United Kingdom Anti-Doping Limited v. Wayne Boardman

I. INTRODUCTION

1. United Kingdom Anti-Doping Limited (“UKAD” or “Appellant”) is the independent antidoping agency, recognized as such by the World Anti-Doping Agency (“WADA”), and other organisations, having its headquarters in England. Its aim is to promote and coordinate the fight against doping in sport in the United Kingdom and fulfil its obligations as the National Anti- Doping Agency for the United Kingdom. UKAD promulgated the UK Anti-Doping Rules (“UK ADR”) and is responsible for results management for cases arising under its jurisdiction.

2. The Respondent, Wayne Boardman (“Respondent”, “Athlete”, or “Mr Boardman”), is a wheelchair rugby league and basketball player who has represented Great Britain since first participating in international events in 2008. Mr Boardman had, before an unfortunate motorcycle accident that caused him to lose mobility and sensation below his chest, competed at a high level in rugby league competitions in the United Kingdom.

3. Individually, the Appellant and the Respondent will be referred to as “Party” and collectively as “Parties”.

V. JURISDICTION

40. Article R47 of the Code provides in pertinent part as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body”.

41. Article 13.4.1 of the UK ADR provides that certain decisions, including “decisions imposing (or not imposing) Consequences for an Anti-Doping Rule Violation” may be appealed. Article 13.4.2 of the UK ADR further provides that, in cases involving International-level Athletes, appeals “shall be made exclusively to CAS” by the parties listed in Article 13.4.1, which list includes UKAD.

42. The Sole Arbitrator notes that the Appealed Decision involving the Athlete, as appealed by UKAD, meets the requirements of the UK ADR for appeal.

43. Moreover, the Sole Arbitrator notes that jurisdiction of the CAS is not disputed by any Party, all Parties signed the Order of Procedure, and all Parties participated fully in the proceedings, providing further evidence of acceptance and appropriateness of CAS jurisdiction.

44. The Sole Arbitrator therefore finds that CAS holds jurisdiction to decide on the present matter.

VI. ADMISSIBILITY

45. Article R49 of the Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. […]”.

46. The deadline for appeal found in Article 13.7.1 of the UK ADR corresponds to Article R49 of the Code, setting forth the same time limit.

47. In the case of an appeal by UKAD, the time limit starts running from the date when UKAD received the Appealed Decision, which was communicated to UKAD on 23 February 2022 when it issued.

48. On 15 March 2022, UKAD filed its Statement of Appeal against the Appealed Decision with

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the CAS Court Office. Consequently, the Appellant complied with the time limits prescribed by the Code and the UK ADR.

49. No Party has objected to the admissibility of this appeal and in fact all Parties have participated in this proceeding fully without objection on this basis.

50. The Sole Arbitrator finds that the Appeal was therefore filed in time and is admissible.

VII. APPLICABLE LAW AND SCOPE OF REVIEW

51. Pursuant to Article 58 of the Code, “[t]he Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate”.

52. For these purposes the “applicable regulations” are the 2021 UK ADR (being the edition in force at the time of the Athlete’s sample collection), with the law of England and Wales applying “subsidiarily”. According to well-established CAS jurisprudence, that means that English law is applied where necessary to resolve any “issues that cannot be resolved solely on the basis of the rules invoked by the parties”, i.e., to fill any lacunae, or gap, left by the UK ADR. CAS 2002/O/373, at para. 15; see also CAS 2006/A/1180, at para. 14. Fortunately, there is no dispute as to applicable law and no lacunae appeared in this case, so there is not need to refer to the law of England and Wales to resolve this appeal.

53. The Code provides in Article R57 of the Code, in pertinent part, that,

“The Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance…”

54. Accordingly, the task of the Sole Arbitrator is to decide the matter de novo, anew, without reference or deference, or being constrained, in any manner to the decision below.

55. No Party disputed these fundamental legal principles.

56. Given that the Athlete has accepted that an anti-doping violation has been established and that the only issue for the Sole Arbitrator is the task of establishing the applicable sanction resulting therefrom, the relevant UK ADR rules (and hence the applicable law) that apply are as follows:

57. Article 10.2 of the UK ADR states in pertinent part:

“Imposition of a Period of Ineligibility for the Presence, Use or Attempted Use, or Possession of a Prohibited Substance and/or a Prohibited Method

The period of Ineligibility for an Anti-Doping Rule Violation under Article 2.1, 2.2 or 2.6 that is the Athlete's or other Person's first anti-doping offence shall be as follows, subject to potential elimination, reduction or

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suspension pursuant to Article 10.5, 10.6 or 10.7:

10.2.1 Save where Article 10.2.4(a) applies, the period of Ineligibility shall be four (4) years where:

(a) The Anti-Doping Rule Violation does not involve a Specified Substance or a Specified Method, unless the Athlete or other Person can establish that the Anti- Doping Rule Violation was not intentional. . .

