Proportionality and Arbitrariness of Sanctions for Anti-Doping Rule Violations

The UEFA cases of Onana and Redbull Salzburg

Recently, a number of doping cases have made the news. One of these and probably the most high-profile in the Netherlands was the doping suspension of Ajax goalkeeper André Onana. He was sentenced to a 12-month suspension for the accidental (without significant fault) use of a diuretic. Despite the fact that the drug does not promote performance.

Another high-profile case involved the suspension of two Malian players from Red Bull Salzburg football club. They too had unintentionally used a banned substance. However, their suspension was limited to three months.

How can such doping sanctions in what appears to be almost similar cases be so different?

Anti-Doping rules and Sanctions

Sanctions for doping offences are determined on the basis of the World Anti-Doping Code.

For Dutch National Federations there is a national Dutch version, the National Anti-Doping Rules. These regulations contain the same rules as the World Anti-Doping Code. UEFA has included these provisions in the UEFA Anti-Doping Regulations.

The World Anti-Doping Code stipulates penalties for various types of anti-doping rule violations. In principle the use of a prohibited substance is punished with a 4-year suspension, if the substance has been used intentionally (Article 10.2.1 World Anti-Doping Code).

The rules make a distinction between heavier and lighter substances, so-called specified and non-specified substances. For the lighter specified substances, the sports federation must demonstrate intentional use, whereas for the heavier non-specified substances, the athlete must demonstrate unintentional use. The WADA doping list shows which substances have been classified as specified or non-specified.

If an athlete can prove that the use was unintentional in case of non-specified substances, or the federation cannot prove intent in case of a specified substance, the suspension is 2 years.

The World Anti-Doping Code does allow for the reduction of penalties in the case of specified substances. The sports federation can then reduce the penalty if no major mistakes were made by the athlete. This reduction can even go as far as a reprimand.

Incidentally, for drugs such as cocaine, ecstasy and THC, more flexible rules apply when these substances have been used outside of competition.

UEFA-Cases

What is surprising in the aforementioned UEFA cases is that the penalties are so vastly different. In both cases no suspension of 2 or 4 years was imposed. This means that in both cases UEFA apparently ruled that the use was unintentional. So why the high penalties?

In the case of Ajax goalkeeper Onana, it is known which drug he used, namely Furosemide. That in itself is not a performance-enhancing drug. This drug is also on the list of banned substances as a lighter specified substance. UEFA must therefore prove that the substance was used intentionally. UEFA failed to do so. Apparently UEFA did not think the mistake was too serious either, because they reduced the standard suspension from two years to one year.

In the case of the Red Bull Salzburg footballers, it is not known exactly what drug was found. What is known is that it is a medicine for altitude sickness and that it is said to have come from medication given to them by the medical staff of the Malian football federation. As this is a punishment of only three months, it is likely that in this case too there must have been (i) a lighter specified substance; (ii) that UEFA could not prove intent; and (iii) that the intake of the drug was without significant fault.

Proportionality and arbitrariness

In both the above cases, UEFA has ruled that there was no intent. In any case, in the Onana case, there no use of a performance-enhancing drug. In both cases there is also no significant fault on the part of the athlete. Nevertheless, the UEFA imposed a significantly higher sanction on the Ajax goalie Onana.

The question that comes to mind is why André Onana is being suspended for so long. Apart from the question of whether Onana’s statement is credible, UEFA has established that there was no intent and no significant fault. If you follow that finding, then Onana did not promote his performance or intended to promote his performance and therefore did not cheat or intended to cheat. In that case, a suspension of 12 months, four times as high as in a similar case, seems disproportionate. This is all the more true as suspensions can have a major impact on someone’s career (and income).

In my opinion, this proportionality should also take into account that team athletes are hit much harder by doping suspensions than individual athletes, such as runners who can easily train for themselves, due to the ban on training with the team (until just before the end of the suspension).

Doping authorities will say that these are the rules. In some cases, therefore, these rules seem to be disproportionate or lead to completely arbitrary results. This, in my view, seriously undermines the legal protection of athletes

Onana has appealed to the CAS where the sentence was reduced with 3 months. Still 3 times the suspension imposed in another similar case.

This blog was originally published on www.sportrecht.blog on 18 April 2021 (in Dutch). 

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