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Substantial Assistance: A Riddle or A Solution

* Written by Deokinandan Sharma



Introduction


The concept of substantial assistance has been defined as assistance “directed to the investigation and prosecution of criminal activities by persons other than the defendant.”[1]. The motive behind such assistance has been to lower the sentence of the defendant. The World Anti Doping Agency (“WADA”) in order to promote a more effective fight against serious forms of organized doping has included provisions to support this concept and make the sports arena clean and fair for the athletes.[2] Since the Anti-Doping Organizations(“ADOs”) of various countries are a signatory to the WADA, the rules can be found in the respective National Anti-Doping laws. The principle has evolved since the inception of WADA in 1999 to the present amendment via the WADA Code, 2021(“the Code”).[3]


What does the law state?


The WADA in order to incorporate a definition of the concept of substantial assistance had briefly outlined the provisions in 2011, through the WADA Draft Code 2015, vide Article 10.6. Presently the principal rule can be found under Article 10.7 of the Code, wherein it states that :

An Anti-Doping Organization with Results Management responsibility for an anti-doping rule violation may, … suspend a part of the Consequences (other than Disqualification) imposed in an individual case where the Athlete or other Person has provided Substantial Assistance to an Anti-Doping Organization, criminal authority or professional disciplinary body …

The concept of Substantial Assistance stands fulfilled only in either of the following situations (Refer to Article 10.7.1):

a. the ADO discovers a violation by another person;

b. the disciplinary body discovers a criminal offence or breach of professional rules, committed by another person and information for the same has been provided by the defendant;

c. Which would result in WADA initiating a proceeding against a signatory for non-compliance with the code;

d. Which results in a disciplinary body bringing forward a breach of professional/sport rules arising out of the sport other than doping.


It is further pertinent to mention that such an application for substantial application needs to be made before the appellate decision under Article 13 of the Code or before the expiration of the Appeal. It is only to be taken into consideration when the athlete charged with doping charges willingly offers to cooperate with their case by providing information and assistance about people.


To be eligible for the application the athlete needs to fully disclose in a written statement about the information available to them and then cooperate with the investigation and adjudication of any case-related information. The information should be ‘material fact’ that should qualify in any of the four mentioned clauses. If the criteria are fulfilled the athlete can avail a subsequent deduction of up to 75% of their sentence/ineligibility.


Application of the concept


On the occasion of the athlete meeting the criteria of Article 10.7 of the Code, and the prerequisites being completed the ADO’s in compliance with the respective rules have the authority to reduce the ineligibility period. On most occasions, the respective ADOs have granted reliefs to the athletes. It is, therefore, pertinent to mention how the ADOs have dealt with cases:


1. Lily Shobukhova (2014)[4]


Russian distance runner Liliya Shobukhova ineligibility period has been cut short from 3 years and 2 months by seven months, an 18% reduction, after her testifying and cooperating in her own case helped the International Amateur Athletic Federation(“IAAF”) via her application under application of Article 10.6.1.2, of the WADA Code(2015). Further, in the present case, the IAAF agreed to the notion of substantial assistance and likewise stated that “the assistance that can be provided by athletes and support personnel in uncovering anti-doping rule violations is vital for the IAAF.[5]


2. Bernice Wilsons (2016)[6]


Ms. Wilsons was a sprinter and had represented Great Britain in the 2010 European Indoor Championships among many. During the 2011 Bedford International Games, she had tested positive for anabolic steroid testosterone and sympathomimetic amine clenbuterol. Subsequently, the United Kingdom Anti-Doping (UKAD) Panel sent her a charge letter for the anti-doping rule violation, which was intercepted and hidden by her coach, Dr. Skafidas. After receiving the second charge letter Ms. Wilsons stated to the panel that it might have been through the supplements consumed by her. After receiving her second charge in 2015, Ms. Wilsons admitted that the supplements were given to her by the coach, Dr Skafidas. After her acceptance and providing assistance in order to get the admittance of Dr. Skafidas, the Panel banned the coach for a lifetime and reduced the ineligibility period of Ms. Wilson from 40 to 10 months.

3. Felipe Pena (2015)[7]


This has been a special case since Felipe was a Brazilian Jiu-Jitsu athlete and the International Brazilian Jiu-Jitsu Federation (“IBJJF”) was not a signatory to the WADA. In the present case, the IBJJF had to contract the United States Anti-Doping Association. During the proceedings, Felipe accepted that the unusual levels of testosterone were due to the cream provided by the health care provider and subsequently got his sentence reduced to one year from the original ineligibility period of two years.


