SII Focus 19th October 2017

William Brothers, test refusal & publication of amended sanctions

In 2011, when he was just 16, William Brothers was named as Canadian Youth Swimmer of the Year. In 2013, when he was just 19, he became the second fastest Canadian swimmer ever in the 1,500m, recording a time of just over 15 minutes. However, a change in his training programme led to a number of injuries, which combined with a number of medical issues and mental health problems to damage his swimming career.

In August 2015, shortly after he had made a decision to give up swimming in order to cope with these issues, he was targeted by an international swimming federation (FINA) testing mission. While experiencing a panic attack, he refused to undergo a blood test on the advice of his father, Dr. Alex Brothers, whom he spoke to whilst Doping Control Officers (DCOs) were present. On 19 May 2016, FINA announced that he had been sanctioned with a four-year ban.

In March 2017, Brothers was successful in an appeal to the Court of Arbitration for Sport (CAS) and his sanction was halved. However, neither FINA nor the CAS published the decision (PDF below), and Brothers’ name remained on the FINA list of athletes who were serving a sanction for a doping offence until after his sanction (backdated to August 2015) had been spent.

Right place at the wrong time

On 26 August 2015 at approximately 10pm, the DCOs were in the right place – Brothers’s apartment – but at the wrong time, as far as he was concerned. Unlike the FINA panel, the CAS accepted that Brothers underwent a panic attack during his test. To explain why this happened, it is necessary to explain the background leading up to the test.

The CAS accepted that Brothers underwent a panic attack during the doping test…

“In 2013, I became the second fastest Canadian swimmer ever in the 1,500m freestyle”, explains Brothers. “I was on my way to becoming one of the youngest members on the World Championships team. That was pretty much entirely done through an age group programme. I wasn’t in what is called our national training centre. I was in the affiliate group, but I was not coached directly by the national training centre coach.

“That immediately changed after that race, which involved what I think is a significant change in my training programme. I felt like I was overtrained. I think that they worked me beyond my abilities at the time. That was for reasons that were to help the training environment and not necessarily myself as an athlete. 

“After swimming that time, which was just over 15 minutes in the 1,500m, I never swam within 15 seconds of that time again. My performances over the next 18 months whilst I was still in the Victoria National Training Centre, ranged from my best swim at about 15:15 to about 15:40. I was dealing with a decrease in performance, when I expected an increase after joining the national training centre. 

“I was questioning what was going on. There was probably some sort of overuse injuries and illnesses that were affecting my training and performances. As well, the National Training Centre model – especially in Victoria – didn’t really allow me to go to University. I was expected to take the absolute minimum course load. 

“For both performance and academic reasons I decided to make a change in my training programme. This was coupled with the fact my relationship with the National Training Centre coach, who had been a pretty positive influence on my swimming career from the time that I moved to Victoria in 2008, all the way up to around the end of 2013, deteriorated. We no longer saw eye to eye. We were not working well together. 

“Due to the combination of those reasons, I decided to move training programmes to the Vancouver National Training Centre at the start of January 2015. That was for what I hoped would be a positive change to my swimming and my training programme, but definitely a positive change in my academic education, as that training programme is a little more integrated with a University than the programme was in Victoria.

“Shortly after my move, about three weeks in, I learned that my former coach in Victoria had been diagnosed with terminal cancer. That was an extremely difficult thing for me to process. It hit me quite hard and partially affected the end of our relationship, which I didn’t feel very good about. 

“My performances in the pool didn’t seem to improve. All through the season, I continued to struggle with physical injuries, but I also seemed to develop mental health issues – particularly anxiety around racing. These things accumulated and my performances continued to deteriorate to the point where that summer, I decided to step away from swimming for a while for my own health. I knew that I needed a break, and I knew that was the only thing that was going to get me better at that time.

“In April, my former coach passed away. This was confounding to my mental health issues and made it very difficult to train.

