Aphiwe Dyantyi’s anti-doping charge has rocked the world of rugby. With under a month to go until the sport’s showpiece tournament in Japan, this is exactly the type of story that nobody wants to read. The South African international winger – World Rugby’s breakthrough player of the year in 2018 – had struggled with injury this season and was unlikely to be selected for the World Cup, but an anti-doping charge has almost certainly put an end to any hopes the 25-year-old will have had of starring as an injury replacement.

On 13 August 2019, Dyantyi (the “Player”), was notified by the South African Institute for Drug Free Sport (“SAIDS”) that an Adverse Analytical Finding (the “AAF”) had been detected in an Anti-Doping Sample that he had provided in an out-of-competition test on 2 July. Upon this notification, the Player was provisionally suspended.

As is his right, the Player then requested that his B-Sample be tested and, on 30 August, SAIDS publicly announced that B-Sample analysis confirmed the AAF. As such, the Player was formally charged with an Anti-Doping Rule Violation (“ADRV”) under the National Anti-Doping Regulations, which implement the World Anti-Doping Code (the “WADC”).

The Player, before the B-Sample result, denied “ever taking any prohibited substance, intentionally or negligently” to enhance on-field performance. He stated:

“I believe in hard work and fair play. I have never cheated and never will.

The presence of this prohibited substance in my body has come as a massive shock to me, and together with my management team and experts appointed by them, we are doing everything we can to get to the source of this and to prove my innocence.

Taking any prohibited substance would not only be irresponsible and something that I would never intentionally do, it would also be senseless and stupid.”

The Player also added that he had provided an anti-doping sample on 15 June 2019 which had not returned an adverse result.

This article will explain the Player’s legal position under the applicable regulations and will explore the options that he may have in defending himself, noting the misleading information which has been publicised. It will also reflect upon the sensationalist reaction by members of the media that followed the announcement on 30 August, suggesting that greater caution ought to be exercised.

Cases cited in this article are not binding on SAIDS, but form part of the international jurisprudence on the interpretation of the WADC, on which the Rules are based. As such, they are relevant, in the interests of consistency and fairness across global competitions.

Jurisdiction

It appears from the SAIDS press release, that the Player has been charged under the ‘National Anti-Doping Regulations’, which appear to be the SAIDS Anti-Doping Rules 2019 (the “Rules”). These Rules implement the WADC and, according to Art.1.2 of the Rules, National Sports Federations in South Africa are bound by the Rules and must incorporate the Rules into their own regulations, thereby binding their Participants. They give SAIDS authority to enforce the Rules and recognise the authority of the SAIDS Independent Doping Hearing Panel (Art.1.2.3).

Though the anti-doping rules of the South African Rugby Union (“SARU”) – a National Sports Federation according to Appendix 1 to the Rules – are unavailable online, it can be assumed that SARU is compliant, as SARU are bound by World Rugby’s anti-doping rules (World Rugby Regulation 21) which themselves comply with the (SAIDS) Rules, as they also implement the WADC.

Thus, SAIDS has jurisdiction to charge the Player and its Independent Doping Hearing Panel has the power to determine a sanction (see Art.1.2.3 of the Rules)

The Anti-Doping Rule Violation

The Player will have been charged with an ADRV under Art.2.1 of the Rules: presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample. Art.2.1.1 states:

It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples…

The very fact that a Prohibited Substance (see below) was detected in the Player’s A and B Samples is sufficient for the ADRV to be committed (Art.2.1.2), as:

it is not necessary that intent, Fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Article 2.1. (Art.2.1.1)

The ADRV is thus an offence of strict liability – it is possible to be ‘guilty’ without having intended to cheat. There are good reasons for this, but it puts athletes who have inadvertently failed a doping control test in a difficult position – in most cases, they, too, will be guilty of an ADRV.

The Prohibited Substances

According to SAIDS, the Prohibited Substances detected in the Player’s Sample were metandienone, methyltestosterone and LGD-4033. Metandienone and methyltestosterone are both anabolic steroids. LGD-4033 is a ‘selective androgen receptor modulator’, known for its muscle mass increasing properties. Each appears on the Prohibited List of the World Anti-Doping Agency (“WADA”) as a non-specified substance and are prohibited both in- and out-of-competition.

It is not clear from the SAIDS press release whether it was the substances themselves that were detected, or their metabolites.

The Period of Ineligibility

Given that the Prohibited Substances in question are not ‘Specified Substances’ on the Prohibited List, the period of ineligibility for the Player’s ADRV shall, under Art.10.2.1 of the Rules be four years, unless the Player can establish that the ADRV “was not intentional”. If they can, the period of ineligibility will be two years (Art.10.2.2). These periods are then subject to potential reductions (see below).

