Fight against doping and food supplements (sportsman, how to defend yourself?)

Bertrand Cabinet
21.04.23 17:13 Comment (s)

By Clemence Picard


doping and sports law firm in paris France

Many sportsmen during their career are faced with the question of the use of dietary supplements or supplements. If these supplements are not in the World Anti-Doping Agency banned list, transposed into the Sports Code in article L. 232-26 referring to the decree of 1er July 2021 [1], athletes must nevertheless remain vigilant as to their use and their origin in view of possible contamination by prohibited substances.



[1]Order of 1er July 2021 setting the list of substances and methods the possession of which by athletes is prohibited pursuant to Article L. 232-26 of the Sports Code.

Definition: food supplements 

Le Decree No. 96-307 of April 10, 1996 supplementing the decree of April 15, 1912 taken for the application of the law of 1er August 1905 on fraud and falsification in respect of products or services with regard to foodstuffs, defines food supplements as follows:

“Food supplements are products intended to be ingested in addition to the current diet, in order to compensate for the real or supposed insufficiency of daily intake. »

La European directiveno 2002/46/EC on food supplements confirms this definition.

The main problem lies in the fact that the food supplement market is not regulated. 

athlete, doping and dietary supplement, how to defend yourself?

Dietary supplements should normally contain only essential nutrients such as vitamins, minerals, proteins, carbohydrates, lipids, or plants, which are found in the human diet.

However, according to a study by German biochemist Hans Geyer conducted in 2001, one in five dietary supplements contains doping molecules on the list of substances and methods prohibited by the World Anti-Doping Agency (WADA). In addition and according to this same study, 15% of these food supplements sold to athletes are contaminated with anabolic substances[1], without these substances appearing clearly on the packaging.



[1] Better known under the generic name of "steroids", these products increase muscle mass, which is why they are prohibited during and outside competition.

This trend is confirmed by the Swiss Sport Integrity which notes that " worldwide, 5 to 20% of products are contaminated with substances prohibited according to the Prohibited List (Vernec et al., 2013) ».

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Principle of objective liability (strict liability) in the event of an abnormal analytical result following a positive doping control

Anti-Doping Organizations apply the principle of strict liability athletes according to which the athlete is responsible for all the substances found in his body. 

“I. - The presence, in an athlete's sample, of the substances appearing on the list of prohibitions mentioned in the last paragraph of this article, their metabolites or their markers, is prohibited. It is each Athlete's responsibility to ensure that no Prohibited Substance enters their body.
 

La violation of prohibition mentioned in the previous paragraph is established by the presence, in a Sample provided by the Athlete, of a Prohibited Substance, its metabolites or its markers, without it being necessary to prove that the use of this substance was intentional or resulted from fault or negligence on the part of the athlete. »

This principle leads to a reversal of the burden of proof placing the onus of proof on the athlete. 

So, the mere presence of a prohibited substance in an athlete's sample leads the anti-doping agency to presume the existence of a violation rules relating to the fight against doping. 

La characterization of this violation entails the application of a suspension, the duration of which is set by the Sports Code depending on the nature of the violation committed (articles L. 232-23-3-3 and following of the Sports Code). 

Ultimately, the athlete may obtain an elimination or a reduction of the period of suspension depending on his degree of fault. 

The difficulty for the athlete therefore lies in the demonstration of its absence of significant fault or negligence, proof that is difficult to report, especially in the presence of food supplements " healthy in appearance but were in fact contaminated.

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Before the test: caution and vigilance to avoid a positive doping test 

Recommendations for the athlete prior to consumption food supplements, aimed at protecting against the risk of contamination by prohibited products and therefore avoiding a presumed violation of the rules relating to the fight against doping: 

1°) Consult a independent expert in nutrition (sports doctor, dietician, nutritionist, etc.).

doping and food supplement, norm to defend oneself

2°) Check that the complement has a standard assigned by an independent organization (e.g.: AFNOR) aimed at proposing the implementation of good practices in the manufacture of food supplements intended for athletes:


Ø                Anti-doping standard NF V94-001 (July 2012 - canceled and replaced by the standard below): Prevention of doping in sport - Food supplements and other foodstuffs intended for athletes - Good development and manufacturing practices aimed at the absence of doping substances.

Ø                European standard NF EN 17444 (February 2021 – current): Preventing Doping in Sport - Good Development and Manufacturing Practices to Prevent the Presence of Prohibited Substances in Athlete Foods and Food Supplements.

3°) Avoid orders on the internet or from unknown suppliers (especially around sports halls).

4°) Avoid consuming third-party add-ons.

5 °) Consult the various independent websites that guarantee the integrity of certain manufacturers and supplements after having tested them in batches (eg: Sports Protect via the app scan-protect, Sport Integrity Australia via the creation of a dedicated application: Sport Integrity App, etc.).

