Cycling, doping & the importance of due process: A review of the Karl Murray case

Published 20 November 2017 | Authored by: Ani Ghazikhanian

In a decision1 dated 13 October 2017, a Panel from Sports Tribunal of New Zealand found cyclist Karl Murray liable for committing an anti-doping rule violation. Murray was competing in the Tour of Northland when he tested positive for Clenbuterol2 in a sample provided on 18 March 2017.

This article reviews the Tribunal’s decision, looking specifically at:

  • The facts of the case;

  • The relevant regulations, namely the Board of Drug Free Sport New Zealand Sports Anti-Doping Rules (2017);3

  • The Court’s reasoning and decision;

  • Why the sanction has been postponed.

 

Facts

The Tour of Northland in New Zealand is a cycling event open to both licensed and unlicensed athletes. When the Drug-Free Sports New Zealand (DFSNZ) received a list of entrants, a small number of athletes, including Murray, were identified for testing. At the end of the race, Murray was approached by Mr. Kaho, a testing process chaperone, who informed him that he was required for testing along with his right to have a support person. Murray identified and nominated Mr. Ilich as his representative. Murray asked Ilich to obtain his ID and change of clothes from the camping ground and bring it to the testing room.

The conflict of evidence occurred when Ilich obtained Murray’s ID and wallet to take them to the testing room. Prior to Murray’s arrival to the testing room, Ilich contended that Kaho met him at the door, was friendly, and as they entered, Kaho informed Ilich that Ilich was Murray’s support person. Before Kaho finished his sentence, according to Ilich’s evidence, Edwards said “Get him out of here, I don’t want anybody coming in.”4 Ilich stated that he was taken aback by Edwards’ attitude and tone.5 Ilich contended that he left and began walking towards the camping grounds and that Kaho followed him. According to Kaho, he turned to Ilich and told him that if he “waited for a few minutes then he would be able to go back in as Murray’s representative,” Ilich denies that Kaho gave him the indication that he could return as the representative.6

On his way towards the camping grounds Ilich met with Murray and another DFSNZ chaperone, Calder, and complained to them both of Edwards’ rudeness. When Murray arrived at his testing room, he was not accompanied by Ilich or an anyone else.7 In the testing room, there was one other athlete present and a support person to that athlete. Edwards, Kaho, and Calder were present as well.

Murray stated that he asked Edwards why Ilich could not be present prior to the test. Edwards stated that she could arrange for Ilich to be picked up and brought to the testing site. However, Murray decided against it and suggested to proceed given that time had already elapsed and that it would be difficult to find Ilich at the camp grounds. The Tribunal accepted Murray’s written evidence that at least before the sample was taken he had raised the issue of having Ilich present as his support person.8

Central to this case was the direct conflict of evidence in respect to Murray obtaining the beaker in which he was to provide his sample. Murray’s written evidence states that when given the container to deposit his urine sample, he noticed that “neither the bag or the container was sealed” and that “she did not give me a selection of bags or containers to choose from.”9 Instead, according to Murray, stated, “here is your container for the test.”10

Edwards’ submitted evidence stated that she asked Murray to choose a beaker. She said that she did not pass him the beaker and that doing so would be against required procedure.11 However, during cross examination, Edwards said that she gave Murray the chance to select from the sealed bags of beakers and confirmed that a beaker not in a sealed bag could not be used as it would invalidate any testing. Kaho, in his written brief, stated that Murray picked up two or three of the beaker bags before he chose one. There was no challenge in respect of any other steps after Murray obtained the beaker.

 

The relevant provisions

Paragraph 2.1 of the DFSNZ Sports Anti-Doping Rules 2017 (SADR) states that “an anti-doping rule violation is constituted by the…presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample.”12 Clenbuterol is listed as a prohibited substance under heading S1 – Anabolic Agents in WADA’s Prohibited List.

