Wallader - Case review
Published 10 September 2013 By: Matthew Chantler
British shot putter Rachel Wallader failed a routine in competition drug test on the 1 May 2010 for the banned stimulant methylhexaneamine (MHA); arguably the first of the many MHA cases.
UKAD accepted that the banned substance was contained in a supplement ingested by the athlete some two days prior to the competition and based on the evidence presented to us we advised that the doping violation should be admitted but there was a cogent argument for a possible 2 year ban to be reduced. MHA was not a "Specified Substance" at that time.
A hearing took place before a National Anti Doping Panel which sat on the 5 August 2010. The Panel accepted, on the evidence presented before it, that in the circumstances there had been no significant fault or negligence and consequently imposed a period of ineligibility of one year which, under the particular WADA Rule invoked in the proceedings, was the maximum possible reduction. This was the first time under UK Anti Doping that such a reduction had been made.
Under WADA rules some stimulants are classified as "Specified" substances and where a stimulant is so designated it is possible under the Rules to reduce sanctions even below 1 year down to the possibility of a "Reprimand".
In September 2010, WADA announced that MHA would in the 2011 list of prohibited substances be re-designated as a "Specified" substance. Had it been a Specified substance at the time of the offence it would have been open to Rachel to invoke Article 10.4 of the WADA Code which might have permitted the Panel to reduce the sanction to something less than one year or eliminated completely as above.
Although time to appeal the Panel's decision had expired, consistently with its duty of fairness in prosecuting doping cases, UKAD (and UK Athletics) accepted that Rachel should be permitted to appeal out of time, and also accepted that the legal principle of "lex mitior" should apply, so that Rachel should be entitled to take advantage of a subsequent change in the applicable law if that change would have been favourable to her, which it was.
Consequently, an appeal was launched by us and was heard before a newly constituted Panel.
Under WADA Code Article 10.4 the athlete had to establish:-
- How the specified substance entered her body; and
- to the appropriate standard of proof (the comfortable satisfaction of the Panel) that she had no intent to enhance her sport performance.
If these could be shown then the Panel had to assess what sanction, if any, should be imposed by reference to the athletes degree of fault.
In the event, Rachel established how the specified substance entered into her body (i.e. by taking the supplement 2 days before the competition) corroborated by the evidence of a fellow athlete who saw her take the drink, and further, it was accepted by the Panel, to their satisfaction, that by taking a supplement so long prior to the competition Rachel could not have had the intent at the time to enhance her sport performance.
Also, the very nature of the particular stimulant would not have had any effect 2 days later. This left the Panel to determine to what degree Rachel had been at fault.
The Panel considered the steps which she had taken to ensure that she took no prohibited substances and heard her evidence supported by considerable documentation indicating that she had checked on the internet and all recommended websites whether any supplements which she was taking contained banned substances.
The Panel found that Rachel had exercised considerable diligence in checking the ingredients on the available websites but that it would be a counsel of perfection to require an athlete to search the internet to compile a list of all the synonyms of all the substances included in any medication or supplement and then search the prohibited list for all those terms.
In the circumstances, the athlete had taken a reasonable course in searching for the ingredients stated to be present in the supplement.
According to the warnings given by the IAAF "any athlete who takes a supplement without first taking advice from a qualified medical practitioner with expertise in doping control places himself/herself at a real risk of committing a rule violation. Only in the most exceptional cases could such an athlete expect to escape a substantial sanction if a prohibited substance is then detected".
It was pointed out to the Panel that a truly "amateur" athlete such as Rachel would not have access to the medical expertise recommended. Obviously, top professional athletes are often advised by a team of medical experts. An athlete such as Rachel would only be acquainted with her own general practitioner who would undoubtedly have no particular expertise in anti-doping and supplements.
Having regard to the circumstances of the case, and the evidence before it, the Panel decided that there was some degree of fault, albeit small, and a period of ineligibility would have to be imposed.
The Panel stated that the degree of fault must be viewed in the context of the athlete's approach to doping control, and in this case not only did Rachel take considerable steps on her own to ascertain the status of the ingredients, she also (most importantly) disclosed the use of the supplement on the doping control form at the time of the test.
Taking all the factors into account, the Panel determined that the proper period of ineligibility to impose in this particular case, applying the appropriate rule, would be 4 months.
This case highlighted a certain lack of the education of athletes in doping situations on the part of some governing bodies and particularly a lack of support following notification of a doping charge. Significantly, following this case, UKAD saw fit to post a fresh warning about taking supplements on their website.
The message from the Panel was clear, for an athlete to avoid a doping violation he or she ideally should steer clear of taking supplements but should the athlete wish to do so then the athlete must seek advice from a medical expert at all times.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Jack Anderson on the launch of #ChooseTheRightTrack - an anti-doping campaign - Part 1
- Jack Anderson's 7 point anti-doping plan #ChooseTheRightTrack - Part 2
- Howard Jacobs on the 3rd draft of the WADA Code Review - Episode 13
- What can be done to revive the fight against doping and dopers in sport?
Matthew, a solicitor at Mills & Reeve LLP, specialises in Sports Law and is an FA and RFL Registered Lawyer. He advises players' associations including Professional Players Federation, Professional Footballers' Association, PFA Scotland, Rugby Players Association, 1eagu3 and their members, a number of professional football clubs, players and agents on regulatory and legal matters.