Contaminated sports supplements: lessons on product comparison and route of ingestion from the Joanna Blair caseMax Shephard
While the WADA Anti-Doping Code (Code) 2009 was limited in its description of contaminated products (and in fact used the word ‘contaminated’ only once1), the 2015 WADC provides far more detail on the matter. This includes circumstances in which ‘contaminated products’ arguments can be run (i.e. even in appeals from provisional suspension), and a wide range of sanction (as identified at paragraph 39 of UKAD v Warburton & Williams2)3. The 2015 Code also defined the term ‘contaminated product’, namely: ‘a product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search.’
In recent years, the Court of Arbitration for Sport (CAS) has heard a number of cases on contaminated products including in relation to the footballer Ademi4, the judoka Gharbi5 and canoeist Tarnovschi6. Earlier this year, the US Anti-Doping Agency (USADA) case of MMA fighter Josh Barnett was also published7.
Given their regular appearances as mitigation in doping cases, this article examines the decisions in the recent case of Great Britain javelin thrower, Joanna Blair,8 which shed some light on the correct approach when arguing contaminated products. Specifically, it looks at:
- Facts of the case
- Legal issues (first instance)
- Route of ingestion
- Method of contamination
- Burden of proof
- Weight of evidence
- De novo application
- Contaminated product comparison
- Route of ingestion
On the 24 June 2017 Joanna Blair, a British international javelin thrower, provided a sample for an out-of-competition test. The analysis of that sample returned an adverse analytical finding (AAF) for the presence of the metabolite metandienone which is a non-specified substance prohibited at all times. Metandienone is often sold as Dianabol and is an androgen and an anabolic steroid.
Ms Blair admitted the Anti-Doping Rule Violation (ADRV) a week after she had been charged. There was no argument that the violation occurred, so the dispute was only in relation to sanction.
Ms Blair provided four supplements that she was taking at the time to UK Anti-Doping (UKAD) for testing by an independent laboratory. One of her supplements, creatine, showed positive results for metandienone. Metandienone was not listed as an ingredient of the creatine supplement. It was therefore Ms Blair’s case that metandienone had been introduced into her system via her creatine supplement which had been contaminated. Her fundamental arguments were that the ADRV was not "intentional", she ingested a "contaminated product", and bore "no significant fault or negligence".
Paragraph 10.2.3 in the UK Anti-Doping Rules 2015 defines "intentional" as identifying:
"[T]hose athletes or other persons who cheat. The term therefore requires that the Athlete or other Person engaged in conduct which he or she knew constituted an ADRV or knew there was a significant risk that the conduct might constitute or result in an ADRV and manifestly disregard that risk."
The benefit of successfully arguing that the ADRV was not "intentional" is that the period of ineligibility is reduced from 4 years to 2 years.
To understand the meaning of "No significant fault or negligence" one must first consider the definition of "No fault or negligence", which is:
"The Athlete [...] establishing that he or she did not know or suspect, and could not reasonably have known or suspected, even with the exercise of the utmost caution, that he or she had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule."
Using that definition, one must then look at the definition for "No significant fault or negligence", which is:
"The Athlete [...] establishing that his or her Fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for No Fault or Negligence, was not significant in relation to the Anti-Doping Rule Violation.".
The test is to look at the case holistically, and the advantage to successfully arguing "No significant fault or negligence", is that the sanction can range from a reprimand to 2 years ineligibility.
In the Blair case, UKAD obtained a sample of creatine, from the same batch as the athlete’s from the manufacturer, and sent it for analysis to its laboratory. The lab analysis reported no traces of metandienone. UKAD therefore did not accept the explanation given, putting the athlete to proof and testing her account. UKAD’s position was that the athlete had failed to show that it was not "intentional" and failed to discharge the burden in relation to "no significant fault or negligence".
ROUTE OF INGESTION
The first instance tribunal were directed to consider, and agreed with, the analysis in paragraphs 28-31 of the well-known case of UKAD v Buttifant9. These paragraphs highlight that it is only in rare cases that an athlete will be able to satisfy the burden of proof that the violation of Article 2.1 of the Anti-Doping Rules was not "intentional" without establishing, on balance, the means of ingestion. Even if the athlete has difficulty in identifying the route of ingestion Buttifant states that, if the athlete puts forward a credible explanation, the tribunal will focus on that conduct and determine whether the athlete has proved the cause of the violation and that they did not act intentionally. Even then however, it states that there may be in the rare cases where the route of ingestion is not established, objective evidence which allows the tribunal to conclude that the violation was not committed knowingly nor in manifest disregard of the risk of violation (i.e. intentionally).
