17th April 2018

Madison Brengle alleges abuse by tennis’ anti-doping testers

Madison Brengle has filed a lawsuit (PDF below) in the Manatee County Court, Florida, alleging that tennis authorities and officials refused to acknowledge a medical condition exacerbated by anti-doping tests involving venipuncture, causing her permanent physical damage. Brengle is seeking damages in excess of US$10 million due to tennis’ alleged refusal to acknowledge that the Complex Regional Pain Syndrome (CRPS) Type 1 she suffers from was exacerbated by venipuncture anti-doping tests, causing her withdrawal from training and tournaments due to injury.

‘I am bringing this action in an effort to force those who control the sport I love to understand that players are not commodities and should be treated with respect and dignity’, read a statement from Brengle, sent via her lawyer. ‘The unbridled authority of officials to subject players to the kind of abuse I suffered cannot be tolerated; players must have a say in matters involving our health and safety’.

Brengle alleges that despite its own athlete advice stating that anti-doping tests should have no physical effect on a player, tennis authorities refused to offer her an alternative to venipuncture testing. The lawsuit states that the offer of an alternative form of testing is specified by tennis’ rules.

She alleges that no such alternative was offered, despite receiving her diagnosis and evidence of the damage venipuncture testing caused her. She alleges that this damage included:

• Wimbledon 2009: loss of consciousness & vein collapse;
• Australian Open 2016: testers hit nerve bundle, causing inability to practice;
• Wimbledon 2016: Blood drawn from foot causes loss of sensation in right leg from kneecap to ankle, swelling & discolouration ten days after test;
• US Open 2016: Brengle agrees to accept financial responsibility for early test, but International Tennis Federation (ITF) refuses to move test, the physical damage from which causes her withdrawal.

‘Brengle has been so severely harmed by Defendants’ abusive conduct and medically inappropriate testing that she is no longer able to serve a tennis ball with her right arm at or near the same velocity that she has served throughout her ten year professional tennis career, her hands are swelled and the swelling at times spread throughout her arms, and her overall game has suffered enormously from he physical and emotional consequences endured’, reads the lawsuit. As an example, it points out that Brengle was forced to withdraw from the 2016 US Open on 29 August 2016, two days after undergoing a venipuncture anti-doping test. In contrast, at the ASB Classic where no venipuncture blood testing was administered, she defeated Serena Williams, who was ranked second in the world at that time.

The lawsuit names the ITF and its Director of Development and Integrity, Dr. Stuart Miller, as defendants. It also names the ITF’s testing partner, Swedish company International Doping Tests and Management (IDTM), and its employee John Snowball, as defendants. ‘Snowball screamed at Brengle, publicly called her a liar for claiming she had a medical condition that caused her physical pain from venipuncture blood draws and accused her of previously lying in this regard at the Australian Open’, reads the lawsuit.

Brengle was diagnosed as suffering from CRPS Type 1 by Dr. Juan A. Ramos on 17 November 2016, states the lawsuit. It alleges that despite recognising this on 2 March 2017, the ITF and Miller initially refused to except Brengle from venipuncture testing.

After an independent medical assessment, the ITF, World Anti-Doping Agency (WADA) and the US Anti-Doping Agency (USADA) agreed to except Brengle from venipuncture testing for one year from 11 August 2017. However despite this, the lawsuit alleges that a doping control officer (DCO) told Brengle she was required to undergo a venipuncture test on 15 February 2018, a day after she had been subject to a urine test. It is important to point out that the ITF and Miller – as well as IDTM and Snowball – have not responded to the allegations in the lawsuit.

Inflexibility of anti-doping

Underlying Brengle’s case is the suggestion that tennis authorities deliberately targeted her, as they did not believe that her avoidance of venipuncture testing was due to a legitimate medical condition. What is not highlighted by her lawsuit is the quandary faced by the testers.

Blood testing is held up by anti-doping organisations (ADOs) as the ultimate weapon against doping, despite WADA’s own figures illustrating that blood tests are not efficient in catching dopers. However, it is true that some substances, such as exogenous human growth hormone (HGH), can only be reliably detected via a blood test. Any ADO that operates an Athlete Biological Passport (ABP) programme, which seeks to indicate doping by monitoring changes in blood values over time, will also require blood to be collected from athletes.

It is not hard to see how ADOs might conclude that citing a poorly understood condition – such as CRPS Type 1 – that requires avoidance of blood tests would appear to be the perfect excuse for a determined doper. Faced with this quandary, the anti-doping organisation faces two choices. Either accept that the athlete is telling the truth, or investigate.

It is a difficult line to tread. If sport has a reason to dispute the athlete’s claim, then a logical reaction is to increase testing of that athlete – including venipuncture testing.

Sport has a duty of care to the athlete that it is testing, but also to that athlete’s competitors. ADOs have a duty to ensure that their sport is clean, and this involves applying the same testing methods to athletes selecting for testing. One of the underlying principles of the global anti-doping system is that a level playing field must be applicable to all athletes.

Due to its duty of care to the athletes that Brengle was competing against, tennis was not prepared to accept Brengle’s evidence that her avoidance of venipuncture anti-doping tests was due to a legitimate medical condition. That is why it required an independent medical assessment to be made.

What will be key is whether the level of harm caused to Brengle due to her recognised medical condition was severe enough to warrant permanent suspension of venipuncture testing on her. Tennis, WADA and USADA were only prepared to offer Brengle a one year exemption from such testing, despite the independent medical assessment. This suggests that they were not convinced that her condition was severe enough to except her from venipuncture testing.

If the case comes to trial, a court will also need to consider if, due to its duty of care to athletes that Brengle was competing against, tennis was justified in continuing to require her to submit to venipuncture testing whilst this assessment was made. It will also need to assess whether, having accepted Brengle’s medical condition, tennis acted in a harmful or reckless way by continuing to require her to submit to venipuncture testing, and whether tennis breached its duty of care to her.

Brengle’s argument is that her condition is severe enough that it has ended her ability to compete as an elite tennis player. This is presumably why she is able to seek a full trial in a court of law.

The Athlete Agreement that all elite athletes are required to sign in order to compete forces all disagreements to be settled outside of a court of law via arbitration (see Article X of the US Professional Tennis Association (USPTA) Employment Agreement). Brengle can no longer compete, so doesn’t need to sign such an agreement.

As with Kristen Worley’s case, sport once again faces being held to account for policies that – on the face of it – appear not only discriminatory, but to have medically harmed athletes. The fact that WADA and USADA apparently backed tennis’ position that Brengle could only be offered a one year exemption from venipuncture testing illustrates that this case could have ramifications far beyond tennis. It would appear that once again, sport is concerned that its policies will not stand independent scrutiny in a court of law.

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