Injection
SII Focus 11th April 2017

Statute of limitations prevents further analysis of Beijing 2008 samples for clenbuterol

The International Olympic Committee’s (IOC) Statute of Limitations will prevent any further analysis from being carried out on samples taken at the Beijing 2008 Olympics to ascertain if low levels of clenbuterol were caused by food contamination or doping. On 2 April, an ARD investigation revealed that the IOC and World Anti-Doping Agency (WADA) had decided against pursuing cases against Jamaican sprinters, after low levels of clenbuterol were detected in their samples. A follow-up investigation, published on Sunday (video below), suggested that scientists should be able to verify whether a clenbuterol adverse analytical finding (AAF) is caused by contaminated meat or doping within a year.

The ‘statute of limitations’ in force within IOC and World Anti-Doping Agency (WADA) regulations at the time specifies that sanctioning must be commenced within eight years after an alleged doping offence. As the Beijing 2008 Olympics concluded on 24 August, the statute of limitations regarding samples taken from the Games would have expired on 1 September last year (at the latest). ‘The re-analysis programme from the Olympic Games Beijing 2008 has come to an end since the statute of limitations has expired’, read a 3 April IOC statement in response to ARD’s original investigation. ‘Although, the samples are still stored and not yet destroyed, but they are not legally usable anymore’.

Consistent with Article 17 of the Code the ownership of the samples is vested in the IOC for the eight years,’ reads Article 6.5 of the IOC’s Anti-Doping Rules for the Beijing 2008 Olympics. ‘During this period, the IOC shall have the right to re-analyse samples (taken during the Period of the Olympic Games). Any anti-doping rule violation discovered as a result thereof shall be dealt with in accordance with these Rules. After this period, the ownership of the samples shall be transferred to the laboratory storing such samples, provided that all means of identification of the Athletes will be destroyed and that proof of this destruction shall be provided to the IOC.’

‘No action may be commenced against an Athlete or other Person for an anti-doping rule violation contained in the Code unless such action is commenced within eight (8) years from the date the violation is asserted to have occurred’, reads Article 17 of the 2003 World Anti-Doping Code, which was in force at the time of the Beijing 2008 Olympics. The 2009 Code contains exactly the same clause.

In practice, what this means is that the IOC had to begin sanctioning any athletes based on reanalysis of samples taken at the Beijing 2008 Olympics before 1 September (at the latest) last year. A Statute of Limitations is intended to encourage bodies to pursue cases within a reasonable time period, but also to protect defendants who may have lost evidence and therefore the ability to defend themselves against a historic charge. ‘It is unreasonable to puBeijing2008retestsPict the burden of proof on the athlete, i.e. to prove that the meat, which he or she had consumed, was contaminated; in particular, eight years after the fact’, read a 2 April WADA statement, illustrating the point.

An IOC factsheet reveals that 1,053 samples from Beijing 2008 were selected for reanalysis before the Statute of Limitations relating to those samples expired last year. The number of sanctions relating to reanalysis of those samples was 64 as of 5 April 2017, when the IOC sanctioned two wrestlers who took gold and silver at Beijing 2008. The IOC was able to do that as the sanctioning process had begun before the Statute of Limitations had expired. It cannot begin new sanctioning processes relating to any stored samples from Beijing 2008 – such as those taken from the Jamaican sprinters – for the reasons stated above. The 2015 World Anti-Doping Code expanded the statute of limitations from eight to ten years.

Appeals

However, as The Sports Integrity Initiative has previously reported, the IOC and WADA’s approach to recent low level clenbuterol AAFs has opened the door to appeals by athletes that have been sanctioned in the past for low levels. The IOC and WADA admitted that they had decided against proceeding with the cases against the Jamaican sprinters as the low levels within their samples were consistent with meat contamination. Clenbuterol is still used in animal feed despite being banned in the US since 1991 and by the European Union since 1996 – it has a Maximum Residue Limit (MRL) set by the same body.

However, clenbuterol remains classified as an anabolic agent and is therefore not a ‘specified substance’ under WADA’s Prohibited List. This means that there is no excuse for an AAF, however small, despite the recognised contamination danger outlined above. It is understood that 2,000 picograms [2 nanograms or ng] per millilitre of urine results in an active effect.

Alberto Contador lost his 2010 Tour de France title and was sanctioned with a two-year ban after reporting an AAF for 50pg/ml of clenbuterol, 40 times less than the 2,000pg/ml required to produce an active effect. Contador’s case is understood to be the first to highlight meat contamination as a potential cause of a clenbuterol AAF, and resulted in WADA sending a warning about this previously unrealised danger to athletes.

The problem is that many athletes were sanctioned prior to the realisation of this danger. In 1992, prior to the creation of WADA, Katrin Krabbe and team mates Silke Moller and Grit Breuer tested positive for clenbuterol. Polish sprint canoeist Adam Seroczyński was sanctioned with a two-year ban by the International Canoe Federation (ICF) after returning an AAF for clenbuterol after the 2008 Beijing Olympics.

“I think the behaviour by the IOC is a complete scandal”, he told ARD. “And they didn’t deal with my case in a way that was important for me. So my lawyer and I will definitely now try to fight for my rights. I want to prove that I’m completely clean. And if we win, if the court ruling proves that I’m right, we will definitely look at the options for getting compensation, for getting some kind of financial redress for me.”

WADA has faced similar issues before, after it was found that meldonium – a drug primarily used in Eastern Europe and Russia – was found to remain in the body much longer than previously thought. This led to many athletes being sanctioned for an AAF despite having stopped taking the drug before it was added to WADA’s Prohibited List on 1 January 2016. As Seroczyński’s situation illustrates, WADA and the IOC could now be facing a repeat scenario.

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