METHOD OF CONTAMINATION
The first instance tribunal were also referred to UKAD v Warburton & Williams10 which states that the athlete must also show how a normal product, that is not known to have been contaminated, came to be contaminated.
The two questions the tribunal considered in this regard were whether contamination occurred during the manufacturing process or following receipt of the product by Ms Blair?
The questions broke down yet further. If the product was contaminated, was it contaminated before or after the AAF? If before, the tribunal would have to be satisfied that it was not introduced by Ms Blair but also that it was the source of the metandienone in her sample.
The tribunal did not find that innocent contamination during manufacture was the explanation for the AAF. While a list of reasons were cited for this finding, three significant factors were,
there was no evidence before the tribunal as to how or in what circumstances metandienone could or may have been introduced by a third party the creatine used by the Respondent at the manufacturing stage;
there was no evidence before the tribunal as to how or in what circumstances metandienone could or may have innocently contaminated the creatine used by the Respondent; and
while not conclusive, the evidence of Kelly Eagle, Vicky Waller and Hannah Pritchard militates against such a conclusion.
The two other explanations for contamination of the supplement that the tribunal suggested may have been apposite were that,
Ms Blair added it to the supplement before she gave the sample; or
she added it to the supplement after she gave the sample.
However, the tribunal did not make a specific finding on either of these because as Ms Blair had emphatically denied adding the metandienone, it was open to the tribunal simply to find that she had not established how the substance entered her system.
Given their finding regarding the route of ingestion, the tribunal was bound to reject any submissions relating to "no significant fault or negligence" and imposed a period of ineligibility of 4 years.
The athlete appealed on two grounds. One boiled down to an argument that the first instance tribunal had erred in relation to the location of burden of proof. The other was that the tribunal was not entitled to place weight on the evidence of three witnesses (Kelly Eagle, Vicky Waller, and Dr Hannah Pritchard) as "militating against" the conclusion that the creatine supplement had been contaminated during manufacture.
Kelly Eagle was the quality manager who supplied the manufacturer with the creatine. She stated, "to the best of our knowledge, none of our materials contain anabolic steroids, however we cannot state this categorically as we do not test for this". The latter part of this phrase seems to be what the athlete focussed on in this case.
Dr Pritchard, employed as a "quality manager" at CCL, detailed that the supplement company was registered with "Informed-Sport" and was audited and swab tested regularly to "minimise inadvertent contamination”. Vicki Waller was the technical manager at the manufacturer who confirmed receipt of a sample of the relevant batch of creatine and sent it to UKAD.
Ms Blair’s contention was that the statements of the three witnesses merely showed a chain of custody by which a test sample of creatine from the same batch as that taken by the athlete came to be tested by UKAD.
BURDEN OF PROOF
The primary submission was that the tribunal erred in placing the burden that the supplement was contaminated during manufacture on the athlete. The athlete relied on WADA v. Alberto Contador Velasco & RFEC11 to support the contention that when the athlete is compelled to prove a negative this reverses the burden of proof. In addition, a series of other cases (such as Ademi and Villanueva12) were cited to attempt to show that where an athlete has ingested a contaminated product, the athlete does not need to show how the product came to be contaminated in order to discharge their burden to show the ADRV was not "intentional". Whilst the Contador case was published in 2012, predating the current version of the Code, the Ademi and Villanueva cases both postdate the Code and thus any issue that there may have been with incompatibility with the new Code would have no doubt been addressed by those cases. In any event, the principal difference for the athlete is the range of sanction in the Codes and it is likely that a panel would have no issue applying the new range of sanction whilst using older jurisprudence in relation to the burden of proof.
The starting point for the appeal tribunal in Blair was to consider Articles 10.2 and 10.5 of the IAAF Anti-Doping Rules which place a burden on the athlete in respect of both "intentional" and "no significant fault or negligence". The difficulty for the athlete was the appeal tribunal’s reference to the case of Buttifant (the same paragraphs as in the first instance hearing), which settled the very case the athlete was arguing. It was of course a stroke of bad luck that two members on the appeal tribunal were on the first instance tribunal in Buttifant. The significance of this is that the first instance decision of Buttifant was overturned following an appeal by UKAD. This meant that two thirds of the appeal panel in Blair would have known that the decision at first instance in Buttifant was amended on appeal, and would also know the nuance of both Contador and Buttifant.
