16th March 2018

WADA overkill? The Gordon Gilbert case

Something very strange is going on in South Africa. Two athletes sponsored by Biogen have returned an adverse analytical finding (AAF) for prohibited substances, after using a product manufactured by that company. Gordon Gilbert is a retired professional footballer who coaches children and who tested positive during a mountain bike race. Demarte Pena competes in the Ultimate Fighting Championships (UFC). In both cases, the World Anti-Doping Agency (WADA) is seeking to extend their sanctions to four years.

Both athletes returned an AAF for a steroidal precursor, 1,4-androstadiene-3,17-dione, and both AAFs were traced back to Testoforte for Stamina, produced by Biogen. The ingredient was not listed on the label, and both athletes had been told by Biogen, their sponsor, that their products were safe to use.

As Pena declared the use of the supplement on his Doping Control Form (DCF), he was sanctioned with a reprimand by the South African Institute for Drug Free Sport (SAIDS). Gilbert did not declare his use on the DCF, and received a six month sanction. Both cases were heard on 15 March at the Court of Arbitration for Sport (CAS).

Athlete responsibility

An unfortunate reality of the World Anti-Doping Code is that athletes are ultimately responsible for any prohibited substances that turn up in their samples. If they test positive, it is up to them to explain how those substances ended up in their sample. Therefore, although 1,4-androstadiene-3,17-dione was not listed on the Testoforte label, both athletes have had to defend themselves in a doping case.

Anti-doping is one of the few areas of jurisprudence where the burden of proof is on the athlete. Under the 2015 World Anti-Doping Code, athletes who return an AAF are subject to a four year ban as a starting point. However they can reduce this down to the minimum of a reprimand and the maximum of a two year ban, if they are able to meet the burden of evidence required to prove ‘no significant fault or negligence’.

The SAIDS panel in both cases accepted that the athletes had met the evidential burden required to establish ‘no significant fault or negligence’ for testing positive for a substance that was not listed on the label. As mentioned, Pena received a reprimand, but Gilbert received a six month sanction. The reasons for the differences in sanction will be explained below.

Of course, all athletes diligently screen all product labels for any substances on the World Anti-Doping Agency’s Prohibited List. They are not swayed by the fact that 43 anabolic androgenic steroids appear in just one category of the List. They are so diligent that the revelation that ‘other substances with a similar chemical structure or similar biological effect(s)’ to those 43 are also banned does not worry them. Their expertise is such that the statement announcing that ‘All selective and non-selective beta-2 agonists, including all optical isomers, are prohibited’ does not concern them. They become experts in analytical chemistry when they sign their Athlete Agreement, and are able to identify 1,4-androstadiene-3,17-dione as a steroidal precursor. Or perhaps not.

The cases

WADA is seeking a four year sanction for both athletes at CAS. Why? As mentioned, Gilbert received a six month ban on 30 August last year, after testing positive in a mountain bike race on 13 May 2016. Pena tested positive on 11 November 2016, after his EFC Africa bantamweight title against Irshaad Sayed.

Gilbert claims to have taken Testoforte on the advice of a friend, Brandon Fairweather, whilst Pena took it on the advice of a sports nutritionist, Rory Diesel. The SAIDS decisions (PDFs below) reveal that both athletes were taking a variety of supplements. Gilbert listed DripDrop, PeptoPro, Enduren and Panado on the Doping Control Form (DCF), but – crucially – not Biogen’s Testoforte. Pena listed GH Freak and Test Freak produced by Pharma Freak, Libido & Performance Enhancer for Men produced by SOLAL Healthy Aging [sic.] Specialists, and Testoforte for Stamina produced by Biogen.

This perhaps explains the differences in sanctions. Pena listed Biogen Testoforte on his DCF and sought the advice of a sports nutritionist. Gilbert didn’t list Testoforte, and took it on the advice of a friend. However, Pena is a professional athlete and can be expected to exercise caution, whereas Gilbert is an amateur who argues that he competes to stay healthy.

