Newsletters Professional Discipline 27th Feb 2018

The Agreement in the Fury Case and the Vexed Question of the Burden and Standard of Proof for Athletes

Last December the UK Anti-Doping and cousins Tyson and Hughie Fury, agreed to the former making an Issued Decision (available here) pursuant to the UK Anti-Doping Rules, whereby the latter accepted, in effect, a ban of two years, albeit back-dated to account for two years the pair had been provisionally suspended. This pragmatic compromise by all involved represented the conclusion to UKAD’s pursuit of its most high-profile – and costly – scalp in recent times. But for all the simple neatness of the agreement reached, it leaves one potentially significant dispute between the parties unresolved.

The National Anti-Doping Panel, rejected what was, in effect, an application to stay the proceedings as an abuse of process, made by the Fury cousins. However, the NADP tribunal, left open the possibility that the pair might argue during the substantive hearing that delays on the part of UKAD (Tyson and Hughie Fury weren’t charged until 24 June 2016, despite having tested positive for the anabolic steroid Nandrolone on 28 and 21 January 2016 respectively) meant that the usual burden of proof did not apply in their case.

The UK Anti-Doping Rules provide that in the case of certain prohibited substances, including anabolic steroids, it is for an athlete found to have these substances in his/her body to prove that their ingestion of such substances was not intentional. And the case law (see UKAD v. Adam Buttifant) suggests that that in order to discharge the burden of showing that they did not act intentionally, it behoves an athlete to establish how the substance came to be ingested. The rationale is a simple one: in order to assess whether an athlete’s action was intentional or not, a tribunal must first know what that action was. But there have been exceptional instances where this clearly onerous burden has not been strictly applied.

In Union Cycliste Internatonal & the World Anti-Doping Agency v. Alberto Contador, an athlete suggested, just as the Fury cousins later would, that the presence of steroids in his system was the result of eating meat contaminated with the substance in question. Needless to say, eating the supposed source of the prohibited substance in question makes proving that that was indeed the source rather difficult. And so the Court of Arbitration for Sport found that the burden of proof would be discharged by an athlete in such a position if he/she could show that his/her explanation for the presence of the prohibited substance was a) possible; and b) the most likely of any possible scenarios. Furthermore, any contention by the relevant anti-doping authority that the athlete’s explanation is incorrect, must advance an alternative that is at least as likely.

This relaxing, if not wholesale reversal, of the burden of proof, has, not surprisingly, been widely understood to apply only exceptionally. The Fury cousins looked set to contend that, just as eating the evidence of the source of a prohibited substance can make life difficult for an athlete trying to prove how ingestion occurred, so too can a delay of many months before an athlete is charged, or even warned that they may need to account for the source of a prohibited substance in their system. One can certainly see the sense of such an argument. Providing samples of supposedly contaminated supplements to be tested, handing over the packaging of such products, or locating other samples of meat or supplements that are from the same batch or are materially the same as the supposed source of a prohibited substance may all become more and more difficult the greater the amount of time that passes after ingestion. UKAD’s Issued Decision in the Fury case accepts that ‘there is an argument’ that the usual burden of proof on an athlete to prove the source of ingestion of a prohibited substance may not apply where there has been such a delay. However, it also indicated that the usual burden of proof might have been applicable in the Fury case. The net result, then, is to leave this vexed, and potentially significant issue wholly unanswered.

Given the plainly onerous effect of the burden and standard of proof upon athletes, and the substantial penalties that can result if an athlete is unable to prove the source of a prohibited substance, one can expect this argument to be advanced by other athletes in the not-too-distant future. Equally, it is likely that UKAD and other anti-doping agencies will redouble their efforts to ensure that athletes are charged without delay.

Paul Renteurs

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