10.2.2 If Article 10.2.1 does not apply, then (subject to Article 10.2.4(a)) the period of Ineligibility shall be two (2) years”.

58. Oxandrolone is not a Specified Substance.

59. As a result, under the applicable rules, (1) a presumption arises that the Athlete ingested oxandrolone intentionally to enhance his performance; (2) it is the Athlete’s burden to rebut that presumption by adducing evidence that satisfies the Sole Arbitrator that it is more likely than not that his ingestion of oxandrolone was not intentional; and (3) if the Athlete cannot discharge that burden, a four-year ban must be imposed in accordance with Article 10.2.1(a) of the UK ADR.

60. The definition of “intentional” can be found at Article 10.2.3 of the UK ADR:

“As used in Article 10.2, the term "intentional" is meant to identify those Athletes or other Persons who engage in conduct which they know constitutes an Anti-Doping Rule Violation or they know that there is a significant risk that the conduct might constitute or result in an Anti-Doping Rule Violation and they manifestly disregard that risk”.

61. If the Athlete is able to establish lack of intention, then the Athlete may benefit from further considerations to reduce the length of sanction imposed, on the basis of No Fault or Negligence or No Significant Fault or Negligence, as provided in UK ADR Definitions, respectively, which provide in pertinent part as follows:

“Fault: Fault is any breach of duty or any lack of care appropriate to a particular situation. Factors to be taken into consideration in assessing an Athlete or other Person’s degree of Fault include, for example, the Athlete’s or other Person’s experience, whether the Athlete or other Person is a Protected Person, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk. In assessing the Athlete’s or other Person’s degree of Fault, the circumstances considered must be specific and relevant to explain the Athlete’s or other Person’s departure from the expected standard of behaviour. Thus, for example, the fact that an Athlete would lose the opportunity to earn large sums of money during a period of Ineligibility, or the fact that the Athlete only has a short time left in a career, or the timing of the sporting calendar, would not be relevant factors to be considered in reducing the period of Ineligibility under Article 10.6.1 or 10.6.2.

No Fault or Negligence: The Athlete or other Person establishing that they did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost caution, that they had Used or been

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administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule. Except in the case of a Protected Person or Recreational Athlete, for any violation of Article 2.1, the Athlete must also establish how the Prohibited Substance entered the Athlete’s system.

No Significant Fault or Negligence: The Athlete or other Person’s establishing that any Fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for No Fault or Negligence, was not significant in relation to the Anti-Doping Rule Violation. Except in the case of a Protected Person or Recreational Athlete, for any violation of Article 2.1, the Athlete must also establish how the Prohibited Substance entered Athlete’s system”.

62. If No Fault or Negligence is established, then any sanction must be eliminated entirely pursuant to Article 10.5 of the UK ADR.

63. If No Significant Fault or Negligence is established then the Athlete may benefit from a reduction based on the Athlete’s degree of fault up to a maximum of a 50% reduction from the 2 years that would otherwise apply, pursuant to Article 10.6.2 of the UK ADR.

VIII. THE MERITS

64. The legal analysis here, as rightfully put to the Sole Arbitrator by both Parties, is in three contingent parts. The Sole Arbitrator must focus first on the presence or absence of Intention on the part of Mr Boardman, and then, depending on the outcome of that analysis, there may be a need to analyse the presence or absence of Fault or Negligence, and then, depending on the outcome of that analysis, there may be a need to analyse whether No Significant Fault or Negligence was present.

65. The Sole Arbitrator to note at the outset that he found Mr Boardman to be a cogent, candid, and credible witness. At no time was the truth of what he stated in jeopardy from challenge.

A. Intention

66. In the first instance, the Sole Arbitrator accepts that Mr Boardman lacked Intention. Based on the evidence recounted above, Mr Boardman was able to establish the source of his ingestion of the prohibited substance as his accidental taking of the oxandrolone from an open container labeled paracetamol, after being directed to find paracetamol in his friend’s van. There was no contrary evidence presented (the Sole Arbitrator accepts that UKAD did not have an obligation to make such a presentation), and the Sole Arbitrator determines that the Athlete met his burden of proving source and lack of Intention.

