On the same day last month, it was announced that two rugby players from opposite ends of the playing spectrum had received four-year doping bans. August 13 saw US Eagle Aaron Davis and Clevedon RFC’s Dean Ashfield both sanctioned by the respective tribunals, in cases of “intentional” doping.

There were notable similarities between the two cases, as both men had their evidence rejected amid attempts to argue that their anti-doping rule violations (“ADRVs”) were not “intentional”. They serve as a reminder of the “strict” nature of liability under the doping rules, and of the necessarily high standard of proof which is required to bring about a finding of unintentionality. This article will seek to explain the decisions and will explore the points of interest that they raise.

Davis v World Rugby

The Davis decision was handed down by the World Rugby’s independent Post-Hearing Review Body (the “PHRB”) after the player appealed against a four-year ban imposed by a World Rugby Independent Judicial Committee (the “JC”).

Davis gave a urine sample in January 2017, which later tested positive for 19-Norandrosterone (“the Substance”), a metabolite classed as an endogenous anabolic androgenic steroid on the World Anti-Doping Agency’s Prohibited List (the “Prohibited List”). It is prohibited at all times. The player’s “B Sample” was tested, confirming the original “Adverse Analytical Finding” (the “AAF”).

This AAF was accepted by Davis; sufficient for World Rugby to establish that the player had committed an ADRV under World Rugby Regulation 21.2.1, which mirrors the World Anti-Doping Code.

The sanctions for such an ADRV set out in Regulation 21.10.2, mean that, because the Substance was not a “Specified Substance” on the Prohibited List, Davis faced a four-year ban unless he could prove, on the balance of probabilities (Regulation 21.3.1), that the ADRV was unintentional.

To do so, Davis had to identify the source of the Substance. It was never disputed that it was exogenous in origin – i.e. it originated from outside the body. The player instead argued that the AAF had been caused by a contaminated product, namely the supplement “Animal Pak”, which he had been taking for many years.

At the original hearing, Davis presented expert evidence from a laboratory in the USA which claimed that, on testing, Animal Pak produced a:

“small, but non-background peak at approximately 4.4 minutes (close to the retention time range for other 19-Nor compounds / nor-steroids) that share transitions of 19-norandrostenediol…it was my belief that this small, but non-background peak probably represented a 19-nor-steroid that could metabolize to 19-Norandrosterone”

As such, the expert stated that “if an athlete regularly consumed the Animal Pak supplement…he would most likely have some level of 19-Norandrosterone in his urine”.

However, the JC rejected this evidence; a decision confirmed by the PHRB on appeal. Both tribunals preferred the evidence given by Professor Christiane Ayotte, President of the World Association of Anti-Doping Scientists, on behalf of World Rugby. She found no suggestion of a nor-steroid in the supplement.

The PHRB, in dismissing the evidence, pointed to inconsistencies in the laboratory’s testing and reporting, a lack of basic report documentation and the fact that the method used by the laboratory was not the method typically used in the field. Moreover, the manufacturers of Animal Pak gave evidence that no steroids are used in any of their products, nor stored on any of their sites, and pointed to the fact that there has never before been an AAF attributed to the supplement.

As such, the PHRB confirmed that Davis’ contamination defence remained an “unresolved possibility” – far from enough to satisfy the standard of proof required.

However, on appeal, Davis also tried to argue that, even if he was unable to identify the source of the Substance, he could still establish ‘no intention’. In doing so, he relied on two 2017 Court of Arbitration for Sport (“CAS”) decisions: Fiol v FINA and Ademi v UEFA.

The PHRB rejected this submission. Fiol stated that such an argument was merely a “theoretical possibility” which will be “extremely rare”. The PHRB also distinguished Ademi, stating that uncertainty surrounding evidence in that case had influenced the tribunal’s decision on intention erroneously. As was noted, “the case law is well-settled on this issue”.

