15.1.17

Why Samir Nasri is unlikely to receive a 4 year ban if found guilty of an ADRV

Image source: Mirror

Samir Nasri found himself at the centre of a twitter storm, in late 2016, after a Los Angeles health clinic posted a photograph of Nasri, on Twitter, along with the comments that he had attended for an IV vitamin procedure for hydration.

Following a series of tweets, the World Anti-Doping Agency (WADA) called for an investigation following Nasir's use of the IV procedure. The Spanish Anti-Doping Agency (AEPSAD) is now investigating the matter with some news outlets reporting that Nasir could face a 4 year ban, as a result of the incident. 

IV therapy is banned outright by WADA unless it is administered in quantities of no more than 50ml per six hour period or in cases where the athlete has obtained a Therapeutic Use Exemption (TUE). The clinic's website describes the IV procedure as one litre of hydration designed to combat superbugs and viruses. Whilst there is no suggestion that the multi-vitamin intravenous procedure contained any banned substance, WADA prohibits the practice as the intravenous method may be used to disguise other forms of doping. 

Under Article 2.2 of the WADA Code an athlete has a personal duty to ensure that no prohibited substance enters his or her body and that no prohibited method is used. If it is confirmed that Nasri did indeed receive the intravenous therapy procedure, then he is likely to be in breach of this provision. It is not a defence, under Article 2.2, to state that he was not aware or did not intend to breach this provision as a violation can still be established regardless of intent, fault, negligence or knowing use. Therefore, Nasri can still be found in breach of the rules even if he can show that there was no intent to cheat.

Possible sanctions for such breaches can be found under Article 10.2 of the WADA code which states:

"The period of ineligibility for a violation of Article 2.1, 2.2 or 2.6 shall be as follows, subject to potential reduction or suspension pursuant to Article 10.4, 10.5 or 10.6.

The period of ineligibility shall be four years where:

  • 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.
  • The anti-doping rule violation involves a specified substance and the anti-doping organisation can establish that the anti-doping rule violation was intentional.  

If the above does not apply, the period of ineligibility shall be two years.

In order to prove the term 'intentional', it must be shown that the athlete intended to cheat and thus engaged in contact which he or she knew constituted an anti-doping rule violation or at the very least, knew that there was a significant risk that the conduct might constitute an anti-doping rule violation. 

Whilst Nasri, given the circumstances, will not be able to claim that he did not know that he was engaging in such a procedure, it is likely that he perhaps did not realise that the intravenous method was a prohibited method. Whilst not a complete defence, pleading a lack of intent could result in a lighter sanction, if accepted. However, it should be stressed that professional players should exercise the utmost caution, at all times, and failure to do so can establish fault and negligence. The sole responsibility of ensuring compliance with the anti-doping rules, rests with the player at all times. 

It is not solely the circumstances of Nasri's case that leads me to consider that a four year ban is unlikely. If we look at previous anti-doping in football cases, you will see that very seldom does the sanction fall at the more severe end of the scale. However, more recently it would appear that governing bodies are attempting to make examples out of the guilty, where the circumstances allow them to do so.

The Cases


Claude Mattocks, Ryan Grech & Gilbert Martin

At the end of 2007, three Maltese football players, Mattocks, Grech and Martin tested positive for prohibited substances. Mattocks tested positive for 19-notandrosterone. He claimed that the source of this prohibited substance was a contaminated food supplement. The Malta Football Association accepted Mattocks explanation and suspended him for a period of four months.

At the beginning of 2008, Grech and Martin also tested positive for prohibited substances. Grech tested positive for cocaine and claimed that his drink was spiked with the substance, at a New Year party, by one of his friends. The Malta Football Association did not accept that argument and imposed a one year suspension period. That decision was later appealed and the sanction was reduced to nine months. Player, Martin, tested positive for both cocaine and amphetamines. He admitted having taken the substances at a New Year party and he was thus suspended for a period of one year.

WADA and FIFA both appealed all three of the sanctions, claiming that they were lenient and were not in line with either FIFA's Disciplinary Code or the World Anti-Doping Code. The case was heard by the Court of Arbitration for Sport who increased Mattocks and Grech's sanctions to a period of one year and upheld the sanction imposed on Martin (one year).

The full Mattocks decision can be read here.