Art.10.2.3 makes clear that the term “intentional” is to identify “those Athletes who cheat”. Thus, for the ADRV to be intentional, the Player must have been engaged in:

conduct which he…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

However, the burden is on the Player to prove that this definition is not satisfied, on the balance of probabilities (Art.3.1). In other words, the Player must be able to show that it is more likely than not that he did not intentionally commit the ADRV to avoid a four-year ban.

Dyantyi’s Legal Options

The SAIDS press release does not make clear the options available to the Player, or the process through which the sanction will be determined.

Under Art.8.1.3 of the Rules, when a player receives notice that they have been charged with an ADRV, they have the right to a hearing in front of the Independent Doping Hearing Panel, which must take place within 90 days of the notification of the charge. This would give the Player the opportunity either to dispute the ADRV altogether, or to make submissions as to the appropriate sanction.

However, under Art.7.10, a player may waive their right to a hearing, accepted the sanction mandated by the Rules or, where there is an element of discretion, accept a sanction which is offered by SAIDS. In other words, there is the possibility that the case could be ‘settled’ without going to a hearing.

The Player’s principal legal options are thus as follows:

(i) Contest the ADRV, pleading not guilty to the charge entirely;

(ii) Admit the ADRV (pleading guilty) but request a hearing to determine the period of ineligibility; or

(iii) Admit the ADRV and reach an agreement with SAIDS as to the period of ineligibility.

The option chosen by the Player will depend on the precise circumstances of the case (which are not yet known) and the position taken by SAIDS in response to the Player’s evidence. For example, if the Player is adamant that the ADRV was not intentional but SAIDS do not accept his argument, the dispute will go to a hearing. However, if SAIDS accept his argument, they may offer him a reduced ban, avoiding the need for a hearing altogether.

This article will now consider how the Player might go about pleading not guilty and, in the alternative, the arguments he might make as to the period of ineligibility. It will also consider how he might be able to get the provisional suspension lifted, to make himself available as a World Cup injury replacement.

(i) Contesting the ADRV

In order to contest the ADRV altogether (i.e. argue that no offence has been committed at all), the Player would likely need to prove some sort of flaw in the science used by SAIDS in testing and reporting the AAF, or a significant procedural impropriety which could invalidate the result in its entirety. After all, the mere presence of a Prohibited Substance in an athlete’s samples suffices for the offence to be committed.

Such scientific arguments are rare, though not impossible. The case of Sri Lankan cricketer Kusal Perera provides an example. Perera tested positive for 19-Norandrostenedione, an anabolic steroid, in late 2015 but the charges were eventually dropped. The substance had been listed as exogenous (not naturally produced) but subsequent investigation found that the substance detected had either been generated within the sample after it was provided, or naturally generated within the athlete’s body (endogenously). Such evidence was enough to convince the International Cricket Council to exonerate Perera, and WADA to revise its classification of the substance.

In other cases, athletes have succeeded in arguing that the testing methods used generated a ‘false positive’ result (for example Virginia Berasategui Luna and Iban Rodríguez Martínez).

With regard to procedure, it may be possible to mount an argument that an ADRV cannot stand if the relevant procedures have not been followed. The WADC, WADA’s International Standard for Laboratories and the rules of national anti-doping agencies lay out the procedures which must be followed at each stage of anti-doping control, including sample collection, testing and notification. A breach of a significant procedural condition could result in the ADRV itself being thrown out. It is not known whether the Player would be able to make any such argument.

(ii) Reducing the Period of Ineligibility

If the Player is unable to be cleared of the charge, he will be found to have committed the ADRV. This means that, prima facie, he will be sanctioned with a period of ineligibility (suspension) of four years, unless he can prove that the ADRV was committed unintentionally (as discussed above).

To date, the Player has maintained his innocence and his character supports the account he has given. He shot to international fame in 2018 after a stellar debut season in club colours, having previously given up on his dreams of playing rugby at a high level. Yet his natural talent and determination saw him succeed on the world stage. From a humble background in the Eastern Cape, he strikes you as an honest and hard-working player.

Some might suggest that, in the race against time to be fit for the World Cup he may have decided that he needed something extra to help him along, but that doesn’t seem like Dyantyi. More evidence is needed before casting such aspersions.

However, in order to establish unintentionality, the Player will need to identify the source of the Prohibited Substances – which may require significant investigation and scientific analysis – following established sports law jurisprudence (see WADA v. IWF and Caicedo and UKAD v Buttifant).

