Tag Archives: wada

Britain’s Steroid Dilemma – Not dangerous enough to criminalize but dangerous enough to be made safer

October 21, 2013

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By Kris Henderson – Thompson Rivers University 2L JD Student

The British Health Authority recognizes the adverse health effects of anabolic steroid use on the population and aims to make the population healthier. Their recommendation, however, is not a ban on all performance and physique enhancing substances. The National Institute of Health and Care Excellence (NICE), is instead recommending that gyms and other athletic training facilities provide sterile needles for individuals using intravenous anabolic steroids all in an effort to reduce the transmission of blood borne pathogens.

Providing clean needles for intravenous drug users is not a new concept, nor is it without its critics. The Vancouver safe injection site – InSite – located along East Hastings in the heart of Vancouver, Canada not only provides drug users with sterile needles, but staff provide first aid to individuals who fail to recognize their limit and overdose. Usually this consists of simply providing oxygen to the user. Helping two overdosed users in the safe injection site saves the provincial health authority the equivalent of InSite’s monthly operating budget as of 2010. The criticism of the site being open is therefore not cost of operation. The question is really what effect is it having on drug use? Drug use rates in Vancouver have not, by most accounts, seen a decrease since InSite began operating. Proponents of InSite, however, claim the true benefit comes from the reduction in blood borne disease transmission through the reduction of needle sharing. Other health authorities in Canada have also adopted clean needle programs to certain extents, all with differing measures of success.

It is easy to see that the potential clientele being served by this program in Britain would be drastically different that those being served by the clean needle programs in Canada. Individuals injecting themselves with anabolic steroids for the purpose of better athletic performance are obviously not the same ‘vulnerable population’ of heroin and other hard drug addicts being served in Canada. But to what extent does that matter? According to the NICE report, an estimated 70,000 people aged between 16 and 59 in England and Wales are thought to have injected anabolic steroids in the last year. While it is certainly not a staggering percentage of the population, it has proven sufficient to get the attention of the national health authorities.

Even if the clean needle program has no effect on user rates, any reduction in blood borne disease transmission can be measured as a success, both from a moral and government financing standpoint, as any publicly funded health care regime would see a decrease in costs associated with the treatment of these diseases.

This latest recommendation from NICE is sure to once again draw the ire of the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC). Drug laws in England were heavily criticized during the lead-up to the London 2012 Olympics. Unlike previous host countries that stiffened criminal laws regarding personal possession and use of anabolic steroids and human growth hormones, the British government refused to criminalize possession and use of many performance enhancing anabolic steroids. The government stance was that athletes who use these substances during competition should face severe penalties such as lengthy bans from competition, but not criminal sanctions.

The NICE recommendation will likely affect the use of steroids in the UK, but what are the broader implications regarding the public perception surrounding their use? While I have no hesitation in accepting that the program will likely reduce the transmission of blood borne diseases such as various strains of Hepatitis and the HIV virus, the provision of sterile needles to steroid users may have a larger impact on sport and culture in the UK.

The unintended consequences of reducing the risks associated with steroid injections is very different than that of hard drug use. Individuals crippled by hard drug addiction, it is argued, are less likely to consider the sterility of their needle before making their next injection, or even their first injection. Potential or regular steroid users, however, see a reduction in the potential health risks to an activity that is still legal. The government position is that users should face heavy penalties though steroids aren’t so dangerous as to warrant its criminalization but dangerous enough to be made safer.

Will we see anabolic steroid use in the UK rise as a result of implementing a sterile needle program? Only time will tell. What we know for sure is that those looking to prevent athletes from using anabolic steroids in Britain through deterrence will be fighting an even steeper uphill battle, with an even greater reliance on the WADA.

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Reflections on the WADA 2015 Code v2.0

March 3, 2013

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Tablets

The World Anti-Doping Agency (WADA) 2015 Code review closed earlier this week. It has been a very interesting process following the various revisions and tweaks to the Code and has really made us think about what is important and/or legally defensible.

Attached to the bottom of this post are the comments that Jon and I submitted on behalf of the Centre for International Sports Law (CISL). Special thanks must also go to the LLM International Sports Law students for their constructive comments, in particular thanks to Leigh and Neil for their respective suggestions….

While it is now too late to submit any additional comments or tweaks in this round of revisions, we would still be very interested to know what your thoughts on the Code are?

The CISL Reflections on the Code: WADA 2015 Code Review (final)

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Lance Armstrong, the USADA & Quantum Mechanics (Round 3 of the CAS Eligibility rules?)

September 2, 2012

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Some people have suggested that with the now infamous statement that “enough is enough” by Lance Armstrong on 23rd August 2012, that that statement represents a final conclusion to a long-running saga. In reality though, it may be more accurate to view this as a change of ends, or the start of the fourth quarter. As the implications of the various statements and cases are analysed, it is likely that any future legal entanglement will focus on the role of USADA and the legality of their sanctioning process. In a sense, this challenge has the very real potential to become Round 3 of the CAS eligibility rules debate, an exciting prospect given the previous knock-out victories in the earlier cases:

  • Round 1 was between USOC v. IOC (the Osaka Rule)
  • Round 2 was between BOA v. WADA (the Bye-Law))
  • Will Round 3 be between UCI / WADA v. USADA?

Tygart’s Cat?

So what do Lance Armstrong, the US Anti-Doping Agency (USADA) and Quantum Mechanics have in common? The answer comes in the form of a thought experiment by Erwin Schrodinger. Schrodinger postulated that the fate of a cat (sealed in a lead box with a flask of poison and a radioactive object) would be unknown until its contents could be observed. Until somebody could actually open the box and confirm its state, the cat would theroretically be both alive and dead. Ironically, the respective statements by Lance Armstrong and Travis Tygart (CEO of USADA) have now set-up a modern day version of this thought-experiment. It would seem from the public documents and court cases that the USADA case is based not on a positive sample (Armstrong has never tested positive for a performance enhancing drug), but rather on secondary evidence produced from statements, testimonies and samples that may be ‘consistent with doping’ that together form a non-analytical violation (see an excellent overview of this area by Richard McLaren in Marquette Sports Law Review). By refuting these charges but not continuing to engage in any future defence, Lance Armstrong has created a state where he is simultaneously innocent (the lack of any killer evidence of a positive sample violation) and guilty (the USADA non-analytical violation) depending on the observation point.

