[ANTI-DOPING: THE RESPONSIBILITY OF THE PROFESSIONAL ATHLETE]

[COURT OF ARBITRATION FOR SPORT - LIABILITY - PROFESSIONAL ATHLETE - SPORTS DOCTOR - ANTI-DOPING - NEGLIGENCE - FAULT - STANDARD]

Although the sanction may be modulated in view of the specific circumstances of the case, the athlete may be held liable in anti-doping matters, even in the case of consumption of a medicine prescribed by a doctor specialising in sports medicine, if it contains prohibited substances.

Mr BOSCQ is a professional international ice hockey player as defined by the International Ice Hockey Federation's ("IIHF") anti-doping regulations.

On the night of 3 to 4 December 2021, Mr BOSCQ underwent a doping control conducted by the French Anti-Doping Agency ("AFLD"), and submitted samples A and B (no. 7042108), which were sealed at 00:04 on 4 December. Mr BOSCQ had declared in the Doping Control Form ("DCF") that he had taken food supplements (specifically proteins) but no medication, and that he had not received any infiltration.

On 21 December 2021, the analysis of the A sample carried out by the WADA-accredited French Anti-Doping Laboratory revealed the presence of "Tuaminoheptane" ("Stimulants" (category S6) according to the WADA Prohibited List (2021)) at a level of 259 ng/mL.

On 10 January 2022, the AFLD informed Mr BOSCQ of the opening of disciplinary proceedings in accordance with article 7.2 of the AFLD Disciplinary Rules and of the possibility of requesting the analysis of the B sample.

On 11 January 2022, Mr BOSCQ submitted to the AFLD an application for a Therapeutic Use Exemption ("TUE") with retroactive effect. The AFLD replied that the competent authority to examine this application was the IIHF, as Mr BOSCQ was an international-level athlete (article 4.4.3 of the World Anti-Doping Code).

On 13 January 2022, Mr BOSCQ submitted his application for TUE with retroactive effect to the IIHF.

On 19 January 2022, Mr BOSCQ explained to the AFLD that Rhinofluimucil had been prescribed by his doctor for his persistent cold, as washing with seawater had been insufficient to treat his condition.

On 3 March 2022, the IIHF rejected the application for a retroactive TUE, in particular on the grounds that therapeutic alternatives could have treated the condition from which he was suffering.

On 17 March 2022, Mr BOSCQ provided additional explanations to the AFLD: his doctor had agreed that he had made a mistake in prescribing Rhinofluimucil which contained Tuaminoheptane, although the dose was negligible. Mr BOSCQ also admitted that he had not checked the information on the medicine label and on the list of prohibited products, but specified that he had no intention of doping himself with a view to affecting his sports performance.

On 22 June 2022, the AFLD proposed to Mr BOSCQ, and Mr BOSCQ accepted, to acknowledge the breach of Article 2.1 of the AFLD disciplinary regulations, renouncing a hearing before the Sanction Committee and accepting the proposed sanctions.

On 23 June 2022, the AFLD issued its decision no. D.2022-27 ("Contested Decision"), sentencing Mr BOSCQ to a period of suspension of 2 months until 22 August 2022 inclusive (Article 10.14.1 of the AFLD Disciplinary Rules) and ordering publication of the outcome of the disciplinary proceedings on the AFLD website for the entire duration of the suspension. The AFLD considered that there was no significant fault or negligence on the part of Mr BOSCQ and that there was no evidence of any intent to commit an anti-doping rule violation.

On 3 August 2022, the Swiss foundation World Anti-Doping Agency (WADA) appealed before the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland (Articles 13.1, 13.1.1, 13.2.3 and 13.2.3(f) of the AFLD Disciplinary Rules; Article R47 of the Code of Sports-related Arbitration; Article 186 of the Federal Law on Private International Law) (CAS 2022/A/9083).

The hearing was held at the CAS headquarters in Lausanne on 19 December 2022.

The WADA requested an upward reassessment of the duration of Mr BOSCQ's suspension, between 18 and 24 months, due to the AFLD's failure to fully assess the "degree of fault" that it would qualify as "normal" in view of the relevant CAS case law (Article 10.6.1.1 of the AFLD's Disciplinary Rules; Article R58 of the Code of Sports-related Arbitration).

In this context, the WADA sets out the 2 categories of fault (CAS 2017/A/5301 and CAS 2017A/5302) as follows :

- the "normal degree of fault" ranging from 12 to 24 months' suspension, with a “normal standard” level, resulting in an 18-month suspension; and

- the "slight degree of fault", ranging from 0 to 12 months' suspension, with a “standard slight” level.

Then, the WADA outlines the case law methodology for assessing an athlete's degree of fault (CAS 2013/A/3327 and CAS 2013/A/3335):

- First, the objective elements of the case must be examined with a view to categorising the violation in one of the two categories of fault referred to above.