Good practices a cas de consumption of a supplement :

 

Ø  Check that each ingredient on the supplement label is not on the prohibited list

Ø  Keep the invoice and proof of payment

Ø  Keep the container on which the batch number and expiry date appear (ideally, buy a second jar of the same batch and/or same expiry date which will be kept sealed to be analyzed in the event of a positive control, see below)

Ø  Keep a sample of the supplement consumed

Ø  Keep a copy of the label with the list of ingredients

Ø  If in doubt, have the supplement analyzed before consuming it.


The athlete must always keep in mind that compliance with all of these recommendations does not protect him 100% from a positive test, it only helps to reduce the risk. 

After the positive test: how to react to prepare your defense before the doping control body 

When a violation of the rules relating to the fight against doping is established pursuant to Article L. 232-9 of the Sports Code, the athlete incurs a sanction of up to four years of suspension depending on the nature substance and its degree of fault. 

"I.- Except in cases where the period of suspension is not applied or is reduced under the conditions provided for in Article L. 232-23-3-10 and without prejudice to the granting of a suspension pronounced in application of Article L. 232-23-3-2, the duration of the suspension measures mentioned in 2° of I of Article L. 232-23 due to a breach of Article L. 232- 9 or 2° of article L. 232-10:

 

1° East of four years when this breach involves a substance or method not specified. This duration is reduced to two years when the sportsman demonstrates that he has not did not intend to commit this breach;

 

2° East of two years when this breach involves a specified substance or method. This period is extended to four years when it is demonstrated by the French Anti-Doping Agency that the sportsman intended to commit this breach.

 

For the purposes of this article, intentional behavior is defined in article 10.2.4 of the World Anti-Doping Code in the version that came into force on January 1, 2021.

 

[...]

 

III.- The specified substances and methods, the non-specified substances and methods and the substances of abuse mentioned in this article are those which appear on the list of prohibitions mentioned in article L. 232-9. »

Article L. 232-23-3-10 of the Sports Code frame the appreciation of athlete's degree of fault : 

“I.-When the interested party establishes in a particular case no fault or negligence on his part, the suspension period provided for in articles L. 232-23-3-3 to L. 232-23-3-9 is not applicable.

 

II.-The duration of the suspension measures provided for in Articles L. 232-23-3-3 to L. 232-23-3-9 may be reduced under the following conditions, which are mutually exclusive:

 

1° Where the violation involves a Specified Substance or Method other than a Substance of Abuse, or where the Prohibited Substance detected, other than a Substance of Abuse, is from a contaminated product, and that the interested party can establish his No Significant Fault or Negligence, the penalty is a minimum of a warning and a maximum of a two-year suspension, depending on the degree of his fault;

[...]

 

The duration of the suspension measures provided for in Articles L. 232-23-3-3 to L. 232-23-3-9 may be reduced by a specially reasoned decision when the particular circumstances of the case justify it with regard to the principle of proportionality. »

the defense of the athlete in terms of doping and food supplements
In other words, to benefit from a suspension reduction (between a warning and two years of suspension), the athlete must demonstrate :

- not only that the dietary supplement was contaminated,
- but also that he did not commit no fault or negligence  significant (indeed, the World Anti-Doping Agency considers that the absence of fault or total negligence should not apply in the presence of the contamination of a product). 

On the proof of contamination : 

Le World Anti-Doping Code defines the contaminated product as a " product that contains a prohibited substance that is not disclosed on the product label or in information available to a reasonable search on the Internet. »

This text also specifies (comment n°66 of article 10.6.1.2): 

“Reduction of the penalty for No Significant Fault or Negligence has rarely been applied in Contaminated Products cases, except where the Athlete has shown great caution before taking the contaminated product. As part of the assessment of the Athlete's ability to establish the source of the Prohibited Substance, it would, for example, be significant, in order to establish whether the Athlete actually used the Contaminated Product, to check whether the Athlete had declared on the control form of doping the product which subsequently proved to have been contaminated. »

In practice, the proof of contamination is difficult to report by the athlete. 


In addition to indicating the number of doses, the quantities consumed at each dose, the period of consumption, the date of the last dose, the athlete must also send to the approved laboratory designated by the anti-doping organization: two jars of supplement (the first jar corresponds to that consumed by the athlete, the second is a sealed jar of the same batch and expiry date), so that these supplements are analyzed at its expense (which can represent several hundred euros). 

On the absence of significant fault or negligence : 

The athlete's degree of fault is assessed according to objective and subjective criteria, in particular with regard to the measures that the athlete would have taken to avoid an abnormal analysis result.

 

However, the assessment of these criteria by Anti-Doping Organizations remains casuistry and subject to the principle of balance of probabilities.

TO REMEMBER


demonstrate Prudence as well as vigilance in case of consumption of food supplements


&


When consumption gives rise to an Adverse Analytical Finding, attempt to demonstrate a No Significant Fault or Negligence of the athlete in case of suspected contaminated products.


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The Firm regularly assists athletes confronted with the rules relating to the fight against doping. You have questions, contact us! 

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On the same theme, see the following articles:

[15.02.2022]

[27.07.2021]

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