SII Focus 14th July 2017

‘Kissing’ defence clears Gil Roberts: why threshold changes are needed

Gil Roberts was able to compete in the 400m at the USA Track & Field Outdoor Championships after an arbitration panel accepted his defence that an adverse analytical finding (AAF) for probenecid – a diuretic – was caused by kissing his girlfriend. On 26 June, the US Anti-Doping Agency (USADA) announced that following an ‘expedited hearing in order to resolve Roberts’ case before the upcoming U.S. National Track & Field Championships’, Roberts had accepted a finding of ‘no fault’ for the AAF.

The ruling (PDF below) explains that Roberts’ girlfriend, Alex Salazar, had been given a drug she was told was moxylong to combat a sinus infection whilst travelling in India. It explains that due to difficulties swallowing the pills, she would take them apart and swallow them with water. On the 24 March day of the test, she took the medicine at 1:30pm and then found Roberts, ‘who could not count the number of times they kissed between 1:00pm and the doping control officer’s arrival’. The doping sample was sealed at 4:16pm.

‘He admitted that though he was taking several supplements, he did not declare any of them on his doping control form’, reads the ruling. ‘But once he got the adverse analytical finding he had all of his supplements tested; none was positive for probenecid’.

The ruling mentions that Roberts was ‘distraught’ when he received the AAF, and asked Salazar whether she had been taking probenecid. ‘When she googled moxylong, she discovered that it came in the form of a pill that contained 500mg of probenecid and 500mg of amoxicillin. She still had one of the capsules left which was tested by Banned Substances Control Group (BSCG) and found to contain .442 grams of material that tested positive for probenecid.’

The amount of probenecid found in Roberts’ sample was 9ng/ml. Dr. Pascal Kintz, who testified as Roberts’ expert, found that ‘a single 500mg dose [of probenecid] in a male volunteer resulted in a peak urine probenecid concentration of 83mg/l after six hours’.

In other words, Roberts’ AAF was a trace finding. To compare the two readings listed above on the same scale is difficult because the amount of probenecid found in his sample is so small. His AAF found nine nanograms in a millilitre of urine. That equates to 0.000009 milligrams in a millilitre of urine. However, Dr. Kintz’s measurement was for a concentration in a litre of urine rather than a millilitre, according to the ruling. As a millilitre is one-thousandth of a litre, we need to multiply Roberts’ AAF concentration by a thousand to find the concentration per litre.

This calculation gives Roberts’ AAF as 0.009mg/l against Dr. Kintz’s 83mg/l. However, Dr. Kintz also argued that 83mg/l is not a large enough dose for the probenecid to act as a masking agent. He explained that probenecid “has to be taken in large amounts (2-5 grams) to stop detection of banned substances such as steroids…small amounts, such as therapeutic doses, are of no interest to sports drug testers because they would be ineffective for cheating purposes”.

However, probenecid is not a threshold substance under the World Anti-Doping Agency’s (WADA) Prohibited List, so any amount present in a sample constitutes an anti-doping rule violation (ADRV). Giving evidence for USADA, Dr. Matthew Fedoruk argued that it was ‘highly unlikely’ that Roberts would have ingested a significant amount of probenecid from Salazar’s saliva in the three hours prior to his test.

However, the panel accepted Roberts’ argument that this was non-intentional doping, and that the amount found in his sample was too small to have a masking effect – the reason that probenecid is prohibited. As such, it concluded that Roberts was facing a penalty of two years, unless he could prove that he was without fault, on ‘the balance of probabilities’.

The Arbitrator was persuaded by Roberts’ evidence that ‘each day, from March 14 through March 24, 2017, Alex Salazar pulled apart a capsule of medicine that she had obtained in India, poured the contents of the capsule in her mouth, then washed it down with water’. It accepted that the probenecid in Salazar’s mouth had been transferred to Roberts over this period, resulting in the AAF. It accepted that Roberts had no way of knowing that this might happen, adding that his AAF would have been ‘like a lightning bolt out of a clear blue sky’. It therefore found no fault on his part.

Analysis & conclusion

The ‘kissing’ defence has been used before. Last year, Shawnacy Barber was found to be at no fault for an AAF for cocaine. The Sports Dispute Resolution Centre of Canada (SDRCC) accepted Barber’s defence that his AAF was due to a sexual encounter following an advert posted on Craigslist (PDF below).

