SII Focus 31st October 2017

How Karl Murray’s case raises questions over anti-doping protocols

New Zealand cyclist Karl Murray disputes an attempt by Drug Free Sport New Zealand’s (DFSNZ) to sanction him for returning an adverse analytical finding (AAF) for clenbuterol during the Tour of Northland upon his return from a previous ban. Although a 13 October Sports Tribunal of New Zealand decision (PDF below) found that a sanction should be issued, it ‘reluctantly’ concluded that issuing it should be postponed until the outcome of DFSNZ’s appeal against a previous Sports Tribunal decision to clear Murray of coaching athletes, breaching the terms of a previous doping ban.

Confused? DFSNZ also appears perplexed as to whether a four year ban has been issued or not. ‘The Tribunal adjourned imposing a sanction for this ADRV’, reads a DFSNZ statement. ‘Mr Murray remains subject to a provisional ban and is prohibited from partaking in sports or coaching athletes bound to the WADA Code […] Under the Sports Anti-Doping Rules, sanctions for multiple ADRVs are more severe. In this instance, twice the period of ineligibility that would otherwise apply (four years) has been imposed.’

Murray does not dispute the results of either of his two positive tests, but the manner and circumstances in which they occurred. Both AAFs raise serious questions about anti-doping protocol.

‘I have never knowingly taken any prohibited substances throughout my cycling career and at this stage of my career, when I am trying to spend my time coaching and running my bike shop, I would have no reason to do so’, writes Murray in an emailed statement. ‘In my view, the Drug Free Sport team that undertook the test did not not follow the proper procedures to do so. At the Tribunal hearing, the evidence given for Drug Free Sport was inconsistent on this matter. Nevertheless, the Tribunal has found that there were no material flaws in the process and have upheld the alleged anti-doping violation.’

History

In 2014, the New Caledonia Anti-Doping Commission sanctioned Murray with a two-year ban after he returned an AAF for testosterone and nandrolone in October 2013, during the Tour of New Caledonia. As the Commission is not a signatory to the Word Anti-Doping Code, its decisions are not automatically recognised by other anti-doping agencies. DFNZ formally recognised the decision in May 2015 following recognition of the ban by the International Cycling Union (UCI), after ‘becoming aware’ of the ban earlier that year.

Murray alleges that the AAF was due to supplement contamination. ‘Following my results being disclosed to me, I had one of the supplements tested and it was found to contain testosterone and two esters [byproducts] of testosterone, all of which were not listed on the label of Hydroxycut Hardcore X’, read a 15 February statement. ‘It was clear to me that this supplement was the cause of the positive test for testosterone, at least. Further, I strongly believe that the contamination/mislabelling of either this supplement, or one of the others I was taking, was the cause of the presence of the metabolites/indicators of nandrolone in my test result also. Unfortunately, however, I was not able to undertake testing of other supplements, as I no longer had samples of the supplements for testing.’ For more information on this case, see our interview with Murray.

His ban ended on 7 April 2016. ‘Drug Free Sport tried to say that I was acting in breach of my ban by coaching athletes’, argues Murray, who runs a cycling coaching business. ‘They filed this proceeding on the last day of my original ban, extending it for several months. I defended these allegations in the Sports Tribunal and won [PDF below], but Drug Free Sport then appealed this matter to CAS. I felt that the way that they did so was unfair, as they introduced new evidence even though it was an appeal, and the evidence should have been available to them at the original hearing.’

In a 20 December 2016 decision (above), the Sports Tribunal charged Murray with violating a prohibition on participation during a period of ineligibility by coaching athletes (Article 10.12.1 of New Zealand’s Sports Anti-Doping Rules); and providing ‘fraudulent information’ during a 30 March 2016 interview (Article 2.5 SADR). The panel was not comfortably satisfied that DFSNZ had met the required standards of proof regarding evidence that Murray had coached two athletes whilst banned, and dismissed both charges.

The Panel was critical of the ‘heavy handed manner’ in which DFSNZ interviewed witnesses. One of the witnesses, Ruby Livingstone, was reduced to tears, was told that she could be prosecuted if Murray was prosecuted and felt she “was just about prepared to say anything they wanted to get them off her back”. The Panel added that it ‘resisted a request from counsel for DFSNZ to give a warning to each witness when sworn of the consequences that would follow if their evidence to us was not true. That is not a practice followed in the Courts and it would be an unattractive practice for us to introduce.’

