4th May 2018

Sport Resolutions 2018: regulation of integrity issues improving

The broad message from the Sport Resolutions 2018 conference, which took place in London today, was that sport is improving its regulation of mental health, integrity and inclusion. However, delegates heard that further changes need to be made in all three areas in order to safeguard athlete health and wellbeing. In other words, sport is improving, but could do better.

Delegates heard that athletes were far more inclined to come forward with mental health issues today than they have been in the past; that sport is slowly attempting to deal with corruption; and is doing what it can to be inclusive to transgender athletes. But problems persist in all three topic areas. 

Mental health

Richard Bryan of the Rugby Players Association (RPA) pointed out that two years ago, the largest group of players reporting mental health issues to the RPA was the over 30s, but today it is the 18-25s. However, despite this apparent generational change in willingness to discuss mental health issues, delegates heard that some sports still instruct athletes that if you speak out against your sport, you risk losing funding. And this can discourage athletes from engaging with the sports governing body.

“Knee-jerk suspensions are a problem”, pointed out Jeffrey Bacon of Ely Place, who advises athletes, explaining that provisional suspensions while investigations take place can exacerbate mental health issues. Alison Mitchell, sports journalist and presenter, also emphasised that the media needs to stop stigmatising mental health in sport. She pointed out that reports about cricketer Sarah Taylor’s issues with anxiety used the language ‘conceded’, and reports on Robbie Savage’s mental health referred to him ‘admitting’ to issues.  

“Where’s the psychologists?” asked Shameena Yusuf, Founder of Empower2Perform and a psychologist employed by Brighton & Hove Albion FC. She argued that sport needs to invest in psychologists in the same way that it invests in physiotherapists and doctors in order to safeguard its athletes.

On 21 March, the UK Government has put in place a Mental Health and Elite Sport Action Plan. Amanda Quirk of the National Society for the Prevention of Cruelty to Children (NSPCC) raised the point that mental health needs to be addressed before athletes reach the elite stage. She argued that young people are crucial to the development of sport, and they also need to be given the tools to look after their mental health.

Former rugby union international Richard Parks, who recovered from mental heath issues upon his forced retirement due to injury to become an Extreme Environment Athlete, gave an inspiring keynote address. “We need to embrace our weaknesses and fears instead of suppressing them”, argued Parks, explaining that he had refused to acknowledge a lack of self confidence whilst playing rugby. “Emotional intelligence is our most important tool. The horizon is only the limit of our sight”.

Integrity

David Howman of the International Association of Athletics Federations’ (IAAF) Athletics Integrity Unit (AIU), said that it was time for sport to consider an independent integrity body. Howman said that the new body could encompass sport, betting organisations, governments and law enforcement, and could be funded through a percentage of sponsorship and TV rights, plus money recovered from law enforcement actions.

Independence and conflicts of interest, “real, or perceived”, were key to any new integrity body, said Howman, former Director General of the World Anti-Doping Agency (WADA). After the International Olympic Committee (IOC) raised the idea at an Olympic Summit, WADA agreed to explore the idea of creating an Independent Testing Agency (ITA) in November 2015. However, the composition of the ITA, announced in June 2017, raised concerns over its true independence. Recently, WADA has begun to refer to the ITA as the International Testing Agency.

While many countries failed to publish Annual Reports as required by WADA, it appears that RUSADA manipulated its testing figures…

Howman also outlined that ahead of the Beijing 2008 Olympics, a train containing doping samples was intercepted by Russia’s Federal Security Service (FSB or ФСБ), and the samples were tipped away. As with the Russian Anti-Doping Agency’s (RUSADA) apparent manipulation of anti-doping test figures in its annual reports, this suggests signs were present that Russia was subverting the doping control process, prior to the Stepanovs approaching WADA in 2010.

WADA’s position remains that whilst it had information on what was going on in Russia, it did not have enough corroborating information about who was involved that would allow sport to bring forward sanctions. In August 2016, it clarified that the Independent Commission (IC) Chaired by Dick Pound did not uncover evidence that the Russian State was manipulating the doping control process. In November last year, Richard McLaren, who produced the two Independent Person (IP) Reports for WADA, said that he didn’t regret changing his definition of what went on in Russia from ‘State sponsored’ to ‘institutionalised’, despite the fact that this has allowed Russia to ramp up claims that the doping of athletes was not organised. 

“What does being a clean athlete mean?” asked Howman. “People will say that it means an athlete that has not tested positive. That’s Lance! The greatest cheat in the world.” He argued that anti-doping agencies now need to do more to investigate doping, rather than relying on anti-doping tests. 

Howman expressed frustration that the Court of Arbitration for Sport (CAS) cannot accept circumstantial evidence that an was doping. “What do you have to do, with this particular CAS [Panel], to build a case on circumstantial evidence?” he asked. In the Legkov and Zubkov decisions, published by the CAS last month, the Panel required that it should be ‘comfortably satisfied’ that the two athletes had doped at the Sochi 2014 Winter Olympics. As the salt content of Zubkov’s urine sample was physiologically impossible but Legkov’s was not, the CAS held that it was ‘comfortably satisfied’ that Zubkov had doped, but the same was not true for Legkov.

“Is integrity in sport a hopeless ideal?” asked Howman. “No. It’s going to take strength and belief, strength of character and people to support it. It’s going to take people with integrity.” Howman expands on all of the above points in an interview, which will be published on The Sports Integrity Initiative at a later date. 

Transgender athletes

Last week, the IAAF published its Differences in Sex Development (DSD) Regulations, which are designed to regulate athletes competing in its female category with one of seven DSDs competing in international events run between 400m and one mile, if their endogenous (natural) testosterone levels are above 5 nmol/L and have an ‘androgenising effect’ (in other words, if that testosterone is taken up by their androgen receptors and boosts their physiology). The IAAF contends that unless athletes with one of the seven DSDs who compete in the female category reduce their testosterone levels to below 5 nmol/L for six months, they hold a performance advantage in those events.