The objective factors include the athlete's ability to :

o read the label of the product used (or otherwise ascertain the ingredients) ;

o cross-check all the ingredients on the label with the list of prohibited substances;

o carry out an Internet search on the product;

o ensure that the product comes from a reliable source; and

o consult appropriate experts in the field and instruct them diligently before consuming the product.

- Secondly, subjective factors may be taken into account with a view to adjusting (upwards or downwards) the duration of the sanction provided for by the category determined, starting from the "standard" level, or exceptionally changing the category previously determined on the basis of objective factors.

Subjective factors include considerations relating to :

o the athlete's age ;

o the athlete's experience ;

o any language or environmental problems the athlete may have;

o the level of anti-doping education received by (or reasonably available to) the athlete; and

o other personal impediments;

without these serving as independent grounds for granting a reduction in the period of ineligibility.

WADA highlights the fact that in the context of medical prescriptions, athletes have a duty of "increased vigilance" because of the inherent significant risk that the medicine may contain prohibited substances (CAS 2008/A/1565; CAS 2016/A/4609). In other words, WADA claims that an athlete cannot exonerate himself from his responsibilities by hiding behind the fault of his doctor, which in any event would be directly attributable to him (CAS 2014/A3798; CAS 2017/A/5015 & 5110; CAS 2018/A/5581; Order no. 2018-1178).

The AFLD reiterates that the arbitrators should only replace a sanction if the initial sanction was "manifestly disproportionate" (CAS 2016/A/4840; 2021 World Anti-Doping Code).

AFLD notes that the Cilic sentence is based on the 2009 World Anti-Doping Code, which refers to "no fault or negligence" and "no significant fault or negligence", without containing any instructions on assessing the degree of fault of an athlete.

Although the 2015 World Anti-Doping Code introduces a definition of "fault", referring to "circumstances considered" in assessing the degree of fault of an athlete, no formal distinction is made between objective and subjective criteria (2015 World Anti-Doping Code, Annex I).

The AFLD maintains its position that all of the elements considered justify a sanction of between 0 and 12 months for slight negligence, the standard of negligence being set at 6 months. The factors used to determine the degree of minor misconduct and the reduced duration of the sanction include the athlete's young age, lack of experience, the existence of a prescription from a sports doctor, the fact that the use occurred outside the competition period and without any link to sporting performance, the absence of any significant fault or negligence and the athlete's experience.

The AFLD highlights the evolution of the general economy of the World Anti-Doping Code, the AFLD Disciplinary Rules and the WADA International Standard on TUEs. WADA may give its agreement, at its "free and entire discretion", for an anti-doping organisation to exceptionally grant a retroactive TUE even when the conditions for granting the TUE have not been met, if, in view of the purpose of the WADC, it would be manifestly unfair not to grant it.

Mr BOSCQ agrees with the AFLD.

The CAS considers that the starting point for the level of care expected of athletes lies in their primary responsibility to ensure that they comply with the anti-doping provisions and that no prohibited substances enter their bodies (CAS 2017/A/5320). Next, the degree of risk that should have been perceived by the athlete is taken into account. The circumstances considered when assessing the degree of fault must be specific and relevant, whether they are objective or subjective elements. An athlete's degree of fault is assessed in terms of how far he or she has deviated from the expected standard. When assessing the degree of fault of an athlete in order to determine the sanction to be imposed in application of the AFLD's disciplinary regulations (or the 2021 version of the World Anti-Doping Code), account must be taken of the objective factors referred to, on a non-exhaustive basis, in these texts.

The CAS decided in favour of taking account of the objective factors identified in its case law in order to assess the degree of fault of athletes on a case-by-case basis, even when the 2021 version of the World Anti-Doping Code was applicable (CAS 2021/A/7983 & 8059). In particular, the CAS argued that the case law methodology remains useful and "is relevant" for the application of the 2021 version of the World Anti-Doping Code.

The CAS found that Mr BOSCQ "ignored an elementary step of his duty of care", which constitutes a deviation from the standard of "expected behaviour" of definite importance. Mr Boscq's misconduct was therefore categorised as "normal" misconduct, resulting in a suspension of between 12 and 24 months, with a standard of 18 months. Secondly, the CAS considered that in this case there were no exceptional circumstances closely linked to the subjective elements that would allow the category of fault to be changed. Nevertheless, consideration of the subjective elements made it possible to apply the lower duration of the sanction, i.e. 14 months in the 12 to 24 month bracket.

The CAS also invoked the "effet utile" of the World Anti-Doping Code.

Consequently, and by its award of 31 October 2023, the Court of Arbitration for Sport has :

- Declared the appeal submitted on 3 August 2022 well-founded;

- Annulled the AFLD's decision of 23 June 2022 (no. D.2022-27);

- Sentenced Mr BOSCQ to a period of suspension of 14 months minus the period of suspension served by Mr BOSCQ between 22 June and 22 August 2022 for the anti-doping violation (articles 2.1 of the AFLD disciplinary regulations).

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