Current decision

As DFSNZ’s appeal against the December 2016 Sports Tribunal of New Zealand decision to clear Murray of breaching the terms of his ban is currently awaiting a decision from the CAS, Murray is still awaiting sanction for his clenbuterol AAF. As The Sports Integrity Initiative has previously reported, contamination can be an issue in clenbuterol cases, especially due to its use to keep meat lean in some countries.

Murray is aware of this, however he says he has no way of testing any of the food he had eaten. In line with the findings of the 13 October 2017 decision, he also alleges that there were flaws in the testing procedure. Under Annex D of the World Anti-Doping Agency’s (WADA) International Standard for Testing and Investigations (ISTI), Doping Control Officers (DCOs) are supposed to offer athletes the chance to select a urine collection vessel (D.4.3).

Murray alleges that he was given an unsealed collection beaker by the DCO in question. “The container was not in a sealed bag and I did not get a choice or selection of sealed bags as protocol states”, he said. “They refused my support person entry into the room.  I have no way of testing any of the food that I ate. On one of the emails from DFSNZ that we obtained, they had found out I was entered in the fun tour and set about setting up a test, but one used an emoji of a winking eye with the tongue pointing out, which we bought up during the hearing by asking if they thought this was funny and professional.

“Even if the DCO told the truth it wouldn’t have changed the outcome, as we had no way of proving the container had been spiked or contaminated and to void the test, you have to have evidence or proof but I was in no position to know or to keep the used vessel. The DCO keeps all the equipment in her garage and so is the only one who has access to the vessels and is the one who handed across the table the one container and said ‘this is your vessel for the test’.”

The Tribunal rejected Murray’s contention that he was given an unsealed beaker by the DCO. It noted that ‘if Mr Murray had established that he was not given a choice of sealed beaker kits, then he must establish facts which could rationally infer a possible causative link between the departure and the presence of the prohibited substance in his sample’. 

In his written statement, Murray points out that ‘my recollections of the test were different from the DCO and hers were different from the chaperone. I am adamant they didn’t follow the right process, but I have no way of proving what transpired, particularly given my support person was told to leave the testing premises, so cannot say what happened’.

Lessons for the future

Murray’s case hinges on whether he intended to cheat or not, and as comments on Twitter have unfortunately highlighted, this polarises opinion. DFSNZ believe that they have caught a determined drug cheat, something which Murray argues he is not and never has been. It is one person’s word against another.

However, it is interesting that the Sports Tribunal of New Zealand gave the DCO the benefit of the doubt over the question as to whether Murray was given a choice of urine sample collection vessels, as protocol requires. Although there is no suggestion that anything similar has gone on in Murray’s case, it is easy to see how a rouge anti-doping organisation (ADO) could set an athlete up to report an AAF.

The Tribunal was alive to this potential issue. ‘Where the process requires the athlete to actively do something, i.e. choose a beaker, express a sample, pour the sample into the A and B bottles etc, we would suggest that DFSNZ considers amending the doping control form to provide for an acknowledgement by the athlete that she/he has in fact undertaken those steps’. A simple solution to a problem that it admits created a complicated issue.

Another potential solution might be for a camera to record the process so that there can be no dispute. However that might raise privacy concerns and might not be practical in all solutions.

It is also easy to see how Murray might come to the conclusion that he has been set up. ‘In early 2016, DFSNZ commenced an investigation into whether Mr Murray had violated SADR 10.12.1 based on information which had been volunteered to DFSNZ by an outside source known to Mr Murray’, reads the 2016 decision. Somebody he knew told DFSNZ that he had been coaching athletes.

However, Murray does not dispute the result of either AAF. Despite being charged three times by DFSNZ, he denies ever having doped. ‘I have never knowingly taken a prohibited substance, and yet here I sit with my livelihood at risk’, reads Murray’s statement. ‘I hope that I will be able to find a way to continue to operate my bike shop notwithstanding these events, and I will be sure to follow the rules to ensure I don’t breach any moving forward’.

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