So what are the implications of this position for the USADA and WADA? To understand that, we need to examine the charges against him,

The USADA Letter

On 12th June 2012, USADA notified six people:

  • Lance Armstrong [charges 1-6]
  • Johan Bruyneel (Team Manager: USPS / Discovery/ Astana / Radio Shack teams) [charges 2-6]
  • Dr Pedro Celaya (Team Doctor: USPS / Discovery / Radio Shack teams) [charges 2-6]
  • Dr Luis Garcia del Moral (Team Doctor: USPS team) [charges 2-6]
  • Dr Michele Ferrari (Consultant Doctor to USPS and Discovery Channel Teams) [charges 2-6]
  • Pepe Marti (Team Trainer USPS / Discovery / Astana / Radio Shack teams) [charges 2-6]

that it was opening formal action against them for their alleged roles in a wide-ranging doping conspiracy involving the United States Postal Service (USPS) (1996-2004), Discovery Channel (2005-2007), Astana (2009) and Radio Shack (2010) teams, specifically relating to six charges:

  1. Use and/or attempted use of prohibited substances and/or methods including EPO, blood transfusions, testosterone, corticosteroids and/or saline, plasma or glycerol infusions
  2. Possession of prohibited substances and/or methods including EPO, blood transfusions and related equipment (such as needles, blood bags, storage containers and other transfusion equipment and blood parameters measuring devices), testosterone, corticosteroids and/or saline, plasma or glycerol infusions
  3. Trafficking and/or attempted trafficking of EPO, testosterone, and/or corticosteroids.
  4. Administration and/or attempted administration to others of EPO, testosterone, and/or cortisone.
  5. Assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping rule violations.
  6. Aggravating circumstances justifying a period of ineligibility greater than the standard sanction.

USADA alleged conspirators gave false testimony and statements under oath and in legal proceedings [Page 12, USADA Letter), which may be the reason why media groups may be reconsidering earlier Court defeats: see for example Armstrong v. Times Newspapers Ltd [2006] EWHC 1614 (QB). As of yet though, USADA has not elaborated on what and when the false statements were.

Armstrong challenged the USADA accusations with his own letter and subsequently through the US District Court system (see below). The Court document describes the USADA evidence against Armstrong [page 8]:

  • Testimonies from numerous riders, team personnel and others (based on personal knowledge or apparent admissions from Armstrong to them) that he had used EPO, blood transfusions, and cortisone from 1998 to 2005; and EPO, testosterone and HGH until 1996.
  • Numerous riders will also testify that Lance Armstrong gave to them / encouraged to use and/or assisted them in using doping products and/or methods (including EPO, blood transfusions, testosterone and cortisone) between 1999-2005.
  • Evidence from the Director of the Lausanne Anti-Doping Laboratory (Dr Martial Saugy) that Armstrong’s urine sample from the 2001 Tour of Switzerland was indicative of EPO use which confirmed other witness testimony that a positive test result in 2001 was covered up. (As Lance Armstrong’s counsel later identifies though, this sample no longer exists and in 2011, Dr Saugy was reported as saying that the sample did not constitute a positive test).
  • Data from UCI blood collections in 2009 and 2010 which is fully consistent with blood manipulation including EPO use and/or blood transfusions.

The letter from Robert Luskin (Lance Armstrong’s legal team) also put forward a number of interesting questions:

  • Why has only one rider (Armstrong) from the four teams been charged?
  • How can Armstrong (and effectively the public) overcome concerns over the reliability of the witness evidence? Armstrong perhaps says it best 2/3 down his own statement: “……perverts the system and creates a process where any begrudged ex-teammate can open a USADA case out of spite or for personal gain or a cheating cyclist can cut a sweetheart deal for themselves. It’s an unfair approach, applied selectively, in opposition to all the rules. It’s just not right.”

The WADA Code, Comment to Article 10.5.3 notes that:

“If a portion of the period of Ineligibility is suspended, the decision shall explain the basis for concluding the information provided was credible and was important to discovering or proving the anti-doping rule violation or other offense.”

It will therefore be interesting to see if any ‘reduction in sentences have been applied to previous drug cheats, and if so who.

US Texas District Court (20th August 2012)

Armstrong’s team most recently brought an ultimately unsuccessful challenge to the USADA letter before the District Court. Essentially, the challenges can be summarised into three main themes:

  • USADA lack of authority
  • Violation of his due process rights
  • The USADA process itself

The first theme that USADA lacked authority to bring such charges against him was because of a statute of limitations (8yr), jurisdictional conflict with the UCI (international cycling union), and a failure of any valid arbitration agreement with USADA.

The statute of limitations can be suspended if there is evidence of a cover-up, but USADA has failed to make public any specific documentation or evidence to support this. By contrast, the latter two challenges are comparatively easier to resolve. Essentially USADA Anti-Doping rules (USADA Protocol for Olympic Movement Testing) effectively govern the implementation of anti-doping policies in USOC national governing bodies (of which USA Cycling implements the UCI rules). As a member of both USA Cycling, and an athlete included within the USADA registered testing pool, Lance Armstrong agreed to be bound by this protocol [Page 26].

Armstrong also alleged that USADA’s charging and arbitration procedures violated his due process rights, specifically:

  • Failure to provide an adequate charging document (see below)
  • No right to cross-examine or confront witnesses against him
  • No right to disclosure of exculpatory evidence
  • No right to disclosure of cooperation agreements or inducements provided by USADA
  • No right to obtain investigative witness statements
  • No right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy

Many of these points relate to the inherent distinction between discovery rules in (civil) arbitration proceedings as opposed to criminal proceedings and the Court rightly commented [Page 17] that the reliability of these results and testimony can and should be challenged by any arbitration panel. While that coupled with a valid arbitration agreement should have been enough to dismiss the case, the Court noted that the high-stakes nature of the arbitration (Armstrong’s career and reputation vs the credibility of the USADA’s anti-doping framework) and the risk of further substantial costs, meant that it was important to fully evaluate Armstrong’s case. Further to McLaren’s comments in his article (see earlier), these findings on the gravity of the case could be used to suggest that the arbitration evidential standard of comfortable satisfaction “could move to a very high standard that can become indistinguishable from beyond a reasonable doubt.” (page 211)

The District Court was also scathing about the USADA in places, suggesting their “woefully inadequate charging letter” [Page 17] was:

“so vague and unhelpful that it would not pass muster in any court in the United States. The Court is assured, however, that Armstrong will be given adequate notice of the specific allegations against him in a timely fashion prior to arbitration, and proceeds under the assumption this will actually occur.” [page 9] and it was “of serious constitutional concern”[Page 17].

At [Page 14] that:

“USADA’s conduct raises serious questions about whether its real interest in charging Armstrong is to combat doping, or if it is acting according to less noble motives.”

And later in footnote 36, [Page 27] that:

“Among the Court’s concerns is the fact that USADA has targeted Armstrong for prosecution many years after his alleged doping violations occurred, and intends to consolidate his case with those of several other alleged offenders, including incredibly–several over whom USA Cycling and USOC apparently have no authority whatsoever. Further, if Armstrong’s allegations are true, and USADA is promising lesser sanctions against other allegedly offending riders in exchange for their testimony against Armstrong, it is difficult to avoid the conclusion that USADA is motivated more by politics and a desire for media attention than faithful adherence to its obligations to USOC.”

