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Anti-doping in Sport: an analysis of the Bibo Ruling. By Mpho Sethaba and Nicholas Potgieter

As we have witnessed over the years, doping has and continues to be a scourge on professional sports both locally and internationally. The World Anti-Doping Agency (“WADA”) was established in 1999 to promote, co-ordinate and monitor the fight against doping in sport in all its forms. In order to realise the aforesaid purpose, WADA established its rules relating to doping in sports (“the WADA rules”).

The South African Institute of Drug Free Sports (“SAIDS”) is an independent body established under section 2 of the SAIDS Act 14 of 1997. SAIDS is the doping authority in South Africa and has adopted the WADA rules. Accordingly, issues relating to doping in South African sports are governed by SAIDS in accordance with the SAIDS Anti-Doping Rules 2016 (“SAIDS rules”). The SAIDS rules are identical to the WADA rules. The SAIDS rules set out which substances are prohibited and, in circumstances where a prohibited substance has been used by an athlete, the SAIDS rules set out the appropriate sanction applicable to the athlete.

Over the years, numerous athletes have received sanctions for using prohibited substances as set out in the SAIDS rules. One of the most notable cases relating to anti-doping rule violations in South African sports in recent years is the case of Thandani “Bibo” Ntshumayelo (“Bibo”).

On 9 January 2016, Bibo, while in the employ of Orlando Pirates Football Club, and after a match (“the match”) between Orlando Pirates Football Club and Platinum Stars Football Club, was required to undergo a random doping test (“the test”). On 17 May 2016, SAIDS notified Bibo that he had committed an anti-doping rule violation as contemplated in the SAIDS rules in that the presence of the Benzoylecgonine, a metabolite of cocaine was detected in the urine sample that Bibo provided during the test and that he was provisionally suspended from taking part in professional sport pending a hearing organised by SAIDS. On 16 August 2016, and pursuant to a hearing held in accordance with the SAIDS rules, the panel appointed in accordance with the SAIDS rules (“the SAIDS panel”) found Bibo guilty of an anti-doping rule violation in terms of the SAIDS rules and ordered that Bibo shall be ineligible to take part in sport for a period of 4 years, to be applied retrospectively from 17 May 2016.

In September 2018, following an appeal filed by Bibo, the Appeal panel appointed in terms of the SAIDS rules (“the Appeal panel”) ordered that the period of ineligibility be reduced to 2 years. The effect of the ruling by the Appeal panel was that Bibo could immediately return to professional football, having already served a period in excess of 2 years since the ruling in August 2016.

The purpose of this article is to explain why the decision of the SAIDS panel was flawed and subsequently reversed by the Appeal panel.

BRIEF FACTS

During the hearing before the SAIDS panel in August 2016, Bibo testified to the following facts which were not disputed:

  1. Bibo used cocaine 3 days prior to the match;
  2. Bibo used cocaine at a party and the cocaine was not used in a context related to sports.

THE DECISION TAKEN BY THE SAIDS PANEL IN SEPTEMBER 2018

In the August 2016, the SAIDS panel found that:

  1. Bibo committed an anti-doping rule violation in that he used cocaine, which is a prohibited substance ( this was not disputed as Bibo had pleaded guilty);
  2. SAIDS was successful in proving that Bibo had used the prohibited substance “intentionally, knowing that it was cocaine and that it is a banned substance” and accordingly the period of ineligibility shall be 4 years.

THE DECISION TAKEN BY THE APPEAL PANEL IN AUGUST 2016

In September 2018, the Appeal panel found that:

  1. While it was established that Bibo had committed an anti-doping rule violation, Bibo was successful in proving that he “did not have the requisite intension to cheat”;
  2. In light of the aforegoing, the appropriate period of ineligibility shall be 2 years.

AN ANALYSIS OF THE DECISIONS BY THE SAIDS PANEL AND THE APPEAL PANEL

In August 2016, the SAIDS panel had correctly found Bibo guilty of committing an anti-doping rule violation (this was never in dispute as Bibo had pleaded guilty). However, the SAIDS panel incorrectly found that the appropriate period of ineligibility in Bibo’s case was four years. In order to explain why the SAIDS panel erred in finding that the appropriate period of ineligibility in Bibo’s case was four years, regard must be had to the SAIDS rules.

It is important to point out that in adjudicating anti-doping matters in accordance with the SAIDS rules, the principles of strict liability are applicable. In simple terms, strict liability means that intention is not a requirement. Therefore, if it is established that an athlete had a prohibited substance in their system, the athlete is deemed to have been guilty of committing an anti-doping rule violation and it is irrelevant whether, subjectively speaking, the athlete intended to use the prohibited substance and to contravene the SAIDS rules. In Bibo’s case, it was not necessary to consider the principles of strict liability as Bibo had pleaded guilty and it was common cause that he had committed an anti-doping rule violation.

Once it is established that an anti-doping rule violation has been committed, the next step is to determine the appropriate period of ineligibility. It is important however, to point out that the principles of strict liability apply in determining whether an athlete is guilty of committing an anti-doping rule violation but do not necessarily apply in the same way when determining the appropriate period of ineligibility.

The appropriate period of ineligibility is determined in terms of Article 10.2 of the SAIDS rules which reads as follows:

10.2.1 The period of Ineligibility shall be four (4) years
where:

10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional.

10.2.1.2 The anti-doping rule violation involves a Specified Substance and SAIDS can establish that the anti-doping rule violation was intentional.

10.2.2 If Article 10.2.1 does not apply, the period of Ineligibility shall be two (2) years.

10.2.3 As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. An anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competitions shall be refutably presumed to be not “intentional” if the substance is a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of-Competition. An anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of-Competition in a context unrelated to sport performance.