Furthermore, the PHRB stated that they agreed with the JC’s obiter comments regarding the definition of “intentional” found in Regulation 21.10.2.3 which requires that:

“the Player 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.” (Emphasis added)

It was held that, even if accepted the contamination theory had been accepted, Davis’ conduct would still have been classed as intentional, under the test’s second limb, as there were inherent risks involved in his taking of Animal Pak. He had made no checks on the supplement’s ingredients and did not declare it on his Doping Control Form.

In a final attempt to have his sanction reduced, the player also submitted there had been “substantial delays” which, under Regulation 21.10.11.1, give a discretion to start the ban from an earlier date. There had been delays, but the PHRB found that they were not “unreasonable” and had caused no prejudice to Davis.

Therefore, his four-year ban was upheld. Davis can appeal to CAS but, unless significant new evidence arises, it is hard to see on what grounds he would do so. At 28-years-old, this may well signal the end of his professional rugby career.

Ashfield v RFU

The second case comes from England’s South West Division One and was heard by the National Anti-Doping Panel (the “Panel”). Ashfield gave a urine sample in March 2017 which tested positive for Drostanolone, Trenbolone and Clenbuterol (the “Substances”), all of which are on the Prohibited List. The player never contested liability, admitting the ADRV but, like Davis, denied that it had been committed intentionally.

The Substances are not “Specified Substances”, so the rules apply as above: Ashfield faced a four-year ban unless he could prove unintentionality.

The Panel heard that he had “reconstructive knee ligament surgery and constant back pain”. This lead the player to seek treatment “from a local sports therapist who also runs a gym [he] kn[ew] a few people from”. He said that the therapist gave him an injection which must have contained the Substances. Ashfield explained:

“we did not discuss the contents of the injection and I categorically did not have any idea what substances where to be introduced. I trusted the sports therapist and had no reason whatsoever to believe that the injection was going to be anything untoward; it was proposed as a routine pain relief treatment and I took him at his word, at a point in my life where I was desperate to reduce the pain.”

However, the Panel stated that “perhaps unsurprisingly, the RFU was gravely sceptical about the explanation”. Indeed, his evidence was “wholly un-particularised”: Ashfield did not give the name of the sports therapist – apparently fearing possible violence – nor did he identify the date on which the injection was given. Furthermore, the Panel agreed with the RFU’s submission that the player’s participation “in every match for Clevedon RFC from the start of 2017 until he was provisionally suspended by the RFU” was inconsistent with his story of being in constant and unmanageable pain.

The Panel also referenced evidence from Professor Cowan, Director of the WADA Laboratory at Kings College London, which had not been “properly put forward in evidence” but might “have entirely demolished the ‘sports therapy injection thesis’”. The fact that such evidence was even seen by the Panel might normally be grounds for a rehearing but, when given this option, the player declined.

The Panel explained that Regulation 21.10.2.3 (above) creates a rebuttable presumption of intention, as confirmed by UKAD v Buttifant, among others. There was no need to go into further detail, given the player’s evidence had been rejected but the Panel said, even if it had been accepted, it would still have been satisfied, like in Davis, that there was a “significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk”. In other words, even if the ‘sports therapy injection thesis’ was true, the violation could not properly be described as not intentional under the Regulations.

Ashfield then sought a reduction of his suspension in two ways. Firstly, he asked the Panel to exercise their discretion to reduce a period of ineligibility, under Regulation 21.10.6.3, according to the seriousness of the violation, or level of fault. However, following Buttifant v UKAD, it is clear that the discretion granted by this Regulation “is a matter for WADA and UKAD, and outside the jurisdiction of this Tribunal”.

Secondly, Ashfield invited the Panel to backdate the suspension to the date of sample collection. The Panel declined to do so, finding there was no reason to do so, and that “in any case…Ashfield actually played one game during that interim period”. It is of note that in RFU v Ashley Johnson, games played between the dates of sample collection and provisional suspension were explicitly rejected as a factor against backdating in this way (as explained here).