Pursuant to SADR 2.1.1 there is no need for DFSNZ to show any intent by an athlete to take a prohibited substance (i.e. it is a strict liability offence). Requirements to prove a violation of SADR 2.1 are as follows:

Sufficient proof of an anti-doping rule violation under Rule 2.1 is established by any of the following: presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analysed; or where the Athlete’s B Sample is analysed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample or where the Athlete’s B Sample is split into two bottles and the analysis of the second bottle confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the first bottle.13

The standard of proof is provided in SADR 3.1, which states that DFSNZ has the “burden of establishing that an anti-doping rule violation has occurred” where “the standard of proof shall be whether DSFNZ has established an anti-doping rule violation to the comfortable satisfaction of the Sports Tribunal or NSO Anti-Doping Tribunal.”14

The testing standards are included in SADR 3.2.3:

Departures from any other International Standard or other anti-doping rule or policy set forth in the Code or these Rules which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such evidence or results. If the Athlete or other Person establishes a departure from another International Standard or other anti- doping rule or policy which could reasonably have caused an anti-doping rule violation based on Adverse Analytical Finding or other anti-doping rule violation, then DFSNZ shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation.15

Murray was a licensed athlete at the relevant time and was subject to the SADR. He accepted that the urine sample tested was positive for Clenbuterol.16

He argued, however, that the International Standard for Testing and Investigations (International Standards) were breached during the testing process in two ways:

  1. That he was wrongly deprived of his right to have a representative present during the sample collection process; and

  1. He was not given the opportunity to select a sample collection beaker and instead was provided with an unsealed collection beaker chosen by the Doping Control Officer (DCO).17

Furthermore, there was a direct conflict of evidence on several issues between Murray and his support person, Ilich and the DCO, Edwards, and the testing process chaperone, Kaho.

The Tribunal was asked to review and resolve these conflicts.

 

Discussion

Murray’s counsel stressed the inconsistency in Kaho’s and Edwards’ recollections. He also emphasized that Edwards’ action of ejecting Ilich from the testing room was a breach of Murray’s entitlement to have a representative present stressing that Ilich may have observed the beaker selection process and could have supported Murray’s explanation.

The Tribunal stated that there was no possible reconciliation of the differing versions of what took place and accordingly must consider whether there were objective factors on either side. The Tribunal discussed Edwards’ experience as a DCO and mentioned that there was no reason why, having known and followed the procedure for years, she should breach the required protocol on this particular occasion. Murray’s written evidence acknowledged that there were at least two sealed kits available, so Edwards could not have run out of available testing equipment. Edwards’ evidence supported this, and she stated that “she had pre-packed the night before more than enough equipment to carry out four tests, although only three were in fact carried out at the time of completion of the Tour.”18

The Tribunal concluded, that in Murray’s evidence, Edwards “for some inexplicable reason chose in this instance to force on Murray her own selection of beaker” in an open bag.19 Had this breach occurred, it would have taken place in a room where Kaho and Calder were present along with another athlete waiting to take their test.

There was no suggestion in Murray’s evidence that Kaho was not able to observe whatever occurred in the beaker selection and Kaho did give evidence of Murray selecting a beaker kit. Lloyd submitted that Kaho’s evidence was unreliable and was done to protect the improper process, which had occurred. While the Tribunal accepted Edwards and Kaho may be said to have some interest in justifying their actions, it would be a stretch to suggest that Edwards, for no particular reason, “departed so drastically from the required process and that Kaho straight out lied to protect the process.”20 Prior to the test, neither Edwards nor Kaho had any knowledge of Murray, other than he had been nominated for testing. The Tribunal continued to say that Murray’s test was a routine one and there was no reason why the process would have departed from the norm.

The Tribunal accepted Edwards’ evidence that she would “never force an open beaker on an athlete and did not do so on this occasion.”21 However, the Tribunal discussed SADR 3.2.3 and summarized that “if an athlete can establish a departure which could reasonably have caused the rule violation, then DFSNZ would have the burden to establish that the departure did not cause the adverse analytical finding/rule violation.”22 This would mean that if Murray “had established that he was not given a choice of sealed beaker kits, then he must establish facts which could rationally infer a possible causative link between the departure and the presence of the prohibited substance in his sample.”23 The Tribunal referred to a recent Court of Arbitration for Sport (CAS) decision https://jurisprudence.tas-cas.org/Shared%2520Documents/3925-O.pdf">Smikle v. Jamaica Anti-Doping Commission,24 where it was accepted that the suggested causative link must be more than merely hypothetical and objectively plausible.25 In the present case, the Tribunal noted, that Murray would have to show that it was plausible that the departure from the testing standards directly gave rise to a risk of contamination from Clenbuterol. The Tribunal differentiated from the Smikle stating that unlike the previous CAS case where there was evidence of HCTZ in the immediate environment, there “is no evidence here to suggest the presence of Clenbuterol.”26

 

Decision

The Tribunal concluded that Murray had committed a violation under SADR 2.1, but recognized the importance of the presence of a support person/representative in the testing process. The Tribunal stated that DFSNZ should “go the extra mile where that is necessary to ensure representation where less experience and less sophisticated athletes are being subjected to testing.”27

