Sport and anti-doping – the year in review 2018/19

Published 16 May 2019 By: Richard Liddell, William Harman

Doping in sport

The last twelve months have seen high-drama and new law across the anti-doping world. The review below is necessarily selective. Its primary focus is UK anti-doping, decisions in the Court of Arbitration for Sport (CAS) and developments relating to the major international anti-doping bodies. In the final section, we provide a round-up of some other anti-doping stories recently in the news.

Contamination

Football fans and journalists have been gripped by the twists and turns in the case of Paolo Guerrero. The Peruvian footballer claimed to have drunk contaminated tea after testing positive for a metabolite of cocaine in December 2017. Guerrero’s initial ban of one year was almost immediately reduced to a 6-month ban backdated to November 2017 by the FIFA Appeals Committee, which would have allowed Guerrero to lead his team at the World Cup in Russia.1 But WADA successfully appealed the sanction to CAS, who substituted the FIFA Appeals Committee’s decision with a 14-month ban which would have prevented Guerrero from playing in Russia (decision available here2). Next, Switzerland’s Supreme Court intervened by freezing the 14-month suspension pending the outcome of an appeal (a move which, in the end, was not opposed by FIFA or WADA), which meant Guerrero could (and did) play in the World Cup. Then the Swiss Federal Tribunal lifted the freezing order in late August (a month after Peru’s exit in the group stage) before rejecting Guerrero’s final appeal in March of this year3. For a LawInSport article arguing that WADA should reclassify cocaine as a “specified substance” in light of the Guerrero case, follow this link4.

From football to rugby, in RFU v Wells,5 a semi-professional rugby player alleged that two substances on the Prohibited List had unintentionally entered his system via contamination in a supplement called Varicose. However, Wells was unable to afford to test the Varicose to determine its contents. The UK’s National Anti-Doping Panel (the NADP) questioned the fairness of expecting poorly resourced athletes to fund laboratory tests on potentially contaminated supplements,6 but followed the line of decisions at national7 and CAS8 level which confirm that it would only be in an exceptional case that a lack of intention would be established if the source of the Prohibited Substance were not proved by the player. Wells received a four-year sanction.

Unlike Wells, Great Britain javelin thrower Joanna Blair was able to obtain independent laboratory tests on the supplement which she claimed had been contaminated. Further, the scientific tests showed significant traces of metandienone, the substance which had caused Blair’s adverse analytical finding. But that was not enough. The NADP emphasised at first instance9 and on appeal10 that the athlete must also prove how the prohibited substance had entered the supplement in question in order to establish that the anti-doping rule violation (ADRV) was not intentional. In circumstances where UKAD had evidence that there was no metandienone in supplements from the same batch as Blair’s packet, Blair had failed to prove, for example, that she had not added metandienone to the container which was tested and was suspended from all sports for four years. For a detailed consideration of this case, see this article in LawInSport11.

Finally, it is worth noting that US swimmer Madisyn Cox succeeded in proving the source of contamination after she was handed a two-year ban at first instance. In the circumstances, her appeal to CAS was settled by consent without a hearing.12

“Indirect intentionality”

Staying with the subject of “intent”, we frequently encounter cases where the governing body contends that even if the ADRV were not “directly intentional” (in the sense of deliberately and knowingly ingesting a prohibited substance), the ADRV was still “indirectly intentional” and there should be no reduction for "no serious fault or negligence" because the athlete in question was negligent or reckless in relation to the risk of an ADRV.

In WADA v Tzu-Chi Lin,13 CAS imposed a period of ineligibility of eight years following a second ADRV by a weightlifter from Chinese Taipei. The athlete alleged that the metandienone for which she tested positive entered her system via a supplement called Flovone which a doctor had recommended to treat menstrual problems. Although Flovone is clearly labelled as containing DHEA (of which metandienone is a metabolite), Tzu-Chi Lin alleged that she had not understood the English writing on the box. At first instance, the Chinese Taipei Olympic Committee suspended the athlete for only two years on the basis that the steroid had not been taken intentionally. On appeal, the CAS sole arbitrator found that Tzu-Chi Lin had not done enough to establish that she really did purchase and take Flovone. And in any event, the ADRV was “indirectly intentional” in the sense that it was reckless (it being incumbent on the athlete to investigate if she did not understand the writing on the packaging). Accordingly, no reduction in sanction was appropriate.

Refusing, evading and/or failing to provide a sample

Two first instance decisions from the first few months of 2019 have emphasised the gravity of refusing, evading and/or failing to provide a sample.