Indeed, the Court noted it was only the practical realities of the time and money having to rehear the same case once the USADA had sent Armstrong a more detailed charging letter that ensured that this suit was not struck out.

Armstrong finally challenged the process itself, complaining of a potential lack of impartiality, no guarantee of an arbitration hearing, and no right to pursue a judicial review by a US court [IV]. These challenges in particular seem to display either an ignorance of sporting regulation, attempts to muddy the waters or a shotgun approach to law. Indeed, the speculation that a potential CAS Panel would be biased seems quite insulting.

Ultimately, the Court agreed with the USADA (and I must say that I do too) that the best mechanism for resolving these allegations is to test them in arbitration and exhaust these internal remedies first [Page 23].

Round 3?

The ineligibility rule in this case came from the sanctions imposed by USADA, but have they the authority to do so? As Rounds 1 (USOC) and 2 (BOA) have shown, the WADA Code is absolute and any incompatibility and inconsistency with the Code renders that respective rule void. Indeed, for the purposes of anti-doping, it is irrelevant whether USADA is sovereign in the USA as it effectively surrendered this sovereignty to WADA.

So what does the Code say?

[Comment to 2.2] – “Use or Attempted use may also be established by other reliable means such as admissions by the athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “presence” of a prohibited sample under Article 2.1”

The fact that USADA did not feel able to charge Armstrong with article 2.1 (Presence) only echoes the ‘non-analytical’ nature of the violation. The problem however with this approach is what constitutes reliable? As Robert Luskin’s letter notes, there is an obvious discrepancy between USADA holding that the UCI blood data in the 2009-10 seasons supports doping and the UCI’s own experts that took a contrary view? This area will need much more explanation from USADA.

Perhaps the most telling quote comes from the Texas judgment at [Page 29]:

“As mystifying as USADA’s election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies [USADA, USA Cycling & UCI] are apparently unable to work together to accomplish their shared goal the regulation and promotion of cycling. However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts.”

While strictly speaking, Lance Armstrong can be declared guilty of a doping violation in absentia:

Under Article 8.3: “the right to a hearing may be waived…expressly…by the Athlete’s or other Person’s failure to challenge an Anti-Doping Organization’s assertion that an anti-doping rule violation has occurred within the specific time period provided in the Anti-Doping Organization’s rules.”

The decision does leave a somewhat bad taste in the mouth, particularly since the USADA has not gone through a full hearing process. In particular, it is difficult to reconcile the feeling that the Texas Court had that the USADA charges were inadequate and an hour after the statement, suddenly they are sufficient for a lifetime ban!

Indeed, it is perhaps worth reiterating the most ominous part of the Texas Court’s judgment contained in footnote 27 on [Page 18]:

“….If it should come to pass that Armstrong does not actually receive adequate notice sufficiently in advance of the arbitration hearing, and it is brought to this Court’s attention in an appropriate manner, USADA is unlikely to appreciate the result.”

USADA have subsequently suggested that they will reveal evidence against him, but do not wish to do so for fear of prejudicing on-going cases against Bruyneel, Celaya and Marti. The problem I have is that this also works both ways. What if the cases against all 3 defendants were thrown out, does that mean that just as Lance Armstrong was declared guilty in absentia, so he can also be declared innocent?

Perhaps the most important question for any legal challenge though, is that assuming the statute of limitations is not activated, what should Armstrong and the others actually be charged and sanctioned with?

10.2: Ineligibility for Presence, Use or Possession (1st offence) – 2yrs

10.3.2: Ineligibility for Trafficking or Administration (1st offence) – 4yrs to lifetime

10.6: For Aggravating circumstances, other than Trafficking or Administration violations, the maximum period of ineligibility to be applied for a standard sanction is 4yrs.

10.7.4: Second anti-violations: “For purposes of imposing sanctions under Article 10.7, an anti-doping rule violation will only be considered a second violation if the Anti-Doping Organization can establish that the Athlete or other Person committed the second antidoping rule violation after the Athlete or other Person received notice pursuant to Article 7 (Results Management), or after the Anti-Doping Organization made reasonable efforts to give notice, of the first anti-doping rule violation; if the Anti-Doping Organization cannot establish this, the violations shall be considered together as one single first violation, and the sanction imposed shall be based on the violation that carries the more severe sanction; however, the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Article 10.6).”

It is therefore critical that USADA prove not just the substance (excuse the pun) of some of the doping violations, but that Armstrong was guilty of Administration or Trafficking charges. At present there is only one vague accusation that he distributed EPO to other riders (p.3 USADA Letter), and administration of olive oil and testosterone mix to other riders (p.4 USADA Letter). If these offences cannot be proved, then under 10.7.4, all the other violations should be taken together and his maximum ban should be capped at 4yrs rather than life.

Let’s hope that the UCI and/or WADA challenge the USADA decision, not because I believe that Lance Armstrong is innocent, but because the deficiencies in the USADA process and their lack of any public, credible underpinning evidence for their charges means that at the moment Armstrong is both innocent and guilty. Schrodinger would be turning in his lead box….

 

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Double Jeopardy: CAS 2011/0/2422 USOC v. IOC

October 17, 2011

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Read the CAS verdictIOC rules; WADA Code

The case of the United States Olympic Committee (USOC) v. International Olympic Committee (IOC) (CAS 2011/O/2422) concerned the validity and enforceability of a particular IOC regulation prohibiting drug violators from competing in the next edition of the Olympic Games following their period of suspension.

The IOC rule was known as the “Osaka rule” and was enacted in Japan on 27 June 2008:

“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

  1. Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
  2. These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.“

While this rule applied to all Olympic athletes, in practice only a certain sub-set of athletes were affected:

  • Athletes not guilty of a doping violation – rule does not apply
  • Athletes guilty of a doping violation (with less than 6 months suspension) – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension) who wish to compete in non-Olympic competitions  – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension), but not selected by their National Olympic Committee (NOC) – rule does not apply
  • Athlete guilty of a doping violation, still serving their suspension – rule has no immediate effect
  • Athlete guilty of a doping violation at an Olympic Games  – rule has no immediate effect
  • Athlete guilty of a doping violation (over 6 months suspension), and selected by their National Olympic Committee (NOC) – RULE APPLIES

The case was brought against the IOC because one of those affected athletes, LaShawn Merritt was prevented by the rule from representing the USA at London 2012. Merritt had previously tested positive in an out-of-competition test for ExtenZe (a ‘male performance’ product containing the banned substance DHEA); and while the doping panel accepted that the substance was used inadvertently and that there was no intention to dope, Merritt still received a ban from competitions.