B. No Fault or Negligence

67. With respect to the case of No Fault or Negligence put forward by the Athlete, the Arbitrator is not persuaded that Fault or Negligence were absent here. There can be no doubt that there was fault present on the facts presented here. A number of factors lead to this inexorable

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conclusion:

- As an elite and long-time, experienced international athlete in his sports, having been tested many times before and having received anti-doping education, and having expressed a desire to be a professional coach or manager in his sport after retiring, Mr Boardman knew of his obligation to remain free from ingesting prohibited substances;

- Mr Boardman knew that he had run out of paracetamol in his home and had not replaced it, this despite testimony that he would suffer urinary tract infections several times a year and needed both paracetamol and antibiotics on hand to combat it. In contrast, he had on hand a sufficient supply of antibiotics, which are more difficult to obtain, requiring a prescription;

- Mr Boardman knew that his friend whom he had asked for a supply of paracetamol in this instance, Mr Hurst (the source of the prohibited substance), had used steroids in the past and Mr Boardman testified he was unaware of whether Mr Hurst was taking steroids currently even though he spent time several days a week with Mr Hurst; and

- Mr Boardman was hardly precise in asking Mr Hurst where the paracetamol was located in his van, simply opening the door and taking the first tub marked paracetamol he could locate. While it is accepted that Mr Hurst told Mr Boardman to locate the paracetamol in Mr Hurst’s van, Mr Boardman took no steps to confirm that the tablets he took from Mr Hurst’s van was the paracetamol that Mr Hurst was referencing when he told Mr Boardman to look for the paracetamol in his van (the Sole Arbitrator accepts that the tablets in the open container Mr Boardman found and ingested were similar in appearance, shape, color, and size to those depicted on the label of the open container labeled paracetamol).

68. Mr Boardman testified that as a result of the urinary tract infection he was suffering from light headedness, a fever, shakes, a headache, and joint ache. As he testified in the first instance proceeding, “I was dying from… my urine infection”.

69. While it is accepted that Mr Boardman was ill and the undisputed (and agreed) medical expert evidence given was that urinary tract infections affect individuals with lower body paralysis greater and differently than they affect non-paralysed individuals, there is no evidence that Mr Boardman was so overcome with the effects of the infection that he could not think sufficiently to perform basic tasks that require higher level reasoning and activity. He was able to hear Mr Hurst come to the door of his home, get out of bed, go to the front door, let his friend into his home, ask whether his friend had paracetamol available, go outside to Mr Hurst’s car to search and find the tub marked paracetamol, compare the tablets he found inside the tub with those on the label on the tub marked “paracetamol” where he found them, and then return inside and take the tablets (this was all made more complicated for Mr Boardman because of his lower body paralysis and his ability to function with that independently). Earlier in the evening he had been with his friends, including his girlfriend, before they set off for the pub, and, according to their testimony, while to them he appeared to be ill he did not appear to be unable to function

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mentally. In short, the evidence established that Mr Boardman was able to exercise his duty of care, and unfortunately failed to do so on this occasion as he had done consistently on prior occasions.

70. All of these factors taken together demonstrate that not only was Mr Boardman not without fault but that he engaged in behaviour that under the circumstances he knew or should have known would expose him to danger from ingesting a prohibited substance.

71. Accordingly, the Sole Arbitrator must reject Mr Boardman’s claimed lack of any fault or negligence, so his defense based on No Fault or Negligence fails.

C. No Significant Fault or Negligence

72. Now the Sole Arbitrator must turn to whether Mr Boardman exhibited Significant Fault or Negligence under the relevant standards, as stated above. Because the substance in question is not a Specified Substance, the lowest sanction Mr Boardman can receive is 12 months under the UK ADR.

73. The Sole Arbitrator accepts that Mr Boardman’s thinking was impaired by his urinary tract infection symptoms as recounted above, and by his single-minded determination to obtain paracetamol to relieve the intense symptoms of his infection.

74. The Sole Arbitrator accepts the medical evidence and Mr Boardman’s own evidence that this impairment caused Mr Boardman to not exercise the utmost caution he might otherwise exercise in his life to avoid ingesting prohibited substances.

75. The Sole Arbitrator has listed the elements of Mr Boardman’s fault or negligence above in the analysis of Mr Boardman’s claimed lack of any fault or negligence, and those same factors apply here in determining relative fault.

76. While the analysis of a case based on No Fault or Negligence is in many ways a search for any sign or indicia of Fault, the case based on No Significant Fault or Negligence accepts that there is some Fault but considers its severity, i.e., whether it is significant or not. This is a lower standard than that for determining the presence of any Fault at all; this No Significant Fault or Negligence standard accepts that there can be some fault but it cannot be significant.

