Monday, May 20, 2013

ASADA investigates the NRL - a legal perspective

Following the release of the Australian Crime Commission report in February 2013, the Australian Sports Anti-Doping Authority (ASADA) has commenced investigations into doping in Australia's National Rugby League (NRL), as well as the Australian Football League (AFL). Although these investigations have received wide spread media attention, there has been considerable uncertainty as to how these investigations will be conducted and the powers of ASADA generally.

What is ASADA?

ASADA was established in 2006 and power is conferred on it by the ?Australian Sports Anti-Doping Authority Act 2006 (Cth).

Some of ASADA's functions include:

  • establishing a National Anti-Doping scheme (NAD Scheme);
  • compliance with World Anti-Doping Code (WADA Code); and
  • ensuring that sports administration bodies adopt anti-doping policies that comply with the NAD Scheme and the WADA Code.

ASADA and the relationship with the NRL

The NRL implements an Anti-Doping Policy of the Australian Rugby League Commission, which explicitly adopts the WADA Code and the National Anti-Doping (NAD) scheme. The policy is reviewed annually to ensure it remains Code compliant with the requirements of both the WADA Code and ASADA. ASADA has the power to advise the NRL to issue notice of an alleged breach of the NRL Anti-Doping Policy. The notice must set out the player's options in accepting a nominated penalty under the WADA Code or proceeding to a hearing before the NRL Anti-Doping Tribunal.

What breaches are currently being investigated?

As the investigation is being conducted confidentially, it is difficult to know the substance of the allegations. However, at this stage, it appears that the investigation relates to breaches of the NRL Anti-Doping Policy and does not extend into criminal sanctions.

The primary breaches being investigated arise out of Article 2.1 of the WADA Code, which provides that the presence of a 'Prohibited Substance' will constitute an anti-doping rule violation. This is a strict liability offence. In relation to what constitutes a Prohibited Substance, the World Anti-Doping Agency (WADA) publishes a prohibited list annually.

Further anti-doping rule violations include:

  • refusing to submit a sample (Article 2.3);
  • tampering with a sample (Article 2.5);
  • possession of Prohibited Substances (Article 2.6);
  • trafficking or attempted trafficking of Prohibited Substances (Article 2.7); and
  • assisting in or covering up anti-doping violations (Article 2.8).

Burden and standard of proof

The NRL's Anti-Doping Policy adopts Article 3 of the WADA Code, which provides that the relevant Anti-Doping Organisation (in this case, ASADA) has the burden of proof in establishing that a violation has occurred. This must be proved to the 'comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation made'. The standard is greater than the balance of probabilities, but does not require an offence to be proved beyond reasonable doubt.

What penalties can be imposed?

For Prohibited Substances, the WADA Code imposes a period of ineligibility of two years for a first offence and a lifetime ban for subsequent offences. There is a suggestion that ASADA is offering a reduced six-month suspension for any players that confess to administering banned substances. However, Article 10.5.3 of the WADA Code only allows for the 75% reduction in the ineligibility period in circumstances where 'substantial assistance' is provided to the investigations, which would require a player to disclose information that leads to other anti-doping violations being discovered. Admitting their own guilt alone would not be enough.

The timing of any admission is also important. Were a player to admit to their own anti-doping violation before ASADA is to that point aware of the breach, the standard two-year penalty can be reduced by up to 50%. This only applies where the player comes forward voluntarily and not in circumstances where the player knows that they are about to be caught in any event.

The NRL's Anti-Doping Policy provides that if more than two members of a team are found to have committed an anti-doping rule violation, the NRL shall impose an appropriate sanction on the team, such as loss of points or disqualification, in addition to the sanctions imposed on the individual. This is derived from Article 11 of the WADA Code.

Are there any defences available and what must players and clubs do to comply?

The following defences can be raised. However, some defences are only partial defences or will lead to a reduction in sentence.

1. No fault or negligence - If a player can establish that they could not reasonably have known or suspected that they had used or been administered the Prohibited Substance then no suspension will apply. It is a completely exculpatory defence, but is extremely difficult to prove and requires the player to admit the presence of the drug in their system.

2. No significant fault or negligence - Sanctions may be reduced by up to 50% where a player demonstrates that they bear no significant fault or negligence. Again, if the player wishes to use this defence, there must be an admission that the substance was in their system.

3. Substantial assistance - This was referred to above and requires a player to provide full disclosure of all information that leads to the discovery of an anti-doping violation by another person. Factors to be considered include the number of individuals implicated, the status of those individuals in the NRL and the seriousness of the violation.

4. Therapeutic use - Athletes with documented medical conditions may request a therapeutic use exemption. However, this must be requested within 21 days of becoming aware of the medical condition and therefore is unlikely to apply to the investigations involving the NRL.

In addition to the specific defences available under the WADA Code, athletes have previously alleged failures in the process arising out of issues such as lack of procedural fairness, or defects in the evidence against them. Sections 102 and 103 of the NRL Anti-Doping Policy require all players and other interested parties, including coaches, trainers and agents, to co-operate with any ASADA investigation. The scope of this obligation is currently the subject of debate and has held up the current investigation after the completion of only one interview.

Although all parties have an expressed a desire to complete the investigation as quickly as possible, the potential consequences of the investigation are very serious and further issues will undoubtedly arise.

Brendan Hoffman Partner
Gadens Lawyers, Sydney
bhoffman@nsw.gadens.com.au

This article was originally published on Gadens Lawyers' internet site here: http://tinyurl.com/bw6ton2


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