Thursday, July 25, 2013

Time for some sense on doping

Since it came to light that US sprinter Tyson Gay and five Jamaican athletes have reported positive A-samples last week, pandemonium has ensued. Newspaper articles have consistently described sprinters Gay and Asafa Powell as cheats, despite both insisting that they have never knowingly taken a banned substance. “We do not know the pathology in these particular cases but the broader message is simple: abnormalities will be found out”, Lord Coe told the Daily Mail. “There is no ambiguity about that. We will get rid of the cheats.”

WADA President John Fahey commented in a similar vein. “Every athlete in the world is responsible for what goes in his or her system – that’s the start and finish”, he told the Independent. “Every athlete has to make sure they know what they’re doing. My take is that no matter how big or great you are as a star and whatever your sport you’re not beyond the capacity to be found as a cheat through the methodology adopted.”

Understandably, the media have focussed on the second aspect of this – rooting out the cheats. As the above quote from Coe illustrates, we do not yet know the pathology in these cases, yet he goes on to talk about getting rid of cheats. Before his quote, which could be taken as labelling Gay and Powell as cheats, Fahey tells the Independent that he will not discuss individual cases while ongoing!

Neither the US Anti-Doping Agency (USADA) nor Gay has announced the substance involved in returning the positive A-sample. “I don’t have a sabotage story”, said Gay in a telephone interview with ABC News. “I don’t have any lies. I don’t have anything to say to make this seem like it was a mistake or it was on USADA’s hands, someone playing games. I don’t have any of those stories. I basically put my trust in someone and I was let down.”

A USADA statement read: ‘In response to Mr. Gay’s statements, USADA appreciates his approach to handling the situation and his choice to voluntarily remove himself from competition while the full facts surrounding his test are evaluated. The B-sample will be processed shortly, and as in all cases all athletes are innocent unless or until proven otherwise.’ In other words, Gay is still innocent until the B-sample is returned.

Powell released the following statement: ‘I will confirm that a sample I gave at the National Trials in June earlier this year has returned “adverse findings”. The substance oxilofrine (methylsynephrine) was found, which is considered by the authorities to be a banned stimulant. I want to be clear in saying to my family, friends and, most of all, my fans worldwide that I have never knowingly or wilfully taken any supplements or substances that break any rules. I am not now – nor have I ever been – a cheat.’

Powell’s statement confirms that his team is investigating how the substance got into his system and that he has also withdrawn from the International Association of Athletics Federations (IAAF) World Championships, Moscow, 10-18 August. The Jamaica Gleaner republished a statement from sprinter Sherone Simpson reporting a positive test for the same substance.

Oxilofrine (methylsynephrine) is listed as a stimulant under S6 of the World Anti-Doping Agency’s (WADA) 2013 List of Prohibited Substances and Methods. It is understood to be an ingredient in some dietary supplements. In 2010, cyclist Flavia Oliveira was banned by the United States Anti-Doping Agency for two years after reporting a positive test for oxilofrine. In the decision, she contends that oxilofrine may have entered her system due to consumption of a supplement Hyperdrive 3.0+, which doesn’t list oxilofrine on its list of ingredients but does list methylsynephrine, which didn't appear on WADA’s 2012 List but is understood to have a similar chemical structure.

Of the Jamaican athletes, only one (understood to be Powell) has requested testing of their B-sample, and the athlete has been notified of two possible dates for this by the Montreal laboratory accredited by the World Anti-Doping Agency (WADA) involved with testing the A-samples. The Jamaican Anti-Doping Commission (JADCO) is awaiting instructions from the other athletes before referring any cases to the Jamaica Anti-Doping Disciplinary Panel, reads a 15 July statement from Jamaican Prime Minister Portia Simpson Miller.

‘Let me take this opportunity to assure the Members of this Honourable House and the People of Jamaica that Jamaica - through its Anti-Doping Agency, JADCO - has consistently had a rigorous programme for in and out of competition testing while providing public education for all who participate or wish to participate in sport, including at the high school level’, reads the statement. ‘Questions have been raised regarding the delayed response of the Government to the public announcement of these findings. Let me assure you, Mr Speaker that as a Government we have made every effort to adhere to the rules governing the notification of the athletes whose A-Samples have returned Adverse Analytical Findings following testing at the National Junior and Senior Championships in June. Indeed, Mr Speaker, one of the athletes was only notified yesterday as he was travelling, so we had to delay our public statement until we were sure that due process was observed.’

In other words, what we have here is a number of athletes who have been labelled as cheats by the media following the return of a positive A-sample, despite the fact a positive test is inconclusive until the B-sample is returned. Of those that have confirmed the substance in their system, we know it to be an ingredient that sometimes goes under different names on the label of certain supplements. Therefore, is it right to label them cheats at this stage?

There could also be a commercial angle to this. Reuters reports that Chinese sportswear company Li-Ning has suspended its sponsorship agreement with Powell. If Powell’s B-sample comes back negative, does he have a legitimate claim against Li-Ning for unlawful termination of a contract? Even if the sample comes back positive and Powell is found to have inadvertently doped, after checking a supplement’s ingredients, he could still have a case.

Those involved in policing against doping in sport need to be careful not to be pulled in by their own rhetoric. Yes, sport needs to get tough on doping cheats, but it also has a role to play in supporting athletes accused of doping until they are proven to be cheats – a role that is becoming increasingly forgotten. Athletes such as Gay and Powell have not yet been proven to be cheats. Until that day comes, the sporting community has a duty to support them.

Andy Brown

World Sports Law Report organises Tackling Doping in Sport in association with UK Anti-Doping, which will be held 19-20 March 2014. search on World Sports Law Report's archives revealed five articles mentioning the Oliveira case. The archive contains over ten years worth of sports law information. To access this invaluable resource, click here for a free trial to World Sports Law Report.



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