The full Grech decision can be read here.

The full Martin decision can be read here.

Ricardo Lucas Dodo

In 2007, the Brazilian football player, Ricardo Lucas Dodo, tested positive for the prohibited stimulant, Fenproporex. Following the positive test Dodo's club, Botafogo, sent several nutritional supplements used by the team to a laboratory for testing. It was found that the capsules contained Fenproporex, however, the club had been under the impression that they were simply caffeine capsules.

During the disciplinary hearing, Dodo argued that he had taken, without knowledge, contaminated caffeine capsules and that he had no reason to doubt the products given to him by the medical team of Botafogo. The Disciplinary Commission did not accept the explanation given by Dodo and imposed a 120 day suspension. This was, thereafter, appealed by Dodo to the Superior Tribunal de Justica Deportiva de Futebol (STJD) who disagreed with the Disciplinary Commission, accepting Dodo's claim and set aside the Commission's decision.

The STJD decision was, thus, appealed to the Court of Arbitration for Sport who after hearing all of the evidence imposed a two year suspension on Dodo. The panel made it clear that in order to obtain a reduction or elimination of the two year period, the player needs to provide sufficient evidence to show how the substance entered his or her body and that he exercised specific caution in avoiding the ingestion of any prohibited substance. This highlights the rule that it is the athlete who bears the sole responsibility of ensuring that they do not breach the anti-doping rules.

The full decision can be read here.

Jake Livermore

This was a rare and exceptional case where professional player, Livermore, was found guilty of an anti-doping rule violation having tested positive for cocaine. The circumstances leading up to the breach involved a private family matter which had caused significant grief for the player. Although a breach of the rules had been identified, the FA's Regulatory Commission concluded that Livermore had no intention of enhancing performance and it was recreational use only. As a result of the exceptional circumstances, no period of ineligibility was imposed and instead rehabilitation and education was arranged with target testing for a period of one year.

The full decision can be read here.

Mark Marshall

In December 2011, Barnet FC player Mark Marshall, provided a sample of urine that tested positive for MHA which is a prohibited specified substance. Marshall admitted to committing the doping offence under the explanation that it was inadvertent. He alleged that the substance entered his body through the taking of Jack3d and therefore he did not intend to enhance his performance or mask the use of a performance enhancing substance. Jack3d is a supplement sold as a powder and marketed as a pre-workout supplement. The product label contains a warning that reads "this product may produce an intense sensation of focus, energy and awareness."

As further evidence in his favour, Marshall submitted that Jack3d had come recommended to him by a professional nutritionist, who was also a friend. He was advised that it would benefit Marshall who was feeling tired, as he was "not hydrated." Upon obtaining the product, Marshall checked the ingredients against the WADA prohibited list and did not see any of the ingredients on the said list. Further to that, Marshall advised that he also sought advice from Barnet's physiotherapist and doctor before taking the product, neither advising that it was "illegal". Given the above cautionary checks, Marshall claimed that he considered it was okay and safe to consume the product, which he did so prior to matches. It was later heard in evidence that, in fact, the club doctor advised Marshall that he "wouldn't take it because of the risk of contamination."

In determining the sanction, The FA Regulatory Commission, again stressed the importance of the sole responsibility of the player to ensure that he does not ingest prohibited substances. He cannot rely on others to ensure that he does not breach anti-doping rules. The Commission did not consider that Marshall made adequate researches of his own and the checks he did carry out were limited and inadequate. Notwithstanding that, Marshall also took Jack3d against the express advice of the club doctor. Given that, the Commission concluded that Marshall's conduct fell significantly below what was reasonably expected of a professional footballer, in the circumstances.

The Commission imposed a suspension of two years.

The full decision can be read here.

Kolo Toure

In 2011, then Manchester City defender, Kolo Toure received a six month ban as punishment for testing positive for a banned substance. Toure had admitted taking the unspecified substance which was contained in some water tablets that he had obtained through his wife. The FA's Commission stated that they were fully satisfied that Toure did not intend to enhance sporting performance or mask the use of a performance enhancing substance.

Toure's legal team had asked for a maximum three month sanction but the Commission imposed a six month ban stating that Toure was at fault in the limited and perfunctory efforts he made in relation to the water tablets. The checks that he had made in relation to those tablets were inadequate and fell some way below what it would be reasonable to expect of a professional footballer."