WEIGHT OF EVIDENCE
Despite the basis of the appeal, the athlete had sought a de novo hearing (although we are not told on what basis). This is interesting considering the grounds of appeal dealt with alleged defects in the decision and reasoning. The appeal panel held a preliminary hearing to decide this issue. The athlete was denied a de novo hearing. The Tribunal were of the view that the primary ground of appeal, based on location of the burden of proof, was concerned with whether the first instance tribunal erred in law. The Chairman directed that the appeal should be heard first by way of review under Article 13.4.213, but that, depending on the result of appeal, it might subsequently be necessary to order a rehearing.
This procedure is somewhat different to the de novo CAS appeal process and provides for two main options when appealing; a review or a de novo hearing. The key distinction is that at CAS there is no preliminary hurdle of de novo appeal proceedings being "required in order to do justice". One can simply appeal and be heard de novo, whereas the test is higher if one is appealing to the appeal panel at the NADP. The different procedures and tests seem counterintuitive considering the weight which is attached to the respective decisions.
The athlete’s submissions in relation to the second point of appeal were, in essence, that the tribunal were not entitled to place weight on the evidence of three witnesses when holding the athlete had failed to prove that the contamination had occurred during manufacture. As previously indicated the contention was that the statements of the three witnesses merely showed a chain of custody by which a test sample of creatine from the same batch as that taken by the athlete came to be tested by UKAD. Interestingly, the appeal tribunal did not quote the evidence of Vicky Waller in their decision but did the other two witnesses.
The appeal tribunal rejected this submission too. Not only were none of the three witnesses required by the athlete for cross examination but the appeal tribunal found that the first instance tribunal were entitled to place appropriate weight on it. It was perhaps a tactical decision by the athlete at first instance not to require the witnesses to attend and accept their evidence, so they could make submissions on it, however it seems exceptionally precarious considering the burden, as was established in Buttifant (and clarified in this appeal) is on the athlete.
DE NOVO APPLICATION
Whilst the specifics of the de novo hearing application are not in the decisions, the rule on de novo hearings is found at 13.4.1 of the UK National Anti-Doping Panel Rules. The rule is quite broad and applies "when required in order to do justice (for example to cure procedural errors in the Arbitral proceedings)". In the circumstances it is therefore understandable that the tribunal opted to limit this to submissions alone as opposed to hold a rehearing. From the athlete’s perspective, and considering the sanction she received, a de novo hearing would no doubt give her an opportunity to remedy any potential weaknesses in her case at first instance and give her a second bite of the cherry to convince a second panel of her arguments.
CONTAMINATED PRODUCT COMPARISON
Contaminated product cases, as in most doping cases, often turn on the credibility of the athlete coupled with corroborating evidence. In contrast to the Blair case, in the USADA case of Josh Barnett, the athlete was able to show that his same batch had been contaminated with ostarine following investigations by USADA (albeit under the slightly different UFC ADP). USADA investigated other batches and found them to be contaminated too. Mr Barnett is now suing the manufacturer of the contaminated supplement for time lost and damage to his brand, which might be considered to add some credibility to his submissions at the hearing, albeit after the event (the link to the press release can be found here14).
Ostarine is a non-specified substance and falls in the same category as Ms Blair’s metandienone. The key distinction in her case was the lack of any other contaminated products in the same batch. If UKAD, during the course of its investigations, had found that a sample in Ms Blair’s batch (or others) were contaminated then it would be significantly easier to show that hers was a contaminated supplement regardless of the burden of proof. The effect of being able to show that her supplement was contaminated before she received it would have gone a long way to showing the route of ingestion and showing that she bore "no significant fault or negligence".
ROUTE OF INGESTION
The appeal tribunal in Buttifant concluded that "without evidence about the means of ingestion the tribunal has no evidence on which to judge whether the conduct of an athlete which resulted in the violation was intentional or not intentional". The CAS case of Ademi takes a slightly different approach when discussing "route of ingestion" in relation to "intentional" however. They cite, in the arguments against mandating the establishment of source that "The relevant provisions (Article 9.01(a) and (c) UEFA Anti-Doping Rules) do not refer to any need to establish such source" and perhaps more interestingly that "establishment of such source is specifically required when a Player seeks to prove No Fault or Negligence (Article 10.01 UEFA ADR) or No Significant Fault or Negligence (Article 10.02 UEFA ADR) and the definitions of No Fault or Negligence and No Significant Fault or Negligence. If such establishment is expressly required in one rule, its omission in another must be treated as deliberate and significant."
