A new approach to "trafficking" under the 2015 WADA code means the supply of cocaine charges levelled against eight past and present Titans players, together with the Reds' Karmichael Hunt, means they may escape any anti-doping sanctions.
The change to the WADA code, effective from January 1, does not prohibit supply of a prohibited substance, out of competition, when it is not "intended to enhance sport performance".
Clearly, WADA has accommodated the view that a four-year sanction should not apply to athletes using the drug outside of competition for partying. This appears to be the case alleged against the Titans and Hunt.
Cocaine is illegal in Australia, meaning the players will face the Queensland court system on Thursday and next week, with the NRL certain to impose additional sanctions on the Titans still contracted to the Gold Coast club.
The Queensland Crime and Corruption Commission has already declared the players are not subject to its definition of trafficking, which is usually linked with kilogram quantities of prohibited substances.
On the other hand, trafficking under the WADA code is very broad and much different to what the public perceive to be trafficking under the criminal laws. Under WADA rules, quantity is irrelevant. An athlete can be guilty simply by transporting a prohibited substance to any third person, on only one occasion, with a minuscule quantity.
Under the new WADA policy the Titans and Hunt, if the allegations against them are proven, would not be subject to a violation of "trafficking" given it exempts trafficking of an in-competition only substance – cocaine – if the intention of trafficking was NOT for enhancing sport performance.
The new definition of trafficking is: "Selling, giving, transporting, sending, delivering or distributing (or possessing for any such purpose) a prohibited substance or prohibited method (either physically or by any electronic or other means) by an athlete, athlete support person or any other person subject to the jurisdiction of an anti-doping organisation to any third party; ... and shall not include actions involving prohibited substances, which are not prohibited in out-of-competition testing unless the circumstances as a whole demonstrate such prohibited substances are intended to enhance sport performance."
Last year's policy did not allow for these exemptions, meaning the players would be subject to a violation of trafficking and would face a four-year ban given the incident occurred in that period.
WADA's rules are non-retroactive, meaning players are subject to the rules applying at the time of the offences.
However, WADA does allow, under rule 25.2 in its code, the application of the legal principle of "Lex Mitior", meaning the player charged can ask to be given benefit of the change in the law.
It is up to the relevant sport's tribunal to allow this and even if ASADA pursued the case, the players may receive no anti-doping ban at all.
John Marshall SC, a Sydney barrister highly experienced in sports doping law, was successful in using this principle in 2006 and it has subsequently been enshrined in WADA law.
Should the Queensland court system find no case against the players, based on flimsy CCC evidence, and ASADA take no action, their fate would then rest exclusively with the NRL.