Paddy Kenny

In 2009, Paddy Kenny, then goalkeeper for Sheffield United, received a 9 month suspension after testing positive for the stimulant ephedrine, which can be found in some cold medicines.

The FA's Regulatory Commission accepted that Kenny had not ingested the substance to enhance sporting performance. Kenny had ingested the substance through an over-the-counter medicine without consulting the club's medical team, first of all. However, whilst the commission accepted that Kenny had no intention of enhancing sporting performance, his admitted conduct displayed significant fault, according to the FA Commission:

"A professional sportsman including a football player has a strict responsibility to ensure prohibited substances do not enter his/her body. In this instance, Kenny knowingly ingested an over-the-counter medicine above the prescribed dosage without reading the accompanying package or leaflet and without reference to his club's doctor or other medical staff. 

It is incumbent upon all professional footballers to understand the perils and dangers of so doing and to act in the way he did, contrary to the Doping Control Programme delivered by the FA and in any event what should be a mater of common sense for a professional sportsman, showed in our judgement a complete disregard for those responsibilities."

Adrian Mutu

Adrian Mutu has been subject to an anti-doping suspension on more than one occasion. The first violation occurred when the striker was with Chelsea FC, in 2004. He tested positive for cocaine and given a seven month suspension. Chelsea sacked the player, following the anti-doping rule violation.

The second violation came in 2010 when Mutu tested positive for the substance, sibutramine, whilst playing for Fiorentina. Mutu claimed that the traces of sibutramine, an appetite suppressant, found in his tests were as a result of slimming tablets given to him for his mother. This explanation was not accepted by the Italian Anti-Doping Agency who imposed a nine month suspension on Mutu. 

Jordan McMillan

Scottish footballer and then Partick Thistle player, Jordan McMillan, tested positive for benzoylecgonine, a metabolite of cocaine, following an in-competition test following a Scottish Premiership match between Celtic Football Club and Partick Thistle on 03 December 2014.

McMillan had argued at his hearing that he didn't know that he had taken the substance and that his drink was spiked by a friend. The friend appeared as a witness, during the hearing, and supported that position. This claim, however, was not accepted by the UK Anti-Doping Panel and on 21 April 2015, the panel imposed a two year suspension period on McMillan. However, this sanction was later reduced by one month as McMillan had provided information to Police Scotland which the panel considered was sufficient enough to amount to substantial assistance and so found that the sanction should be reduced to reflect that.

Following the first hearing, UKAD stated:

"Athletes, at all levels, need to understand the importance of strict liability. They are solely responsible for any banned substance that is found in their system, regardless of how it got there or whether there was an intention to cheat or not.

Athletes have to ensure that they understand the anti-doping rules and that their family, friends, coaches and athlete support understand them too. They need to be aware of the risks their career faces if they test positive to ensure they manage that risk at all times."

Roman Eremenko

In November 2016, UEFA imposed a two year suspension on CSKA Moscow midfielder Roman Eremenko following a positive test that revealed the presence of cocaine and its metabolites, a stimulant prohibited under the WADA prohibited list. The test came following a UEFA Champions League group stage match between Bayer Leverkusen and CSKA Moscow on 14 September 2016.

No further details were released but given the particular substance it is unlikely that the panel would have considered that it was taken to enhance sporting performance.

4 Year Bans

Mohammed Noor

The Court of Arbitration for Sport (CAS) issued its decision in the case of FIFA, the Saudi Arabian Olympic Committee, the Saudi Arabian Anti-Doping Committee and Saudi Arabian football player Mohammed Bin Mohammed Noor Adam Hawsawi, in December 2016. 

In November 2015, Noor underwent an in-competition doping control. The A and B samples returned adverse analytical findings for Amphetamine, a prohibited substance classified as a non-specified stimulant under class s.6 of the World Anti-Doping Agency’s Prohibited List. Noor was provisionally suspended on 30 November 2015. On 28 February 2016, the Saudi Arabian Anti-Doping Hearing Panel found that Mohammed Noor committed an anti-doping rule infraction and imposed a period of ineligibility of four years.

