Why are athletes held to a higher standard than medical professionals in anti-doping? Contrasting the Gil Roberts case and Team Sky scandal

Published 21 March 2018 | Authored by: Jessica van der Meer

Two recent news events in the world of anti-doping illustrate how disjointed current anti-doping regulation is and that significant changes will need to be made if we want to realise "clean sports".

The first news event is the Court of Arbitration for Sport (CAS) decision in World Anti-Doping Agency (WADA) v Gil Roberts1, the American sprinter and Olympic (Rio) gold medallist, from 25 January 2017. The case has become infamous because Roberts was successful in his "kissing" defence, following in the footsteps of French tennis player Richard Gasquet’s successful “cocaine kiss” defence in 2009 (see below). The second news event is the House of Commons Digital, Culture, Media and Sport Committee’s Report on Combatting doping in sport2 and the controversy now surrounding Team Sky, Bradley Wiggins and Mo Farah.

This article reviews the Gil Roberts case, the DCMS Report and then offers commentary on the current state of anti-doping in sport in light of these events.

Facts

In March 2017 Roberts tested positive for 9ng/mL of probenecid – a prohibited substance in WADA’s class of diuretics and masking agents – and more commonly used to treat gout.

Roberts’ defence was that earlier in March he and his girlfriend had been on holiday with her family in India, where she developed a sinus infection and obtained medicine, specifically moxylong, which contains probenecid. She had requested the moxylong in capsule rather than pill form, so that she could pour its contents onto her tongue as she had difficulty swallowing pills. She took the moxylong daily for nearly all of March, and importantly, just before Roberts’ anti-doping control.

On the afternoon of Roberts’ urine sample collection, she had poured the contents of the moxylong capsule onto her tongue and washed it down with water from a water bottle she was sharing with him. They had engaged "in “a lot” of kissing…including momentary periods of time after the arrival of the doping control officer and just before undergoing the doping control test."3 Roberts did not know she was taking moxylong and did not see her take any of the medication.

On 1 May 2017 Mr Roberts was notified of the results of the urine sample collection and charged with an anti-doping rule violation. His girlfriend had, by this time, discarded the packaging for the moxylong, but had retained one single yellow moxylong capsule. This was sent for testing to the Banned Substances Control Group Laboratory ("the Laboratory") in Los Angeles on 1 June 2017. There were some issues around this testing; the Laboratory performed its qualitative analysis of the capsule, confirming that it contained probenecid (amongst other things), but it did not follow standard operating procedure when it conducted its quantity estimate at a later date. On 20 June 2017, at an expedited hearing where Roberts, his girlfriend and his expert Dr Kintz testified, Roberts was successful in his defence and a finding of no fault or negligence was entered. WADA appealed the decision.

 

WADA’s case

WADA was always going to be on the back foot because they were effectively trying to prove a negative. Legally, the hurdle that Roberts had to clear was the test set out by CAS in International Tennis Federation v. Richard Gasquet4 – the infamous “cocaine kiss” matter - namely that for the panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred5.

WADA couldn’t demonstrate that the ingesting of probenecid was intentional, nor could WADA advance any plausible explanation for why Roberts would have used probenecid. Instead they contended for a 2-year period of ineligibility. The appeal case attacked three areas of Roberts’ defence.

  • Firstly, WADA was sceptical about the moxylong as it had not been manufactured since 2003 and WADA had difficulty obtaining it in India when they tried (Paragraph 34).

  • Secondly, they were sceptical of Roberts’ witnesses’ evidence (Paragraph 34).

  • Finally, WADA was sceptical about the science, specifically how the lone moxylong capsule had been tested by the Laboratory in Los Angeles and the quantity of probenecid said to be contained in that capsule (Paragraph 34).

 

Decision

Roberts was successful on appeal for a number of reasons, not least because WADA was running a circumstantial case, but also because factually he had a number of points in his favour: the amount found in the urine sample would have had no effect as a useful masking agent and his biological passport was normal at all times and did not raise any concerns about suspicious activity. Moreover, WADA offered no plausible explanation for why probenecid would have been used by the Roberts.

The Panel did not accept WADA’s appeal case, it specifically noted:

  • In relation to WADA’s scepticism about moxylong being available at all in India, the Panel noted that, despite WADA not being able to obtain any moxylong themselves in India, the Panel could not eliminate the reasonable possibility that moxylong might be available in India, given that it was listed in official Indian Monthly Index of Medical Specialities and on certain websites as a saleable product (Paragraph 61(iii)).

  • As to WADA’s scepticism of the testimony of the witnesses, the Panel found that there was no meaningful basis for this challenge as Roberts, his girlfriend and her stepfather were truthful, “not least because they did not retreat from their evidence in any material way under sustained and powerful cross-examination” (Paragraph 60(i)-(iv)). Moreover, Roberts’ decision to test the last remaining moxylong capsule was indicative of his genuine ignorance as to what had caused the doping violation, as testing it would have been a “wholly vain exercise and waste of time and indeed money” otherwise (Paragraph 60[iv]).

