behind the ICAS’ decision to make the availability of a pro bono counsel contingent upon whether a hearing is held in the Daiders case, one fails to see any compelling justification for this stipulation.[69] Further, as the Daiders case illustrates, CAS panels often rely upon legal principles that are not expressly written in the Code, but are instead implied or inferred from policy justifications, the functioning of the regulations from a systematic viewpoint, or past CAS case law. Without competent legal representation, it is more difficult to justify faulting an Athlete (especially one who is not competent in the language of any of the CAS proceedings) for failing to meet legal standards that necessitate a background in law, and likely an expertise in anti-doping as well, to decipher.

Conclusion

In conclusion, while the result in the Daiders award, namely a two-year period of Ineligibility, appears completely in line with past CAS jurisprudence, the case raises a number of interesting and unsettled issues in anti-doping. In particular, it indirectly highlights an inherent difference between the 2009 Code and the 2015 Code, regarding the potential consequences of an Athlete’s failure to establish the source of the substance. It also illustrates how a strict view of establishing the source of the substance as akin to that taken in the Daiders award could lead to systematic four-year bans in cases where the Athlete is in the common predicament of being unsure about the origin of the substance.

Copyright October 13, 2015 by the WADC Commentary Team

[1] Daiders award at [6]–[7].

[2] Daiders award at [7].

[3] Daiders award at [8].

[4] Daiders award at [8].

[5] Daiders award at [10].

[6] Daiders award at [10].

[7] Daiders award at [10].

[8] Daiders award at [11].

[9] Daiders award at [12].

[10] Daiders award at [16].

[11] Daiders award at [16].

[12] Daiders award at [16].

[13] Daiders award at [16].

[14] Daiders award at [16].

[15] Daiders award at [18].

[16] Daiders award at [22].

[17] Daiders award at [22].

[18] Daiders award at [22].

[19] Daiders award at [22].

[20] Daiders award at [27].

[21] Daiders award at [27].

[22] Daiders award at [27].

[23] Daiders award at [23].

[24] Daiders award at [23].

[25] Daiders award at [23].

[26] Daiders award at [25].

[27] Daiders award at [24]. The various extensions were granted due to the “lack of knowledge of the English language of Mr Lauris Daiders and Mr Jànis Daiders, as invoked by the FIM, and the difficulties allegedly encountered by the FIM in liaising with them”.

[28] Daiders award at [64].

[29] Daiders award at [47].

[30] Daiders award at [48].

[31] Daiders award at [50].

[32] Daiders award at [50].

[33] Daiders award at [51].

[34] Daiders award at [51].

[35] Daiders award at [51].

[36] Daiders award at [52].

[37] Daiders award at [52].

[38] Daiders award at [52].

[39] Daiders award at [53].

[40] Daiders award at [53].

[41] CAS 2010/A/2230, International Wheelchair Basketball Federation v. Gibbs, February 22,2011.

[42] Daiders award at [59].

[43] Daiders award at [56].

[44] Daiders award at [58].

[45] Daiders award at [58].

[46] Daiders award at [57].

[47] CAS 2009/A/1926, ITF v. Gasquet, December 17, 2009. para. 5.9.

[48] Daiders award at [57].

[49] Daiders award at [64] – [66].

[50] Daiders award at [61].

[51] CAS 2011/A/2384, UCI v. Contador, February 6, 2012; Décision du Conseil de Discipline Luxembourgeois Contre le Dopage, Schleck, January 31, 2013; CAS 2009/A/1926, ITF v. Gasquet, December 17, 2009.

[52] Daiders award at [62].

[53] Daiders award at [63].

[54] Daiders award at [69].

[55] TAS 2014/A/3475, Van Snick v. FIJ, July 4, 2014. See also our summary and comment on the Van Snick CAS award in Switzerland Anti-Doping Reports, International Sports Law Review (Sweet & Maxwell), Issue 1/15, p.40 et seq.

[56] Contador award at [254].

[57] Contador award at [254].

[58] Contador award at [255].

[59] Daiders award at [53]. In its consideration of whether WADA had “failed in its ‘duty of collaboration’”, the panel noted that Lauris Daiders “did not request at any point WADA’s collaboration or cooperation to the investigation and clarification of the facts of the case”.

[60] Contador award at [261].

[61] Daiders award at [63].

[62] Daiders award at [51].

[63] Antonio Rigozzi, Ulrich Haas, Emily Wisnosky, Marjolaine Viret, Breaking Down the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping Code, International Sports Law Journal, June 10, 2015.

[64] See e.g. Swiss Supreme Court, Decision of 4 August 2006, 4P.105/2006, para. 3.3.

[65] Specifically, in addition to the Daiders case, at least one Athlete respondent did not communicate with the CAS in the following cases: in CAS 2013/A/3316, WADA v. Bataa, May 13, 2014, CAS 2013/A/3347, WADA v. Koterba, December 22, 2014, CAS 2014/A/3485, WADA v. Goltsova, August 12, 2014; and the Athlete (or Athletes) did not file an answer, nor participate in the hearing (if one took place), in the following cases: CAS 2014/A/3734, WADA v. Lukanin, December 4, 2014, CAS 2014/A/3472, WADA v. Karpinska, May 9, 2014. In the following cases the Athlete did file an answer: CAS 2014/A/3488, WADA v. Lallukka, November 20, 2014, CAS 2013/A /3341, WADA v. Pineda Contreras, May 28, 2014, CAS 2012/A/2960, WADA v. Covert, January 31, 2014, CAS 2013/A/3241, WADA v. Fiorio, January 22, 2014.

[66] See Gabrielle Kaufmann-Kohler and Antonio Rigozzi, International Arbitration. Law and Practice in Switzerland

(Oxford University Press, 2015) at [280a] for an elaboration of an argument that cost can potentially inhibit access to justice in the context of sport arbitration.

[67] Indeed, according to a recently published CAS Code commentary, the reason that consultation procedures were abrogated from the CAS was due to the fact that “consultation procedure was employed in order to resolve existing disputes and the federations requesting a legal opinion were thus allowed to argue their case in a unilateral way (because this type of procedure was not open to individuals but only to sports associations)”.

[68] While legal representation is typically a procedural right for criminal procedures and anti-doping is not technically considered to be criminal in nature, enough similarities exist that lend support to the notion that these sort of protections should apply in anti-doping procedures. See, e.g. Adam Lewis and Jonathan Taylor (eds), Sport: Law and Practice (Third edition, Bloomsbury Professional 2014) s G1.56. Lewis suggests that Article 6(3) of the ECHR, which includes the right to representation, might be applicable in cases where “the allegation is so serious as to render the proceedings akin to criminal, for example arguably an allegation of doping.”

[69] This is all the more true, given that Article 20 of the CAS Legal Aid Guidelines specifies that the CAS is only potentially responsible for the reasonable accommodation and travel expenses of a pro bono counsel