The player appealed that decision to the Saudi Anti-Doping Appeal Panel (the Appeal Panel) which issued a decision on 17 April 2016 recognising the presence of the prohibited substance in the player’s sample and declaring that the period of provisional suspension until the issuance of its decision (i.e. from 30 November 2015 until 17 April 2016) “will be sufficient, and the player has the right to resume his sport activity and go back to his sport from the date of this decision”. 

On 9 May 2016, FIFA filed a statement of appeal at the CAS requesting the annulment of the Appeal Panel’s decision and the imposition of the original four-year period of ineligibility. After various exchanges of submissions, a hearing took place at the CAS headquarters in Lausanne/CH, on 1 December 2016.

The Panel found that the Player failed to identify any basis for impugning the reliability or accuracy of the testing laboratory’s analysis of his A and B Sample. Moreover, the Player could not identify any particular deviation from the WADA International Standards for Laboratories. Therefore, the appropriate sanction for the Player’s anti-doping rule violation is a four-year period of ineligibility.

Given that, the panel annulled the decision rendered by the Saudi Anti-Doping Appeal Panel on 17 April 2016 and imposed a four year period of ineligibility, beginning on 15 December 2016, has been imposed on Mohammed Noor, with credit given for the period of ineligibility already served (30 November 2015 through 17 April 2016).

The Panel has only recently issued its decision and the full decision has yet to be published, thus, the full details leading to one of the very few doping sanctions, resulting in a four year suspension for a footballer, are not yet known. However, it would appear that Noor has tried to dispute the findings of the laboratory, an allegation of which anti-doping panels are likely to punish severely, if there is no basis to those claims.

Arijan Ademi

Dinamo Zagreb player, Arijan Ademi, tested positive for the anabolic steroid, stanozolol, following a match against Arsenal in the Champions League in September 2015. Two samples were taken and Ademi proclaimed his innocence.

Following a hearing, UEFA who had jurisdiction to hear the matter as the test was carried out during one of their competitions, imposed a four year ban.

Ademi continues to protest his innocence claiming that he has not done anything wrong. The case is currently under appeal at the Court of Arbitration for Sport. The hearing was due to have taken place on October 28 2016. A decision has yet to be published.

This is another case of a four year ban but again, the common denominator appears to be the lack of an admission from the player.

The decision in this case will be very much anticipated in order to gain clarification as to the severity of punishments and evidence for defending one's actions.

Conclusion


As demonstrated through the cases cited above, it is rare for the anti-doping panels to impose a four year sanction unless the substance has been used to directly enhance sporting performance or a liability admission has not been forthcoming. 

That said, given the recent Russian doping scandals, anti-doping agencies will want to be seen to be appropriately punishing players so that it acts as a deterrent and warning for others. The Ademi appeal decision is awaited in order to obtain further details regarding the case but also to shed light on the CAS's position, given the recent developments in anti-doping in sport. 

That said, it is likely if there has been an anti-doping rule violation committed by Nasri that he will admit full responsibility but will be claim that the IV drip was not intended to enhance sporting performance. The procedure took place during the festive break on or around 27 December 2016. Sevilla had last played on 21 December 2016 and were not due to play again until 04 January 2017. Such use could be argued to have taken place out-of-competition which will not necessarily get him off the hook but could be argued to prove that the procedure did not necessarily enhance performance and thus there was no intention to cheat. Proving that element would merit a sanction that is less than the maximum four years.

Anti-doping authorities have made it clear that athletes must bear the sole responsibility for ensuring that anti-doping rules are not breached. They must understand the rules and exercise utmost caution when ingesting any ingredients, medications, substances etc to ensure that there is nothing within those that are prohibited under WADA's prohibited list. Strict liability applies and an athlete may only be off-the-hook if he can establish that not only did he not know that he had used or been administered a prohibited substance but that he could not have reasonably known or suspected such use or administration. As demonstrated by the above cases, this is a tough test to overcome as it is the athlete's duty to carry out appropriate checks before he consumes or ingests any substance to ensure it is compliant with the WADA code. 

The lesson, of course, is to be aware of your duties, at all times, under the WADA code and to exercise the utmost caution when ingesting any medications or substances. This should be at the forefront of every athlete's mind. If in any doubt, do not take it as the risk to one's career could be significant, if tested positive. 

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.









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