Recently, two high-profile doping incidents, one involving figure skater Kamila Valieva, and the other involving tennis player Simona Halep, have reignited discussions about the legal consequences of the use of performance-enhancing substances. While both cases involve allegations of doping, a closer examination reveals distinct differences in circumstances and outcomes.
As a rule, the athlete who is found liable for the presence of a prohibited substance in her body, faces a four-year suspension unless he/she can establish that the antidoping rule violation was unintentional. In such case, a two-year period of ineligibility would apply, but this can be reduced or even eliminated if no significant fault or negligence can be proved.
In practice, the athlete would need to demonstrate – to the comfortable satisfaction of a CAS panel, on the balance of probabilities –how the substance entered his/her system and prove that he/she took the utmost caution to keep the system clear of prohibited substances. A specific objective and persuasive evidence needs to be provided; a simply denial of wrongdoing or speculative explanation are not sufficient.
The second hurdle, proving he/she took the utmost caution, means proving that he/she did everything in his/her power to avoid being contaminated by the prohibited substance. History has seen exceptional cases where no significant fault or negligence has been established, such as cases of intimate contact, medication, and contaminated food, drink or supplement cases. These are, however, very rare.
Valieva Doping Case
The Russian star figure skater Kamila Valieva found herself at the centre of a doping scandal during the 2022 Winter Olympics in Beijing when it was revealed that she had tested positive for trimetazidine, a banned substance, in a sample collected prior to the Olympics.
Despite the positive test result, Ms. Valieva was allowed, by the CAS Ad Hoc Division set up at the Olympics, to compete in the team event at the Olympics, where she won a gold medal with her team. This provisional decision was driven by her young age and the “irreparable harm” that could otherwise be caused to her.
The case was first dealt with by the Russian Anti-Doping Agency (RUSADA) which found that the skater bore “no fault or negligence”, and therefore, it did not impose any period of ineligibility. Unsurprisingly, given the strict liability of an athlete for the presence of any prohibited substance, this decision was appealed by the World Anti-Doping Agency (WADA) in February 2023.
In January 2024, the CAS issued a complex (129-page) decision in the Valieva case. In a nutshell, the athlete argued that the substance entered her body upon eating a strawberry dessert prepared by her grandfather which was contaminated from the chopping board, which he had also used for cutting up his medication (which contained the prohibited substance).
The CAS Panel however was not persuaded by the explanations provided by the athlete and found many shortcomings in her evidence and too many unanswered questions. It therefore applied the standard four-year ineligibility period.
More details can be found in the CAS decision (joint award for case No. CAS 2023/A/9451, CAS 2023/A/9455, and CAS 2023/A/9456.
Halep Doping Case
Simona Halep, a former World No. 1 tennis player and Grand Slam champion, faced allegations of doping after testing positive for the banned substance Roxadustat in August 2022 during the US Open.
In its decision in September 2023, the International Tennis Federation Independent Tribunal imposed a four-year period of ineligibility on her. The athlete appealed this decision and requested the sanction be reduced.
The CAS reduced the period of ineligibility from 4 years to nine months. Although the CAS has yet to publish the full decision, its media release already provides certain details of reasoning.
In essence, the athlete did not contest her liability as to the presence of Roxadustat in her sample but she objected to the “intentional nature” of the infraction, arguing contamination from a Keto MCT supplement.
According to the CAS Panel, the athlete established, on the balance of probability, that the substance had entered her body through the consumption of a contaminated supplement and as a result, that her anti-doping rule violations were not intentional. Despite some level of fault or negligence for her violations, the panel concluded that she bore no significant fault or negligence.
In conclusion, while the Valieva and Halep doping cases share common themes of alleged rule violations and the use of prohibited substances, the key difference seems to lie in the ability of the athlete to provide persuasive evidence of how the substance entered the body, and to establish no significant fault or negligence in the specific case.
It will be interesting to read more details about the statements and the proof provided by Ms. Halep and compare it with those raised by Ms. Valieva once the CAS award in Halep case is made available to the public.