Importantly, Article 10.2 states that where an athlete has committed an anti-doping rule violation, the appropriate period of ineligibility is four years unless it is established that the anti-doping rule violation was not “intentional”, in which event, the appropriate period of ineligibility shall be two years.

The word “intention” as used in Article 10.2 of the SAIDS rules, is meant to identify those athletes who cheat. If it is established that an athlete did not “intend” to cheat, the period of ineligibility shall be two and not four years. Properly construed, the word “cheat” in Article 10.2 refers to cheating in a manner that gives an athlete an unfair advantage over other athletes.

In finding that the appropriate period of ineligibility in Bibo’s case shall be four years because Bibo had used the prohibited substance “intentionally, knowing that it was cocaine and that it is a banned substance”, the SAIDS panel applied the wrong test.

Bibo’s argument before the Appeal panel was that it was clearly established during the hearing before the SAIDS panel in August 2016 that Bibo had no “intention” to cheat as contemplated in Article 10.2, and accordingly, the appropriate period of ineligibility is two years. Bibo specifically relied on the last sentence in Article 10.2.3 which is peremptory in nature and makes it clear that an anti-doping rule violation shall not be considered “intentional” for purposes of Article 10.2 if it is established that:

  1. The substance in question is only prohibited “In Competition” (“the first element”);
  2. The substance in question is a non-specified substance (“the second element”); and
  3. The substance in question was used “Out of Competition” in a context not related to sports (“the third element”).

In support of his argument, Bibo also relied on the international cases (adjudicated by the Court of Arbitration for Sports) of Nikola Radjen, an international level Serbian water polo player and Bryan Fernandez, an international level Argentinian footballer. Both Radjen and Fernandez had used cocaine and the Court of Arbitration for Sport found that because cocaine is a non-specified substance that was used “Out of Competition” in a context not related to sport, “intention” as contemplated in Article 10.2.1 was not established and accordingly, the appropriate period of ineligibility shall be 2 years and not 4 years.

The three elements in the last paragraph of article 10.2.3 were met because:

  1. In order to determine whether the substance in question is only prohibited “In Competition”, regard is to be had to the WADA International Standard Prohibited List (“the WADA list”) which lists all the banned substances and specifies whether each banned substance is only banned “In Competition” only or is banned “In and Out of Competition”. In terms of the SAIDS rules and the WADA list, when a substance is prohibited “In Competition only”, it means that, for purposes of anti-doping rules, an athlete is only prohibited from having such substance in his/her system during the period that is considered to be “In Competition”. In terms of the SAIDS rules, “In Competition” means the period commencing 12 hours before a match or competition and ending after the completion of any anti-doping tests conducted after the match/competition. Any period falling outside the “In Compeition” period is considered to be “Out of Competition”. Cocaine appears on the WADA list as a substance that is only prohibited “In Competition” and accordingly the first element was met;
  2. The WADA list sets out which banned substances are considered specified substances and which banned substances are considered non-specified substances. Cocaine appears on the WADA list as a non-specified substance and accordingly the second element was met; and
  3. Bibo’s uncontested testimony was that he had used cocaine three days before the match. This is considered to be “Out of Competition”. Furthermore, Bibo used cocaine at a party in a context not related to sports. Accordingly, the third element was met. It is important to point out that the word “used” means the consumption, injection, utilisation or ingestion of the banned substance. Therefore, even if the banned substance was in the athlete’s system during a test conducted “In Competition” (which constitutes an anti-doping rule violation), the third element will be met if it is established that the substance was used “Out of Competition” in a context not related to sports.

It is important to point out that the period of ineligibility in Article 10.2 of the SAIDS rules (whether 4 years or 2 years) is the maximum sanction applicable in each case but may still be reduced in terms of Article 10.4 and Article 10.5 of the SAIDS rules. The aforesaid Articles are not fully dealt with herein as they were not applied in Bibo’s case. On a broad level, these articles refer to instances were although it was established that the athlete had committed an anti-doping rule violation and the appropriate maximum sanction was determined in terms of article 10.2, the athlete’s maximum period of ineligibility is reduced or even eliminated because it is established that the athlete was not at fault or negligent. Typical examples of the application of Articles 10.4 and 10.5 are instances where the athlete’s drink or food were contaminated with a banned substance and the athlete had no knowledge of this fact or the athlete used a product that contains a banned substance and the athlete was unaware of this fact.

CONCLUSION

It is important for athletes and their representatives to familiarise themselves with the SAIDS rules, the WADA rules and the WADA list in order to ensure that the athletes do not commit anti-doping rule violations. Doping is a scourge on professional sports and as role models it is important that athletes take responsibility and ensure that they do not commit anti-doping violations. When faced with cases relating to sanctions imposed on athletes for anti-doping rule violations, it is important for athletes and their representatives to fully consider the SAIDS rules and how they may be applied to the specific facts. While it is acknowledged that athletes who commit anti-doping rule violations ought to be punished, it is important that the sanction imposed is correct and consistent with the rules and laws relating to anti-doping. In Bibo’s case, the initial sanction imposed in August 2016 was excessive and not consistent with the rules and laws relating to anti-doping due to an incorrect application of the SAIDS rules. Bibo was 26 when the 4 year ban was imposed. The four year sanction imposed by the SAIDS panel in August 2016 had effectively ended Bibo’s career. The decision by the Appeal panel has provided Bibo with an opportunity to revive his football career.

Mpho Sethaba can be contacted on 011 3289317 or msethaba@fluxmans.com
Nicholas Potgieter can be contacted on 011 3289319 or npotgieter@fluxmans.com