Something in the water? Contaminants and Anti-Doping Regulations
On Tuesday 21 May Lizzy Banks, a 33 year-old professional cyclist who competed at international level, gave a newspaper interview and published a 16,000-word blog post documenting an agonising 10 months following an ‘Adverse Analytical Finding’ (i.e. a positive test) for two prohibited substances in July last year.
Ms Banks has been cleared of any fault. Her case is not unique in that respect but the novelty lies in what may be – Ms Banks says it is – the UK Anti-Doping agency’s first ‘no fault’ finding in circumstances where the athlete could not identify the specific cause of the substance(s) entering their system. On one view it suggests that UKAD has, perhaps with some reluctance, shifted gears to accommodate the growing problem of non-culpable ‘contaminant’ cases affecting athletes around the world, although UKAD appear at pains to stress the “unique” factors present in Ms Banks’ case.
Ms Banks, who trained as a doctor, gives an account that defies easy summary and rewards reading in full. She movingly describes the lonely slog to exonerate herself in the months after testing positive for trace amounts of chlortalidone, a diuretic, and formoterol, the latter at a concentration which would have been permitted as part of her asthma medication were it not for the presence of the chlortalidone which can function as a ‘masking’ agent for performance-enhancing drugs.
Ms Banks’ blog is also an unrelenting critique of how anti-doping agencies have, in her view, failed to respond to the confluence in recent years of (a) more sensitive testing equipment and (b) the presence of contaminants in food, water and generic medications that are extremely difficult to avoid and harder still to identify after the event. The consequences, in her view, are measured in the ruined lives and careers of promising athletes.
The issue
UKAD is the statutory body primarily responsible in this country for testing, investigating and prosecuting athletes for suspected Anti-Doping Rule Violations (‘ADRVs’). The World Anti-Doping Agency (‘WADA’) administers a prohibited list of substances and publishes the World Anti-Doping Code (‘WADC’), the contents of which are reflected in the UK Anti-Doping Rules (‘UKADR’) and countless other rulebooks around the world. If the athlete accepts an ADRV then UKAD can impose a sanction, typically a ban. If the athlete contests a charge then the case is heard before the independent National Anti-Doping Panel. WADA can appeal UKAD or the Panel’s findings and sanctions.
A fundamental principle of the WADC is strict liability. The athlete is responsible for anything found in their system regardless of how it got there or whether there was any intention to cheat. Liability is strict for good reason – it would be difficult to police transgressions otherwise – but it places a considerable burden on athletes. They must be scrupulous about what they ingest: food, water, medicines and nutritional supplements are all potentially contaminated with trace amounts of prohibited substances. It is possible for athletes to manage those risks through careful research – in respect of medicines, for example, an online database confirms which ones shouldn’t contain prohibited substances. But the risks can’t be eliminated. Generic medications were the particular concern identified by Ms Banks after her positive test in part due to widely-reported evidence of cross-contamination in their manufacture.
Even if the athlete succeeds in establishing ‘no fault or negligence’ after testing positive for a prohibited substance, that is mitigation not a defence, the equivalent of a discharge in criminal proceedings rather than an acquittal. An ADRV is nonetheless recorded against the athlete, stigmatising them and hindering their development. It is typical to provisionally suspend the athlete from participating in professional sport pending resolution of the case.
The risk presented by contaminants is itself nothing new. What is new is the increasing sensitivity of testing equipment. In the past, trivial amounts of prohibited substances characteristic of a contaminant might have evaded capture by laboratories but in recent years even minute traces, which are consistent with contamination but also consistent with sophisticated doping, are being picked up.
WADA has always acknowledged the problem of contaminants and has responded to new concerns in a piecemeal fashion. For some classes of prohibited substances, WADA has ‘Decision Limits’ and ‘Minimum Reporting Levels’ whose effect is that very low concentrations generally do not trigger an investigation at all. In 2021 MRLs were extended to six diuretics identified as ingredients or contaminants in oral medicines, not including chlortalidone. That followed the high-profile case of the Australian Olympian Brenton Rickard who had tested positive for the diuretic furosemide. Mr Rickard said in a statement at the time, echoing Ms Banks’ complaint:
“Some of the fundamental principles that the anti-doping system were built upon, most notably strict liability, have not been amended in line with the advancements in testing procedures and whereabouts requirements. My case clearly demonstrates why absolutes are dangerous and how rigid rules can operate unfairly against an athlete with potentially devastating consequence.”
