Ignorance is bliss (at least in the case of doping sanctions!)

In two recent English doping tribunals, The Football Association v. Kolo Touré [26 May 1011] and UK Anti-Doping v. Mark Edwards, the knowledge, experience and professionalism were considered relevant factors in the determination of the appropriate disciplinary sanctions.

The Football Association v. Kolo Touré [26 May 1011]

Disciplinary proceedings were brought against Manchester City and Ivorian footballer, Kolo Touré (‘KT’) after his urine sample tested positive for bendroflumethiazide (a Thiazide diuretic listed under Category S5: Diuretics and Other Masking Agents), contrary to Rule E25 (Doping Control) of the Football Association’s Rules of Association.

The facts themselves were not in dispute:

• Touré admitted that the sample taken after the Man Utd v. Man City match on 12^th February 2011 contained bendroflumethiazide.
• There was no complaint made about the testing or sample collection procedure, and KT declined to have the B sample tested
• Similarly no challenge was made as to how the Specified Substance (bendroflumethiazide) entered KT’s body. The panel accepted that this was due to “water tablets” which he had started taking the month before due to a misplaced perception that he was fat (the tablets removed excess water from the body by increasing how much and how often you passed water).
• While KT disclosed on the sample collection form that he had taken “HERBALLIFE [sic] NUTRITION” supplements in the last 7 days prior to the test, he did not disclose his use of the water tablets. The Commission did however accept that this omission was not sinister and that he had not intended to enhance sporting performance or mask the use of a performance enhancing substance [43].

Given that the player admitted and regretted the presence of the positive sample and that it was his first doping offence, the case therefore boiled down to the degree of KT’s culpability.

While the minimum penalty for a first offence under the Football Association Doping Control Programme Regulations 2010-2011 (‘FADR’) is for two years (FADR 44, Part 6), under Regulation 64.9, the Commission “may replace” the minimum penalties to a warning and reprimand without any period of suspension, if the player can establish to the “comfortable satisfaction” of the Panel that there was corroborating evidence to support the applicable conditions set out in FADR 66-73. In this instance, Touré relied upon FADR 67 (no intention to enhance sporting performance / mask the use of a performance enhancing substance).

KT provided unchallenged evidence that his wife (MT) asked her friend [MD] to check with the unidentified clinic, where the tablets had been purchased, as to whether the tablets were “fine for a footballer” [29]. Apparently the receptionist referred this enquiry to a doctor and relayed the advice back to MD, who then passed this onto MT. KT also argued that prior to travelling to an away game, he had put the water tablets into a drug dosette marked “herbalife” which also contained his “Herbalife” products and asked the club doctor to verify that everything in the bag was ok. This evidence was however contradicted by the club doctor who stated that he had never been shown the water tablets [33] and if he had, would unequivocally said that they were prohibited and not to be used [51b].

Although the Commission accepted the argument that the nature of the specified substance should be taken into account when assessing any period of suspension / ineligibility [50], it found that KT was at fault because the checks he made were limited, perfunctory and wholly inadequate [54], indeed:

• KT did not check directly with the clinic, relying simply on ‘multiple hearsay’ from MT and MD. (Interestingly, the Commission stated that they would have found him at fault even if he had checked with the clinic himself, as he should have made proper enquiries with the club of his own doctor [51a.iv])
• His approach to the Club Doctor was inadequate. Indeed, KT’s failure to tell the Doctor he was taking the tablets, ask specifically about the tablets or show the bottle the tablets came from fell markedly below the standard that the Commission would have expected from a professional footballer [51b.v]
• He did not carry out his own research into the legality of the tablets

KT was suspended for 6 months from the date of the FA’s provision suspension (2 March 2011) and ordered to pay the costs of the hearing.

UK Anti-Doping v. Mark Edwards (NADP 7 June 2011)

The defendant, Mark Edwards (ME) was an experienced Olympic shot-putter who had competed for more than 20years of national and international competitions. On 19^th August 2010, ME was selected for the English team for the Delhi 2010 Commonwealth Games that October. In accordance with the standard pre-Commonwealth Games testing programme, ME was selected for a “no notice” out-of-competition drugs test to be carried out at his home on the 15^th September 2010. The urine sample collected that day was tested and found to contain two prohibited anabolic agents, namely, exogenous Testosterone and a metabolite (4-chloro-3a-hydroxy-17-oxo-androst-4-ene) of Clostebol, both of which are listed on WADA’s List of Prohibited Substances. As such ME was charged with two counts of Doping Offences under UK Athletics (UKA) rule 32.2(a) (Presence of a Prohibited Substance or its Metabolities or Markers in an Athlete’s Sample) and later 32.2.b (Use by an athlete of a Prohibited Substance).

