SII Focus 22nd December 2016

Latest Fancy Bears hacks reveal…little

On 15 and 20 December, the Fancy Bears hack team sent The Sports Integrity Initiative two new caches of information it claims to have accessed from the databases of the Canadian Centre for Ethics in Sport (CCES), the US Anti-Doping Agency (USADA) and the World Anti-Doping Agency (WADA). The emails specifically mentioned swimmer Michael Phelps, Canadian and Ultimate Fighting Championships (UFC) athletes. It also mentioned clenbuterol, a substance sometimes added to cattle feed which has caused problems for athletes as it features on the WADA Prohibited List.

While the cache of hundreds of emails do reveal a few recent adverse analytical findings (AAFs) in the Canadian Football League (CFL), which may still be being processed, they revealed little else. The CFL and UFC are not signatories to the World Anti-Doping Code. Phelps declared having taken Gabapentin on a doping control form. Gabapentin is a medication often prescribed for Attention Deficit Hyperactivity Disorder (ADHD), a condition that Phelps suffers from. Gabapentin does not feature on WADA’s Prohibited List.

Supplements & performance enhancement

The cache of information does reveal that some US athletes declare a lot of supplements FancyBearsDOUliston their doping control forms. It is a fact that most elite athletes take supplements in order to enhance their performance. There is nothing wrong with that, as long as the ingredients of the supplements do not feature on WADA’s Prohibited List. There is no suggestion that any of the ingredients or supplements featured in the latest Fancy Bears cache are on the Prohibited List.

The fact that such substances are declared by athletes also suggests confidence that they are not prohibited. Not declaring a substance on a doping control form can often reveal more about an athlete’s view on whether that substance is prohibited.  Contrast the number of substances listed above with the failure of Essendon players to declare thymosin in more than 30 testing missions.

Most of an elite athlete’s conduct – be it eating, sleeping or exercising – is centred around the aim of enhancing performance, yet ‘performance enhancement’ has become a dirty word in sport. The fact that elite athletes spend most of their time attempting to enhance their performance has been recognised by the Court of Arbitration for Sport (CAS), as The Sports Integrity Initiative has previously pointed out.

In a 2013 case brought against Dennis de Goede, the CAS sought to determine whether the Dutch judoka bore any fault or negligence for an anti-doping rule violation (CAS 2012/A/2747 WADA v. Judo Bond Nederland, Dennis de Goede & Dopingautoriteit). In its reasoning the CAS was clear (para 7.14):

‘…when looking at elite athletes most of their behaviour is guided by the sole and single purpose to maintain or enhance their sport performance. If, e.g., an athlete takes a cough medicine he or she will do so in most circumstances to recover quicker in order to train and/or compete again.’

Clenbuterol

Clenbuterol is often used by farmers on cattle to keep meat lean, but is also thought to promote muscle growth and weight loss in humans, therefore features under Section S1.2 of WADA’s Prohibited List, which refers to ‘other anabolic agents’. Most countries have legislation forbidding the use of clenbuterol in livestock due to its active effect on humans, however it is understood that bans are sometimes ignored by unscrupulous farmers in certain countries – such as Mexico and China.

The levels of clenbuterol in a sample are also significant. In 2010, cyclist Alberto Contador tested positive for clenbuterol. He was later cleared by the Spanish cycling federation (RFEC). This exoneration was overturned by the CAS in 2012, who decided that he should be stripped of his 2010 Tour de France victory and 2011 Giro d’Italia victory, and banned. “With clenbuterol, 2,000 picograms per millimetre of urine results in an active effect”, Dutch doping scientist Douwe de Boer told World Sports Law Report. WADA has not set such a threshold limit for clenbuterol – Contador was sanctioned after a finding of 50 picograms per millimetre of urine.

‘Clenbuterol is a prohibited substance and there is no threshold under which this substance is not prohibited’, reads WADA’s advice on the Prohibited List. ‘At present, and based on expert opinions, there is no plan to introduce a threshold level for clenbuterol. It is possible that under certain circumstance the presence of a low level of clenbuterol in an athlete sample can be the result of food contamination. However, each case is different and all elements need to be taken into account, along with the context of the case.’

Therefore, Fancy Bears’ assertion that ‘clenbuterol could be newsworthy too’ does not necessarily hold weight. WADA acknowledges that an adverse analytical finding (AAF) for clenbuterol could be the result of food contamination. Even if clenbuterol is present in an athlete’s sample, it may not be in sufficient quantities to provide a ‘performance-enhancing’ effect.

It is therefore difficult to make a judgement on whether a clenbuterol AAF is the result of intentional doping to cheat at sport without knowing the full circumstances of the case. Such circumstances cannot be gleaned from an potentially incomplete email exchange. Even when the full circumstances of the case are known, there is still a possibility that the athlete concerned did not intend to use the substance to cheat, as the case of Adam Jowsey illustrates.

Most of the emails accessed by Fancy Bears appear to involve sanctions that have already been levied against athletes, sent whilst sanctioning was in process. Examples are the reprimand issued to alpine skier Emma Woodhouse, after she returned an AAF for methylphenidate. ‘The athlete was at all times using Methylphenidate for therapeutic purposes pursuant to a valid prescription properly obtained from her physician’, reads the full ruling. Another example is the finding of no fault issued to US gymnast Kristen Shaldybin, after an AAF for hydrochlorothiazide was proven to be due to a contaminated local water supply.

There are many other examples which also appear to be exchanges of emails and information during the sanctioning process. Many involve communications with other national anti-doping organisations (NADOs) regarding sanctions in process. For example, many of the emails concerned Byron Pope, a Belize-based cyclist who was sanctioned in July this year. Nothing in any of the emails related to Pope revealed any wrongdoing. The Sports Integrity Initiative has decided to not to publish the details regarding other athletes who may or may not have been sanctioned, since there is no indication of any wrongdoing.

