Anti-Doping and Amateur Sport

By | October 30, 2016

UKAD have recently published details of two decisions and sanctions awarded for doping violations against two amateur (non-elite, non-professional) cyclists (see: ROBIN TOWNSEND and IAN EDMONDS).

In summary:

TOWNSEND

Townsend’s case is less than straightforward and, aside from the fact that the use of performance enhancing drugs is disturbing and concerning of itself, several aspects surrounding the progression of the case are concerning and complicated.

It was in December 2015 when, shortly after becoming the national champion, Townsend was found to have committed a doping offence (See 1st Decision). This first finding was then followed by a second finding arising from the same sample that was tested for a second time just a week after the hearing relating to the first test.

Townsend’s original sanction followed an in competition test at a 100 mile time trial event where he was competing for his amateur team. Townsend finished 9th in this race but was described (by the UKAD panel at the first hearing) as ‘an experienced and successful amateur cyclist’ (para [15] of 1st decision). Townsend claimed, perhaps as part of his defence at the first hearing, to have nothing to gain from doping (see para [24]-[25] of 1st decision).

Townsend denied doping and claimed that his drinking bottle had been ’spiked’. He relied principally on evidence of character and pointed to a long-running dispute with a fellow rider – who had motive and opportunity to ‘spike’ his drink – as the only explicable cause of the adverse analytical finding (AAF).

UKAD did not accept Townsend’s submissions and found that there was no (or no sufficient) evidence to support his case. The panel found that ingestion of Modanifil (a banned stimulant) had been intentional and that he had failed to discharge the burden of proving that he was not at fault and had not been negligent. As a result, Townsend received a ban of 4 years for that offence.

A week after the first hearing had been conducted, UKAD requested that a further test be conducted on the same sample for EPO. EPO is a performance enhancing drug with a substantial and significant history of misuse in cycling. Neither the first nor the second decision explain why the sample was not originally tested for EPO (which of itself – in my submission – is concerning).

Townsend denied taking EPO and offered no explanation as to how his sample ‘may or may not’ (his words) contain evidence of EPO use. Townsend initially engaged a lawyer and the matter proceeded – with some difficulty along the way – to a hearing, which Townsend did not attend. Townsend asked that his case be considered ‘on the papers’ and effectively argued that there was no case to answer because of procedural failures and that he expected that the matter should be thrown out ([45] 2nd Decision). The Chairman took the view that there should, however, be a hearing in order for the evidence to be considered and in his absence proceeded with the hearing ([47]-[48] 2nd Decision).

Townsend’s defence to the charge was to challenge procedural matters relating to transportation and storage of the sample, namely: (i) the failure to follow applicable standards for storage and transportation of his sample, and (ii) concerns about the chain of custody of his sample.

The panel, having considered the evidence, rejected the claim that there had been a departure from applicable standards for storage and transportation ([90.3]; [91] 2nd Decision) and rejected the claim that there had been a break in the chain of custody ([97] 2nd Decision). Consistent with the rules, this additional charge was not treated as a second offence and as a result, the ban imposed runs concurrently with the existing ban.

EDMONDS

Edmonds’ case was rather more straightforward.

Edmonds was a member of a local cycling club and a member of the British Cycling Federation – the national governing body for cycling.

Edmonds was identified as being the intended recipient for a package that had been sent from India which had been intercepted by UK Border Force. The package contained steroids.

Edmonds was then visited by a Doping Control Officer from UKAD. Edmonds confirmed that he had ordered the steroids on the Internet and that they were intended for his personal use but he refused to undertake a doping control test (asserting, as his reason for refusal, the fact that he did not compete in races).

At an interview some weeks later, Edmonds admitted attempting to use banned substances and admitted that he had refused to submit to a test. Edmonds was charged with two Anti-Doping Rule Violations (ADRV) but failed to respond to the charge; as such, he was deemed to have admitted the ADRVs.

The panel, consistent with the rules, treated the two offences as a single violation. The panel considered mitigation but ruled that there were no grounds to exercise their discretion to reduce the 4 year ban that would be imposed.