The crux of the case can be seen from Merritt’s current position. His ban ended earlier this year on 27 July 2011, however despite his eligibility to compete in any other competition, Merritt was still prevented from competing in next summer’s 2012 Olympics Games. He and USOC argue that this additional ban is unfair for two main reasons, because it violated the principle of double jeopardy (ne bis in idem) [7.2] and that the imposition of an additional doping sanction was in contravention of the WADA Code (article 23.2.2). USOC also argued that the rule resulted in unjustifiable discrimination between athletes and that the IOC rule should be “cancelled and declared null and void, or alternatively, that a mechanism be allowed for a case by case review of the appropriateness of the applicability of the Decision to each specific athlete” [2.9]

By contrast, the IOC argued that the rule constituted an eligibility rule [7.4] as to who could qualify as a competitor in the Olympics under Rule 45.2 of the Olympic Charter rather than as an additional sanction, that the rule protected the values of the Olympic Movement from the “scourge of doping” [7.5], that athletes had no automatic right to participate in an Olympic event [7.8] and that the rule did not conflict with double jeopardy (ne bis in idem), as it pursued a wholly different purpose than an anti-doping ineligibility sanction [7.8].

 

THE CAS RULING

All parties recognised that uncertainty surrounding the application of the decision was unhelpful, particularly since CAS had previously provided two Advisory Opinions in this area, one requested by the IOC had concluded that Rule 45.2 was an eligibility rule [8.7], while a Confidential Opinion to an unnamed International Sporting Federation (ISF) held that the application of a similar rule by an ISF was intended to be penal in nature and therefore could not constitute an eligibility rule [8.8].

It was therefore agreed that CAS had the ability to definitively settle the dispute (R27 of the CAS Code) and three arbitrators were chosen to hear the case: Professor Richard H McLaren (Canada), Me. Michele Bernasconi (Switzerland), and David w. Rivkin, Esq. (USA).

Both parties agreed that the applicable regulations of the arbitration (R58 of the CAS Code) should be:

  • Swiss Law (including fundamental principles)
  • the Olympic Charter (OC), in particular, rules 41 (eligibility), 44 (applicability of WADA Code) & 45 (Olympic participation)
  • and the WADA Code, in particular, s.10.2 (sanctions for 1st violation), s20.1.1 (IOC implementation of Code), 23.2.2 (prohibition against substantive changes to the Code) and appendix 1 (definition of ineligibility)

WADA also independently submitted an amicus curiae brief on 13 July 2011 to ensure that the arbitration panel would have as comprehensive a view as possible of the potential issues surrounding the IOC regulation, particularly since there was a suspicion that tribunal doping sanctions were being manipulated to stay under 6 months to avoid being caught by this rule [3.11].

 

ELIGIBILITY RULES

Previous CAS Jurisprudence (RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381 [76]) suggested that: “qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability for the type of competition in question.” [8.9]. In particular it was noted that qualifying (eligibility) rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.

Because IOC Rule 44 expressly incorporated the WADA Code as underpinning the Olympic Games, the IOC were bound by WADA’s definition of ineligibility. Unfortunately for them, under Article 10 of the WADA Code, ineligibility was held to be a sanction. In making this decision, the Panel held that the fact that an athlete could participate at other International competitions was irrelevant [8.16].

From this conclusion, the IOC was always going to lose as under Article 23.2.2 of the WADA Code, signatories of the Code could not add any additional provisions “which change the effect of […] the periods of eligibility provided for in Article 10 of the WADA Code.”

Because Rule 44 increased the period of ineligibility from the original doping violation (between 6months to 2 years) to the number of days until the next Olympics Games, the IOC regulation was not in compliance with the WADA Code and as such had to be struck out as invalid [8.44].

The Panel did not state that such an additional sanction could never occur, simply that such a rule needed to be incorporated within Article 10 of the WADA Code when the Code was next reviewed. To satisfy any proportionality requirements, the Panel also recommended that a first instance adjudicatory body should review any appeals [8.27].

 

The British Olympic Association (BOA) By-law

Much of the talk this week has been over whether the BOA by-law is legitimate in the wake of this ruling, and what implications this might have for Dwayne Chambers and David Millar. BOA Bylaw 25 sets out that:

“any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic team”.

Importantly, the bye-law also gives individuals the right to appeal (something that distinguishes the BOA Bye-Law from that of other NOCs).

Taken at face value though, the same issues from the USOC case apply, in that any athlete guilty of a doping violation is ineligible for selection on a British Olympic team. If this USOC decision was extended to the BOA, then it is strongly arguable that this requirement also constitutes a sanction attributable to the same behaviour and resulting in the same consequence (ineligibility from competition) [8.36]. Or more colloquially, If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!

Again, taken at face value, the only significant difference between the two rules would seem to be that the BOA by-law has an inherent appeals process, which would negate any proportionality requirement.

Is this enough though, arguably no.

There is one alternative argument though that may solve the BOA problem. At footnote 11 of the USOC decision, the CAS Panel noted that:

“If the IOC issued a rule that persons convicted of a violent felony were not eligible to participate in the Olympic Games, such a rule would likely not violate the principle of ne bis in idem, because the effective purpose of that sanction would be different from the purpose of the criminal penalty associated with that violent felony.”

Therein might lie a possible defence for the BOA. If the BOA rule was based around a different purpose than simply a sanction associated with taking drugs, but was linked to eligibility, for example an athlete’s role as an ambassador representing their country, then following footnote 11, it could be argued that the by-law had a different purpose and was therefore valid and enforceable. Such a stance echoes the comments of Colin Jackson, interviewed immediately after the judgment by the BBC:

http://news.bbc.co.uk/sport1/hi/olympics/15199159.stm

If the BOA by-law was interpreted as a ‘moral / ethical behaviour clause’, should it be limited to just drugs and doping violations though? Do we want athletes representing our country who were guilty of criminal offences? If the by-law was extended this would also help in removing the WADA ‘consistency’ argument, as different jurisdictions around the world impose different criminal sanctions and offences.

Or should we just fall into line with WADA and the rest of the world and reduce our rules to the lowest common denominator?

http://news.bbc.co.uk/sport1/hi/olympics/15159569.stm

 

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Who’s Gonna Ride Your Wild Horses? (apologies to U2)

August 14, 2011

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On 21, 22nd July & 2nd August, the British Horseracing Authority (BHA) disciplinary panel considered the case of Howard Johnson. Johnson had been a licensed horse trainer for the past 25yrs and had had some success.

The case against him fell into two main categories, permitting a horse to continue to race following a prohibited operation, and several counts of doping using anabolic steroids (because the BHA updated their rules midway through this period, some of the charges relate to the 2007 rather than 2009 rules).