77. In CAS 2013/A/3327 & 3335, the CAS Panel distinguished three categories of fault and established criteria to assess the objective and subjective levels of faults, namely, “significant degree of or considerable fault”, “normal degree of fault”, or “light degree of fault”. The possible sanction range of 0 to 24 months was divided into each category of fault, i.e., 16 to 24 months for a significant degree of or considerable fault, 8 to 16 months for a normal degree of fault, and 0 to 8 months for a light degree of fault (CAS 2013/A/3327 & 3335, para. 96 et seq.). These ranges obviously have to be adjusted for cases like here where the minimum sanction starts at one year.

78. The fault factors identified for Mr Boardman’s fault listed above might well be considered

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significant if taken out of context. But here, you cannot ignore the context against which Mr Boardman engaged in this conduct when analysing whether his Fault is significant. He was suffering from a significant medical condition (a urinary tract infection), that affects individuals with lower body paralysis like he has differently than it affects non-paralysed individuals (the medical evidence was essentially that because he was paralysed in the lower body, the infection takes hold and its symptoms are felt in later stages, when it is more fully developed, than in non-paralysed individuals who feel the symptoms earlier, such that individuals like Mr Boardman only notice the symptoms when the symptoms are far more intense). The symptoms included light headedness, fever, shakes, headache, and joint ache. The relief of these symptoms with paracetamol, in addition to using antibiotics, was almost exclusively guiding his thoughts and focus when he inquired of Mr Hurst about the paracetamol and commenced his quest to obtain it.

79. Given this backdrop against which Mr Boardman engaged in his conduct of obtaining the tablets from the wrongly (and as we found out intentionally so) marked tub of “paracetamol” from Mr Hurst’s vehicle, his fault can only be characterized as a “light degree of fault” under the CAS 2013/A/3327 & 3335 analysis.

80. Accordingly, the Sole Arbitrator finds that Mr Boardman should suffer a thirteen (13) month period of Ineligibility, which is nearly as low as is permitted to be given for No Significant Fault or Negligence cases, accepting that there was some fault (the most significant factor of which was his failure to have proper paracetamol on hand given his knowledge that he was prone to urinary tract infections that required its use in addition to the antibiotics he had on hand, but we all know that in daily life we occasionally run out of supplies and in this case it appears from his testimony that his girlfriend may have used the last tablets he mistakenly thought he had on hand before the infection symptoms asserted their ferocity).

81. The issue of start date for any period of Ineligibility was raised at the hearing. Mr Boardman had the offending Sample collected in June 2021 but the NADP hearing did not occur until early February 2022, with the decision issuing later that month, exonerating Mr Boardman and permitting Mr Boardman to compete. UKAD waiting under the last moment to file its CAS appeal of the outcome of the NADP proceeding. The fundamental rule, as set forth in Article 10.13.1 of the UK ADR, in paraphrase, is that the start date for suspensions can be set for earlier than after the issuance of any decision by CAS where there have been delays in the proceedings that are not the fault of the athlete. CAS panels also consider other circumstances as well in determining whether to backdate start dates. In this situation, Mr Boardman resumed competing in the intervening days, having been told he was exonerated by the NADP, and he stated that he did not realise the effect of his going back and competing, which he was free to do, on any issue of sanction length or start or end date should be found to have committed an ADRV in the CAS proceeding. In the meanwhile, Mr Boardman had to live, and train, and perform as an athlete with uncertainty with this proverbial cloud over his head during the entire time, and the fact that the NADP panel made a decision that could not be sustained on appeal should not be held against Mr Boardman. The Sole Arbitrator determines that the delay, which is not a pejorative term and just a descriptor, was substantial here in both bringing the underlying proceedings and in bringing the CAS appeal at the end of the time for doing so

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(there was nothing late about that, just that in the circumstances it was a delay that had an effect on Mr Boardman’s ability to compete), and not attributable to the Athlete. Accordingly, the start date shall be the date of Sample collection.

82. Mr Boardman cannot have it both ways however. Though he has received the earlier start date he sought, during the time he competed, he must forfeit the product of his winnings, including prize money, finishes, medals, trophies, and the like. To find otherwise would, in the view of the Sole Arbitrator, be inconsistent, and unfair.

83. Nothing in this decision should be construed as determining that Mr Boardman was in any way a cheater. He simply momentarily lost his focus on his anti-doping obligations while suffering from a medical condition which by itself, and the relief of which, clouded his decision making. This kind of mishap could easily happen to anyone, but unfortunately for Mr Boardman it happened to him within range of his anti-doping sample collection and testing. Athletes in similar position to Mr Boardman will likely learn more about their expected standard of care from his case and about their need to remain vigilant with respect to their anti-doping obligations, even by preparing in advance for known medical issues that repeatedly affect them.