What WADA or UKAD have not done, at least not expressly, is to ease the threshold for demonstrating a lesser degree of fault or negligence when athletes test positive for substances not subject to MRLs or test positive over that level. According to the UKADR, a finding of ‘no fault or negligence’ requires as a condition precedent that the athlete must establish how the prohibited substance entered their system. The case law of the Court of Arbitration for Sport in Switzerland, the appellate body with jurisdiction over international athletes, is clear that merely offering a realistic hypothesis will not do (see WADA v Daiders, Daiders & FIM, CAS 2014/A/3615 from paragraph 47). The athlete has to satisfy the tribunal on the balance of probabilities of the “route of administration” (e.g. oral ingestion) and the “factual circumstances in which administration occurred” (CAS 2006/A/1140).
In Lizzy Banks’ case the UKAD appears to have loosened that test a little. Ms Banks did not succeed in identifying the particular contaminated pharmaceutical, having tested 12 separate medications all of which returned negative for chlortalidone. But she presented other evidence and made a powerful inferential case that is reflected in the excerpts shared by her from UKAD’s yet-to-be-published reasoned decision:
“The unique circumstances of this case, together with the compelling scientific evidence submitted by Ms Banks, mean that UKAD accepts, on the balance of probabilities, that chlortalidone entered Ms Banks’ system through a contaminated pharmaceutical product.
UKAD notes, as per the scientific literature highlighted by Ms Banks, that the contamination of pharmaceutical products by diuretics is not uncommon. It is also notable that any Athlete choosing to use a diuretic to lose weight, or act as a masking agent, would be unlikely to choose chlortalidone over other diuretics due to its extremely long half-life….”
As Ms Banks notes, UKAD’s decision is subject to appeal by WADA and the deadline for appeal has not yet passed.
Future-proofing anti-doping regulations
The difficulty faced by WADA and the subsidiary anti-doping regulators is well-captured in a recent article in The International Sports Law Journal. The authors describe how extending and raising the thresholds for adverse test results, in order to exempt athletes who have unwittingly and non-negligently ingested a contaminant, runs the risk of letting off sophisticated dopers:
“The challenge…occurs in a context where the doping methods of cheating athletes are also increasing in sophistication. Where an athlete has a low level of prohibited substance in their system, there may be more sinister explanations for that result. Perhaps the athlete has engaged in systematic micro-doping, or the athlete has been tested towards the end of a doping cycle….In these circumstances, Decision Limits and Minimum Reporting Levels may have the unwarranted effect of shielding a morally culpable athlete. The context is further complicated by the lack of firm science with respect to certain prohibited substances. In some cases, it simply is not clear what level of a prohibited substance is required in an athlete’s system to produce the performance-enhancing effect.”
Nonetheless the authors conclude that there is “clear justification for expansion” of DLs and MRLs and that WADA “should proactively and prospectively assess every prohibited substance on the prohibited list, to see if they should be subject to a DL or MRL”. Pending that inevitably lengthy review, they recommend that for any athletes who test positive in the meantime, “if there is a prima-facie anti-doping rule violation that has occurred, but it involves a prohibited substance that may require a threshold limit to be introduced or amended, the prosecution should not commence until these decisions have been made.”
The recommendation to broaden DLs/MRLs to potentially every prohibited substance is one that WADA may be reluctant to adopt. WADA maintains a ‘Contaminants Working Group’ but its recommendations have to be balanced against the wider organisation’s principal mandate to protect the integrity of professional sport.
For the same reason the authors’ recommendation to suspend prosecutions of athletes pending a comprehensive review is unlikely to fly. But a more modest proposal might ease the distress of British athletes in Ms Banks’ position, namely repealing UKAD’s rule that prevents athletes appealing against their provisional suspension where the issue to be resolved is contaminants (UKADR r. 13.3.2). Gathering evidence, commissioning research, instructing lawyers and raising the funds to do all three takes time, particularly for the great rump of athletes who cannot draw on seven-figure salaries. It is invidious that a decision early on in proceedings that the ADRV was not “likely” to have involved a contaminant (UKADR r. 7.10.3(c)(iii)) cannot later be appealed as the athlete’s defence gathers steam.
Brendan Kelly KC and Thomas Beardsworth
Categories: Blog