 

PROHIBITED OPERATION

The first set of charges relate to a palmar neurectomy carried out to the (left) near forelimb of Striking Article, a chestnut gelding (originally worth £150,000). The operation, carried out on 8 April 2008, by Johnson’s vet (James Emson) effectively cut sensation to the horse’s lower leg (http://www.horsetalk.co.nz/lameness/tha-navicular.shtml). While there is no doubt that the operation was necessary because since January of that year, the horse had been lame from an ‘extremely severely ulcerated corn in his left fore-heel’, a neurectomy does not cure the underlying pathology, but merely masks any signs of pain, allowing the horse to carry on day-to-day activities.

Unfortunately because of the risks to both the horse and to its rider, any horse who has received this operation is automatically prohibited from riding as it will not be able to feel any pain in that leg, giving it both an unfair advantage and the potential for it to cause permanent damage to itself without it realising.

This is indeed what happened at Musselburgh on 7 February 2010 when Striking Distance pulled up lame, 5 fences from the finish. Immediate veterinary treatment at the course showed that the horse had ruptured its near-fore superficial digital flexor tendon and it was euthanized at the course. The resulting post-mortem enquiry by the BHA led to this case.

To his credit, at no time in the enquiry did Johnson seek to hide the neurectomy, admitting it straight away in a phone call, instead he pointed to his lack of awareness of the BHA rules that such an operation was prohibited. The BHA however found that ignorance of this rule was not a defence, indeed it only compounded the severity of the sentence, given the risks to both rider and horse.

While there is no published recommended penalty in Guide to Procedures and Penalties 2011, it can be seen from the BHA judgment that the panel adopted a strict liability approach. Once it had been established that Striking Distance had had an operation, and then continued to race, the offence was made out. The BHA automatically disqualified Striking Distance’s results in each of the 8 races (Rule 188 of the Orders and Rules of Racing (ORR) 2007 & Rule (C) 37 of ORR 2009 – Fitness to run).

Johnson was also charged with breaches of Rule 51(i) of ORR 2007 & Rule (C) 22 of ORR 2009, for failing to conduct his business of training racehorses with reasonable skill and care. In light of the gravity of the offences and Johnson’s reckless ignorance of the rules, the BHA suspended his trainer licence for 3yrs.

 

PROHIBITED STEROIDS

The second category of charges relate to the covert use of Laurabolin (an anabolic steroid containing Nandrolene) on a number of horses. Following a doping test on 6 December, it was discovered that one of Johnson’s horses had trace amounts of nandrolene. As these amounts were too small to constitute a positive sample, the BHA conducted an unannounced inspection of the stables on 19 January, taking 100+ blood samples.

The interesting part of the case is that although all the samples proved negative, and there were no medical records (these had been destroyed during a fire in 2009), the BHA did find evidence in Johnson’s Head Lad (Ray White)’s diary that suggested three horses (Whiskey Magic, Mintaka Pass  & Montoya’s son) had received anabolic steroid injections. This was later confirmed by records from the veterinary surgery.

The records and various testimony suggested that the injection of Laurabolin was used a booster to perk the horses up when they returned to the stables from a race, if they seemed weak or in poor condition, rather than for any clinical indication. Johnson however tried to argue that this was in the horses’ best interests, that it was acceptable to administer steroids if they were not in training, and that after receiving the injections, the horses would be rested for 28 days (coincidentally the time it would take for the steroids to be undetectable!)

The panel found that if use of a prohibited substance occurred during training, it constituted a doping offence. By comparing the dates of the injections against the training records of the horses, they held that:

  • Both Whisky Magic and Montoya’s Son were in-training
  • there was insufficient evidence however for Montaka Pass, although the panel noted concerns about the clinical justification of the injection (currently the subject of an alleged investigation by Royal College of Veterinary Surgeons)

Because the offences had come to light via non-analytical findings rather than positive sample collections, Rule 239 of ORR 2007 and Rule (C)55 did not apply and the panel instead charged Johnson with breaching Rule 220(iii) ORR 2007, Rule (C) 50.3 (strict liability) & Rule (A) 30 of ORR 2009 (prejudicial to integrity etc). Ultimately the panel applied a 1yr disqualification to run consecutively with the other charges, resulting in a combined penalty of 4yrs, starting on 19 August 2011. During this time, he is forbidden to enter any licensed premises under the control of any racing body worldwide, including training yards and racecourses.

Newspaper reports suggest that Mr Johnson will not be appealing these charges, and will release a full statement early this week.

 

HUMAN ATHLETES

This case raises a number of interesting comparisons with human athletes. For example, compare the BHA position on prohibiting neurectomies because of the risk of damage to the horse (and rider) with that of professional footballers: http://www.sabotagetimes.com/football-sport/dominic-matteo-i-was-given-painkilling-injections-at-leeds-united-and-liverpool-and-now-i-cant-even-lift-my-kids/; and http://www.guardian.co.uk/football/2011/mar/07/alex-mcleish-barry-ferguson-injection

Some might argue that horses cannot consent to whether they want an injection or not so we should err on the side of caution, but is this really so different for professional human sport? With the stakes so high, can athletes really say no when asked by their manager to play through the pain? Or is there a responsibility on teams / leagues to effectively protect athletes from themselves? There is some limited precedent for this idea as actual / suspected concussions currently prohibit an immediate return. What other operations / procedures could prohibit a return to play, and how long should this prohibition last?

It is also interesting to compare the position of human non-analytical doping findings (http://www.wada-ama.org/World-Anti-Doping-Program/Sports-and-Anti-Doping-Organizations/The-Code/), with the position of the BHA (http://rules.britishhorseracing.com/Orders-and-rules&staticID=126634&depth=3). Maybe it is time that the BHA is more explicit about its use of intelligence?

See also this article on applying non-analytical rules to horse racing: http://www.governmentlaw.org/files/Non-analyticalPositivesFinal.pdf

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

June 19, 2011

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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 12th 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 19th 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 15th 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 14th September to inform them that he was withdrawing from the England team for ‘medical reasons’, in addition to sending two emails on the 16th and 17th 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 15th 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

ME_Decision_263

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Concussions are a Headache for the NHL and NFL

May 3, 2011

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Sports Litigation Alert (Volume 8 Issue 7) just published an article I wrote entitled, “Concussions are a Headache for the NHL and NFL.”  Here are a few excerpts:

—–

Brian Burke, Harvard-trained lawyer and General Manager of the Toronto Maple Leafs of the National Hockey League, referred to concussions as the “topic du jour” earlier this year. While Burke may be guilty of not being politically correct in his characterization of brain injuries sustained in the course of playing a game, his colorful comments may properly place the issue into perspective.

The National Football League doesn’t care about intent. It only cares about the harm suffered. If the head shot is deemed dangerous, the offending player is penalized. It doesn’t matter that he didn’t mean to do it.

Even the International Ice Hockey Federation and the NCAA prohibit any hit to the head regardless of whether it was intentional or unintentional.

