On 23^rd July 2018, the National Anti-Doping Panel (“the Panel”) handed down their decision in the case of Wasps RFC’s Ashley Johnson. After failing a drugs test earlier this year, the flanker-cum-hooker was given a six-month ban backdated to the date of sample collection, allowing him to return in time for the coming season. It was the first ever case of a Premiership player committing an Anti-Doping Rule Violation for a non-recreational substance.

This article will seek to explain and analyse the Panel’s decision, focusing on how sanctions are determined in doping cases where there is “No Significant Fault or Negligence”, and on the process of backdating suspensions.

The Facts

On 7^th February 2018, Johnson gave an Out-of-Competition urine sample which was subsequently found to contain hydrochlorothiazide, a Specified Substance on the World Anti-Doping Agency (WADA) Prohibited List. He was notified by the RFU of this Adverse Analytical Finding (AAF) on 16^th March, at which time he was provisionally suspended. The player – as is his right – then requested the analysis of his ‘B Sample’ and, after that also tested positive, promptly admitted an Anti-Doping Rule Violation (ADRV), given the strict liability nature of the rules.

To avoid a four-year ban for intentional doping, athletes must be able to explain the presence of the banned substance in their samples, on the balance of probabilities. The explanation given by Johnson, and accepted by the Panel, was that he must have mistakenly taken his wife’s weight loss pills (“The Secret”), which were contaminated with hydrochlorothiazide, instead of his own supplement (“Nutrilean”).

Nutrilean is a fat-burning ‘weight management’ product designed for athletes and supplied to Johnson by EQ Nutrition (Wasps’ Sport-Informed supplement supplier). For the avoidance of doubt, the player’s taking of this supplement had nothing to do with his failed drugs test.

Johnson kept his Nutrilean in a container with a blue lid (marked AJ), very similar to the container with a blue lid used by his wife to store The Secret. The Secret is a drastic weight-loss pill, marketed largely at women, and sold exclusively over the internet, promising a “funeral for your fat”. The Panel states (at para 41) that Mrs Johnson “had bought [The Secret] over the internet from an unidentified, or at least unspecified, producer”. It was in these pills that, upon scientific testing, the hydrochlorothiazide was discovered.

The list of contents on The Secret’s packaging contained no reference to hydrochlorothiazide, making it a “contaminated product” under the WADA Code.  Indeed, in March this year – after Johnson’s failed test – a report was released detailing the dangers of the product. The Sunday Times (South Africa) headline read: “lose weight & maybe your life”.

Hydrochlorothiazide itself is a diuretic (making it an ideal ingredient for cheap weight-loss products) which is prohibited because diuretics can act as masking agents for more serious substances. The Panel stressed (at para 13) that it is not a performance-enhancing drug and that it would only serve to cause weight-loss in an “unhealthy way”.

The Panel accepted the Johnsons’ evidence that when the player and his wife took their daily supplements at breakfast, they laid their (“similar”) pills out on a worktop next to their (“very similar”) containers and, in the “generally chaotic” circumstances of a family breakfast, Mr Johnson must have mistakenly taken The Secret believing it was Nutrilean. There was no other reasonable explanation – other than Mr Johnson having taken The Secret intentionally.

However, after cross-examining Mr and Mrs Johnson, the RFU decided not to pursue any allegations of intentional use. They were satisfied that they were telling the truth: it was merely an accident.

Furthermore, it would have been odd for Mr Johnson – a rugby union forward – to have taken The Secret – a product claiming to cause 2-4kgs of weight-loss a week – intentionally. He is (at footnote 3) a “very diligent and conscientious person by nature” who always “conduct(s) himself very professionally” and already had a fat-burning, legitimate substance available to him (presumably at no cost). The idea that he would deliberately have purchased a drastic weight-loss product aimed at women, in the middle of the season, is quite bizarre.

The Panel’s Decision

The relevant rules governing doping cases in English rugby can be found in World Rugby Regulation 21. These rules mirror the 2015 WADA Code. Given that Ashley Johnson had already admitted the ADRV (i.e. admitting that the substance was present in his sample), the relevant provisions relate to the sanction.

With intention taken out of the equation by the RFU, the starting point for a period of ineligibility was two years (World Rugby Regulation 21.10.2.1). However, this can be reduced under Regulations 21.10.4-6.

In Johnson’s case, as hydrochlorothiazide is a Specified Substance, 21.10.5.1.1 applies:

“Where…the Player…can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years of Ineligibility, depending on the Player’s…degree of Fault.”

Reductions can also be made in “contaminated product” cases (21.10.5.1.2), on the same basis.

The Panel explained that the “No Significant Fault or Negligence” (NSF) provisions are designed to provide a flexibility of sanction depending on the degree of fault in a particular case, as seen in the cases of Marin Cilic and Maria Sharapova. It stressed the need to avoid a literal interpretation of NSF, instead taking a purposive approach, in line with Court of Arbitration for Sport jurisprudence (e.g. FIFA & WADA). The Panel explained that NSF does not mean that any fault must be de minimis, rather that a panel must weigh up the degrees of fault and negligence and decide the sanction accordingly.

Against that test, the Panel stated (at para 40):

“we have no hesitation in saying that the Player acted carelessly.”

Emphasising the player’s “extensive anti-doping education”, it continued (para 41):

“All he knew about his wife’s pills were that they were a weight loss product…All sensible people (and certainly every informed and responsible sportsperson) would regard such a product as exactly the sort of thing to avoid.”