What is the grey area?


The Court of Arbitration for Sports(“CAS”) has reiterated the importance of the assistance on the basis of the qualitative and quantitative value of the evidence provided by the athlete and its scope and provided is spontaneous and voluntary.[8] Though the WADA has played a proactive role in handling cases wherein the subject of substantial assistance is involved there still remains little knowledge on how the WADA applies its discretion on a case to case basis. It is pertinent to mention the Justin Gatlin incident[9], wherein even though the athlete provided assistance in testifying and cooperation in undercover calls, the WADA still equated the assistance below the level of ‘substantial’. The CAS vide its award agreed to the discretion of the WADA and failed to expand on the definition of ‘substantial assistance’. Since the CAS itself agrees to the notion of the WADA and ADOs without itself retrospectively measuring the level of assistance the situation can often not motivate the athlete from providing their assistance. This was seen in the case of Asli Cakir Alptekin v. WADA[10]. In the present case, the ineligibility period could further be suspended under Clause 5 of the Substantial Assistance Agreement between the athlete and WADA. Rather than applying the discretion of the panel, the court delved into the discretion provided by the IAAF Ethics Board which stated that the assistance provided by the athlete was not “more valuable than anticipated”. Thus, the court rejected the appeal of the athlete. Further, the non-interventionist policy of the CAS was seen in the Eid Mohammed case[11], wherein though the athlete had assisted in naming two local-level athletes involved in doping the WADA did not consider the plea of the athlete since the assistance did not match the criteria. Subsequently, the CAS ruled this discretion of the WADA to be “generous”. These instances often prove to demotivate the athletes from using the principle of substantial assistance, which eventually results in the loss of the objective of WADA.


It is, therefore, the need of the hour for the WADA to explain through the principle set out in Article 10.7 to define the level of assistance which an athlete should commit to, in order to make his application qualify. Furthermore, the CAS should undertake to define the theory of substantial assistance and put out a refined definition for the athletes. Once this is done the objective of WADA would serve its purpose and sports would be played in the spirit of equality and fairness.


*The author is a Law Scholar from Jindal Global Law School, Sonipat and an Associate Editor at Global Sports Policy Review.


(The image used here is for representational purposes only)



References: [1] United States v. Billue, 576 D. 3d 898, 902 (8th Cir. Minn. 2009). [2] “Does the World Anti-Doping Code Revision Live up to its Promises?”, Dr. Antonio Rigozzi. [3] The World-Anti-Doping Code, 2021. [4] Westbury I, “Substantial Assistance: WADA's Carrot or Its Stick?” (Sports Integrity Initiative October 21, 2016) <https://www.sportsintegrityinitiative.com/substantial-assistance-a-carrot-to-wadas-stick.> accessed July 14, 2021. [5]IAAF Statement on the Reduction of Sanction for Liliya Shobukhova: PRESS-RELEASE: World Athletics” (worldathletics.org) <https://www.worldathletics.org/news/press-release/liliya-shobukhova-ban-reduction> accessed July 14, 2021. [6]Howell M, “The Effects of Providing Substantial Assistance in Doping Investigations: A Review of the Bernice Wilson Case” (LawInSportSeptember 9, 2016) <https://www.lawinsport.com/topics/item/the-effects-of-providing-substantial-assistance-in-doping-investigations-a-review-of-the-bernice-wilson-case> accessed July 14, 2021. [7]Brazilian Jiu-Jitsu Athlete, Pena, Accepts Sanction” (Sports Integrity InitiativeMay 26, 2015) <https://www.sportsintegrityinitiative.com/brazilian-jiu-jitsu-athlete-pena-accepts-sanction-for-rule-violation/> accessed July 14, 2021. [8] Raed Chabab de Kouba v. Federation Algerienne de Football F, CAS 2007/A/1368, awarded on 29th September 2008. [9] Justin Gatlin v. United States Anti-Doping Agency & IAAF v. USADA & Justin Gatlin, CAS 2008/A/1462, awarded on 6th June 2008. [10] CAS 2016/A/4615, awarded on 04th November, 2016. [11] Eid Mohamed Al-Suweidi v. WADA, CAS 2017/A/5000, awarded on 24th July 2017.