Meat contamination and what it means for athletes: A review of Badminton World Federation v Ratchanok Intanon

Published 23 October 2019 By: Philip Hutchinson

Badminton Serve

On 4 October 2019, former world champion badminton player Ratchanok Intanon was cleared1 of doping after an independent Ethics Hearing Panel found that Ms Intanon’s positive test for clenbuterol (a banned substance on the World Anti-Doping Agency (WADA) Prohibited List known for increasing muscle mass whilst reducing body fat) was the result of meat contamination. A copy of the decision is available to view here2. As a result of ingesting the contaminated meat, Ms Intanon was found to bear no fault or negligence for the violation and therefore no period of ineligibility was imposed on her.

The three-person panel (formed in accordance with the rules of the Badminton World Federation) found that the presence of clenbuterol in Ms Intanon’s sample was related to consuming contaminated food in the Yakiniku Restaurant in Thailand in or around April 2019. In support of her defence, Ms Intanon provided evidence of the testing results of 3 separate sets of meat samples obtained from Yakiniku on 3 separate occasions (June 2019- July 2019). Whilst the first two samples did not reveal the presence of clenbuterol in any of the meat samples, the third set of samples (taken in late July 2019) revealed the presence of clenbuterol in all of the different meat samples which were obtained and tested from the restaurant. 

Ms Intanon, in her own evidence, explained how she would often go the Yakiniku Restaurant (which is a meat buffet restaurant close to her home in Thailand) and had narrowed the potential sources of contamination down to this restaurant and several other eateries, including street food vendors. This prompted Ms Intanon to seek the meat samples from the Yakiniku Restaurant which were then analysed.

Given that clenbuterol has been banned since 2003 by the Ministry of Public Health in Thailand, it is on the face of it unclear why all of the 8 samples of meat from the July 2019 cohort of samples taken from the Yakiniku Restaurant contained clenbuterol, especially considering the source of the contaminated meat was domestic and obtained from farms throughout Thailand.

However, Ms Intanon’s legal team provided evidence that despite being banned, farmers in Thailand use beta-agonists such as salbutamol and clenbuterol as feed additives in cattle feeds to improve product performance and reduce fat in the cattle. This is because clenbuterol, like other similar substances, acts as a ‘leanness-enhancing agent’ in certain types of meat. The evidence submitted by Ms Intanon also confirmed that clenbuterol was also being provided to pigs in Thailand in order to quicken their growth as well as increase the sale price of pork and pig organs.

In terms of the level of clenbuterol in Ms Intanon’s system, she adduced expert evidence which stated that the level of 0.04ng/mL as found in her urine sample was consistent with contamination, rather than direct and deliberate ingestion. When viewed against the backdrop of the contaminated samples obtained from the restaurant, this was very persuasive evidence.

The end result of Ms Intanon’s evidence in defence therefore was the Panel finding that whilst an anti-doping rule violation (ADRV) of the WADA Code had taken place following her positive test for clenbuterol, no period of ineligibility was applicable given that Ms Intanon could not have expected or known that the meat she consumed in the Yakiniku Restaurant was contaminated. As a result, she bore no fault or negligence and any period of ineligibility was eliminated.

WADA’s concerns over meat contamination

 Meat contamination is currently a very topical issue at WADA and National Anti-Doping Organisations (NADOs) across the world. Whilst Ms Intanon had the benefit of being able to adduce expert evidence and arrange for the testing of a number of meat samples, not every athlete will have the financial means to conduct such investigations and put forward such a compelling defence. Realistically, this could be the difference between a 2-4 year ban, or in Ms Intanon’s case, no ban at all.

Nevertheless, WADA are aware of contamination issues and on 30 May 2019, issued a Stakeholder Notice regarding meat contamination3. The Notice amended article 7.4 of the WADA Code to allow WADA-accredited laboratories (Laboratories) to report “Atypical Findings" (ATFs) specifically for clenbuterol. For context, an ATF is usually reported by a Laboratory in relation to prohibited substances that can also be produced naturally in the body. An ATF is regarded as less severe4 than an Adverse Analytical Finding (AAF) as an ATF will require investigation before it either becomes an AAF, or no further action is taken against the athlete. Previously, Laboratories could only report analytical testing results for Prohibited Substances (as defined in the Code and which would include clenbuterol) as AAFs but not as ATFs. This meant that investigations were impermissible under the Code when potential meat contamination scenarios arose and athletes would immediately be faced with an AAF.

WADA has issued this Notice as an intended interim solution until the 2021 Code comes into force. The intention is to give Anti-Doping Organisations (ADOs) the possibility of conducting an investigation when low concentrations of Prohibited Substances that are known meat contaminants are detected by Laboratories and reported as ATFs. This should, in WADA’s view, “ensure that valid meat contamination cases are dealt with fairly and, notably, may prevent athletes from having their competition results disqualified as a result of eating contaminated meat.”5

In following the instructions and investigations as set out in the Notice, the ADOs will have the power to close cases and allow an athlete to retain their results if it is determined that the detection of clenbuterol in their sample is consistent with meat contamination. If however the reported ATF is not consistent with meat contamination or the designated amount of clenbuterol present exceeds the threshold, an ADRV will be asserted and the standard results management process will be followed.

Author’s comment

Whilst the Notice appears to be a welcome and necessary measure, it should be borne in mind that it only appears applicable to meat consumed in Mexico, Guatemala and China. Whilst the Notice is silent as to the possibility of meat contamination from a country other than these three, the inference is that it is currently of no wider applicability. Indeed, that was the view of the Panel in the Intanon case who were not willing to find it applicable in that case.

Despite this seemingly forward step in regard to the recognition of meat contamination as being a major problem, it is important that athletes continue to bear in mind the most fundamental principle that they are responsible for what goes into their bodies. The Intanon case shows that athletes should not only monitor precisely what they eat, but also where they eat so as to avoid falling foul of the current WADA Code on any level.

This article had been republished with the permission of the author. The original is available to view here.

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Author

Philip Hutchinson

Philip Hutchinson

Senior Associate, Mills & Reeve

Phil is a Senior Associate at Mills & Reeve LLP specialising in sports litigation and sports regulatory matters, with a particular focus on the football industry. Phil has worked on a number of high profile integrity/match fixing and doping cases across a variety of sports and also regularly advises football clubs, agents and players on transfers, most notably where work permits are required. He also has extensive experience in representing agents, players and managers in both the High Court and FA Rule K arbitration cases. Phil is the only individual in the West Midlands to be ranked as a “Next Generation Sports Lawyer” (Legal 500 2019) and a “Rising Star” (Legal 500 2020), who also describe him as “emerging as a confident and capable litigator”. Phil speaks German and is also a member of the Sport Resolutions Pro Bono Panel.

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