Brothers argues that FINA failed to consider his medical history, which underlined the reason behind his panic attack…

“In August 2015, I had decided to stop swimming and was seeking the help of a few different doctors to help with both mental and physical issues. A FINA testing mission came to my apartment after 10pm, when I wasn’t expecting anybody. That triggered a response that mounted into me being in a state where I wasn’t able to submit to their testing.

“It was a difficult decision for me. I stand by what happened in the circumstances that I was in. Obviously, when your health is on the line it is a difficult situation to be required to submit to something you don’t think you can at the time.”

The FINA decision

As previously explained, Brothers’s ‘test refusal’ took place in August 2015, he was sanctioned by FINA in May 2016, and the CAS did not rule on his appeal until March 2017. A ten month delay between an anti-doping test and a sanction is not ideal for any athlete, especially one that is suffering from mental health issues. FINA knew about Brothers’s mental health issues due to medical documentation submitted by Brothers in defence of his case.

FINA argued that Brothers’s failure to submit to doping control was intentional…

“The delay didn’t help with my mental health situation”, says Brothers. “Stepping away from swimming was definitely the correct decision and was helping me, along with the continued help from medical professionals. But having this weighing over me definitely didn’t help.”

Brothers says that FINA didn’t adequately consider his medical history when coming to its May 2016 decision. “Not only did they not consider the evidence submitted by my medical team, they also didn’t seem to consider the medical evidence that their own professional had submitted”, he argues. “It was quite surprising to find out their decision in May after the March hearing, due to what our side said, and what FINA’s own doctors said. I didn’t expect to receive the maximum possible suspension.” 

Hard done by

Looking at sanctions meted out to other swimmers, it is not difficult to see why Brothers feels hard done by. Korean swimmer Park Tae-Hwan received an 18-month ban after a positive test for testosterone; Sun Yang was sanctioned with a three month ban after testing positive for trimetazidine; and Yulia Efimova’s provisional suspension after a positive test for meldonium was lifted. Both Park and Efimova were allowed to participate at the Rio 2016 Olympics despite testing positive for prohibited substances.

In all thee cases outlined above, FINA took the circumstances of the case into consideration – something Brothers alleges that FINA failed to do in his case, despite receiving extensive documentation regarding his medical history. As with most doping cases, the circumstances surrounding these sanctions are complex.

However, it is easy to see why FINA’s decision to sanction Park – a high profile swimmer – with an 18-month ban that expired just in time for the Rio 2016 Olympics, raises suspicion. Similarly, although Yang had a medical history that explained his use of trimetazidine, FINA did not seek to appeal a three month ban issued by the China Swimming Association, which allowed him to keep three golds won at the 2014 Asian Games. Again, this is likely to raise foul play suspicions.

Efimova’s case relates to the chaotic addition of meldonium to the World Anti-Doping Agency’s (WADA) 2016 Prohibited List. It was her second positive test for a prohibited substance. She served a 16 month ban from 31 October 2013 until 28 February 2015 after testing positive for DHEA, an anabolic agent. Efimova did not challenge that FINA decision. Again, although Efimova was far from the only athlete not to realise that meldonium had been added to the Prohibited List, it is not difficult to see why other swimmers might view FINA’s conclusion that she had committed ‘no fault or negligence’ as an escape from justice – especially considering her previous conviction.

In contrast, the CAS rejected an appeal from London 2012 gold medal winner Nikša Dobud against a four year ban issued by FINA for evading a doping test, despite the fact that the Croatian water-polo player had returned a negative test one day previously. The CAS did not agree with Dobud’s explanation that a DCO had mistaken his wife’s brother, Marko Bralic, for him. As The Sports Integrity Initiative has previously reported, this case also appears to fly in the face of common reason.

Repetitional damage

One of the major issues that resulted from FINA and the CAS’s decision not to publish the decision in Brothers’s case was that media organisations – such as The Sports Integrity Initiative – had no idea that his ban had been cut in half and his suspension had been served. Brothers points out that this exacerbated the damage already done to his clean record. After all, he had never failed a doping test and due to non-publication of the CAS decision, was still listed by FINA as a doping cheat.

