Chafa’s case is explosive

Farai Razano
THERE has been a lot of hype around Zimbabwe and Dynamos midfielder Devon Chafa’s positive drug test. A lot has been said with regards to his future and the effect of the positive drug test on the Warriors’ fate in the matches that Chafa played for the Warriors subsequent to the test.

While much of the hype has been quickly (and correctly) dismissed as misguided, some of it remains, and should be, a real cause for concern to sports administrators and sportspersons.

Doping in sport is a very serious issue and the authorities have upped the tempo since the busting Lance Armstrong after many years of playing hide and seek with the leadership.

Fifa did not provisionally suspend Chafa but that has since happened pending an investigation and the ensuing disciplinary process.
While the ‘drama’ is going on, Chafa’s future hangs in the balance.

It is therefore important to look at what doping in sport is (in this case football), the process that is followed when one tests positive of a banned or prohibited substance and the likely consequences for the person accused of doping.

Although reference is made to Chafa, this piece does not intend to pass judgment on Chafa.
He will have his day before the Fifa Disciplinary Committee and his rights have to be respected.

The World Anti-Doping Agency is the international body tasked with the monitoring of doping in sport. The WADA Code — adopted in 2005 — is the core document that provides the framework for harmonised anti-doping policies, rules and regulations worldwide.
Fifa adopted the WADA Code in 2009. It is incorporated into the Fifa Anti-doping Regulations.

WADA has local authorities or affiliates, National Anti-Doping Organisations, throughout the world. These NADOs are responsible for dissemination information on doping and regulating doping (testing) in the countries they are based.

Thus, doping tests can be conducted by the NADOs in terms of their local anti-doping policies provided such policies are consistent with the WADA Code.

In football, testing can be conducted by national associations or NADOs as the case may be. In international football matches Fifa is responsible for monitoring doping — which explains the random test on Chafa.

The test was done under the auspices of Fifa and the applicable set of rules are the Fifa regulations.
Doping offences under the WADA Code and the Fifa regulations include any of the following:

• the presence of a prohibited substance or its metabolites or markers in an athlete’s bodily sample;
• the use or attempted use of a prohibited substance or a prohibited method;
• refusing, or failing, without compelling justification, to submit to sample collection or otherwise evading sample collection;
• violating applicable requirements regarding an athlete’s availability for out of competition testing including failure to provide required information on the whereabouts of an athlete;
• tampering or attempting to tamper with any part of a doping control test;
• possessing prohibited substances or methods;
• trafficking in any prohibited substance or prohibited method; or
• administering or attempting to administer a prohibited substance or prohibited method to any athlete, or assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an anti-doping rule violation or any attempted violation.

The Fifa regulations mandate Fifa to conduct random doping tests. Once selected for a test, the footballer is typically given an explanation of how the process works and his or her rights are explained to him or her.

The footballer is then given a form that he or she has to complete and sign. The information required on the form includes any medication that the footballer uses or has used and has obtained a Therapeutic Use Exemption (TUE) for.

Typically, footballers that are asthmatic would be in possession of a TUE as some of the medication they use may contain prohibited substances.

A footballer is also required to disclose any medication that he or she would have taken 72 hours before the test. It is extremely important to disclose such medication.

Doing so after the fact or after a positive result may lead to an adverse inference being drawn against the footballer for failure to disclose the medication prior to the test.

The urine samples that are taken from the footballer are sealed as sample A and B. Only the A sample will be tested at a WADA accredited laboratory. If the A sample tests positive, the footballer is confidentially informed of the positive test and advised of his or her rights to request a test on the B sample and the period within which to request a sample B test.

If the footballer opts for a B sample test, the test will be conducted in the presence of his or her representative if he or she wants.
If the B sample returns a positive result, or the period within which to request a sample B test expires and no such request has been made, Fifa will proceed with the disciplinary process.

The footballer will be given an opportunity to make written submissions on how the substance found its way into his or her system and whether or not he or she pleads guilty.