The International Olympic Committee and World Anti-Doping Agency have the same strict liability approach to doping. WADA holds an athlete strictly liable for substances found in his or her bodily specimen, and that an anti-doping violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a sample, whether or not the athlete intentionally or unintentionally used a prohibited substance.

If the National Hockey League is serious about hits to the head and brain injuries, they should tear a page from the playbooks of the NCAA, the IOC, and WADA and adopt a strict liability approach to hits to the head.

—–

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World Sports Law Report’s: Tackling Doping in Sport 2011 (in association with UK Anti-Doping & Squire Sanders Hammonds, 16-17 March, London [DAY 2]

March 25, 2011

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If there are any errors or inaccuracies these are from me rather than from the speakers. The official WSLR review of the event can be found here: http://e-comlaw.com/sportslawblog/template_permalink.asp?id=386

Day 2  (http://www.tacklingdopinginsport.com/)

  1. Anti-Doping at the Olympic Games. Richard Budgett (London 2012). The first lecture discussed the planned anti-doping provision at London 2012. Just listening to the statistics in particular outlined the sheer logistical task ahead, indeed London plans to undertake the most number of blood and urine doping tests yet (6,200 tests total split as 5,000 at the Olympics, 1,200 at the Paralympics), reaching an expected peak of 400 on one day! (To put this into perspective, UKAD only conduct 7,500 annual tests!). For the first time at the Olympics, Blood and Urine will also be collected in the same room hopefully speeding up the process. One problem that was however raised in light of David Howman’s speech the day before was that all the Doping Control Officer’s (DCO) will be volunteers and the potential for this to lead to bribery?
  2. Anti-Doping at the Commonwealth Games. David Grevemberg (Glasgow 2014). This lecture presented an overview of the planned anti-doping provision at Glasgow 2014. What was noticeable was the stark contrast between the statistics for the two events: Glasgow will have 17 sports, 25 disciplines, 250 medal events, 71 Nations and territories and 11 days of competition, indeed the costs of the Olympic stadium alone would fund Glasgow’s entire budget. One issue that hasn’t yet been decided though was whether the DCOs were coming from London, foreign jurisdictions or from training Scottish medical staff and providing an anti-doping legacy after the Games.
  3. Keynote Speech – Legacy for Anti-Doping. Hugh Robertson MP (UK Minister for Sport and the Olympics). The Keynote Speech has been widely reported by the media (http://www.guardian.co.uk/sport/feedarticle/9550585; http://www.reuters.com/article/2011/03/17/us-olympics-london-doping-idUSTRE72G43Z20110317) however it is still worth highlighting a number of points the Minister made. The first point to note is that he felt that sport was facing twin threats from doping (possibly from more individual sports) and from corruption (possibly from more team-based sports). Combating these two threats was vital if sport was to retain its integrity. One throwaway comment that perhaps jars with the current England FA coverage is that he viewed all Olympic sports stars as role models [whether this is enforceable though is another matter!]. The Minister praised UKAD and encouraged its close relationship with law enforcement, interestingly though he suggested that they should focus not just on target athletes but on stemming the entire flow of drugs at the source. He also seemed amenable to pass legislation on this issue if it was needed in the future, and in echoes of David Howman’s speech called for a strengthening and harmonisation of clearer doping rules across Europe.
  4. Using intelligence to combat doping in the run up to the Olympic Games. Nicole Sapstead (UK Anti-Doping). This lecture developed the theme from both David Howman and Travis Tygart’s earlier presentations. Somewhat provocatively, the talk opened with the statistic that there were 498 days until London 2012, but 0 days to combat cheats and their entourage! An interesting rhetorical question was whether UKAD had failed if they detected a BALCO-esque scandal just before / during the Games, or whether this in fact represented a success? What was interesting from this presentation was how UKAD collates information, trends and intelligence into a central database in order to analyse doping patterns. Nicole also outlined how UKAD used both a tactical (directly focused) and strategic (wider education) approach to combating drug cheats. She also highlighted the success of the recent anti-doping reporting hotline (run through the independent Crimestoppers): 0800 032 2332 where callers can anonymously pass on information to authorities 24/7 (http://www.ukad.org.uk/news/report-doping-in-sport)
  5. Background to and experience of the [Biological Passport] programme. Michael Ashenden (SIAB Research). This lecture explained how doping cases no longer involved positive tests, but also now involved ‘non-analytical positives’ where other evidence / interviews / suspicions could be considered indicators of guilt. One such area is Biological passports. The passport relies on two cornerstones, the initial software filtering which highlights deviances from the norm, and the subsequent review of this data by a series of experts to rule out pathological or other non-doping factors. The presentation concluded with an exhortation to discover even more markers within the blood to test for in order to block any potential loopholes.
  6. Advancements in the use of biological markers in anti-doping control. Paul Scott (Scott Analytics). This lecture could best be described as a critical analysis of the current biological passport scheme and how it could be improved in the future. Some of the suggestions raised privacy / freedom issues, such as the ability to test at any time of day or night, but this must be balanced against the fact that athletes are not currently tested between 11pm-6am and if they declared their whereabouts for later the following day, it was possible to flush certain substances from their body. Tightening the window for analysis of samples would have financial and complexity implications, but effectively sport needs to decide whether it wanted to prohibit doping or to trade-off lower costs with less reliability. A greater use of “non-starts” rather than full doping violations was also suggested.
  7. Procedural issues in anti-doping proceedings. Antonio Rigozzi (Levy Kaufmann-Kohler). This lecture compared and contrasted the admissibility of evidence under Swiss law and the WADA Code, in particular whether the WADA Code could be supplemented by IBA Rules on evidence (www.ibanet.org). Some doubts still exist over the admissibility of polygraph tests, however there is a suggestion that CAS has applied the criminal rather than civil test and therefore its decision in this area is open to challenge.
  8. Potential civil liabilities arising from doping control. Stephen Sampson (Squire Sanders Hammonds). This lecture explored whether athletes could bring civil claims against an Anti-Doping Organisation (ADO) and/or Governing Body for irregularities or problems with the doping control process. A number of case studies were discussed, as was the position in the event of a material departure from WADA rules, however it was also noted that such an action was very unlikely to succeed, particularly if the ADO / NGB had acted fairly, proportionately and justly in accordance with the rules. Interestingly while the WADA Code has been used as a ‘shield’ to protect athletes from abuse, this proposition envisages it being used as a ‘sword’ to attack for a breach.
  9. Contaminated meat: A threat to athletes subject to doping control. Mike Morgan (Squire Sanders Hammonds). This lecture discussed whether clenbuterol from contaminated meat was behind a string of recent doping results, and if so what could be done about it. Arguably the problem lay both within the agricultural sector in particular countries (Taiwan, China, South Korea and Mexico in particular) [but clenbuterol was not at levels harmful to the health of the general population], and also inconsistencies in the legal treatment of the athletes contaminated by the drug. One interesting argument from the questions was whether meat could be treated along similar lines to supplements? Taken to its logical conclusion, this would suggest that under strict liability, an athlete could be to blame if they didn’t convert to veganism?
  10. The risks – recent experiences of a NADO. Aurora Andruska (ASADA). This session was a multimedia presentation on the recent Australian experience with the supplement Methylhexaneamine.  The presentation also analysed the media reporting of the issue and the subsequent repercussions for the four athletes that tested positive for the substance.
  11. Reducing the risk. David Hall (Informed Sport – HFL), Jeni Pearce (English Institute of Sport, England Cricket), Graham Arthur (UKAD). This final section was less a lecture and more a question and answer session on supplements. Two interesting things came out of this session in particular, the first is that there were two main areas where contamination occurred: Using contaminated raw ingredients; and where third party manufacturers had cross-contaminated the product with a prohibited substance. It was also useful to hear about the current EIS policy on supplements, where athletes can receive specialised nutritional advice, guidance and support for supplement use on condition of signing up to an agreed code of conduct. Importantly, the EIS did emphasise though that this programme was one of risk management and that athletes remained liable for what substances entered their bodies; indeed, it was impossible to test every sample although the EIS could minimise this risk by only using approved suppliers and by keeping a record of what supplement batch was taken in order to trace any contamination.
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World Sports Law Report’s: Tackling Doping in Sport 2011 (in association with UK Anti-Doping & Squire Sanders Hammonds, 16-17 March, London [DAY 1]

