Conflicting approaches were taken by different CAS panels in what is known as the Oliveira/Foggo debate by reference to two doping cases. On the one hand it was deemed that the "intent to enhance sports performance" test applied to the athlete's specific use of the actual prohibited substance (as in the CAS decision in the Oliveira case) and on the other hand that the test applied to whether the athlete's use of the product which was shown to contain the prohibited substance was intended to enhance his sport performance (as in the CAS decision in Foggo).

The case of Australian rugby league player Kurt Foggo, banned for two years after testing positive for the stimulant methylhexaneamine before the Court of Arbitration reduced it to six months, was a landmark ruling ©Getty Images

So contentious has been the issue that the wording has been removed altogether from the 2015 Code. However, intent is still an important factor, maybe even more so, and in the new Code it now relates to whether or not the commission of the anti-doping rule violation was intentional. So what difference will this make?

Whether or not an anti-doping rule violation for the presence, use, attempted use, or possession of a prohibited substance was intentional will be the first test to be applied in considering the sanction for any such doping case after January 1, 2015. The burden to establish this shifts between the athlete and the anti-doping organisation depending on the classification of the prohibited substance. For Specified Substances, the burden is on the anti-doping organisation to establish to the comfortable satisfaction of the judicial body hearing the case that the violation was intentional. For non-Specified Substances (e.g. an anabolic steroid) the burden is on the athlete to establish on the balance of probabilities that the violation was not intentional.

A measure of how important it is to WADA that a repeat of the Oliveira/Foggo debate is avoided and that the term "intentional" is clearly understood is evidenced by the incorporation of their definition within the actual text of the revised Code (Article 10.2.3). Usually, terms which require a definition are listed in the now 13-page appendix of definitions or an explanatory commentary is added as a footnote to the relevant Code article.

Rightly so, WADA must guard against the Code opening the door for any form of leniency for athletes to get away with doping and to receive a reduced sanction by means of deliberate ignorance or by passing the buck entirely to their support personnel and claiming personal innocence. The upshot of WADA's definition of "intentional" however, is that it will also capture those who just don't bother to check the ingredients of whatever medication or supplement they are taking. To paraphrase the new Code, if an athlete "manifestly disregards the risk that their conduct might constitute or result in an anti-doping rule violation", they will be subject to the new tough sanction of four years if they return a positive test. They will be treated just as a deliberate cheat would be.

The new World Anti-Doping Code is due to come into force on January 1, 2015 ©WADA

The 2015 Code does provide increased scope for reductions in sanction for offences involving Specified Substances, right down to a reprimand if the athlete can establish that he bears no significant fault or negligence. There is also similar scope for all prohibited substances under the entirely new provision for "contaminated products". However these avenues will only apply in cases where the first test of the case has established that the anti-doping rule violation was not intentional as specifically defined in the Code. You can't intentionally commit an anti-doping rule violation and then seek to claim no significant fault.

An examination of the multitude of doping cases previously dealt with under the contentious and soon to be obsolete provision of "no intent to enhance sports performance" indicates that in some cases the athlete was found to have a high degree of fault in ingesting a prohibited substance but having demonstrated no intent to enhance sports performance, was given a reduced sanction sometimes down from four years to a few months.

Where the lines are drawn by anti-doping judicial bodies between "manifestly disregarding risk", "significant fault" and "no significant fault" has the potential to become another area of contention which exercises legal minds on both sides of the doping fence and harms WADA's goal of harmonisation. The definition of "no significant fault" has not changed under the revised Code so it must be assumed that the threshold test applied by anti-doping judicial bodies in determining what constitutes significant fault also remains unchanged. CAS jurisprudence will be important in this regard.

In addition, what constitutes a contaminated product has been tightened up and clearly defined in the Code. All told therefore, the reduced sanctions which previously were applied legitimately by anti-doping judicial bodies in many medication and supplement cases may no longer be possible.

The message to athletes needs to be strong and clear. Don't expect any leniency if you test positive after taking a medication or supplement without checking whether or not it contains a prohibited substance. From January 1 the doping cheat's four-year ban will apply.

*Footnote: Under the 2009 Code if an athlete can successfully argue that he bears no fault or negligence and could not reasonably have known or suspected, even with the utmost caution, that he had used or been administered any prohibited substance, the applicable sanction can be eliminated entirely. Or if he can establish that his fault or negligence was not significant, then the applicable sanction can be reduced by up to one half.

The third means by which the sanction can be reduced under the 2009 Code is restricted to certain substances classed by WADA as Specified Substances. Examples of Specified Substances are the stimulants methylhexaneamine (MHA) which has been the cause of many recent positives attributed to nutritional supplements, and ephedrine which can be found in some medications and herbal remedies. Not classed as Specified Substances, and therefore not applicable for a reduced sanction on this basis, are things like anabolic steroids, growth hormone, EPO, blood doping, gene doping and some of the more potent stimulants such as cocaine and amphetamine.  Currently, if an athlete can establish how a Specified Substance entered his body and that his ingestion of the substance was not intended to enhance his performance then based on the athlete's degree of fault the otherwise applicable sanction of a two-year ban can be reduced, and often has been by doping judicial bodies including CAS, to a few months or as little as a reprimand.

Gregor Nicholson spent 22 years in sports administration with Scottish Athletics and the Scottish Rugby Union prior to establishing his own sports management company MACS in Sport Ltd. He is an independent member of the International Rugby Board (IRB)'s Anti-Doping Advisory Committee and has been a regular member of IRB judicial committees and review panels for international doping cases.