Many of these emails concerned clarification on permissible levels of meldonium following the meldonium madness earlier this year, or regarding treatment for medical conditions such as wisdom tooth extraction or cancer. Some involved legitimate therapeutic use exemptions (TUEs) issued to athletes, many of which had expired, indicating that the medical treatment sought was no longer required. Many of the emails are unrelated to doping and involve community-based initiatives which CCES and USADA have supported.

Timing

The latest Fancy Bears hacks were sent to The Sports Integrity Initiative shortly after the publication of Part 2 of the WADA Independent Person (IP) Report compiled by Richard McLaren was published on 9 December. Once again, the hack appears to target anti-doping organisations and athletes in North America. In both instances, ‘high profile’ athletes such as Phelps were indicated in the downloaded cache of information as warranting further investigation.

Holding a TUE does not indicate that an athlete or its governing body has abused the anti-doping system. Neither does declaring permitted medication on a doping control form. Attempting to assert that certain countries are guilty of using TUEs as a form of legitimate doping at such a stage in proceedings may appear to some to smack of desperation. It may also have an adverse effect to that which is intended.

As The Sports Integrity Initiative has previously reported, CCES and USADA planned to marshall support from other NADOs for a CAS appeal against the International Olympic Committee’s (IOC) decision not to blanket ban Russian athletes from the Rio 2016 Olympics. Such an appeal is an entirely legitimate response to the situation from NADOs that have been doing their job properly.

However, it is understood that approach was abandoned in favour of writing to IOC President Thomas Bach requesting a meeting about the future of anti-doping. This has yet to take place, however 24 NADOs recently wrote to Bach reiterating the need for such a meeting, reported The Guardian. From the perspective of CCES and USADA, the latest Fancy Bears hack appears to suggest that Russia is unfairly targeting them and their clean athletes, adding fuel to the renewed suggestion that the IOC should ban Russia from Olympic competition. Such an assertion appears to be gaining traction amongst key National Olympic Committees (NOCs), such as Germany.

Wrong approach

There is no doubt that the systemic, state-sponsored doping uncovered by the two parts of the WADA IP Report compiled by McLaren is unprecedented. However, Russia does have an argument that it has been made a scapegoat for the larger failures of the anti-doping system. Attempting to discover abuse of the TUE system and hidden ADRVs by leading NADOs is a little like looking for a black cat in a dark room.

For instance, there is evidence that a shadow laboratory exists outside of Russia. Nikita Kamaev, a former Director of the Russian Anti-Doping Agency (RUSADA), had been planning to write exposing doping in sport. Kamaev died on Valentine’s Day this year. ‘Presumably, the cause of death was a massive heart attack’, wrote RUSADA in a statement a day later.

Professor Verner Møller of Aarhus University had been in contact with Kamaev about collaborating on the book. “Kamaev wanted to write a book about not only doping in Russia, but about doping all over the world”, he told The Sports Integrity Initiative. “He had evidence that there was a secret doping laboratory outside of Russia. That is something that he wanted to show me when we met, but unfortunately we did not have a chance to meet before he passed away.”

This claim, first aired in an ARD documentary, was not explored in the two WADA Independent Commission and two Independent Person Reports, because it was not within the mandate of either investigation. WADA set the mandate of investigation for the four Independent Commission and Independent Person reports, which has cost it upwards of US$2.5 million.

Therefore, it should perhaps come as no surprise that the four reports did not examine WADA’s own failings in recognising and dealing with the developing situation in Russia. There are as follows:

• A 2011 study published on the IAAF’s internet site, involving analysis of samples taken back in 2001, revealed that certain countries may have had an issue with doping.

• In July 2013, reporters at the Mail on Sunday told the International Olympic Committee (IOC) and WADA about state-sponsored doping in Russia.

• In May 2014, WADA published the Independent Observer Report, which highlighted interference by the Russian state in the Sochi 2014 laboratory.

• Part Two of the McLaren Report pointed out that Russia won the most golds at the 2013 International Association of Athletics Federations (IAAF) World Championships in Moscow for the first time since 2001.

• Part Two of the McLaren Report also pointed out that at the 2013 Summer Universiade in Kazan (Russia), Russia won the most medals with 292. The next nearest was China, which won 77.

• Russia also reported no adverse analytical findings (AAFs – in other words no positive tests) at the London 2012 and Sochi 2014 Olympics, let alone anti-doping rule violations (ADRVs). Part Two of the McLaren Report found that Russia had corrupted the London 2012 Olympics on ‘an unprecedented scale’, and that corruption continued at the Sochi 2014 Olympics.

• WADA wrote to Dr. Grigory Rodchenkov, Director of the Sochi 2014 laboratory, informing him that a ‘surprise’ inspection was due to take place (p42 of Part One of the WADA IP Report). This resulted in the destruction of 8,000 of 10,000 stored samples held at the laboratory.

• WADA failed to send a request for long-term storage of 67 samples sent from the Moscow laboratory to the Lausanne laboratory in October 2012, resulting in the destruction of those key samples.

Rather than a continued focus on alleged double standards applicable to NADOs and athletes, highlighting these failures and holding those responsible to account may do more to mitigate any knee-jerk reaction to Part Two of the WADA IP Report. The state-sanctioned doping system in Russia was precise and well organised. As Part Two of the WADA IP Report pointed out: ‘Everyone had to do their job like clockwork for the plan to succeed. The entire system operated with the precision of a Swiss watch.’ It appears that same cannot be said for those policing the anti-doping system.

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