jewbacca wrote:
You're talking about a 2-year suspension?
I guess I'm asking if that seems appropriate given the fact it's a technical infraction (and assuming the violation really did occur). Going back to the saline drip example, it would seem awfully harsh to receive a 2-year ban for an illicit IV bag.
How much discretion does USADA (or is it WADA) have in issuing penalties? Does it automatically go to a 2-year ban, or, like a judge, can they give a reduced sentence outside of the circumstances you listed above? I'd assumed they could do anything they wanted up to and including 2 years.
So, I am stringing this together and am more than open to correction on any of this:
I believe this is a violation of section 2.2 of the WADA Code--Use or Attempted Use of a prohibited method.
According to section 10.2 of the WADA code, violations of section 2.2 result in a period of ineligibility of 4 years, if it can be established that the violation was intentional, and 2 years if it was not. Intentional is defined as The term, therefore, requires that the Athlete 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. Sections 10.4 and 10.5 established elimination or reduction in the period of ineligibility where there is no fault or negligence or where there is no significant fault or negligence.
So, it gets pretty tricky. And the findings would have to be very fact-intensive to even begin to guess at the penalties.
1. You would have to establish that the anti-doping violation occurred to the comfortable satisfaction of the arbiters. There is certainly some evidence of this, but it is not a slam-dunk case, I don't think, as it depends on inference.
2. Athletes could show no fault or no significant fault through a preponderance of the evidence.
3. Some athletes could likely show substantial assistance and cooperation.
So penalties could range anywhere from a finding of use but with no fault or negligence and no period of ineligibility to a penalty of 6 months to a period of four years.
Whether that seems appropriate is a philosophical question which everybody would have to answer for him/herself.
Generally I don't think there is a ton of discretion to apply penalties outside of the guidelines. Such things usually trigger an appeal to CAS by WADA.
The guidelines themselves certainly have some wiggle-room, so one athletes might be judged to have no fault and another no significant fault and I believe that these decisions and decisions about assistance and cooperation, while ultimately decided by the arbiters, may be within the discretion of USADA to make recommendations to the panel (I believe this is essentially what USADA did with the US Postal Riders who cooperated, essentially working out a plea deal. I'm not even 100% sure if such agreements have to go before arbiters, or if both parties agree that can be the end of it if WADA doesn't appeal).
There are at least one other interesting question, which I am not sure I know the answer to:
This is a case, if brought, of a non-analytical positive. NADOs have very, very little discretion in bringing cases with adverse tests, but I do not know how much discretion they have in non-analytical cases. It is hard to even determine a standard, because each case is different. So theoretically they could decline to charge some athletes and charge some others, although such a decision might be hard to justify if the underlying fact/evidence pattern was similar.
I suspect (but this is just my speculation) that this is the reason USADA has not charged anybody yet. I think they would desperately like to have penalties for cooperating athletes which are minimal to none, with much harsher penalties for the big fish of Salazar, Brown, Centro, Rupp, etc. I suspect they do not have enough evidence to justify widely different penalties and can't justify harsh (and differential) penalties for a technical violation and can't make a case for more substantial violations.