March 20, 2011

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If there are any errors or inaccuracies these are from me rather than from the speakers.

Day 1  (http://www.tacklingdopinginsport.com/)

  1. Gene Doping in Sport: Background / history and update of methods of detection. Professor Perikles Simon (Johannes Gutenberg University, Mainz). The first lecture discussed the growing threat of gene doping within sport (defined as: ‘the abuse of gene transfer technology to enhance athletic performance’). The presentation went on to highlight how gene transfer of certain substances, for example Follistatin, had been demonstrated to significantly increase performance amongst laboratory mice. While research into this area is still ongoing, Professor Simon did suggest that it was possible to develop a test to detect the transgenic human DNA used in gene doping.
  2. Technological Doping: Assessing the competency of sport to regulate technology. Kris Lines (Staffordshire University) & Jon Heshka (Thompson Rivers University). This lecture presented an overview of how technology has been used to enhance sporting performance. Essentially the problem is that sport does not have a consistent and robust framework for regulating or even debating this issue. This leads to inconsistencies both within the same sport (eg the different treatment of clothing / venue design) and externally between different sports. To a certain extent, analogies can be drawn between the current use of technology in sport and the position of chemical doping in the early 1990s. The lecture finally analysed how a possible framework akin to the WADA Code could be used to regulate this area.
  3. Borderline Issues in Anti-Doping: Scientific and Medical Update. Dr Stephane Bermon (IAAF Medical  & Anti-Doping Commission). This lecture analysed how some areas of the prohibited list were not actually black and white, but rather several shades of grey. In particular, the lecture focused on three areas: Blood Spinning (where platelet rich plasma [PRP] could be manipulated through centrifugal force and then re-injected into wound sites to promote faster healing). Interestingly, while Blood spinning is allowed under s2.6 of the 2011 Prohibited List, the individual growth factors contained within PRP are still prohibited if used separately. Prohibition on the use of Hypoxic environments (used to simulate altitude training) was ethically difficult to justify given the benefits that athletes could receive passively from living at altitude.  Whereas all glucocorticosteroids (drugs used to treat inflammation) are prohibited in-competition by the 2011 list when administered by oral, intravenous, intramuscular or rectal routes, a compelling case was made that the decision to allow glucocorticoids out-of-competition was made on other grounds. 
  4. Keynote Speech – The Future of Anti-Doping. David Howman (World Anti-Doping Agency). The Keynote Speech has been widely reported by the media (http://www.guardian.co.uk/sport/2011/mar/16/wada-criminal-gangs-sport-warning; http://news.bbc.co.uk/sport1/hi/front_page/9426982.stm) however it is worth highlighting a number of points the Director-General made. The speech discussed how the UNESCO declaration on anti-doping was the fastest ratified international treaty in history, having been ratified by 156 countries (a theme developed later by Elise Auvachez). Several comments then followed that: It was hoped that the next rewrite of the Code would be athlete friendly and simpler; more focus should be placed on the W in WADA (World) and the agency’s interaction across more sports and countries; international sporting federations needed to do more to develop blood doping tests and collection in order to support the development of the biological passport across more sports; some scientists currently turned a blind-eye to borderline cases in order to avoid any potential legal challenge. There were also a number of more controversial suggestions mooted: Should NADOs (National Anti-Doping Organisations) test other countries athletes to prevent any conflict of interest? Should a reward system be introduced for catching drugs cheats? In relation to the British Olympic Association (BOA) policy on lifetime bans for drugs cheats, Howman lamented the fact that Dwain Chambers’ case was decided on process grounds rather than a substantive decision as there was still uncertainty in this area, in particular as to whether this policy amounted to double jeopardy (an extra doping sanction) or was a valid selection policy. It was hoped that the US request for a CAS Advisory Opinion in this area should provide this certainty. The sound-bite that a lot of the media picked up on however was the suggestion that the criminal underground controlled a significant proportion of world sport, in particular that there was evidence that doping control officers had been bribed (a statement that may have implications for London 2012, see Day 2).
  5. Importance of Education. Elise Auvachez (UNESCO). This lecture developed the theme of the UNESCO declaration and UNESCO’s wider role to build anti-doping capacity, advise on policy and to develop an education framework. The Fund for the Elimination of Doping in Sport was also discussed within this context. The need for such an education policy within schools was brought home strongly with the research that the fastest group of steroid users within the USA were young girls.
  6. Managing Risks of Doping. Sally Munday (England Hockey). This lecture was given by the CEO of England Hockey who having been through two recent anti-doping investigations, has proactively redeveloped their strategy in this area. The lecture brought home the conflict between protecting the rights of the athlete and the integrity of the sport, particularly where an athlete may have tested positive for their A sample, but negative in a subsequent B sample. The new 2010-13 strategy for the sport is a living and evolving document aligned to both the player pathway and UKAD and emphasised the importance of communication, clear roles and responsibilities.
  7. What governing bodies can learn from recent case law. Richard Harry (National Anti-Doping Panel – NADP). This lecture was an analysis of the composition of the National Anti-Doping Panel and its management by Sporting Resolutions UK. The NADP heard 37 cases since April 2008 (from a total of 107 cases heard in the UK during that period). The presentation discussed the breakdown of the yearly statistics for April 2008-March 2011 before drawing some general conclusions that many of the cases dealt with by UKAD concerned social / recreational drugs / stimulants, although the inadvertent use of supplements containing prohibited substances was becoming an increasing problem.
  8. Practical Demonstration of the Doping Control Process. UKAD. Thanks must go to the UKAD team for providing practical demonstrations of the doping control process. Watching a simulated doping sample being collected (well not literally – they used apple juice!) really made the process clear for people who had not undergone or witnessed testing before.
  9. Anti-Doping in Cycling. Pat McQuaid (UCI). This lecture discussed the structure of the UCI (annual budget CHF7.5m), its anti-doping programme (15,699 tests conducted during 2010) and in particular the introduction of the biological passport in cycling (a theme which continued on Day 2) and its advantages and limitations. A number of recent cases involving the passport scheme were also discussed. Pat did not discuss the Contador case in any detail although he did confirm that UCI had been passed the file and had until the end of March to decide whether they wished to appeal the decision of the Spanish Cycling Federation.  
  10. Status during ineligibility: Article 54 FIFA Anti-Doping Regulations. Volker Hesse (VIVA Sports Law). This lecture discussed the FIFA amendment to the WADA eligibility rules following a doping violation. Essentially, while FIFA follows article 10.10.1 of the WADA rules banning participation in organised training or events, it makes provision for footballers to engage in non-competitive activities and training in the final few months prior to the expiration of their ban. FIFA justifies this position by pointing to the fact that individual athletes can resume full competition immediately after the expiration of their ban (Claudia Pechstein is a recent celebrated example of this), while team players would need to re-integrate with the team and regain match practice, effectively prolonging their period away from competition. It would seem though that this policy is not implemented by other team sports such as Cricket, Rugby League and Rugby Union to name just a few, so is this a case of some sports being more equal than others?
  11. Round-table Discussion – Code Review. Led by UKAD Facilitators. This session was an interactive break-out session discussing a number of specific provisions of the WADA Code, in light of its forthcoming review in 2012: Strict Liability; Sanctions; Criteria for the List; Eligibility for training whilst banned; Aggravated / Substantial assistance.
  12. Using Intelligence to Combat Doping: Case Studies from the US. Travis Tygart (USADA). This lecture discussed the role of USADA and its success in combating doping through collaborative partnerships with US Law Enforcement Agencies. Travis was, however, clear to point out that while the USADA mission was to preserve the integrity of competition, inspire true sport and protect the rights of US athletes, its role was not to grow or to raise revenue for sport. What was particularly interesting about the USADA approach was their successful use of evidence other than that of positive test results, and the fact that 90% of American surveyed in a recent report view athletes as role models (a point also corroborated by Hugh Robertson MP on Day 2). A number of the reports mentioned in this speech can be found on the USADA website: www.usada.org
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American Football helmet-to-helmet hits and Hockey blind-side hits: A tale of 2 leagues