As also mentioned in the Roberts ruling, in 2009 the Court of Arbitration for Sport (CAS) rejected an appeal by the International Tennis Federation (ITF) and WADA against an independent doping tribunal decision to issue a two and-a-half month ban to Richard Gasquet. The CAS said that ‘it was satisfied, on the balance of probabilities, that Mr Gasquet’s claim of inadvertent contamination was correct’. Gasquet successfully argued that a 28 March 2009 AAF for cocaine was caused by kissing a woman who had consumed the stimulant.

Part of the problem is that scientific detection methods have improved so much that they are able to detect tiny amounts of a substance in an athlete’s sample. WADA’s Prohibited List classifies certain substances – such as probenecid and cocaine – as prohibited in any quantity at all, even if that amount is so small that it could not conceivably have any effect on an athlete’s physiology.

In 2012, the CAS upheld a two-year ban administered to Aberto Contador, after he reported an AAF for clenbuterol in 2010 (full decision below). The amount of clenbuterol detected in his sample was 50pg/ml, much less than the 2,000pg/ml required to have an active effect. The CAS accepted that contaminated meat could have caused such an AAF for clenbuterol, but agreed with the International Cycling Union (UCI) and WADA that the possibility of this was low. The CAS did not agree that Contador had met his burden of establishing no fault or negligence, or no significant fault or negligence, so imposed a two-year sanction.

Yet earlier this year, an ARD investigation found that the International Olympic Committee (IOC) had decided against proceeding with cases against Jamaican sprinters, after samples taken at the Beijing 2008 Olympics returned AAFs for low levels of clenbuterol. An IOC statement revealed that the levels concerned ‘were below 1ng/ml’ – 20 times the concentration found in Contador’s sample. This is still less than half the amount required to produce an active effect, as explained above.

WADA has admitted that science has outpaced its regulations regarding clenbuterol. “We acknowledge that the clenbuterol meat contamination issue is unsatisfactory”, said Olivier Niggli, WADA’s Director General, in a statement. “Accordingly, since 2011, the Agency has carried out several research studies aimed at providing analytical means to distinguish ingestion of clenbuterol by pharmacological origin versus that of meat contamination. We will continue to invest in scientific research to try to solve this issue as quickly as possible. However, in the meantime, we maintain that disciplinary proceedings against athletes with low level urinary concentrations, from countries known for significant risk of exposure, would have little to no prospect of success; and, would be very unfair to the athletes concerned.”

WADA does have rules with certain compounds where if the concentration found is less than 10% of the amount required to produce a physical effect, then an AAF is not recorded. These are known as threshold substances. Yet there are many substances on the Prohibited List that are not threshold substances – including probenecid and cocaine. Niggli’s above statement could easily be applied to AAFs for tiny quantities of those substances as well.

The Roberts case once again raises the question of whether more substances on the WADA Prohibited List should be subject to such threshold limits. Scientific advances mean that substances can be detected in ever smaller amounts in an athlete’s sample. Yet WADA’s regulations dictate that any amount at all constitutes an AAF.

Yes, it is possible that allowing such a ‘get out’ could enable athletes to fabricate stories regarding contamination. Yes, it is possible that such levels could be the result of earlier ingestion of a larger amount of that substance. This is the reason we have arbitration panels and the CAS; to decide whether the evidence supports such theories. Yet according to a strict interpretation of sport’s current regulations, any level can result in an ADRV. The article above is intended to highlight the arguments why such blanket bans need to be reassessed, to protect athletes from being unfairly sanctioned.

If an athlete cannot prove that they were at no fault or negligence for how a substance entered their system, is it fair that they should be sanctioned for a minute concentration of a substance that has no effect on their physiology or performance? It is perhaps time to have that debate.

In Roberts’ case, all parties agreed that the amount of probenecid in his sample was not enough to produce a masking effect. Yet he faced a costly and time-consuming proceeding due to a trace AAF, which damaged his reputation and caused him to withdraw from the International Association of Athletics Federations (IAAF) World Relays and the Penn Relays. If his story is true – and the American Arbitration Association opines that it is – then, as well as being a waste of time and money, any imposed sanction would be grossly unfair on the athlete.

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