Guest article: Prof Erik Boye on the bias in power in anti-doping

08 Aug 2019 Posted by

This is a guest post. Something I’d love to host more of in the future. So if you’re reading this and thinking “I’d sure like to have a say on Topic XYZ”, then feel free to email me at ross.tucker@nullmweb.co.za, and if the pitch sounds right, and it’s a topic I think fits the overall vision of that site, I’ll publish it completely unedited. Your voice and opinion for everyone to read and discuss. Even if I don’t necessarily agree!

In fact, if anyone from WADA is reading this, and if you feel the need to respond, then send me a mail and I’ll publish that too. On one condition – it cannot sound like a press release. Candid, direct, honest comms, then I’m all in, and I know the readers of this site will appreciate that too.

So please, reach out, whoever, whatever, and wherever you are!

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Today’s Guest: Prof Erik Boye on anti-doping

Today, it’s Prof Erik Boye. Erik and I have never met, not in a human way, anyway. But we’ve worked together since April last year, when he was one of two other academics who contributed to the scientific rebuttal of the IAAF’s DSD Research and Regulations. This after Prof Roger Pielke Jr asked if we’d be interested. you may recall we eventually got hold of a portion of the IAAF’s data and found that it contained duplicates, omissions and ‘phantom times’, affected up to 30% of the results, and thus could not possibly be deemed trustworthy enough to base any kind of policy on.

Erik is based in Oslo, Norway, and his research interests span far more than doping, and include cell regulation and cell signalling. You can read a brief summary of his academic career here

On the anti-doping side, Prof Boye has written numerous papers raising concerns about the integrity of the anti-doping process. Among these is the Steven Colvert case, where he was one of four authors who challenged the validity of the EPO test that saw the Irish sprinter banned. More recently, Boye and Pielke Jr published this article, “Scientific Integrity and anti-doping regulation”, which provides an idea of Boye’s approach to the issue.

Below, then, is a piece that he kindly wrote for me, unedited, it its original form, and for which I’m obviously extremely grateful. I make no editorial comments, other than the following introduction to his article, and why I think it matters:

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Positives, negatives and trust in anti-doping

Speaking broadly on the principle, one of the things we’ve seen over and over and over in anti-doping, is that confidence in the system is at an all time low. Some would say the lack of trust has been hard-earned, but among skeptics (or realists, if you wish), the reality is that a positive test doesn’t necessarily indicate a doper, and a negative test definitely doesn’t indicate a clean athlete.

Supplements, inadvertent doping, legal challenges, dog studies, bargaining power, low sensitivity, timing considerations, physiological complexity and cost, all add up to undermine the in-hindsight simple view that testing a blood or urine sample would catch a cheat and exonerate a clean athlete.

In that context, the only way to climb up from a position of low trust is to demonstrate, at every possible step, the absolute scientific rigor and evidence-based fairness of what is being done. We need to get back to a place where a test result, positive or negative, means what it actually claims to mean. So that’s why these views are so important, and I think it’s why Prof Boye is so passionate about them. Let him explain the rest…

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Anti-doping and the bias in power: Prof Erik Boye

The World Anti-Doping Agency (WADA) is declared the international,
independent organization to promote, coordinate and monitor the fight against
all forms of doping in sport. There is every reason to question whether WADA is
independent, but here I shall deal with how WADA exercises its power over
individual athletes. I shall conclude that there is an unfair balance inherent
in the system that favours the views and positions of WADA and weakens the
arguments of athletes. This systematic bias endangers the right of law for
individual athletes.

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Access to science experts

The WADA-accredited laboratories are collecting and analyzing biological samples on behalf of WADA. They report Adverse Analytical Findings to the antidoping system, which decides whether to press charges against athletes with positive samples. In hearings, the lab scientists appear as experts for WADA. The laboratories are in pole position to prepare, select and promote their own findings. Therefore, they face a conflict of interest: they strengthen the antidoping mission (to catch as many dopers as possible) when promoting their own positive findings and, at the same time, reduce the impact of the athlete’s experts.

Furthermore, the laboratories are financially dependent upon WADA and have an incentive to please them. The lawyers residing in the panels of CAS hearings frequently meet with WADA-accredited scientists and develop a confidence in their expertise that may run counter to trusting opposing and unfamiliar expertise. This lack of power balance is not fair to the athlete. An ideal system would collect evidence from independent scientists who have no vested interest in the outcome.