The written representations or statement will be taken into account when the Fifa Disciplinary Committee deals with the matter.
Once a footballer has tested positive, they are presumed to be guilty of doping. The Fifa regulations adopt a strict liability. Thus, the fact that the substance was in the footballer’s system is sufficient proof that footballer is guilty of doping.

Fifa does not have to show that the footballer used the substance intentionally or with the aim of enhancing his or her performance. Equally, mistake will not suffice as a defence for the footballer.

The sanction will in most cases range from a general suspension of a minimum of two years to being banned for life for repeat offenders.
In football the situation is exacerbated by the fact that Article 33 of the Fifa Disciplinary Code does not permit the suspension of the implementation of a part of the sanction in the case of a doping violation.

In most cases the footballer’s real hope is a reduced sanction if specific factors can be demonstrated. Put simply, to have any prospect of convincing a committee that the sanction should be less than minimum two years the footballer will have to show how the substance found its way into his or her bodily sample, that this occurred without significant negligence (or intention obviously), and that there was no intention to cheat.

Only if a footballer can demonstrate these things is there scope for a reduced sanction. Even then the finding of guilt remains.
Thus, the minimum applicable sanction in Chafa’s case would be an automatic ban from all football activities for a period of two years if he fails to show how the substance entered his system, that there was no significant fault on his part and that he did not intend to cheat.

Of course, there are other technical (very technical and expensive) defences that could be raised.
These include challenging the manner in which the sample was collected from him, kept before testing and tested. These defences invariably involve the use of experts on these matters, particularly the testing aspect.

Some have successfully invoked these defences in the past.
The task of showing that there was no significant fault on the part of the footballer when the substance entered his system is onerous.
It is not simply a matter of showing that the footballer did not know that the product or medication the footballer took contained a prohibited substance.

The footballer will have to show that he or she exercised extreme caution and he cannot be punished in the circumstances. The footballer will still be found guilty of doping, but the sanction will be reduced. A good example would be if a footballer is in camp with his team and goes to the team doctor for flu medication or any other medication.

The team doctor generally is expected to know what is and what is not permissible in terms of the doping regulations.
If the footballer then positively enquires from the team doctor whether or not the medication contains prohibited substances and the team doctor gives him his assurance that it does not, such footballer may be able to discharge the onus.

This, however, is not the same as simply consulting with a general practitioner and not disclosing to the general practitioner that the patient is a professional footballer and whatever medication the general practitioner prescribes must not contain any prohibited substances.

As mentioned above, failure to discharge the onus will result in the minimum sanction being imposed.
Thus, far from the media reports in Chafa’s case that he may get away with a warning or a slap on the wrist, the allegations against him are very serious and all sports persons need to learn from this.

Doping can effectively end one’s career.
Once banned for a certain period, the footballer will not be allowed to participate in any association football activities.
The footballer may be allowed to participate in anti-doping awareness programmes or to train with his team depending with the period of suspension.

Chafa’s ordeal needs to be handled properly by the footballer and the football authorities, both at the club and national level.
Taking the matter lightly or turning it into a show for the media will not do any good to Chafa’s career. It should also be an eye opener to footballers, other sportspersons and the authorities on doping and how to tackle the issue.

Proactive measures have to be taken by footballers to educate themselves about doping i.e. what are prohibited substances, what amounts to doping or anti-doping rule violations and how to ensure that they do not cross the line.

Authorities on the other hand need to play a meaningful role in educating the sports persons about doping. They should not pretend that doping is not an issue in Zimbabwean sport.

Doping in sport is a problem throughout the world.
The statistics around the world suggest that in some cases sports persons remain in the dark about what is expected of them or the risks they face from medicines or dietary supplements or drugs (“mbanje” is at the top of the list) which they probably believe to be socially acceptable.

Unless there are proactive steps taken by the authorities and vigilance by sportspersons and sporting bodies the country will lose great talent as a result of doping.

Farai Razano is a Zimbabwean lawyer who works in South Africa and is considered a specialist in issues related to sport and the law.