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Why you should always get advice on Doping Violations
20/12/07 by Michael Smyth
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A ban for cannabis use could have seriously damaged his career. Despite the cannabis being inhaled several weeks before Drug Free Sport New Zealand tested him, the markers remained in his system and turned up a positive test. A momentary lapse of judgment on a night out with friends and Kareem Johnson was looking at a ban which could stop him playing international basketball and could jeopardize future playing contracts overseas. Fortunately he got advice.
Kareem was in an unusual position
At the time of the test Kareem was playing basketball for the Hawkes Bay Hawks franchise, but by the time Basketball New Zealand (BBNZ)started anti doping violation proceedings in the Sports Tribunal he had signed a playing contract to play in Uruguay. His playing contract contained a clause which his club could potentially rely upon to end the contract if a ban was imposed.
Then, there would be the difficulties in securing a new contract in New Zealand when the New Zealand season started. But the New Zealand season was very short and whilst a ban for cannabis would in all likelihood be less than a year if he could establish that he didn’t the cannabis for sport enhancement purposes, no team or franchise would be likely to offer him a contract if he wasn’t able to play for a large part of the season. His future earnings would be seriously affected. Fortunately, the legal advice he received was that the World Anti Doping Agency (WADA) Code didn’t apply. That meant that there were various legal arguments available to him which could help reduce the ban.
The legal arguments
Kareem was tested under the BBNZ Anti Doping Code. This Code (which has since been modified by BBNZ) didn’t incorporate the WADA Code, and therefore the WADA code didn’t apply. Under the WADA code, cannabis is classified as a specified substance. Specified substances attract a lower ban if the athlete can show that the substance in question was not taken to enhance sporting performance. A ban can range from a warning/reprimand to a one year ban. All bans imposed under the WADA Code are “cross code” (in other words they apply to all sports in which the athlete may choose to compete irrespective of the sport being played at the time of the positive test). They are also of worldwide effect.
The sanctions capable of being imposed under the BBNZ Code, on the other hand, applied only to basketball within New Zealand. That meant that the tribunal was precluded from imposing a cross code worldwide ban.
The other feature of the BBNZ Code was that there was a list of prohibited substances which only attracted a 3 month ban. Whilst cannabis was not listed within these substances (because it was not a prohibited substance at the time the BBNZ Code came into effect) it was similar to these substances listed since it was unlikely to have the effect of enhancing sporting performance. The Tribunal accepted that under the BBNZ Code, cannabis could be grouped under this class of substances. Therefore, the maximum ban Kareem could get would be 3 months. However even a three month ban would damage Kareem’s career which is why knowledge of how the Tribunal treated cannabis violations proved very useful in persuading the Tribunal to think outside of the square.
The Tribunal took a new approach
In December 2006, the Tribunal produced a minute explaining its approach to cannabis use and what factors it would consider to be aggravating (such as to increase the length of any ban) and what factors were mitigating (such as to reduce the length of any ban).
Having sought advice on the circumstances of his anti doping rule violation, Kareem was able to reinforce the mitigating factors which were relevant to his case. By successfully arguing the mitigating factors, the Tribunal decided to take a novel approach to his ban. Fully aware of the affect any ban may have on Kareem, and acknowledging Kareem’s genuine offer to assist with drug free education, the Tribunal decided to suspend the ban subject to Kareem participating in a drug free education programme with Drug Free Sport New Zealand. That meant if the education programme was completed he would not have to serve his ban. This left him free to negotiate a new contract in New Zealand.
Would the same result have occurred without the advice?
The first reaction of many athletes when faced with a positive test for cannabis is to claim accidental or passive inhalation. However, that type of defence won’t work in the Tribunal because analytical testing can establish the level of inhalation which very often will destroy the credibility of the athlete. A far better course is to accept the violation and say sorry. By emphasising the mitigating factors, a far better result can be achieved. That’s where good advice is essential and will pay off in the long run for the athlete.
If you want to read the decision of Basketball New Zealand v Kareem Johnson click here. Michael Smyth was counsel for Kareem Johnson in the above Anti Doping Rule Violation proceedings.
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