Gilbert’s argument that he did not declare Testoforte because his sample was taken after a ‘very gruelling’ stage of the Sani2c three day mountain bike event where he was exhausted and in pain due to a wrist injury. ‘The Panel is satisfied that the Athlete has adequately explained the apparent omission on his doping control form’, reads the ruling.

The SAIDS panel was at pains to emphasise that Gilbert had taken several steps to verify whether Biogen’s Testoforte was prohibited. ‘He searched the Internet for any indications that any of the ingredients were on the WADA List, he consulted with fellow athletes to determine if they had any knowledge of the particular ingredients and he consulted his medical doctors to confirm that he was taking appropriate and safe supplements’, reads the judgment in his case. ‘He also noted the fact that Biogen had existing sponsorship agreements with various professional athletes. That gave him confidence that their quality control measures were adequate to ensure that the supplements were not contaminated with substances on the WADA List.

‘The Athlete kept meticulous records and was able to provide the Panel with a breakdown of all the supplements he had taken during the period 4 November 2015 – 4 March 2017. The Athlete further submitted his full meal plan that gave a detailed insight into the meals, energy drinks and supplements taken by the Athlete which shows that he takes great care in what he consumes during his preparation.’

In other words, Gilbert had done his homework. There is nothing unusual in taking sports supplements, and as the above shows, Gilbert exercised a great deal of care regarding everything he puts into his body.

Despite sponsoring both athletes, Biogen maintains that Gilbert and Pena shouldn’t have taken Testoforte, as it is not designed as a sports supplement. In its response to the Pena case, Biogen describes Testoforte as a ‘complex herbal’. If that is the case, why is a steroidal precursor (1,4-androstadiene-3,17-dione) present in a herbal product?

This is where it gets interesting. ‘The product in question, Testoforte, is not a sports supplement and does not form part of Biogen’s sports supplement range’, reads a statement from Biogen. ‘It should be noted that this product is a complex herbal and is designed to support healthy, natural testosterone levels […] It is not unusual for products containing complex botanical materials, especially those designed to support healthy testosterone, to give rise to a trace finding of steroidal precursors such as 1,4-androstadiene-3,17-dione in screening laboratory tests.’

However the SAIDS decision in the Pena case appears to dispute that finding. ‘The adverse analytical finding indicates an exogenous source of Testosterone’, it reads. ‘Exogenous’ means testosterone not naturally produced by the athlete’s physiology. In other words, the testosterone was in something that Pena took, rather than a result of natural ingredients combining to create a natural (endogenous) testosterone boost.

The SAIDS decision also mentions that a first sample of Test Freak – another Biogen product that Pena had been using – revealed the presence of prohibited substances, but a second sample did not. This suggests that contamination cannot be ruled out.

‘Based on the totality of the evidence the Panel accepted the Athlete’s assertions on a balance of probability that the banned substance entered his body as a result of the ingestion of a contaminated product, namely Biogen Testoforte (Lot number 103997)’, reads the Gilbert decision. ‘Based on the depth of evidence provided by the Respondent, the Respondent had shown the utmost care and that there is little more that he could have done to ensure that the supplements he used was safe, with the result that the Panel finds no significant fault or negligence on the part of the Respondent’, reads the Pena decision.

If Biogen’s assertion that a complex herbal product can cause a testosterone AAF is correct, then it would appear that there is no way Gilbert or Pena could have known. Athletes are generally not experts in chemistry and could not be expected to know that herbs may combine to produce an AAF, as Biogen appears to assert.

Alternatively, the supplement could have been contaminated, in which case Gilbert and Pena could not have known. Testosterone and 1,4-androstadiene-3,17-dione were not listed on the label.

Anti-doping jurisprudence accepts that even water can become contaminated and lead to an AAF. Why, therefore, is WADA playing hardball?

Biogen Testoforte

The substance at the heart of both cases is Biogen Testoforte. It is no longer available for purchase on the Biogen internet site. It also appears to have a history of complaints made against it, and warnings issued about it.