That is not to say that the ban should have been backdated. Such a procedure is used to incentivise timely admission. In this case, though Ashfield admitted the presence of the Substances in his sample, he continued trying to convince the Panel that he had not acted intentionally; evidence which the Panel did not accept. The ‘timely admission’ provisions were not designed for such cases.

As such, Ashfield received a four-year ban which will finish on 10 April 2021.

Conclusions

There are several points of interest which can be drawn out of these two cases.

A High Bar

Firstly, they serve to highlight the “strict liability” nature of the rules and the high standard of proof that is required to rebut the “presumption of intentionality” imposed by Regulation 21.10.2.3. The mere presence of a prohibited substance is enough to get a two-year ban – a period which will be doubled if the player cannot rebut this presumption. To do so, the player would realistically need to identify the source of the substance – whether it be a contaminant or otherwise – which can involve detailed scientific investigation. As the PHRB in Davis stated, it is well-established in doping case-law that:

“Athletes will not be able to demonstrate a lack of intention solely through denials no matter how credible and a clean history [sic].”

However, even if a player can show that the substance entered their body unknowingly, from an identified source, they can still be held to have acted intentionally, in the sense that they were reckless. In this regard, the comments made by the tribunals in both cases reinforce the warning found in Regulation 21.4.8 that “players are advised to exercise extreme caution regarding the use of nutritional supplements” and medication.

It is, of course, important that the bar is so high. The history of deception in doping scandals and the difficulties a prosecution would face in proving guilt in the traditional, criminal way mean the rules must be drafted in this way, even if it does pose challenges for athletes who have committed a violation inadvertently.

Differing Appeals Criteria

Secondly, the Davis case reveals a significant difference between the appeals processes for doping disputes, and disputes over breaches of other World Rugby Regulations. When a player appeals to a Post-Hearing Review Body, they must merely prove that “the decision being challenged should be overturned or varied” (Regulation 21.13.8.11). In contrast, under section 4.5 of World Rugby Regulation 18 Appendix 1, when an appeal is brought in a non-doping matter, the Appellant must prove that the decision being challenged:

a) was in error (either as to central factual findings or in law);

b) in the interests of justice should be overturned;

c) the sanction imposed was manifestly excessive or wrong in principle; and/or

d) the sanction imposed was unduly lenient.

The criteria are thus considerably more stringent in non-doping cases. This was significant in the Spanish Rugby Federation v World Rugby case earlier this year (discussed here) when some members of the Appeals Committee acknowledged that, though they might have reached a different decision to the Judicial Committee, the criteria of s.4.5 were not satisfied.

The reason for this distinction is perhaps that there is more at stake in doping disputes, with individuals subject to potentially career-ending and reputation-ruining bans, and complex science involved. Yet the complexities of World Rugby’s other regulations, such as Regulation 8, and the broad sanctioning power of the governing body mean that it is, ultimately, a distinction without a difference. Moreover, the fact that there is no CAS appeal in World Rugby’s non-doping cases makes the more restrictive appeal criteria evening more unsatisfactory. This author submits that World Rugby Regulation 18 needs amending.

Damaging the Credibility of Other Athletes

Finally, failed arguments such as those run in the Davis and Ashfield cases damage the credibility of all athletes impugned in doping cases. When players argue they did not commit doping violations intentionally by either making up a story, or by arguing a true one poorly, it only serves to make such defences less believable among the public generally and perhaps even by those determining cases.

It damages the legitimacy of defences like sabotage (Justin Gatlin), “kissing defence” (Gil Roberts) or inadvertent mix-ups (Ashley Johnson). The more cases like Ashfield and, to a lesser extent, Davis, the greater the level of scepticism there will be when athletes try to defend themselves.

Given the already sceptical attitude of the public toward impugned athletes, this author argues that those who find themselves ‘in the dock’ owe a duty to their fellow sportspeople to argue their case honestly and responsibly. To make arguments which are unsupported – or worse, fictitious – is not only a waste of time, but also a threat to the careers and reputations of others.