It was Mr Johnson’s submission that he had been “extraordinarily unlucky” to have suffered a “double misfortune” as, not only had he taken his wife’s pills by mistake, but those pills had also been contaminated. However, the Panel rejected this (para 43), as it considered the risks of both eventualities to be “quite considerable”. Nonetheless, the Panel concluded (para 43):

“we do not find that his carelessness can properly be characterised as “significant” in the purposive sense”

As such, the questions then turned to where in the 0 to 2-year range the sanction should fall.

Acknowledging that this was a case not just of NSF but also a “contaminated product”, the Panel considered a number of other cases (including Cilic v ITF, Johaug v NIF, Sharapova v ITF, Lea v USADA and FA v Kolo Toure), arriving at a sanction of six months ineligibility.

Finally, the Panel considered that, under Regulation 21.10.11.2, Johnson’s ban should be back-dated to the date of sample collection, owing to his “prompt admission”.

Accordingly, his ban commended on 7 February 2018 and, under Regulation 21.10.12.2, which allows players to return to club training during the shorter of “(1) the last two months of the Player’s period of Ineligibility, or (2) the last one-quarter of the period of Ineligibility imposed”, he will have been able to return to pre-season training immediately.

Analysis

There is little to question about the decision which throughout has been well reasoned. However, two things are worth exploring: the length of the sanction and its date of commencement.

When deciding on a six-month suspension, the Panel considered various cases, but did not give any detailed reasoning on why it thought six months to be appropriate. That said, it made clear (at para 50) that:

“Although consistency of decision-making is desirable, it is simply impossible to deduce authoritative guidance, let alone precedent, from whatever sanction may or may not have been regarded as appropriate by a different tribunal in a different case with very different circumstances”

Nonetheless, it is worth giving some details of the cases cited, for context. At the high end of sanctions handed out with a finding of NSF, former Olympic cross-country skiing champion Therese Johaug was banned for 18 months after her team doctor gave her a cream for sunburnt lips, assuring her it was ok, when in fact it wasn’t. She had failed to notice a red “doping warning” on the side of the packet, but 18 months seems harsh for relying on her team doctor’s advice.

At the other end of the scale, Kolo Toure was given a six-month ban after taking weight-loss pills which contained a Prohibited Substance. Unlike Ashley Johnson, Toure’s use of the pills was intentional and he had taken no steps to assure that they were safe for him to take. In contrast to Johaug, that seems a rather generous decision.

Perhaps the most analogous case is Cilic, where the tennis player mistook an ingredient (which was a Prohibited Substance) written in French (Cilic is Croatian) for being something he had previously checked as not being on the Prohibited List. He received a four-month ban.

With that in mind, the Johnson decision seems about right. The likelihood of a mix-up in the circumstances described perhaps make him more careless than Cilic, particularly given the importance of not mixing up any sort of medication/supplements. But, this carelessness is mitigated somewhat by the fact The Secret was also a “contaminated product”: Mr Johnson was unlucky.

However, for many, the most controversial part of the decision is that the suspension was backdated to the date of sample collection (i.e. before Johnson was provisionally suspended). In the period between this date and being notified of the AAF, Johnson played in four matches for Wasps, winning three and drawing one. The RFU used this fact to argue that such backdating would be inappropriate, but the Panel disagreed.

The Panel explained (at para 54) that, while this was a consideration, it was not decisive against backdating because, in most cases, players will continue to play in that period – there is no reason why they shouldn’t. The rules are drafted to allow this type of backdating to incentivise prompt admission.

However, this raises two interesting questions. Firstly, it could be argued that incentivising prompt admission only has value in cases of intentional doping. In other words, if the aim of the incentive is to encourage “guilty pleas” and avoid an arduous investigation to establish intention, what is the point when there was no intention anyway? The answer to that might be that admitting an ADRV is not just about admitting “guilt” but also accepting the sample results – i.e. that you are not going to try to challenge the legitimacy of the sample analyses. Moreover, it would be an odd situation if genuine cheats could benefit from something which innocent (albeit careless) athletes could not.

Secondly, in an individual sport, such as tennis, backdating a suspension to the date of sample collection would mean losing any medals, points and prizes obtained in the period between sample collection and the start of the provisional suspension (Art.9 WADA Code). However, “Team Sports” are treated differently. In Ashley Johnson’s case, any individual awards received will be disqualified, but the team’s results and points gained will stand.

It seems, then, that there is even more of an incentive to admit promptly when you are in a Team Sport, as there is less to lose. Nonetheless, it is interesting to note that, under World Rugby Regulation 21.11.2 (mirroring Art.11.2 WADA Code):

“If more than two Members of a Team in a Team Sport are found to have committed an anti-doping rule violation during an Event Period, the ruling body of the Event shall impose an appropriate sanction on the team (e.g., loss of points, Disqualification from a Competition or Event, or other sanction) in addition to any Consequences imposed upon the individual Players committing the anti-doping rule violation.”

Conclusion

The National Anti-Doping Panel’s decision in RFU v Ashley Johnson seems to be a perfectly good decision. It applies the rules in a coherent and comprehensive way, and its approach to “No Significant Fault or Negligence” is particularly lucid. Whether or not the “Timely Admission” provisions applied were designed for this type of case, it seems a fair result that the player is able to return in time for the coming season, given the unfortunate circumstances.

Mr Johnson could certainly have been more careful – and I’m sure will be in future – but one thing is clear: Ashley Johnson is NOT a drugs cheat. Let’s hope that his misfortune acts as a warning to other players, and that he is allowed to continue his career in peace.