In January 2019, the NADP imposed an eight-year ban14 on rally driver, Paul Bird. Bird accepted that he failed to provide a sample on being approached by Doping Control Personnel at the end of a rally but denied refusing to provide a sample because he offered to do so later (needing, in the meantime, to board a helicopter to visit his father who was ill). The NADP accepted that the difference between failing to provide and refusing to provide is “a real one15 but rejected that Bird had in fact offered to take the test at another time. And in any event, the requirement is to take the test immediately, which Bird intentionally refused. The suspension given to Bird was eight years because the incident occurred only a matter of months after Bird returned from a two-year suspension for testing positive for benzoylecgonine (a metabolite of cocaine).

In FA v Yorweth,16 the player candidly admitted that he intentionally did not answer the door to Doping Control Personnel because he had been using cocaine the previous weekend and believed that if he provided a sample, he would face a two-year suspension. It was submitted on behalf of Yorweth that

  1. the Regulatory Commission had a general discretion under The FA Anti-Doping Regulations 2018-19 (the FA Regulations) not to impose a four-year ban for refusing to provide a sample and

  2. the Regulatory Commission should exercise that discretion in light of evidence from a psychologist suggesting that the player would suffer damage to his physical and mental health on receiving a four-year ban.

Rejecting Yorweth’s case, the NADP held that the only exception to a four-year ban in Regulation 52 of the FA Regulations was where the ADRV was not intentional. The FA Regulations confer no general discretion to impose a lesser sanction, and the reference to imposing a lesser sanction in “exceptional circumstances” within the Preamble refers only to the exceptional circumstances set out elsewhere in the FA Regulations (e.g. where the ADRV was not intentional pursuant to Regulation 52).

It is important to note that case law relating to refusing, evading and/or failing to provide a sample (and anti-doping more generally) can appear unrepresentatively one-sided because decisions will not ordinarily be published where no ADRV has been found. The authors are aware, for example, of one confidential decision handed down in February 2019 in which the NADP found that a former Olympian had not deliberately evaded Doping Control Personnel at the door because the athlete reasonably believed that he / she had retired. Charges of refusing and/or failing to provide a sample were also dismissed on the basis that there had been no notification of the test (a requirement for those ADRVs) and failures in the testing process which the Panel described as “a lesson in how not to carry out a mission”.

UFC and long-term metabolites

In March 2019, USADA confirmed that Russian UFC17 welterweight, Muslim Salikhov, would not be sanctioned despite testing positive multiple times for an M3 metabolite. USADA concluded that a pattern of negative and positive findings over a series of tests suggested that recent ingestion was highly unlikely and that Salikhov retained no performance benefits given the low-level presence of the long-term metabolite.

The case has clear echoes of the high-profile investigation into UFC light-heavyweight champion, Jon Jones, who tested positive for the M3 metabolite in December 2018 only for the US Anti-Doping Agency (USADA) to conclude that the positive finding related to an historic ADRV for which Jones had already completed a 15-month suspension and paid a fine of $205,000. Multiple experts gave evidence that inconsistent findings over a series of tests indicated a potential “pulsing” effect by which the metabolite can disappear and reappear in an individual’s system without ever re-administering its parent drug.

Review of the WADA Code

WADA’s review of the World Anti-Doping Code entered its third phase in December 2018. The latest summary of major proposed changes (available here18) places an increased emphasis on health as a rationale for the Code. Substantial changes are also anticipated to the provisions relating to the mutual recognition of decisions: under the proposed draft, all provisional suspensions will be binding on other signatories to the Code (whereas previously it was thought that only mandatory provisional suspensions were to be automatically implemented). A final draft of the Review will be presented to the fifth World Conference on Doping in Sport in November 2019 with a view to bringing a revised Code into effect on 1 January 2021.

Russian doping scandal

WADA came under widespread criticism this year first for reinstating the Russian Anti-Doping Agency (RUSADA) in November 2018 and taking no significant action when RUSADA missed the 31 December 2018 deadline for providing data from the Moscow laboratory at the centre of the state-sponsored doping scandal by two weeks. In contrast, the International Association of Athletics Federations (IAAF) has extended its ban on the Russian Athletics Federation stating that there will be no reinstatement without, among other things, an admission of culpability on the part of the Russian government (a requirement which WADA dropped shortly before reinstating RUSADA). Although the IAAF’s decision was initially appealed to CAS, the Russian Athletics Federation subsequently withdrew its challenge in January 2019. According to recent press reports, Vladamir Putin has now urged Russian authorities to “settle all remaining issues” to ensure the country can send a full team to next year’s Olympic Games in Tokyo.