The Explanatory Notes to the DSD Regulations mention new unpublished research as indicating that the ‘advantage in having circulating testosterone levels in the normal male range rather than the normal female range is greater than 9%’. The DSD Regulations give the normal male range as between 7.7 nmol/L to 29.4 nmol/L – higher than the 5 nmol/L stipulated in the DSD Regulations. 

The IAAF’s Explanatory Notes to the Regulations state this is because ‘the only female athletes competing with levels above 5 nmol/L would be intersex/DSD athletes, doped athletes, and athletes with adrenal or ovarian tumours. In addition, (a) below 5 nmol/L, there is limited evidence of any material testosterone dose‐response; but (b) an increase in circulating testosterone from normal female range up to between 5 and 10 nmol/L delivers a clear performance advantage (according to the studies, a 4.4% increase in muscle mass and a 12‐26% increase in muscle strength, and a 7.8% increase in haemoglobin).’ 

The footnote reference for this finding is the unpublished research mentioned above. It is due to be published by Endocrine Reviews, and is authored by Professor David Handelsman of the University of Sydney, Professor Angelica Hirschberg of Karolinska Institutet and Dr. Stéphane Bermon. Previous IAAF research published by Bermon and Dr. Pierre-Yves Garnier of the IAAF Medical and Science Department indicated that females with elevated testosterone enjoyed an advantage of between 1.78% and 4.53% in five athletic disciplines – the 400m, 400m hurdles, 800m, hammer throw and pole vault. 

Jonathan Taylor of Bird & Bird LLP, who drafted the DSD Regulations, explained that he and his colleague, IOC Counsel Liz Riley, have also drafted the IOC Model Transgender Regulations for International Federations, which will be published soon. He said that these would set “minimum standards” for regulating the right of transgender athletes to participate in sport. Taylor and Riley sat on the IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism in November 2015, which recommended that transgender athletes reduce their testosterone to below 10 nmol/L for 12 months before they would be allowed to compete.

Steve Cornelius has resigned his IAAF position over the DSD Regulations…

An inherent principle of sport is the right to compete, and the idea that sport could exclude somebody because of their natural physiology is a contentious area. As such, the DSD Regulations have been challenged by the Canadian Centre for Ethics in Sport (CCES) and the Canadian Association for the Advancement of Women in Sport and Physical Activity (CAAWS). In addition, Professor Steve Cornelius of the IAAF Disciplinary Panel has resigned his position on the IAAF Disciplinary Tribunal because of the DSD Regulations.

Fenella Morris of 39 Essex Chambers pointed out the dangers of a “one size fits all” approach, pointing out that participation in recreational sport is safeguarded by the European Convention on Human Rights (ECHR). The DSD Regulations only regulate DSD athletes with one of seven conditions that benefit from elevated endogenous testosterone participating in international female competitions run between 400m and one mile. Whether the forthcoming IOC Guidelines will take a similar approach remains to be seen, as does whether a challenge to either set of regulations on ECHR grounds would be upheld.

Morris also argued that not every XY male who transitions to become an XY female is automatically stronger than every XX woman, arguing that measuring testosterone levels should not be the only consideration made. She argued that tests should be undertaken in other physiological areas to determine the level of advantage. 

Dr. Mike S. Irani, Competition Doctor for the 2018 Gold Coast Commonwealth Games and a Fellow of the Royal Colleges of Physicians and Surgeons, argued that the evidence “is not conclusive” that reducing endogenous testosterone levels definitely reduces power or strength. But he did argue that it would “make you feel rubbish”. 

Dr. Irani argued that sport had to be “a bit cleverer” than just measuring testosterone levels, explaining that in the human physiology, testosterone is similar to a “key” fitting in an androgen receptor “lock”. Both have to operate in concert for an athlete’s physiology to benefit from elevated endogenous testosterone levels, he argued. Dr. Irani said that any regulation in this area needed to consider this point, as well as the long term health implications for athletes who are forced to lower their endogenous testosterone levels as a result of sport’s regulations in this area.

Echoing the thoughts of many, Dr. Irani also asked “where does it stop?” In its Explanatory Notes to the DSD Regulations, the IAAF points out that ‘if height were deemed to confer an unfair advantage in a particular event, then it might become appropriate to introduce height classifications’. Nine of the top ten finishers in the 2018 London Marathon competed for African nations. Should sport also assess whether this confers them with an unfair advantage?

Taylor argued that sport’s regulations in this area were proportionate. He said research indicates that when an athlete transitions from XY Male to XY Female and lowers their testosterone levels, they will fall into the same competitive percentile in female competition as they were in whilst competing in male competition.

Conclusion

As mentioned, delegates heard that sport had made progress in all of the above areas, but that more could be done to safeguard athletes. Delegates emphasised that although athletes can and should be the central focus of sport, measures need to be taken to reduce the pressure on them, which can result in complications for athletes in some of the areas outlined above.

Delegates heard that this pressure can be compounded by something that appears small, such as the CAS not publishing all its decisions, but can have a huge impact on an athlete (who, to use the example presented, would therefore not have all the information that is available to sport to defend themselves in front of the CAS). The role of education was highlighted as vital, so that athletes are aware not only of mental health issues, but of preconceived ideas about the level of advantage a transitioned athlete might enjoy.

But, it appears that change within sport is slowly coming. As Richard Parks put it, “the horizon is only the limit of our sight”.

• To view a timeline of The Sports Integrity Initiative’s tweets from Sport Resolutions 2018, click here.

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