 

There are some interesting (legal) questions and issues that arise from and feature within these two decisions, however, they’re largely tangential to the ultimate outcome (given that Townsend was banned and would remain banned and that Edmonds refused a test and that was a banning offence of itself) and I don’t propose to identify/analyse these, suffice to say that:

(i) in respect of Townsend: it might have been interesting had he actually obtained and filed an expert’s report to support his case (as he had indicated he would), and;

(ii) in respect of Edmonds: he was caught between the proverbial ‘rock and a hard place’; had he not admitted to ordering for personal use, he might have found himself facing a criminal investigation for intent to supply. I question what might have been had he stated that he had ordered them but denied that he was going to use them as an ‘attempt’ finding depends upon establishing ‘intent’. I’m doubtful that this would have made any difference though, particularly when taking into account the applicable standard of proof (‘comfortable satisfaction’ – which, whilst higher than the balance of probability, is less than beyond reasonable doubt).

 

The community response to these recent decisions (particularly on social media and cycling forums) has been – rather surprisingly, in my opinion – somewhat mixed.

In respect of the second Townsend decision, some have suggested that it was wasteful and unnecessary to proceed with the second charge – the rules compelled the panel to treat it as a first offence and, as such, his sanction is and could be no more than he was already serving.

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In response to this it is notable that the panel directly addressed this potential criticism (at paragraph [120] of the 2nd decision) by reference to UKAD’s submission on this point:

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In my capacity as a regular competitive amateur, particularly in triathlon but also in athletics (road running and track & field), this evidence that the anti-doping authorities are not ignoring the amateur end of sport is very welcome and attracts no criticism from me; quite the opposite. I am, however, very critical of the fact that a second test of the same sample was required. Should anyone be in any doubt about the prevalence and significance of EPO misuse in cycling then I would urge them to to research a BBC Panorama documentary ‘Catch Me If You Can‘ – the link goes to a text summary of the programme and  is sufficient to raise questions as to why they did not test for EPO in the first instance.

 

Some have poured scorn on the sanctions, (effectively) suggesting that the authorities should focus (solely) on ‘professional’ athletes and, moreover, that by pursuing ‘amateur’ athletes they are going after easy or soft targets. I don’t accept the criticism either.

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From my perspective, elite and professional sport has never felt more ‘dirty’ and I am gravely concerned that this, coupled with the apparent inability of sport to regulate itself and effectively prevent and control doping, is having a desensitising effect that has worrying consequences in particular for grass-roots amateur sport. I am gravely concerned that it creates a feeling that ‘everybody is at it’ even at the highest level and I fear that, in turn, this can have the effect of legitimising and justifying doping at the amateur level in the eyes of some: in my opinion, evidence that the authorities are alive to misuse at the amateur level – and evidence that they are taking action – is to be warmly welcomed.

Again – if anyone should doubt the reality of my concern about the trickle down effect, I would point to the Panorama programme previously mentioned and also the very disturbing story relating to Gabriel Evans – an 18 yr old cyclist HERE and HERE.

I also detect some criticism in some quarters that this degree of testing is perhaps unfair without first providing more in the way of anti-doping education – the suggestion perhaps being that it is unfair to pursue amateur athletes who haven’t been made overtly aware of their responsibilities.  I don’t accept this either (I personally believe it to be an over-paternalistic approach) although I do understand that point of view.

In my opinion, neither the applicability nor the enforcement of the anti-doping rules are undermined by any actual or perceived weakness in respect of anti-doping education. I do, however, accept that increased education should form part of an overall anti-doping strategy.

I would draw attention to the fact that even in the realm of criminal law there are many acts that may be criminal but are not widely known to be criminal: some of these are ‘strict liability’ offences – they require no mens rea (guilty mind) – and as a consequence, the mere performance of the act will/may result in sanction – ignorance is no defence. That, in my submission, should follow in respect of doping, perhaps even more so. The basic premise that doping amounts to cheating – and is morally and ethically wrong – and is contrary to the rules – is not just widely known, in my submission it is universally known. In the information era and in an era where sport is big business and doping is rarely out of the headlines, there really can be no excuse for lack of awareness. Couple that with ordinary contractual principles that apply in every aspect of everyday life, and the fact that access to information has never been easier, then in my submission, there really cannot be any excuse for: (a) not knowing that you should avoid performance enhancing drugs, and (b) not taking personal responsibility for doing so.

There is no doubt in my mind that it is right and proper to pursue amateur athletes: the rules apply to all and amateurs share the same responsibilities as professional and elite athletes.

By Art 1.1.1, an NGB that adopts the UKAD Code is bound by and must apply the UKAD Code (which can be found in full by clicking HERE).

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By Art 1.2.2 any member of a NGB (amateur, elite or professional) or any persons who are not members of a NGB but nevertheless enter an event that is authorised by a NGB (i.e. even casual athletes) are also subject to the UKAD code.