Against that background, the wave of related appeals has continued on the back of CAS’ decision19 in February 2018 to overturn sanctions against 28 Russian athletes who did not test positive for banned substances at Sochi 2014, but were subsequently found by the International Olympic Committee to have committed an ADRV on the strength of various commissions’ findings about state-sponsored doping. The full decisions in those appeals, which include important clarifications relating to the test of comfortable satisfaction, were finally made available on the CAS website in February 2019, shortly after it was announced that CAS has imposed periods of ineligibility on a further twelve Russian athletes.20 It is understood that at least five of those athletes (including London 2012 high jump gold medallist, Ivan Ukhov) have subsequently appealed.

Other news – round up

In conjoined appeal decisions dated October 2018,21 CAS imposed the rare sanction of lifetime ineligibility on Johan Bruyneel and Dr Celaya Lemaza for their parts in the US Postal Service Pro Cycling Team (the USPS) doping scandal. WADA had appealed USADA’s original 2014 decision to ban Bruyneel (who managed the USPS during the infamous period when Lance Armstrong was riding in its colours) for ten years and Dr Lemaza (the former team physician) for eight years. CAS also increased the eight-year period of ineligibility which USADA originally gave to Jose Marti, the former USPS team trainer, to fifteen years.

Elsewhere, non-conformities in its testing procedure led the Nigerian National Anti-Doping Committee (the NNADC) to be declared non-compliant with the WADA Code in December 2018. The NNADC was stripped of privileges including the right to conduct doping related activities without third-party supervision until the non-conformities were declared to have been remedied in February 2019.

In Ireland, Sport Ireland’s Annual Review for 201822 reveals that Sport Ireland carried out 1,112 drug tests, but only one led to an ADRV. Boxer Evan Metcalfe was responsible for the only positive test after testing positive for a by-product of cannabis.

In Germany, Munich’s state prosecutor announced in March 2019 that at least 21 athletes from eight nations across five sports are suspected of having taken part in an international doping ring. The announcement followed a police raid and multiple arrests in February 2019. Among those arrested was Austrian cross-country skier Johanness Duerr who triggered the police investigation and subsequent raids by admitting to doping on German television. A doctor in the German city of Erfurt was also arrested along with five suspected accomplices.23

On 29 March 2019, the IOC announced that three athletes have been disqualified from the Olympic Games in London 201224. This follows additional analyses on samples collected in 2012, using latest tests and scientific analysis methods.

From Olympics to e-sports, recent press reports reveal that targeted testing of e-sports competitors is apparently leading to a rethink about drug cheating and online gaming and which stimulants are more widespread25.

Finally, the American boxer Jarrell Miller has reportedly26 failed a second drugs test after allegedly testing positive for human growth hormone ahead of his proposed fight with Anthony Joshua on 1 June 2019 in New York. The New York State Athletic Commission had already ruled Miller out of applying for a licence following an adverse test result for a metabolic modulator carried out on 20 March 2019 by the Voluntary Anti-Doping Association (VADA).

Looking ahead

The ongoing cases involving high-profile athletes such as Jarrell Miller, Johanness Duerr and Ivan Ukov (see above) are likely to feature prominently in media coverage of anti-doping in the coming months. But the most heated debates will continue to surround the structure and institutions of anti-doping enforcement. The changes which are anticipated to the Code (again, see above) are unlikely to win back all the trust that WADA has lost over the state-sponsored doping scandal: at a recent Sport Resolutions Conference in London it was suggested that the only solution would be more athlete representation on key WADA committees. The Miller case will increase the volume of voices calling for professional boxing to move away from its system of delegated testing by individual commissions to mandatory, centralised anti-doping enforcement. Finally, the IAAF’s ban on Russian athletes will inevitably come under increased pressure and scrutiny as we approach the 2020 Olympic Games in Tokyo.

The authors would like to extend their thanks to the input of Alex Painting, who is Rick Liddell’s mentee under the LawInSport Academy Mentoring Scheme.

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Author

Richard Liddell

Richard Liddell

Barrister, 4 New Square

Rick is on the Editorial Board of Law in Sport and is recommended in the legal directories as a leading junior in sports law and is described in the directories as a “superb advocate” and “a go-to practitioner for sports matters”.  Rick is instructed in sports commercial disputes and sports disciplinary matters and his cases have spanned almost all sports.  Rick is frequently instructed in football related matters and doping cases; and he has acted for athletes/players and governing bodies in doping cases and has appeared on behalf of the IAAF and World Rugby in a number of appeals to CAS.

+44 (0)20 7822 2000

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William Harman

William Harman

Barrister, 4 New Square

Will receives instructions in a range of commercial and regulatory matters involving the sports industry with a particular focus on anti-doping and anti-corruption charges. Will’s experience includes the complete defence of charges of refusing, evading and/or failing to provide a sample against a former Olympian (led by Pippa Manby). Will recently appeared before a Scottish Football Association Tribunal in respect of gambling charges and has acted on both the player and governing body side in tennis match-fixing cases.

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