As most readers probably know (especially those that read our WADA & Whereabouts article), at the beginning of each quarter of the year professional athletes are required to send a report of their whereabouts to sporting authorities. In other words, the athletes have to inform anti-doping agencies where they will be and pick a time slot when they will make themselves available for testing.

According to the World Anti-Doping Agency (WADA), misinforming whereabouts – or not informing at all – is considered as a ‘Filing Failure’ under Article 3.2 of WADA’s International Standards for Testing and Investigation (ISTI). Not being present for the test whenever the agency sends officials to the informed locations is considered a missed test. If an athlete collects 3 Filing Failures and/or missed tests within a period of 12 months, it is considered a ‘Whereabouts Failure’ under Article 2.4 of the WADA Code. The punishment for this violation is a 2-year suspension, which can be reduced to 1 year depending on the athlete’s degree of culpability, in accordance with Article 10.3.2 of the WADA Code.

The Coleman case

Christian Coleman is an American track and field athlete, born in Atlanta, on 6 March  1996. He competes in several modalities; 60m dash, 100m dash, 200m dash and so on. Since Usain Bolt’s retirement in 2017, Coleman is arguably the “fastest man in the world”. His main accomplishments include: being an Olympian in the Rio 2016 Olympics; one silver and two gold medals in the IAAF World Championships; winner of the Diamond League 2018; current owner of the 60m dash world record (6.37 seconds in 2018), among many others.

Usain Bolt and Christian Coleman

Recently, Coleman has been accused of violating Article 2.4 and incurring a Whereabouts Failure. The charges were based on the fact that he had – theoretically – committed 3 Filing Failures within 12 months: the first on 6 June 2018, the second one on 16 January 2019 and the third one on 26 April 2019 [1].

There is, though, a rule on ISTI that states that “Filing Failures will be deemed to have occurred on the first day of the quarter for which the Athlete fails to make a (sufficient) filling” (Comment to I.1.3). This means that Coleman’s first Filing Failure should be dated 1 April 2018, and not 6 June 2018 – over a year before his last one, which would mean that no Whereabouts Failure was committed. That was the argument put forward by his attorney, Howard Jacobs.

Had Coleman been suspended (even for the minimum duration), he would have been ineligible for both the IAAF World Championship 2019 in Doha, and the 2020 Olympics in Tokyo. However, after a report sent by WADA to the United States Anti-Doping Agency (USADA), the latter decided to withdraw all the charges, 2 days before the hearing, which was supposed to happen on 4 September 2019. Therefore he was eligible to participate in the IAAF WC where he won the gold medal for the 100m.

The repercussion was huge. Kara Goucher (two times Olympian with the US Track and Field Team) was a major critics: “Imagine breaking a really big rule with big consequences, only to discover a new rule which makes prior rule useless“. Another harsh comment was made by the Paralympic medallist Ali Jawad:

The rules are not being applied universally

After the charges were withdrawn, Coleman accused USADA of targeting him and demanded a public retraction by the organisation.

In other recent cases, WADA has been faithful to their strict guidelines. Athletes Brianna Rollins, gold-medallist in the Rio 2016 Olympics, and Lizzie Amistead were suspended by the organisation for similar infractions. Brianna admitted her offence while Lizzie appealed to the Court of Arbitration for Sport (CAS) which ultimately overturned WADA’s decision as consequence of alleged procedural misconduct related to her first and third Whereabouts Failures within the 12-month period.

Sir Craig Reedie, WADA’s President

Back to Coleman

Even though the ideal situation might be to test athletes randomly (and not according to their performance) the policy is for targeted testing. Coleman was tested more than the average American athlete – 20 times between 2018 and 2019 according to USADA. The average for the same period was around 2.5 tests for all athletes, and approximately 3 tests for Track and Field ones (data available on USADA’s website).

His first infraction was considered a Filing Failure and, therefore, was registered as having occurred on the first day of the quarter. Strangely the same logic was not applied to his third violation, or else it would have been dated 1 April 2019 – and, therefore, would be the third within a period of (exactly) 12 months.

During a brief talk between the author of this article and Brazilian anti-doping expert lawyer, Thomaz Mattos de Paiva, founding partner of the law firm MPNR Advogados, he made the following comment on the matter:

Apparently, in the Coleman case, WADA has interpreted the absence of specific provisions on the counting of the 12-month period mentioned on article 2.4 of the Code in favour of the athlete, following the in dubio pro reo principle. It seems like the initial date of the counting was considered to be the actual date of the Filing Failure (1 April 2018), and so the third violation, which was (supposedly) dated 1 April 2019, happened 12 months and 1 day after the first one – thus, no Whereabouts Failure“.

WADA does not disclose information on cases ending in acquittal, which makes it hard to conclude anything concerning this case with certainty. Nonetheless, by tacitly ruling in favour of the athlete is seems as if WADA are showing signs of mitigating their robust approach to Whereabouts doping offences. Considering the number of cases where athletes are charged because they are let down by third parties this would be a very welcome change for athletes.

However, if this change happens too slowly, the legal uncertainty during the transitional period could be very harmful. Athletes have the right to know in advance the consequences of their actions, especially consequences that could prematurely end their careers. Let’s hope that WADA continue to position themselves as a neutral party, setting aside the whole “doping industry” attitude, and that these changes become permanent for the good of sport worldwide.

André Oliveira

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