It might also help his cause that he was tested on 15 June 2019, which did not return an AAF – if he had been using steroids habitually, you would expect him to have tested positive then, too. That said, a two-week period is a big enough gap to doubt this view – unless the quantity detected in his system is incredibly small. If so, it may be easier to make an unintentionality argument, as intentional doses of certain substances – even two weeks before – will leave a significant trace in the body.

If he succeeds in proving that he did not intentionally commit the ADRV, the starting point for the ban will be two years (as discussed above).

There are several ways in which the player might be able to reduce such a ban further.

No Fault or Negligence

The first of these possibilities is the total elimination of the period of ineligibility, if the Player can establish that he bears “No Fault or Negligence”, under Art.10.4. This term is defined (in Appendix 1 to the Rules) as:

The Athlete…did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule…the Athlete must also establish how the Prohibited Substance entered his or her system

The WADC notes that this is an exceptional defence and gives the example of an athlete who can prove that they have been sabotaged. It is rarely successful, given the difficulties of proof.

No Significant Fault or Negligence

The defence of “No Significant Fault or Negligence” often proves more fruitful. Under Arts.10.5.1.1 and 10.5.2, the period of ineligibility may be reduced based on the athlete’s “degree of Fault”. However:

the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable

If the otherwise applicable period of ineligibility is two years, the minimum ban for the Player under this provision would be one year (subject to the below).

The Court of Arbitration for Sport (“CAS”) jurisprudence in this area adopts a purposive interpretation of this provision, providing flexibility in the sanction to reflect the athlete’s degree of fault (see, for example Cilic v ITF, Therese Johaug v NIF and Maria Sharapova v ITF). It is not the case that fault must be nil in order to benefit from this provision (see RFU v Ashley Johnson).

The applicability of this defence will very much depend upon the circumstances of the case and will depend upon the care taken by the Player in relation to the substances that he ingests.

Contaminated Products

The Rules also provide for a specific application of the “No Significant Fault or Negligence” principle where the case concerns a “Contaminated Product” (Art.10.5.1.2 and Art.10.5.2). Where an athlete can prove “No Significant Fault or Negligence” and that the Prohibited Substance came from a “Contaminated Product”, the same principles apply to the degree of fault involved.

A “Contaminated Product” is (Appendix 1):

A product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search.

If the Player can trace the Prohibited Substances to a Contaminated Product, he may be able to establish No Significant Fault or Negligence, provided that he took care in relation to his use of the product. Such care might include ensuring that it comes from a reputable supplier, that the supplier meets regulatory standards and, ideally, is tested specifically for Prohibited Substances.

The case of UKAD v Warburton & Williams makes clear that the athlete must show how the product came to be contaminated. The best way for the Player to do that would be to track down the substance which he believes to have been contaminated and to have other products from the same batch tested, to establish contamination at the production stage.

At this point it is worth noting that the Player recently became a brand ambassador for the supplement supplier Nutrition Performance Labs (“NPL”). Though NPL advertises that it is regulated by various food standards authorities and that all of its products are subject to random testing, it is notably not Informed-Sport assured. Informed-Sport is a global supplement testing programme which checks for prohibited substances in nutritional products and manufacturing facilities.

The fact that NPL is not so tested might raise eyebrows. Some of its products include “Testosterone Boosters” and “Anabolic Whey”. Though neither appears to contain any Prohibited Substances, their names are certainly suspicious. It is not unfeasible that they might contain other ingredients. NPL appears relatively new to the South African supplements market.

The significance of this is two-fold. Firstly, it suggests that NPL products might be a good place for the Player to start looking for potential contamination and, secondly, his use of products from a non-Informed-Sport assured provider may bear on his degree of fault. This is not to say that he has necessarily been reckless in relying upon NPL – after all, they hold themselves out as entirely legitimate and appear to meet regulatory standards – but they are not the safest supplier on the market. If they are the source of the contamination, the Player will bear some degree of fault.

Substantial Assistance

In the event that the Player is involved in doping, he could have up to three quarters of his otherwise four-year ban suspended if he provides substantial assistance to SAIDS in discovering other anti-doping rule violations (under Art.10.6.1) – in other words, whistleblowing. There is no evidence, yet, to suggest that this will be relevant.

Prompt Admission

Under Art.10.6.3 and Art.10.6.4, the Player may be able to mitigate a period of ineligibility by admitting the ADRV soon after being charged. Thus, if the Player pleads guilty at the earliest opportunity, he may be given credit when it comes to sanctioning. This appears to be the case even in cases on unintentional doping (as previously discussed on this blog, here).

