In 1999, at just age 15, a young Romanian won her first senior international gold medal at the World Championships in Tianjin. She was part of a new generation of gymnasts who were poised to follow in the footsteps of the recently retired and extremely successful Lavina Milosovici and Gina Gogean.
The following year, the now 16-year-old, geared up for the Summer Olympics in Sydney. By this point, her abilities in the presentation and dance elements of gymnastics had garnered significant recognition, establishing her as a standout figure. Among many Romanians, there was anticipation that she would bolster Romania’s medal count.
That extraordinary teenager was none other than Andreea Raducan.
Raducan went on to win the gold medal in the all-around event with a score of 38.893.
Before the celebrations could enter full swing, she was randomly selected for drug testing under the Doping Control Guide established by the Sydney Olympics Organising Committee. It was seemingly a tick-box exercise. After all, she was not taking performance-enhancing drugs. Nevertheless, just three days later the banned substance pseudoephedrine was found in her body.
What is Pseudoephedrine?
Pseudoephedrine is a stimulant that assists in supplying blood to muscles. Between 2004-2010 the substance was removed from the list of banned substances. However, it was reinstated in 2010 in concentrations over 150 micrograms per millilitre. These tweaks are determined by the World Anti-Doping Agency (“WADA”) and their prohibited list. Most recently, the Russian middle-distance runner Anna Alminova was caught using the substance and subsequently banned for 3 months.
Issue
Upon the discovery of the prohibited substance in Raducan's system, the finding was reported to The International Olympic Council (“IOC”).
The role of the IOC is to supervise and oversee the organisation of the Olympics as a whole and ensure that the rules of the games are respected.
With their duty to uphold the rules of the games, the IOC took decisive action and disqualified Raducan, stripping her of the gold medal. This decision was guided by the stringent regulations outlined in the WADA Anti-Doping Code ("Code"), a pivotal framework adopted by the IOC to combat doping at the Sydney Olympic Games.
The Sydney Olympics heralded the introduction of the Anti-Doping Code, marking its inaugural application in Olympic competition. Notably, Chapter II, Article 2.2 set out the principle of strict liability. Under this provision, the method by which a banned substance entered an athlete's body held no sway; mere detection resulted in automatic disqualification.
Definition: Strict liability is a doctrine within the law that makes defendants liable regardless of their intention. It does not matter if someone has acted in good faith and reasonably, if they have committed the action (or in this case taken the substance) they will be liable.
An inquest was held into how the substance had found its way into her body. Quickly, it was discovered that she had been given two Nurofen pills by a Romanian team physician who had been negligent in checking the exact ingredients of the medicine.
Raducan had unknowingly ingested the prohibited substance. Compounding matters, Raducan said that after taking the medicine she felt dizzy, raising concerns over her performance. It was on these two grounds that Raducan and her team decided to initiate proceedings before the Court of Arbitration for Sport (“CAS”), an independent institution that provides dispute resolution services to sporting bodies.
As CAS is independent of any particular organisation, its authority derives from the provisions set out in the procedural rules of sporting competitions.
CAS Ruling
Raducan’s legal team presented two primary arguments before the court:
Raducan harboured no intent to dope as she was unaware of the banned substance's presence in the medication. Her purpose in taking the medication was solely to alleviate her illness, rather than to gain any unfair advantage.
The presence of the substance in Raducan's body did not confer any performance-enhancing benefits.
CAS were quick to reject the first argument.
The court cited C v FINA CAS 95/141 to demonstrate the necessity of a system of strict liability in upholding the integrity of sports. The court in that instance said, “It would indeed be shocking to include in a ranking an athlete who had not competed using the same means as his opponents, for whatever reasons”.[1]
Raducan’s legal team attempted to draw parallels with the case of Samantha Riley, who had only received a warning for taking a banned substance contained in a pill for headaches. However, the court clarified that in that case, although Riley had committed an offence, a mere warning would not be appropriate in Raducan’s case, given the Anti-Doping Code’s clear stance on punishments for doping.
In regards to the second argument, Raducan had an expert opinion that asserted that the trace amount of pseudoephedrine within her system would not have had an enhancing effect on her athletic performance. Nevertheless, the court confirmed, in line with the Code, that this was irrelevant. To the court, the presence of the substance in her body was the sole determinant.
Raducan's team presented three subjective elements that they believed would mitigate her case. Raducan argued that her extremely low weight (37kg), age and the fact that she needed to take Nurofen to maintain her health, should all be considered by CAS.
However, the court swiftly rebutted these arguments.
The court clarified that:
Specific consideration is not given to weight within the Code
The code treats athletes of all ages alike; and
There were other medications available, as well as the opportunity to apply for prior approval of the medication.
While they did have the character to suggest mitigating circumstances, the court found that the Code was so unambiguous in its declaration that instances of doping will automatically lead to disqualification that this must be upheld.
They did recognise that this meant a ‘severe’ punishment for Raducan but that this was a ‘matter of fairness to all other athletes’. Melissa Hewitt has argued that reasonable mistake of fact should be a defence to the strict liability nature of doping. This would allow an athlete to avoid sanction if they believed in good faith that the substance they were ingesting was not on the banned substance list. Hewitt contends that a defence of this type would help avoid the “disproportionately harsh sanction” which Raducan received.
The mitigating circumstances played a crucial role in determining any additional disciplinary actions against Raducan. Both the IOC and CAS determined that there would be no further action against Raducan given that she was completely unaware of the fact she had consumed the substance. CAS even went on to describe her as a ‘fine athlete’.
The overall decision struck a delicate balance between protecting the interests of all athletes and acknowledging the unfairness imposed on others when the gold medalist tests positive, irrespective of the circumstances
The Wider Impact
Interestingly, experts determined that the level of pseudoephedrine within Raducan’s body would not have enhanced her performance. If a substance isn't enhancing, should it still be banned in small quantities?
Since Raducan’s case, WADA has introduced minimum reporting levels into their Code.This means that athletes who test positive for trace amounts due to contaminated medicine or food are not reported to sporting bodies and allowed to compete. Furthermore, WADA has monitored these thresholds to try and protect athletes who have consumed small levels of banned substances without their knowledge. For example, the IOC withdrew their charge against Brenton Rickard after WADA increased the minimum allowed level of the substance which had been found in his body. They explicitly stated that the new threshold ‘will minimise the risk of sanctioning athletes who test positive due to the use of contaminated medications, without undermining the fight for clean sport’.
It is abundantly clear that doping must be an offence that is automatically committed when the banned substance is found within an athlete, at levels exceeding permitted thresholds.
However, to safeguard "innocent" athletes like Raducan, who unknowingly ingest prohibited substances, minimum levels need to be monitored carefully. This proactive approach ensures that negligible amounts of banned substances, incapable of enhancing an athlete's performance, do not result in unwarranted penalties.
Citation: Raducan v International Olympic Committee CAS 2000/011
Court: Court of Arbitration for Sport
Judge: Kavanagh J, Netzle, Oliveau
Date of judgment: 28 Sep 2000
References
Andreea Raducan v International Olympic Committee 00/011 para 16
Andreea Raducan v International Olympic Committee 00/01 para 17
Melissa Hewitt, ‘An Unbalanced Act: A criticism of How the Court of Arbitration for Sport Issues Unjustly Harsh Sanctions by Attempting to Regulate Doping in Sport’ Indiana Journal of Global Legal Studies, 22(2) 769
World Anti Doping Agency, ‘Stakeholder Notice regarding potential diuretic contamination cased’, June 2021
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