In August 2012, a Mr. Charleston lodged two complaints with the Advertising Standards Authority of South Africa (ASASA) about two Biogen adverts. The adverts claimed that Testoforte:

• Increases testosterone within natural ranges;
• Maintains lean muscle;
• Heightens energy levels, sex drive and physical performance;
• Increases stamina, performance and desire naturally;
• The ingredients were used by Chinese physicians for up to 2,000 years as a sexual enhancer;
• Increases male libido.

Both complaints referred to studies allegedly referenced in both advertisements, explaining why they are irrelevant or contradict the impression that the product would deliver on the claimed benefits. Charleston argued that the claim that the product is effective has no scientific basis and requires substantiation. Both complaints were upheld, and Biogen was forced to withdraw the above claims. You can read both rulings here and here.

In August 2015, an advisory was issued by the Clay Target Shooting Association of South Africa (CTSASA) specifically about Biogen Testoforte (PDF below). It lists the ingredients as follows:

• Tribulus terrestris;
• Eurycoma longifolia;
• Epimedium grandiflorum (Horny Goat Weed)
• Trigonella foenum-graecum (Fenugreek);
• Serenoa repens (Saw Palmetto);
• Vitex agnus-castus (Chaste tree);
• Chrysin;
• Avena Sativa (Oats);
• Panax Ginseng; and
• ‘BioPerineTM’ (undisclosed mix of ingredients).

As the names would suggest, all of these are natural ingredients. Biogen does not disclose the ingredients of BioPerine™. ‘Independent laboratory analysis [carried out by the SA Doping Control Laboratory at the University of Free State] of the herbal supplement ‘BIOGEN TESTOFORTE’ revealed the presence of the following anabolic steroids, not listed on the product label: 4-Androstene- 3,17-dione, 5 -Androstanedione and 5 -Androstanedione’, reads the CTSASA warning.

The above information would appear to suggest that issues with Biogen’s Testoforte are known. In contrast to the claim that it is a health product not marketed as a sports supplement, the two ASASA rulings above show that it was marketed as maintaining lean muscle, and contained a unknown ingredient.

It would appear that the unknown ingredient could explain Gilbert and Pena’s AAFs. Given the above, it appears even stranger that WADA is pushing for a four year ban in both Gilbert and Pena’s cases.

Confidential tip-off

WADA, the International Cycling Union (UCI) and the CAS need to be aware of another type of potential ‘contamination’ arising from issues not listed in the SAIDS decisions or laboratory reports. It is alleged that Gilbert was tested after a ‘tip off’. It will be interesting to see if the CAS examines the circumstances around that ‘tip off’.

‘Based on a confidential tip-off, SAIDS tested the athlete on 13 May 2016 after he had completed the Sani2c race’, reads the CAS appeal brief. Mr. Gilbert has never been the subject of any ‘tip-offs’ or on anyone’s radar screen for any doping suspicions or any violations in his entire professional football career or after he retired as a professional athlete. He has a damaged hamstring, and argues that he only rides a mountain bike to stay in shape.

In order to give a ‘tip-off’, somebody would have to know that there was a chance that Gilbert could return an AAF, and would have to know when and where he was competing. Despite what it says in the SAIDS ruling, Gilbert is not a professional cyclist, and that error appears to have been picked up in the CAS appeal brief.

“I’m most certainly NOT a professional cyclist [emphasis the athlete’s]”, he said. “I have a day job and only race when I want to race. So that statement of me being a pro is far from the truth. I have never placed on a podium in big races or national races… nor can I.” 

Was SAIDS the organisation that received the alleged ‘tip-off?’ Who answered the phone? Was it from a mobile phone or landline? Or was it via direct message on mobile? Was it given by email? Did they have Caller ID?

All of those communication forensics are vitally important. Communication forensics in a case like this become more significant as other questions are answered and come in to play. If there are no communication forensics, then there is no case.