WADA-accredited laboratories routinely employ one another to present a “second opinion”. However, another WADA-accredited laboratory is not independent; the laboratories are all bound by rules saying that they cannot dispute the conclusions of another WADA-accredited lab (discussed in a recent publication from our group). A fair and meaningful second-opinion process would include truly independent scientists.

The nature of science is hypotheses, discussion, testing and retesting. It is unscientific when one party demands to always be right. Errors do occur in any scientific system and a lot of false positives are bound to occur in the testing in the WADA-accredited laboratories. Where are the examples of the antidoping system admitting that they are wrong? Too few to be trustworthy. Simple statistical considerations say that there must be many, many innocent athletes who have been sanctioned for doping.

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Access to data experts

Following positive results in a WADA-accredited lab, the athlete is confronted with electronically manipulated data and is not allowed to see the original analytic data. The laboratory rarely makes available more data than what supports their own conclusion, and they sometimes neglect to point out uncertainties and questionable findings. This restriction of access reduces the possibility for the athlete’s experts to counter the charges.

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Access to legal support

Lawyers are expensive. Many athletes do not have the resources to fight a doping allegation, thus creating an economic imbalance: the rich can contest WADA decisions, but not the poor. “To put it bluntly, the more money you have available to put together a comprehensive defense, the more likely you are to be exonerated”, stated Andy Brown.

To mitigate such an economic imbalance, WADA has been granted immunity from civil jurisdiction (in Canada). The idea seems to be that wealthy athletes can tap the antidoping system for large resources, with their good access to legal expertise. This protection reduces WADA’s financial risks emanating from their business of sanctioning dopers. Such an immunity must necessarily be accompanied by defined and automatic control instruments to make sure that WADA is not breaking its own regulations or inhibits the rights of athletes.  Little attention is devoted to the opposite problem: athletes who have no funds or resources to challenge doping charges from an advantaged, well-positioned organization. Some athletes even have to pay to see the data, which may certainly represent a hurdle. The financial imbalance calls for an obligatory insurance instrument enabling poor athletes to challenge an unfair decision, either within the sports system or in a private court.

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Abuse and threats

In some cases, it has been demonstrated that the antidoping movement’s wish to sanction as many athletes as possible has resulted in undue pressure, negligence and threats against scientific journals, unwillingness to discuss and to make data available, as documented here. To my knowledge this information has never been challenged. As stated by Johan Olav Koss, head of FairSport, at an antidoping meeting in Oslo in June, 2019: “Athletes have a true fear of retribution” and “Researchers are being threatened when challenging WADA”. This state of affairs is not worthy of an organization performing a public function. Can we accept that WADA is outside of public control? The demonstrable asymmetry in means and power puts due process in peril.

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Level playing field

The expressed raison d’être of WADA is to protect the ‘clean athlete’ and to provide a ‘level playing field’. However, when an athlete falls prey to an error in a WADA laboratory the athlete is considered guilty and has lost all forms of protection, it seems, and no level playing field is in sight. The game is tilted and is no longer fair. It appears acceptable to presume guilt and to deny obvious rights of defense. There is no level playing field in the game that accused athletes must play.

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Transparency

The entire antidoping system should be subject to transparency, which means that athletes are allowed to see, in detail, what they are charged with and what is occurring in their case. This will allow the athlete to engage external, independent expertise. Without an independent assessment of the analytic data the few rights that still exist for athletes are eroded. Transparency will restrain an otherwise superior part, promoting respect and objective evaluations and neutral behaviour. Furthermore, a dependable, robust and transparent court system should provide the checks and balances that ensure that controversial decisions can be revised. In an internal report, WADA is preoccupied with increasing the efficiency of taking dopers with a telling silence about false positives or innocent, sanctioned athletes.

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Conclusions

WADA demands of all sports organizations and athletes to be compliant with the WADA rules, as spelled out in the WADC, “the Code”. It would be a good idea if WADA could make clear their rules and ambitions for their own procedures, such as transparency and acceptance of the possibility of errors on their side. Furthermore, they should pledge and practice to treat the athletes with respect (in particular those charged with doping), and make relevant information available as far as possible.

Prof Erik Boye, Professor Emeritus at the Institute for Molecular Biosciences, University of Oslo

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