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When you sign up to become a member of the NGB you will tick a box and sign an agreement which confirms that you agree to be bound by the rules of the NGB: for example, this from the sign-up process to become a member of the British Cycling:

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The Terms and Conditions – as is almost certainly the case whenever you enter into a standard form contract – are made available to you; in this case by way of hyperlink. Within those terms and conditions it is made expressly clear that the anti-doping rules apply:

 

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In my opinion, the British Cycling sign-up process is a model of how it should be done (which, I am sorry to say, cannot be said of the organisation I was going to use as an example – the British Triathlon Federation, of which I am a member). The British Cycling membership sign-up website provides a clear signpost that, as a member, you are subject to anti-doping rules and the link leads to a page that provides a wealth of relevant information (I am of the opinion that the BTF perhaps don’t make this quite so clear):

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Whenever you sign up to enter a race that is sanctioned by a NGB you will inevitably also tick box and/or sign an agreement stating that you agree to be bound by the rules of the NGB: you enter into a contract agreeing to be bound by the rules.

In my opinion, there is nothing offensive about this, and again, I don’t accept any suggestion that there needs to be increased awareness or education before applicability or enforcement is justified. In any aspect of contract law (buying goods or services, contracts of insurance etc), save where a term is particularly onerous or unusual, the Courts do not adopt a paternalistic attitude: when you enter into a contract the onus is on the contracting party to make themselves aware of the terms of the contract. There is, in my submission, no reason to suggest that rendering yourself subject to the UKAD Code is in any way onerous or unusual – the basic premise that you should not cheat and that you should not take performance enhancing drugs goes without saying.

By Art 1.3.1 the Core Responsibilities of each athlete are set out:

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Once again: in the information era – where a wealth of information is literally at our fingertips, there can be nothing offensive about this.

What do the rules say about performance enhancing drugs and testing?

By Art 2.2 it is very clearly set out that it is contrary to the rules to – an Anti-Doping Rule Violation (ADRV) – for any athlete to use or attempt to use a banned substance:

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And this is clearly where Edmonds fell down – by admitting that he had ordered the steroids for his personal use he was confessing to an ADRV in that he was attempting to use (even without the test that would demonstrate whether or not he had used a banned substance already, he had admitted an intention to attempt to use). In Townsend’s case, his sample provided evidence that he actually had used performance enhancing drugs.

By Art 2.3, it is very clearly set out in the rules that it is an ADRV to refuse (without compelling justification) to refuse to submit to an anti-doping test: and in Edmonds, the panel did not accept that ‘absence of knowledge’ that a requirement to submit to a test is a compelling reason (see [12] of the Edmonds decision)

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I wholeheartedly welcome these two published decisions. My only concern is that it required a second test to discover that Townsend had used EPO: with a drug so synonymous with cycling as EPO (particularly in respect of long distance events and where the competition in question was a long distance event), I am gravely concerned that it was not tested for as a matter of routine. There is a suggestion that the second test arose a result of ‘information received’ (see HERE). I am buoyed by the fact that there seems to be a joined-up agency approach, as evidenced in the Edmonds case, but I can’t help but think that this is a needle in a haystack discovery – how many others are ordering performance enhancing drugs online that are slipping under the radar?

As foreshadowed, I don’t accept any criticism relating to educational weakness or failings, although I do accept that education should be used as part of the overall anti-doping strategy and towards achieving that end, I hope that these two published decisions are widely communicated and openly discussed: these published decisions could and should be used to raise awareness, to educate and to serve as warnings to those who are prepared to cheat.

 

What should you do to avoid falling foul of the rules?

Firstly – you make yourself aware of your core responsibilities and then you discharge them: read the rules which can be found HERE.

Providing you are doing that diligently, you will hopefully remain on the right side of the line; if, however, despite your diligence, you find yourself accused of an ADRV – providing you have exercised due diligence, and despite the application of strict liability, your situation is likely to be assisted by the ‘no fault or negligence’ or the ‘no significant fault or negligence’ principles (Arts 10.4 and 10.5 respectively).

There is a wealth of information available online – naturally available on the UKAD website – but as indicated on the British Cycling membership pages, the 100%Me app (IOS and Android) is a great place to start and provides a direct link into the Global DRO database. I have used it myself to check over-the-counter products I have used – Voltarol, for example, which is a product that I have used extensively this season: Ibuprofen was having very little effect and I needed something stronger – Diclofenac (the active ingredient in Voltarol) was what I turned to, but before I used it – I made absolutely sure it was permitted by reference to 100%Me and the Global DRO database.