There are also questions as to why anybody would bother to tip off anti-doping authorities about a retired footballer competing as an amateur in a bike race. As Gilbert has explained, he didn’t expect to place highly in the race, which would appear to rule out the normal explanation that a jealous competitor was responsible.

Gilbert’s background & positive test

Gilbert is a 35 year old retired professional football player from South Africa who is giving back to the sport he loves. For the past five years, he has been using his name recognition and reputation after a professional football career by teaching football to young black South African children living in the townships, rural areas and remote villages around the Kruger National Park region, and in other areas. Many of the children have no access to TV, the internet, or any form of an organised sports league.

Gilbert often travels six, eight, ten hours on dirt roads to hold clinics around South Africa, bringing in new footballs, nets, shirts, shoes (the majority purchased at his own expense) to remote villages on the fringes up near the Zimbabwe/Mozambique borders. Many times alone.

Gilbert likes doing what he does. He is not only on a mission to teach young children the sport of football, but also works at talent scout for clubs and the South African national team in order to give young black South African children a chance, no matter how disadvantaged they are or how far away and remotely they are living.

“Man, I love it”, says Gilbert. “I take in balls, nets, we set up a field on dirt in an open area, if you can call it that and I teach the kids football for hours, all day. It’s hot, the sun is out, the kids love it. The smiles on the kids are incredible. That’s what I live for. It’s what I love to do.” 

Many of the children are under the age of 10-years-old and have no shoes or grass to play on, regulation football goals or even access to clean water. They live in rondavels in the wildlife game areas that include migratory elephant, lion, kudu, impala, leopard migratory bird species and other wildlife.

“I begin by teaching them the rules of the sport. Doing drills, dribbling, teaching defense, offense”, he explains. “Money is a factor. I get some support, but it is usually totally spent. I don’t have enough money to buy everything I want for the kids, but I bring the balls and many times we start by building a soccer pitch, moving sticks and rocks off the ground just looking for an open dirt space. It’s not regulation, but it’s big enough to play a game on.”

In a large part, this explains why Gilbert accepted a sponsorship agreement with Biogen. The company describes itself as ‘one of the premium wellness brands in South Africa’ and says it sponsors athletes who ‘advocate a healthy lifestyle and who have achieved great things in their respective fields’.

Gilbert began his 13 year professional football career with East Fife in the Scottish Football League, before moving to Kaiser Chiefs in South Africa’s Premier Soccer League (PSL). He then retired with the Thanda Royal Zulu club due to injury. Gilbert says he takes part in mountain bike races to stay in shape. “Hey, I’m married. I like to stay in shape. I retired due to a hamstring injury so mountain biking helps me to stay in shape and to test it out my rehabilitation…to strengthen my hamstrings”.

Getting back from a long trip in the rural areas after holding a football clinic for children, he received word that he had tested positive. “This is unbelievable! I can’t believe it. I can’t believe this is happening to me”, he said was his reaction. “I’m retired from sports. I’ve always checked the ingredients, I check the packages, I’m very careful, I’ve watched the Prohibited List all my life… EVEN AFTER I RETIRED!”, he said, venting his frustration.

Why Gilbert’s background is relevant

As the above illustrates, Gilbert does not appear to fit the profile of an athlete who would take prohibited substances to improve his performance. Arguably, he does more to promote sport in one year than many FIFA executives do in a lifetime.

An athlete’s background shouldn’t ever be relevant in a doping case. One of the underlying principles of the World Anti-Doping Code is a level playing field – that the Code is equally applicable to all.

However, for the last four years, the media spotlight has illuminated how those in charge of anti-doping failed to deal with organised doping, even when they were continually notified about the problem. WADA was told about systemic Russian doping in 2010 but did not want to act, and the International Olympic Committee (IOC) and WADA were independently told again in 2012 and 2013.

On 28 February, the IOC reinstated the Russian Olympic Committee (ROC),  86 days after it was suspended due to the organised doping outlined in its Schmid Report. Legitimate questions have been asked about whether sport’s governing bodies wanted to exclude Russia in the first place. Rightly or wrongly, the message that this has sent to athletes is that the playing field is far from level.

