Taking a rest from cycling a day after the rest day in the Tour de France, the news yesterday came through that the Court of Arbitration for Sport (CAS) had partially sided with Asafa Powell and Sherone Simpson in their appeal against an 18-month doping ban for a failed test.
The initial ban was 18 months. Powell and Simpson appealed for three months, arguing that the offence was minor because the banned substance (a stimulant, oxilofrine) was ingested inadvertently as part of a food supplement called Epiphany D1. The supplement was apparently one of nine given to the athletes by their coach, who has denied the claim.
CAS reduced the ban to six months, and also ordered the Jamaican Anti-doping agency to pay all the athlete’s costs, which is a big decision, indicative of CAS’ belief that JADCO did not act appropriately when they handed down the ban. The specific reasons for this will be announced soon, and hopefully they shed more light on the specific case because it has implications for how these cases are handled in future.
Here are some of my very brief thoughts on the CAS decision, following an interview I have just done with the “Off the Ball” show on Newstalk in Dublin. (I’ll post a link to that podcast on Twitter as soon as I can).
1. “Strict liability” and “Inadvertent doping” cannot co-exist
First, the defence offered by the Jamaican sprinters is hardly new. Contador ingested clenbuterol in his beef, SA rugby players Bjorn Basson and Chiliboy Ralepele took methylhexanamine accidentally as part of a supplement, and you can probably list five other cases of “I didn’t do it on purpose” defence strategies. The case of Daryl Impey, SA cyclist who recently tested positive for Probenecid, seems destined to head the same way.
Now, I am actually sympathetic to athletes who have to monitor everything they ingest like a hawk. I would hate to exist in a state of permanent paranoia and doubt over whether this food or that supplement are going to put my name in headlines for the wrong reasons.
But then, I’m not an elite athlete. And the reality is, this is price you pay if you want to be one. We can argue on a different occasion whether this is fair or not, but for better or worse, elite athletes live in a state where they absolutely have to be paranoid. The reason they have always had to be is because of something called “Strict liability” that has been a core principle in the anti-doping movement.
Strict liability means that you, the athlete, are responsible for what is present in your body when they test your blood or urine. By the literal definition, then, it doesn’t matter how it got there, whether you didn’t read the label, or even whether there was no label, if it’s in the body, you’re liable.
Harsh, perhaps, but necessary, because consider the anti-doping world if it didn’t exist. It would be a licence to take what you wished because the excuse of inadvertent doping would be too accessible. Therefore, strict liability passes the onus back onto the athlete, forcing them into admittedly uncomfortable paranoia and doubt, but it’s necessary to cut off an ‘escape route’ for people who dope deliberately.
Therefore, inadvertent doping cannot co-exist with strict liability. The decision by CAS bends the boundary created by strict liability, and that changes its meaning. That’s not necessarily bad, and what may have transpired is that Powell and Simpson have presented compelling evidence to CAS that they took every possible precaution to avoid a positive, that the banned substance was in the supplement (they’d have had it tested to confirm this), and therefore that they are not liable in the same way that they would be for a testosterone result, or EPO, or if they blame a supplement that no longer exists or without proof of reasonable action.
That’s all good and well, but it says that the current system needs to catch up to the reality that strict liability is a concept that is potentially unenforceable, and which at best applies only on some occasions. And in this instance, “some occasions” means, never, because how can ‘strict’ liability be partial? It’s one or the other, and perhaps should be named ‘discretionary liability’, based on the assessment of a panel who would have to be convinced of your inadvertent doping excuse.
2. The lesser offence sanction – a dilemma for authorities
Instead, what this decision does is push the need, already identified, to figure out how these “lesser offences” are sanctioned in a standardized manner. CAS has agreed, at least partly, that this was a lesser offence, worthy of 6 months. The Jamaican Anti-doping Agency had initially decided on 18 months (which is also a lesser sentence, by the way – 2 years would be the normal ban).
Other cases have seen six month bans, or no ban at all (the SA Rugby players, for example, because they showed every reasonably expected precaution had been taken). The issue is consistency. If a national anti-doping agency acts to punish doping (as Jamaica’s did), then a reduction in sentence highlights an inconsistency that the fight against anti-doping can certainly do without.
This comes, remember, at a time when WADA, the world governing body, is talking about four-year bans for first-time offences, rather than the current two years. The idea is to increase the punishment and thus disincentivize doping. That’s difficult to do when little holes are punched in your desire to increase a ban by appeal decisions such as this.
It makes sense, however, to recognize different bans, at least in my opinion. Imagine what the criminal justice system would like, for example, if the same punishment (say, ten years in jail) was handed out for every offence? I know, I know, it’s not a perfect analogy, but I use it to make the point that sanctioning these frequent cases can, and has to, account for the situation. And so if an athlete can prove this, then I’d say lesser bans are not necessarily a bad idea.
Take for instance this quote by the athlete’s lawyer: “The Code requires that sanctions for athletes be harmonised in light of their degree of fault. Asafa and Sherone’s degree of fault, when compared to the athletes sanctioned before them, was at the low end of the 0-24 month range, under Article 10.4 of the Code.”
That refers to the principle being spoken about. It’s a tricky balance, one based on perspective and a real challenge for anti-doping implementation.
3. What did you expect? It’s called “Epiphany”
And finally, the supplement they took was called Epiphany. Now, imagine you’re an elite athlete. One of the fastest men in history. You have to expect that you’ll be tested at some stage (even if it’s not in Jamaica, where it was revealed very few tests were done at one time!).
Then you go and take supplements, presumably without verifying their ingredients. One of them is called Epiphany, and I don’t think I’m going out on a limb here to suggest that it probably comes in shiny container promising something like “superhero speed”, and “extra-terrestrial energy levels”, because it’s clearly positioned as a supplement in the stimulant/energy category.
Given what we know about the supplement industry, it would not take a leap of faith to place a bet that there is a high chance that this kind of supplement will be contaminated. The supplement industry is the wild west, it’s a place where pretty much anything goes, and an elite athlete must know this.
Thus, if the defence is true, and these athletes took this substance accidentally, then perhaps at best, you can accuse them of being naive and too trusting of their coach, who they allege gave them to supplements. At worst, it was a convenient excuse to hide deliberate doping.
I tend to think it’s the former, but the point remains elite athletes can’t act according to normal standards, and so somewhere in the middle of the scenarios lies irresponsibility. When I provide the link to the podcast with the Dublin radio station, you’ll hear the testimony of an elite Irish athlete, and it’s clear that he took very seriously the risks of doping by accident. That’s the level of responsibility required.
Was the same standard of responsibility exercised in this instance? Who knows, and perhaps when CAS announce the details behind their decision, it will become clear that Powell and Simpson were force-fed the Epiphany, or that the manufacturer provided written guarantees that it was clean. In that case, fine, I’d agree they were unlucky.
4. Even if the science gets you, the law may not
But all in all, it highlights just how tricky anti-doping is. We as the scientists are often accused of being “one step behind” and unable to catch the cheats. Fair enough, sometimes. I think it’s getting better, certainly a big improvement in the last ten to fifteen years, but always room for progress.
However, this is case where the science ‘worked’, in the sense that it detected the banned substance, but the legal considerations then denied the sanction. To repeat – those legal considerations may very well have been valid and totally justified, but it does show you that until the science and the legalities are dancing in tune to the music, and not stepping on one another’s toes, there remains room for mistrust of athletic performances.