As the CAS panel noted in WADA v IIHF, the reasoning behind this provision is to simplify proceedings where possible, and to encourage responsible plea bargaining to the same end. To be eligible for such a reduction, the panel explained that:

an athlete must describe the factual background of the anti-doping rule violation both fully and truthfully and not merely, accept the accuracy(s), of the adverse analytical finding

If the Player is able to do so, promptly, he will be given credit for doing so. This approach was seen in the RFU v Ashley Johnson case.

Multiple Grounds for Reduction

As evident from the above, there may be multiple grounds on which the Player could seek a reduced sanction. According to Art.10.6.4, in such a case, the applicable period of ineligibility shall be determined by first applying Art.10.5. Reductions under Art.10.6 are then made subsequently but must not reduce the sanction below one quarter of the otherwise applicable period.

The best possible scenario for the Player would thus be to reduce the two-year period under Art.10.5.2 (No Significant Fault or Contaminated Product) to one year, and to then be given maximum credit for prompt admission, bringing the ban down to just three months. Such a significant reduction for prompt admission is, however, unlikely. A 9-month ban seems more likely – unless the Player can establish No Fault or Negligence.

(iii) Lifting the Provisional Suspension

A further option which may be open to the Player is to seek to have the Provisional Suspension lifted, pending the full determination of his case. Under Art.7.9.3 of the Rules, the provisional suspension may be lifted if the Player can show that the ADRV “is likely to have involved a Contaminted Product”. To show this, it is likely that the amount of the Prohibited Substances in the Player’s Sample would have to be very small, and some suggestion as to how the contamination may have occurred.

Alternatively, it may be lifted if the Player can prove (Art.7.9.3.2):

(a) The assertion of an anti-doping rule violation has no reasonable prospect of being upheld, e.g., because of a patent flaw in the case against the Athlete…;

(b) The Athlete…has a strong arguable case that he/she bears No Fault or Negligence for the anti-doping rule violation(s) asserted…; or

(c) Some other facts exist that make it clearly unfair, in all of the circumstances, to impose a Provisional Suspension prior to a final hearing…This ground is to be construed narrowly, and applied only in truly exceptional circumstances…

Whether this would be possible is highly fact-dependent but might be worth considering if the player is fit and feels that he might be in line for a call-up in the event of an injury. That said, mitigating against this is the fact that a period of ineligibility can be backdated to the start of a provisional suspension. If the provisional suspension is lifted, the Player will lose this benefit further down the line.

If the facts exist to allow a provisional suspension challenge, the Player will have to weigh up the possibility of a World Cup call-up against the cost to his career in the coming months and years.

The Media Response

Finally, I wish to comment on the response that the Player’s story received from members of the media. There were many comments suggesting that Dyantyi was a cheat and, with some suggesting he may have been cheating his whole career. One journalist tweeted “Good riddance!” (though has subsequently deleted the tweet). Brian O’Driscoll replied in agreement.

Such views are premature and are bordering on defamatory. Though ADRVs are of strict liability, the Rules do draw a distinction between those violations committed intentionally and those which are not. Even the WADC spells out that only those committed intentionally can be classed as “cheating”.

Everyone, but particularly members of the media, should not be so quick to label those charged with ADRVs as “drugs cheats”. As I hope has become apparent throughout this article, there are a multitude of ways in which athletes can fail anti-doping tests, and bans remain likely even where the athlete is not significantly at fault.

The court of public opinion must not be so rash. As the saying goes, it takes a lifetime to build a reputation, but only a second to destroy it. Once athletes are labelled “drugs cheats” there is little coming back – just ask Justin Gatlin. He has been demonised by the media but read this article (here), explaining his two ADRVs, and see if you change your opinion of him.

For these reasons, I believe that athletes charged with ADRVs should be given the benefit of the doubt. Until there is evidence that Aphiwe Dyantyi is a cheat, I, for one, will respect his integrity as an athlete and hope that he can clear his name.

Conclusion

In summary, a ban for Dyantyi seems likely. The length of it will depend upon the circumstances surrounding his failed test, the investigations that his experts are able to carry out, and the arguments used by his lawyers.

If the player is able to prove that he did not ingest the Prohibited Substances intentionally, the maximum length of his ban will be two years. If he can show that he was not significantly at fault for the violation – by reason of contamination or otherwise – he may be able to reduce the ban to just a year. Pleading guilty at the earliest opportunity should help to knock another few months off.

Only time will tell. Until then, judgment of his character and integrity should be suspended.