As ME did not dispute the laboratory findings or request testing of his B sample, the strict liability element of the charges, particularly in relation to Clostebol was made out, the only explanation was how they entered his body.

Rather than admitting the charges, ME attacked all elements of the process. His first argument was to contend that because he had telephoned UK Athletics the day before the test on the 14^th September to inform them that he was withdrawing from the England team for ‘medical reasons’, in addition to sending two emails on the 16^th and 17^th September confirming that he was retiring from all competitions, UKAD had no jurisdiction to test him [3.4.1].

This was however dismissed by the Panel as the athlete had contractually consented to abide by all UKA competition rules when he had joined an affiliated club (Newham & Essex Beagles Athletics Club) earlier that year [3.4.11]. While he had indeed withdrawn from competition, there is no evidence that ME had resigned in writing (as required by UKA rule 3.7) from the Athletics club and therefore he still remained under UKA jurisdiction on the date of the sample collection [3.4.23].

The Panel also noted that there was a distinction between retirement and withdrawal from a registered testing pool, and the evidence was put before the tribunal that the defendant was aware due to a previous retirement through injury in 2002, that even though he had retired from competition, he could still be liable to no-notice drug testing during the following 12 months [3.4.17]. The final blow for ME is that he submitted to testing on 15^th September even though he had told the Doping Control Officer (DCO) that he had retired [3.4.18] and the Sample Collection form filled out during the test noted no irregularities, complaints or problems.

The lack of complaint on the contemporaneous form also helped undermine the defendant’s allegations that the sample collection process was incorrectly carried out. Indeed, the panel found that ME was not a credible witness [3.4.28], that there was no evidence to suggest that the DCO had departed from the International Testing Standard [3.4.29] and that the sample was received intact by the laboratory [3.4.30]. As such ME did not meet his burden of proof for having the charges dismissed [3.4.34].

With no explanation for the presence of the prohibited substances, the panel had no option but to find against ME. What was interesting however was what came next. Although the standard period of ineligibility is 2 years, the Panel held that IAAF Rule 40.6 allows them the discretion to increase that sanction to 4 years if there was evidence of aggravating factors such as a failure to admit the anti-doping violation promptly or the presence of multiple substances (both of which existed in this case). As such the Panel imposed a 3 year period of ineligibility on ME from 3 November 2010 [3.5.57].

 

FURTHER QUESTIONS

What is particularly noteworthy about both of these cases is the suggestion that both transgressions were made by senior athletic role-models. In Kolo Touré’s case, the Panel held that he should have known better because he was an experienced professional footballer:

“[KT] has received anti-doping education. He has been tested many times before. He has appeared in an anti-doping film. He is a seasoned and experienced international player. “ [23]

“Further, a player in the position of KT might be expected to carry out his own researches of anti-doping information and literature; a wealth of it is easily and freely available. For example, the World Anti-Doping Code 2011 Prohibited List is widely available. According to the undisputed evidence of Jenni Kennedy, at the start of this season the FA provided the PFA with sufficient anti-doping information packets for each Premier League and Football League player. The packets contain inter alia an anti-doping advice card which includes on the first page examples of prohibited substances printed in red ink; diuretics and other masking agents are listed there. “ [51c]

In Mark Edward’s case, the panel stated that:

“…The Athlete is a senior athlete and a role model in the throwing community. He runs a sports therapy business and has a history of working with disabled athletes. In 2008, he attended the Paralympic Games as a full time employed UK Athletics Performance Coach. In these circumstances we consider that an increase in the period of ineligibility is appropriate.” [NADP: UKAD v. Edwards, 3.5.5]

Taken together, do these two cases mean that professional athletes have a higher responsibility to comply with anti-doping rules? In echoes of Lord Donaldson’s infamous quote in the negligence case of Condon v. Basi [1985] 1 WLR 866, 868 that: “there will of course be a higher degree of care required of a player in a First Division football match than of a player in a local league football match.”

Is it the case that more is expected from professional athletes because of their seniority or their status as role models within the community, or is simply that they should have known better? If so, it may be one occasion where ignorance is indeed bliss. Ironically, penalising seniority and experience would seem to undermine the incentives for athletes to engage with the current education policy currently undertaken by governing bodies and anti-doping regulators…..

Kolo Toure decision for distribution

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