sanootage wrote:
Thanks.
I would also re suggest that Para 90 of the judgement be read as well.
So I think that even the lesser brain powered will now realise why AIU should say deemed intent.
So it can now be worked out why a Stromba conviction would not be called intentional.
But, overall what a ridiculous mess.
Athletes need better than this.
I suppose it all follows from the combination of zero tolerance and strict liability ; something we don’t see in normal justice.
I think that USADA have a good feeling that it all may be creaking at the seams.
Paragraph 90 confirms that in 2015, WADA shifted the burden to the athlete to prove "no intent".
We can also see in this paragraph that a supplementary expert hired to independently review the drafted 2015 changes, struggled with the initial draft making identifying the source a requirement for proving "no intent", describing this proposed requirement, using expressions like (translated from French) "difficult to provide", "excessive aggravation", "an impossible proof", and "irrefutable assumption of an anti-doping rule violation".
The final revision falls short of making the requirement mandatory, but underscores that it us unlikely to succeed without it. This doesn't appear to address the expressed concerns, but codifies it and kicks the can down the road.
It's long, but to avoid any misinterpretations, here is the paragraph (with the French text deleted - désolé):
90. In the present case, the burden of proof that the ADRV was not intentional is on the Athlete,
see Rule 10.2.1 of the WA ADR. Unlike for “no fault” or “no significant fault”, the WA
ADR does not provide that the Athlete must show how the substance entered her system in
order to claim that the ADRV was not intentional. This follows from CAS jurisprudence.
For example, in CAS 2017/A/5178, no. 78, the panel stated as follows:
“The Panel feels comforted in its view when looking at the legislative history of
Art. 10.2.1 of the IWF ADP (which corresponds to Art. 10.2.1 of the WADA
Code). The legislative history clearly evidences that in order to rebut the
presumption of intent the athlete need not show how the prohibited substance
entered into his or her system.
The drafting team of the WADA Code 2015 had contemplated at the time to
introduce such requirement into Art. 10.2 of the WADA Code and had requested
a supplementary expert opinion by Judge Jean-Paul Costa on this issue, i.e. the
new draft wording. The latter stated in his expert opinion as follows:
...
free translation: Such proof [how the substance entered the body]1 is difficult
to provide. Is such aggravation excessive? One could have doubts in this
respect, because an impossible proof either leads to a reversal of the burden
of proof or to the irrefutable assumption of an anti-doping rule violation […]
I conclude, thus, not without some hesitation, that this new text of the draft may
be considered acceptable, subject however that it will be for the competent
jurisdiction in the individual case to assess the elements of evidence adduced
by the parties.
In view of Judge Jean-Paul Costa’s concerns (“I conclude, thus, not without
some hesitation”), the WADA Code redaction group went back to the initial text
of the draft (which corresponds to the final text enacted) and acknowledged that
whilst the route of the ingestion of the prohibited substance is an important fact
in order to establish whether or not an athlete acted intentionally, it should not
be a mandatory condition to prove lack of intent on the part of the athlete.”