The effects of providing substantial assistance in doping investigations: A review of the Bernice Wilson case

Published 09 September 2016 By: Mark Hovell

The effects of providing substantial assistance in doping investigations: A review of the Bernice Wilson case

On 22 February 2016, the National Anti-Doping Panel (“NADP”) banned Dr Georgios Skafidas for life1 for the offences of administration and trafficking, pursuant to the UK Athletics Anti-Doping Rules.

UK Anti-Doping (“UKAD”) were assisted in their case against Dr Skafidas by one of the athletes he coached, Ms Bernice Wilson. She had been a victim of his administration of many prohibited substances, namely testosterone, clenbuterol, stanozolol, ephedrine and clomiphene. The NADP cited a telling extract from Dr Skafidas’ statement given to UKAD:

I ruined her career and not only, her life.

Ms Wilson, born in 1984, was a successful sprinter who participated at her first English Schools finals at aged 13; going on to win both the 100 and 200 metres finals at the 2010 English Athletics Championships.2 She competed at international level and represented Great Britain at the 2010 Indoor European Championships. She was coached at this time by Dr Skafidas, pursuant to his coaching licence that he received from UK Athletics, having been coaching athletes since 1991.

However, on 12 June 2011, she tested positive after competing at the Bedford International games. Eventually, she was banned for 4 years from 9 July 2011 after she tested positive for the anabolic steroid testosterone and the sympathomimetic amine clenbuterol. Dr Skafidas represented her at her hearing with UKAD. The Panel took into account various aggravating features and increased the sanction from the then standard 2 years ineligibility. Ms Wilson’s appeal failed, so she served the 4-year ban.

As a condition of her sanction, she was required to be subject to testing during the period of ineligibility and was tested at her home on 12 February 2015. The sample test revealed the presence of clomiphene, which is classified as a hormone and metabolic modulator under the 2015 WADA Prohibited List.

UKAD charged her with an anti-doping rule violation (an “ADRV”). However, Dr Skafidas intercepted the charge letter and hid it from Ms Wilson. After UKAD sent a second charge letter to Ms Wilson, which she received, she was interviewed by UKAD. She initially stated that the ADRV must have been due to a contaminated supplement, but on advice from the author’s colleague, Walter Nicholls, who took Ms Wilson’s case on pro bono, she admitted that Dr Skafides had given her the tablets that contained clomiphene. This had been done without her knowledge. She told of the pressure he put her under and explained that she suffered domestic abuse at his hands.

Ms Wilson’s evidence was that Dr Skafidas held the opinion that to succeed in athletics she would need to take performance enhancing drugs. She felt pressurised to do so, took supplements, but believed them to be drugs. Over a six-month period in 2011, she allowed him to administer testosterone daily by injections for a 4 to 6 month period. Even after the ban in 2011, Dr Skafidas had been asking her to take these drugs.

By a subsequent email and in his own interview with UKAD, Dr Skafidas then admitted that he had administered prohibited substances to Ms Wilson in June 2011 and February 2015, leading to her 2 ADRVs.

Whilst this evidence was of great assistance to UKAD in securing the lifetime ban for Dr Skafidas, Ms Wilson faced her own charges for the 2015 ADRV and this matter came before the NADP in March 2016.3

The matter was dealt with by Robert Englehart QC and has 2 interesting aspects:

  • What benefit should Ms Wilson receive for her timely admissions? and
  • How should any sanction of ineligibility be imposed on an athlete that is already subject to a ban?

It had been agreed between UKAD and Ms Wilson (with the support of WADA and the IAAF) that if this had been a first violation, then it would have merited a sanction of 20 months’ ineligibility. However, as it this was her second violation, then pursuant to IAAF Competition Rule 40(8)(a)(iii), this period would be doubled.

As Ms Wilson had provided UKAD with Substantial Assistance, there was then the possibility of a partial or total suspension of the period of ineligibility. Again, there was an agreement reached between the parties, supported by WADA and the IAAF, allowing for a 75% suspension of the 40-month period of ineligibility. As such her ban was for 10 months.

This agreement was consolidated in the NADP award and is a useful benchmark for lawyers representing athletes with ADRVs in the future that make prompt admissions and offer significant Substantial Assistance to anti-doping authorities.

Where there was no agreement was when such a ban should start from.

Ms Wilson was already serving a ban that would expire at midnight on 8 July 2015. However, the second sample was taken on 12 February 2015. So should the 10 months start once the first ban had ended or run part concurrently, starting at the date of the sample?

IAAF Rule 40(11) was of relevance:

Commencement of Period of Ineligibility

11. Except as provided below, the Period of Ineligibility shall start on the date of the final hearing decision providing for Ineligibility or, if the hearing is waived or there is no hearing, on the date Ineligibility is accepted or otherwise imposed.

(b) Timely admission: where the Athlete promptly admits the anti-doping rule violation in writing after first being confronted (which means no later than the date of the deadline given to provide a written explanation in accordance with these Anti-Doping rules or the Anti-Doping Regulations and, in all events, before the Athlete competes again), the period of Ineligibility may start as early as the date of Sample collection or the date on which another anti-doping rule violation last occurred. In each case, however, where this Rule is applied, the Athlete or other Person all serve at least one-half of the period of Ineligibility going forward from the date the Athlete or other Person accepted the imposition of a sanction, the date of a hearing decision imposing a sanction or the date the sanction is otherwise imposed.

Walter Nicholls argued on behalf of Ms Wilson that a strict interpretation of the Rule should apply and the start date should be the sample date. As such, Ms Wilson should have been free to compete since 12 December 2015.

UKAD disagreed and stated that an athlete already subject to inedibility should not be in a better position than an athlete committing his or her first ADRV. UKAD also sought to utilise IAAF Rule 40(11)(e) that dealt with provisional suspensions, arguing that UKAD had only provisionally suspended her after the original 4-year ban had been served and that sub rule (e) did not allow the NADP to go back further in time.

The NADP rejected the rule (e) argument. The primary purpose of that sub rule is to ensure full credit is given for provisional suspensions. Ms Wilson was not asking for credit to be given for the provisional suspension. Instead, the NADP followed the “plain meaning” of IAAF Rule 40(11)(b).

The conclusion was that Ms Wilson has been free to compete again since 12 December 2015 and she has now returned to her sport.

No one will ever know what her career might have been had she never met Dr Skafidas, but this case has raised serious safeguarding issues in athletics and hopefully lessons will be learnt from this sad affair.

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Author

Mark Hovell

Mark Hovell

Mark is a partner and the head of the sports team at Mills & Reeve LLP.

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