Testosterone Guinea Pigs and lex mitior – Salazar v USADA
The Court of Arbitration for Sport (“CAS”) recently considered the case of Mr Salazar, the former elite-level long distance runner. From 2001 to 2019 Mr Salazar acted as head coach to the Nike Oregon Project (“NOP”) – an organisation which aimed to make United States’ long distance runners internationally competitive. Together with Dr Brown – physician to several NOP athletes and to Mr Salazar personally – the United States Anti-Doping Agency (“USADA”) alleged he had committed multiple anti-doping violations (“ADRVs”). These related to use of testosterone, L-carnitine infusions, and improper interference with anti-doping processes. In 2019 both Dr Brown and Mr Salazar came before the North American Court of Arbitration for Sport which found against them and banned them from participating in sports for four years. They appealed to CAS, which issued its judgment in September this year. Whilst several allegations were overturned on appeal, the four-year ban remained undisturbed.
It would be testing everyone’s patience to try to distil the whole of a judgment which stretches to 115 pages into a single article. However, several interesting points warrant closer examination, not least how the court determined which version of the World Anti-Doping Code (“WADC”) applied. Unhelpfully, the ADRVs spanned 2008 – 2016, during which the 2003, 2009 and 2015 WADC all applied. You might think that this should not present any difficulty – each particular ADRV should be judged according to the rules in force at that time. The appellants disagreed. The wording of several ADRV had changed significantly over the years. They contended – applying the principle of lex mitior– they should benefit from those changes. In other words, relying on the decision in CAS’ decision Fenerbahce v FIFI (21 June 2013) “a subject cannot be held liable for a disciplinary offence on account of an act which no longer constitutes an offence under a new law”.
USADA challenged this interpretation and maintained lex mitior applies only to the issue of sentence/sanction, not to the wording of substantive offences. In doing so it relied on the CAS decision in Drug Free Sport New Zealand v Kris Gemmell (1 December 2014).
To take an example: Dr Brown faced an allegation he had breached Article 2.8 WADC 2009 by administering L-carnitine through an improper method to an athlete. By way of mens rea, all that the WADC 2009 required was a general intent to perform the act in question. It did not require that Dr Brown knew he was thereby committing an ADRV. In contrast, Article 10.5.2 of the 2015 WADC states that Article 2.8 is an “Article… where intent is an element of the anti-doping rule violation”. This latter version then inputted a different level of intention, which the appellants argued should apply to their case.
CAS considered this issue at length. lex mitior was defined in UCI and CONI (Digest of CAS Awards (1986-1998), p. 477 at 491):
“The principle whereby a criminal law applies as soon as it comes into force if it is more favourable to the accused (lex mitior) is a fundamental principle of any democratic regime…. This principle applies to anti-doping regulations in view of the penal or at the very least disciplinary nature of the penalties that they allow to be imposed. By virtue of this principle, the body responsible for setting the punishment must enable the athlete convicted of doping to benefit from the new provisions, assumed to be less severe, even when the events in question occurred before they came into force.”
This principle had been interpreted very differently in Fenerbahce and in Gemmell. Faced between the two, the court in the instant appeal rejected the appellant’s position. Fenerbahce provided no authority to support its interpretation that lex mitor only applied to the issue of sanction, other than a general invocation of international law. However, international law did not support such an interpretation. Article 7 European Convention of Human Rights states no one should be convicted for an act which did not constitute an offence at the time it was committed. It then added, “This Article shall not prejudice the trial and punishment of any person for any act… which at the time when it was committed, was criminal”. Article 15 International Covenant on Civil and Political Rights echoes this principle. Neither statement supports the suggestion lex mitior applies to the substantive elements of criminal offences.
Turning to the substance of the case, it is noteworthy how much of the appeal turned on matters of interpretation. Mr Salazar was prescribed varying doses of testosterone by Dr Brown. CAS found these prescriptions were legitimately provided. Nonetheless, Mr Salazar admitted administering some of his medication to his sons, who were not registered athletes, and then testing their urine to see if it was detectable. The purpose of this experiment, he claimed, was to assess the potential for NOP athletes to be “sabotaged” by someone rubbing a testosterone gel onto them after a race, causing them to test positive. No other motive was suggested during the hearing.
USADA alleged his actions amounted to “trafficking”, which WADC defined as including “giving” a prohibited substance to a third party. On appeal, Mr Salazar’s defence rested on the meaning of “giving”. He contended it did not mean administering a prohibited substance – “administration” existed as a separate ADRV and applied only to administering a substance to an athlete. CAS agreed,
“The Panel is of the view that the word “giving” in the definition of “trafficking” should be construed ejusdem generis and denotes the passing of property from one person to another. It follows that the act of “giving” for the purposes of that definition is analogous to the act of selling without value and is distinguishable from acts of administration or application of substances by one person to another, which are, as noted below, subject to separate and distinct definitions.”
Whilst CAS did not established he trafficked the testosterone, nonetheless it found he was liable to disciplinary action for being in possession of the drug as part of this testosterone experience. It could not be described as a proper clinical trial and there was no attempt to obtain approval. It was not appropriate to use non-athletes as guinea pigs for testing controlled substances.
The appellants faced further allegations relating to the administration of L-carnitine – a nutrient which helps endurance athletes by increasing the amount of fat metabolised. Again, the judgment turned significantly on the construction of the relevant WADC provisions.
Dr Brown administered an infusion of over 50ml containing L-carnitine to an assistant coach, Mr Magness. Although it was conceded Mr Magness did in fact fall into the definition of “athlete”, he was not a competitor and both Dr Brown and Mr Salazar maintained they did not think he was an “athlete”. Nonetheless Dr Brown’s administration placed him in breach of Article 2.8 WADC. It did not matter he considered Mr Magness was not an “athlete” and he thought his actions were permitted.
Mr Salazar was charged with administering the infusion, attempting to administer it, or being complicit in the administration. CAS found he had not administered the infusion within the ordinarily meaning of the term. Equally, he had not “attempted” to administer the infusion. WADC 2009 defined an attempt as “engaging in a substantial step in a course of conduct planned to culminate in the commission of” an ADRV. The word “planned” denotes engaging in conduct with the knowledge it would lead to an ADRV. In this instance, Mr Salazar did not think an ADRV would be committed. On the contrary, Mr Magness was chosen because Mr Salazar believed he was just a recreational runner, and not an “athlete” for these purposes. However, despite defeating these imputations, CAS considered he was complicit in the administration.
The final allegations related to “tampering” – in effect interfering with anti-doping monitoring and investigation. These were partially proved. The court considered his instruction to athletes not to disclose injections of L-carnitine they had received on the basis he (wrongly) believed a single injection of less than 50 ml was permitted. CAS addressed the issue of interpretation again. It considered, “tampering must have the requisite purpose of subverting the doping control process”. His honest but mistaken belief did not justify such a finding. However, subsequently Mr Salazar thought this instruction did constitute an ADRV. When questioned on this he intentionally misled USADA in an effort to protect himself. This amounted to tampering with the doping control process.
The proper interpretation of codes of conduct will no doubt continue to be a source of contention in the future – perhaps without the additional complication of lex mitior.