As to the scientific scepticism, the Tribunal made this pragmatic decision (Paragraph 83):

The Panel finds itself faced with compelling factual evidence and, at best, conflicting scientific evidence that acts as a double-edge sword in determining the truth. Put simply, in its assessment, the scientific evidence fails to take this storyline below the requisite Gasquet threshold. Therefore, the Panel reverts to the non-expert evidence and finds itself sufficiently satisfied that it is more likely than not that the presence of probenecid in the Athlete’s system resulted from kissing his girlfriend Ms. Salazar shortly after she had ingested a medication containing probenecid.

 

What can we learn from this case and the DCMS Report?

There are important lessons in the Roberts’ case, legal and otherwise; not least the great lengths and expense athletes have to go to successfully demonstrate and defend a case of incidental exposure to a banned substance, an avenue that is not available to all professional athletes because of its expense. This case, however, becomes even more interesting when it is juxtaposed against the recent controversy surrounding Team Sky, Bradley Wiggins and Mo Farah.

This is the second interesting news event: the House of Commons Digital, Culture, Media and Sport Committee’s report on "Combatting doping in sport"6. The document alleges that Mo Farah, Team Sky and Bradley Wiggins have all engaged in unethical behavior.

In Mo Farah’s case he is alleged to have taken L-carnitine to enhance his performance. L-Carnitine is not prohibited by WADA, but there are strict rules about permitted usage in athletes. Poor record keeping on the part of the Chief Medical Officer of UK Athletics means we don’t know whether Mo Farah or his team doctors adhered to those strict rules.

Team Sky and Bradley Wiggins are alleged to have abused the Therapeutic Use Exemption (TUE) available to athletes who have a genuine medical condition that requires them to use medicines listed on WADA’s banned list. In this instance,7 it is asthma medication that contains the corticosteroid triamcinolone which allows for rapid weight loss without losing muscle power, thus increasing the power-to-weight ratio which is key to alpine climbs or time trials. It should be said that Team Sky and cycling are not alone in their use, or abuse, of TUEs for asthma. Concentration of asthma in professional athletes is higher than the general population, and especially in respiratory heavy sports, such as swimming, where 70% of British Olympians have asthma and thus presumably TUEs, likely exacerbated by the pool chemicals,8 or cross-country skiing.

Notably, in 2017 the Norwegian ski team underwent a similar investigation to Team Sky after it emerged that many skiers were using asthma medication without being diagnosed,9 a clear violation of WADA’s TUE rules. The investigation was prompted by the ban of Norwegian cross-country skier Martin Johnsrud Sundby for use of asthma medicine without a medical diagnosis10. One wonders if the Norwegian investigation changed any practices within the sport, as the Norwegian Olympic team reportedly took 6,000 doses of asthma medication to Pyeongchang.11

What ties these stories together is that bad or no record keeping has created plausible deniability for the likes of Team Sky and Mo Farah. This is particularly egregious because there shouldn’t be any plausible deniability in these instances: these are medical professionals (and in the case of Mo Farah the Chief Medical Officer of UK Athletics no less), who know (or should know) the basic standards of their profession. A GP using the same standard of care and excuses for poor or no record keeping would likely be struck off by the General Medical Board and face serious sanctions from the Healthcare Products Regulatory Agency.

What the author seeks to highlight is the dissonance of the current system. On the one hand, we have the lengths Richard Gasquet and Gil Roberts have had to go to demonstrate they have not doped - lengths that involve considerable financial and legal resources that are not available to a vast majority of professional athletes - and the incredible level of care that WADA requires athletes to take in their daily lives to ensure no prohibited substances enter their bodies knowingly. This stands in stark incongruity to the Team Sky and UK Athletics culture of top medical professionals in elite sports using poor record keeping to potentially allow doping to occur under the guise of TUEs. Let’s be clear here: Martin Johnsrud Sundby was banned for two months and stripped of some of his medals because he violated WADA’s TUE policy12; one of the major pieces of evidence standing between Bradley Wiggins and a potential doping violation are medical records. The fact that we are talking about Team Sky, a cycling team set up precisely to race "clean" and be more ethical in light of Lance Armstrong’s doping truths makes it all the more grievous and sad.

If we are serious about clean sport and anti-doping, then we should be holding not only Bradley Wiggins to the same exacting standards as Richard Gasquet and Gil Roberts, but also the medical professionals involved in elite sport. It is time to seriously consider overhauling the anti-doping regime. This means addressing the disproportionate access to justice in the current system, where athletes like Gasquet, Roberts or Sharapova, with considerable financial and legal support are more likely to be successful in challenging doping violations. It also means locking out gray areas and loopholes (like TUEs) that can be exploited. It may even require draconian measures like scrapping TUEs for asthma altogether. What is clear is that the system as it currently operates doesn’t work and is unfair.

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About the Author

Jessica van der Meer

Jessica van der Meer

Jessica is a Barrister at 2 Temple Gardens. Her work embraces the wide range of 2TG’s specialisations: negligence, commercial, international, public and sports law.

Her sports related practice covers all major sports with a particularfocus onanti-doping cases (WADA and on a national level) in cycling and weightlifting.

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