While there is a difference in the decisions of Buttifant and Ademi, they do converge on one point which is succinctly put in Ademi at paragraph 72,
"Furthermore, the Panel can envisage the theoretical possibility that it might be persuaded by a Player’s simple assertion of his innocence of intent when considering not only his demeanour, but also his character and history, even if such a situation may inevitably be extremely rare".
An anti-doping organisation will likely try to downplay this rarity by using the well-known case of UKAD v Songhurst15, specifically paragraph 29, which states "in the normal course it is not to be expected that prohibited steroids are found in the body of an athlete. In any normal case knowledge concerning how the substance came to be in the body is uniquely within the knowledge of the athlete and UKAD can only go on the scientific evidence of what was found in the body. The scientific evidence of a prohibited substance in the body is itself powerful evidence and requires explanation. It is easy for an athlete to deny knowledge and impossible for UKAD to counter that other than with reference to the scientific evidence. Hence the structure of the rule."
This article has already analysed the wider discretion of sanction the 2015 Code provides. An interesting feature that is rarely talked about however is the mitigating factor of "education of athletes about anti-doping". The 2015 Code obliges Anti-Doping Organisations to provide anti-doping education as well as information in order to prevent the use of doping (see Article 18). In her response to the charge Mr Blair stated she "had not received any formal anti-doping education and, as a non-elite athlete, did not have access to a nutritionist or doctor in relation to supplement use." In addition to her core arguments, this formed part of her mitigation.
Anti-doping education is not mentioned within the UK Anti-Doping Rules save for authorised anti-doping education during periods of ineligibility. A common theme in these sorts of cases is that the lack of education does not sufficiently mitigate the level of fault so as to reduce sanction. It is therefore not focussed on by tribunals the way other mitigation may be. The case of WADA vs Ali Nilforushan & FEI (CAS 2012/A/2959) addresses this and states "In the absence of other mitigating factors such as exceptional youth or inexperience which in given circumstances may have a bearing, the lack of anti-doping education alone is not sufficiently exceptional to justify a reduction of the ineligibility period."
The concern for practitioners when mitigating is that the lack of anti-doping education is not an express rule that panels should take in to account (in the UK Anti-Doping Rules). This factor is often put forward to bolster other mitigation and taken collectively may well be of some assistance. One can see that the tribunal took very little notice of Ms Blair’s lack of education in this case as there was no finding on it whatsoever. They instead chose to focus on the crux of the defence which was "tainted supplements".
The rules do not state that evidence of batch contamination is necessary to show "no significant fault or negligence" however it is clearly more favourable, especially when the athlete bears the burden, to be able to show that the same batch bears the same contaminated substance as was returned in the AAF.
It will always be more difficult for an athlete to show the route of ingestion if investigations do not show any contamination in the same batch by the manufacturer. Similarly, the point is always going to be made by the Anti-Doping Agency that a sample from exactly the same batch did not return a positive result for the same substance (or at all).
Whilst cases are fact specific, an athlete should always attempt to obtain and provide as much evidence as possible regarding the provenance of the contaminated product. The details of the "contaminated product" are likely to be of paramount importance and it is therefore also likely that practitioners will want to challenge every section of the chain of custody. Practitioners will also have to consider challenging all relevant evidence that could undermine an argument of "no significant fault or negligence" which is potentially a wide range of features.
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- Tags: Anti-Doping | Athletics | Court of Arbitration for Sport (CAS) | IAAF Anti-Doping Rules | Javelin | UEFA Anti-Doping Rules | UK Anti-Doping (UKAD) | UK Anti-Doping Rules 2015 | US Anti-Doping Agency (USADA) | WADA Anti-Doping Code 2015 | World Anti-Doping Agency (WADA)
- Contaminated supplements and the 2015 WADA Code: the legal principles underlying UKAD v. Williams & Warburton
- Key challenges facing athletes in contaminated supplement cases: A review of the Arijan Ademi decision
About the Author
Max Shephard is a barrister specialising in sports law at 4-5 Gray’s Inn Square, London. He regularly advises on anti-doping and disciplinary proceedings before sports governing bodies and anti-doping panels.