January 14, 2011

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The National Football League launched its NFLHealthandSafety.com website on 11 January 2011.

The website has tabs entitled History and Commitment, Health & Safety Resources, and Media Centre. There are sections on Medical Studies and Community Resources and links to some interesting sites.

It looks pretty and professional and Commissioner Roger Goodell sounds sincere when he says that the NFL ‘has a long standing commitment to the health and well being of its players’ but I’m not entirely convinced.

Recall that this message is coming from a league whose commissioner didn’t acknowledge a connection between head injuries on the football field and later brain diseases in testimony before the US Congress in 2010 while defending their policies on head injuries.

The league, however, properly fired a shot across the bow in the fall threatening suspensions after six players sustained head injuries after violent hits on games played on 17 October 2010. The NFL’s executive vice-president of football operations Ray Anderson then called out for a ‘higher standard of accountability’ to address ‘egregious’ contact, ‘devastating hits and head shots.’

It was to be a brave new world.

Fast forward to now. No player has been since been suspended for illegal hits.

Did the threat work? Is the health and well being of its players first and foremost on the minds of the league? It’s hard to say but suspensions are unquestionably more sensible and effective as a deterrent than issuing fines which range from the measly ($5000) to the meager ($50000) for illegal hits to athletes who earn millions a year.

And now the NFL wishes to expand the regular season by two to 18 games.

Dr. David Geier, an orthopedic surgeon and director of the Medical University of South Carolina sports medicine program says there is no doubt that there will be an increase in injuries as a result. Dr. Matthew Matava, the head orthopedic surgeon for the St. Louis Rams, echoes this view noting that four to 10 players on his team are injured in a typical week, and that the longer season would inevitably raise the number.  Read the full Canadian Press article here.

In sum, the jury’s out whether or not the NFL is serious about the health of its athletes and if this website is nothing more than a high-tech smokescreen to deflect attention from the culture of violence that has permeated onto the playing field.

Meanwhile, in the other North American professional sports league which covets violence but – unlike its gridiron brethren, celebrates fights – there has been signs of progress.

In response to concussions sustained by Florida Panther David Booth and Boston Bruins’ Marc Savard arising from blind-side hits last year, the National Hockey League passed Rule 48 that prohibits ‘lateral or blindside hits to an opponent where the head is targeted and/or the principle point of contact.’

The NHL almost got it right. The flaw in Rule 48 is that the head must be targeted. In other words, the contact must be intentional.

That the infraction must be intentional has led to the almost absurd situation of NHL vice-president and discipline czar Colin Campbell playing psychoanalyst and jurist in attempting to get into the minds of the offending players and determining whether the head shot was done on purpose or not.

Rule 48 is a step in the right direction. That the league has to play mind reader in administering justice is not.

Not to mention the insult to the intelligence that the $2500 maximum fine for an illegal hit to the head represents to every thinking person (and hockey fan).

Then the premiere player and leading goal scorer in the league, Sidney Crosby, was concussed by a hit at the Winter Classic game on 1 January 2011 which somehow went unpenalized when he was away from the puck and looking in the other direction from his assailant. We are left with no other explanation than the hit was unintentional and a part of the game. Crosby remains out of the lineup for an indeterminate period of time with a brain injury.

To see a video of the hit and a transcript of an interview with Crosby, click here.

The National Football League doesn’t care about intent. It only cares about the harm suffered. 

The International Olympic Committee and World Anti-Doping Agency has the same strict liability approach to doping. WADA holds an athlete strictly liable for substances found in his or her bodily specimen, and that an anti-doping violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a sample, whether or not the athlete intentionally or unintentionally used a prohibited substance. 

Unfortunately, the NHL wants to have their cake and eat it too. Trevor Amon in The Vancouver Sun adroitly noted that the league wishes to market their marquee player but maintain the status quo of a culture of violence that ironically endangers their cash cow.

The NHL should tear a page from the WADA playbook and adopt a strict liability approach to blindside hits to the head.

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