And this explains why Gilbert’s background has become relevant. Comparisons between Gilbert’s case and how sport failed to deal with systemic doping in Russia are perhaps unfair, but are now unavoidable. Due to Gilbert’s background, WADA could face a massive PR problem is its appeal is successful, and he receives a four year ban.

Proportionality

Gilbert’s name would also be added to a list of amateur athletes that argue that they did not intend to cheat, but either did not have the energy or the resources to contest a four year ban. Tony Blazejack and Kurt Clabby are two examples of low level athletes that appeared to have good explanations for their AAFs, yet for differing reasons received four year bans. There are many other examples of amateur athletes who have been sanctioned with the maximum ban after not contesting a sanction.

There are also many examples of successful athletes who have come to settlement agreements with anti-doping organisations. The fact that we cannot name them in this article underlines the problem. Rich athletes often have more money than the anti-doping organisation (ADO) attempting to sanction them. ADOs cannot risk undermining the anti-doping testing system through losing counter lawsuits launched by such athletes, so settle with them instead.

It would appear that the current anti-doping system is set up to punish athletes who do not have the means to defend themselves. They often do not have the resources, energy or inclination to fight back, and the announcement of a four year sanction can serve as proof that an ADO is doing its job. If you do have the means to mount a defence, it would appear that you can buy your way out of trouble. One of the IOC’s conditions for reinstatement of the ROC was the payment of a $15 million fine.

Career destroying

Another principle of the anti-doping system is that once a doping sanction is served, an athlete can return to sport. However, the indelible stain of doping is not so easy to clear.

For an elite athlete, this is less of a problem. Books recounting their doping experience often sell well, and TV interviews and speaking engagements can keep the money flowing in even whilst the sanction is being served. ‘I can’t help thinking that cheats win on the way up and the way down’, wrote British Beijing 2008 gold medal winning cyclist Nicole Cooke in her retirement statement.

Amateur athletes are hit by a double whammy. They often cannot find a job due to their doping record. The Sports Integrity Initiative has been contacted by many athletes pleading for articles relating to their spent sanction to be removed, as such articles are affecting their employment prospects.

The costs of defending yourself against a doping charge can also be severe. Rio 2016 Olympic weightlifter, Sonny Webster, spent his life savings attempting to discover the source of an ostarine AAF. He is likely to now face a battle similar to that faced by amateur athletes sanctioned for doping, as his four year ban means any sponsorship money he might have received is likely to evaporate, and he may have to seek other employment options.

Even in front of the CAS, athletes do not face a level playing field. Lawyers representing sporting bodies have expertise in such cases and are aware of any CAS judgments that may support their case (not all CAS judgments are publicly published). Lawyers retained by athletes face a steep learning curve in becoming experts in chemicals, manufacturing processes, laboratory protocol, and more. The strain that this can put on personal relationships is the elephant in the room.

Should WADA be successful in its case, these problems will be experienced by Gilbert. An unintended consequence if WADA’s is successful in its pursuit of a four year ban against Gilbert will be to affect his coaching work with children.

Whistleblower

The SAIDS panels accept that both athletes tested positive as a result of their use of Biogen’s Testoforte. They accept that both athletes returned an AAF for a substance not listed on the label. They accept that both athletes were not at significant fault or negligence. It could be argued that by alerting WADA to unlisted ingredients within supplements, Gilbert and Pena are whistleblowers.

Irrespective of how it happened, WADA has new knowledge about how an AAF can occur. Yet in both cases, it is easy to see how one might take the view that it is siding with a supplement company. Being the World Anti-Doping Agency (WADA) is not supposed to be a popularity contest, however it is hard to see what benefit WADA would get from success in either appeal, especially Gilbert’s.

• This article was prepared with the help of Steven V. Selthoffer of Athletes of Athletes V Alliance, who interviewed Mr. Gordon Gilbert.

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