Additionally, the Tribunal mentioned the acknowledgments signed by the athletes in doping control form, compliant with the International Standards. Where the process requires the athlete to actively do something, i.e. choose a beaker or express a sample, the Tribunal suggested that DFSNZ consider “amending the doping control form to provide for an acknowledgment by the athlete that she/he has in fact undertaken those steps.”28

 

Sanction

The DFSNZ sought to postpone any sanctions to await the release of a CAS decision. The CAS decision from the previous case arises from a DFSNZ appeal against an earlier Tribunal decision involving Murray. The Tribunal was persuaded to adjourn the sanction “only because [they] suspected that if [they] proceed to impose a sanction, complications may subsequently arise if the CAS decision is adverse to Murray.”29 This Tribunal concluded that, “[i]f the CAS decision is not adverse to Murray then all that will have occurred is some further delay in the Tribunal considering the appropriate sanction for this offence.”30

1 Decision of Sports Tribunal dated 13 October 2017 in the matter of

Drug Free Sport New Zealand (Applicant) –and- Karl Murray (Respondent) –and- Cycling New Zealand (Interested Party), ST 02 / 17, https://www.sportstribunal.org.nz/assets/Uploads/ST0217-Decision2.pdf (last accessed 20 Nov 2017)

2 Clenbuterol is a non-specific substance prohibited at all times, and its presence is a violation of the Sports Anti-Doping Rules.

3 Board of Drug Free Sport New Zealand Sports Anti-Doping Rules (2017), https://drugfreesport.org.nz/uploads/site/assets/004_SADR_2017_made_211116.pdf (20 November 2017)

4 See Footnote 1, at Page 5, Para 16.

5 See Footnote 1, at Page 5, Para 17.

6 See Footnote 1, at Page 5, Para 17.

7 According to the ST0217 Decision, “it is not essential that an athlete about to be testing has to have a representative present, although it is essential that an athlete is notified of the entitlement to have a representative.”

8 Murray, on more than one occasion, raised the issue that because the Tour of Northland was not a licensed event, he should not have been tested at this event. Specifically, he felt that it should be “an Out of Competition test.” This matter was clarified between the parties and was not an issue before the tribunal.

9 See Footnote 1, at Page 7, Para 27.

10 See Footnote 1, at Page 7, Para 28.

11 See Footnote 1, at Page 8, Para 29.

12 See Footnote 3, at Para 2.1. A Prohibited Substance is defined as: “Any substance, or class of substances, so described on the Prohibited List.”

13 See Footnote 1, at Page 3, Para 9.

14 See Footnote 1, at Page 3, Para 9. The standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.

15 See Footnote 1, at Pages 3-4, Para 10.

16 See Footnote 1, at Page 4, Para 11.

17 See Footnote 1, at Page 4, Para 12.

18 See Footnote 1, at Page 10, Para 41.

19 See Footnote 1, at Page 10, Para 41.

20 See Footnote 1, at Page 11, Para 45.

21 See Footnote 1, at Page 11, Para 46.

22 See Footnote 1, at Page 12, Para 48.

23 See Footnote 1, at Page 12, Para 49.

24 Smikle v. Jamaica Anti-Doping Commission (CAS 2015/A3925).

25 ST0217 Decision Page 12, Para 50; also in Smikle there was scientific evidence of the prohibited substance, HCTZ, in the water supply in the testing environment. The CAS Panel was not persuaded that there was anything more than a negligible possibility that the departure from the standards caused the contamination.

26 ST0217 Decision Page 12, Para 51. Also, the Tribunal mentions that had they “been left in a position of doubt about the integrity of the testing process, then the Tribunal would have been even more bereft than CAS in the Smikle case of a basis to reasonably conclude that there is a plausible possibility of the beaker being contaminated by Clenbuterol.”

27 See Footnote 1, at Page 13, Para 54.

28 See Footnote 1, at Page 13, Para 56.

29 See Footnote 1, at Page 14, Para 60.

30 See Footnote 1, at Page 14, Para 60.

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About the Author

Ani Ghazikhanian

Ani Ghazikhanian

Ani Ghazikhanian is a third year law student at the University of Notre Dame Law School in the United States with a specific interest in sports law. She is interning with LawInSport and studying in London as part of the Notre Dame London Program for Fall 2017. Previous work experience includes interning with the NFL's Minnesota Vikings' in-house counsel.

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