“Having a decision come down like that was damaging to my recovery, but also tainted my clean competition record”, points out Brothers. “I didn’t want to have an asterisk next to any of my records for performances in the pool. I felt like that decision compromised that. I had been tested well over a dozen times without any sort of issues, so this decision was very disappointing.

“It does seem strange that neither FINA not CAS decided to publish the decision. It is not the fault of the media that they didn’t get this information, because it wasn’t put out there. FINA and CAS didn’t made anything public.”

The CAS’s reasoning behind its decision…

FINA amended its statement regarding the four year ban issued to Brothers to reflect the CAS decision on 9 June this year – three months after the March 2017 CAS decision. Brothers initially spoke to CAS about why it has not published the decision, and was told that it was FINA’s responsibility. This is concerning, given that CAS regularly publishes decisions to sanction athletes and officials. The Sports Integrity Initiative asked the CAS to outline its policy on publishing decisions, but has yet to receive a reply.

“I felt as if FINA had decided not to publish due to the ruling not being in its favour”, says Brothers. FINA did not amend its list of sanctioned athletes until 15 September this year (the PDF file is titled 15.09.17.pdf). Until then, Brothers was still listed as suspended despite his ban having been served. “The interesting thing was that athletes who had suspensions which were then served, those were removed from the FINA site, whereas my name was still up there”, says Brothers. “In my opinion, this is because these athletes are a bit more high profile than I was”.

“In my opinion, CAS did what they could within the WADA rules”, explains Brothers. “The maximum that they were able to reduce my sanction was by half, and that’s exactly what they did. I am extremely happy that in their ruling, they mention that there were some extraordinary circumstances around what happened, and they believed that the sanction that FINA imposed on me was not proportional to what it should have been, based on the medical evidence. I am quite happy that they mention that the two doping agents that showed up to my apartment didn’t necessarily act in my best interest, by not giving me any contact information or any way to remedy the situation.”

Rewriting history

Anti-doping is punctuated with moral righteousness. Athletes who have never felt the keen sting of an unjust ban call for ever-longer sanctions. On social media, athletes and the public state that there are ‘no excuses’ for doping.

The Sports Integrity Initiative has highlighted the difficulty of removing the ‘indelible stain’ of a corruption accusation before. Brothers points out that he had never failed a test, yet he was sanctioned with the same ban as an athlete who had intentionally injected erythropoietin (EPO) to cheat.

FINA and the Doping Control Officer concerned cannot be blamed for this. It is entirely conceivable that the situation outlined by Brothers could be used to cover up actual doping.

However, as highlighted above, both Brothers and Dobud appear to have entirely credible explanations for missing doping tests, yet both were sanctioned with a four year ban. Given that sanctions issued to Park, Yang and Efimova appear lenient in comparison, it would be easy to conclude that a FINA conspiracy favours lower sanctions for higher profile swimmers. However, such a conclusion perhaps ignores the unique circumstances of each case.

Unfortunately, anti-doping regulations are very black and white. They often do not require international federations and other anti-doping organisations to take into account the medical history of an athlete, or the full circumstances of the case at hand. Whether they should is a debate for another article.

However, what happened after the CAS decided to cut Brothers’s ban in half is troubling. The CAS regularly publishes decisions by sport to sanction athletes and officials for corruption. Yet when a decision is successfully appealed, it argues that it is up to the international federation that issued the inappropriate sanction to decide when the revised decision should be published, if at all.

The CAS is governed by the International Council of Arbitration for Sport (ICAS), which consists of 20 members appointed by sport. The 275 CAS Arbitrators (2007 figures) are appointed by ICAS for four years, but are ‘appointed at the proposal of the IOC, the IFs and the NOCs’, according to a history of the body. The ICAS also ‘receives and manages the funds allocated to its operations’. The International Olympic Committee’s (IOC) Annual Report reveals (p142) that in 2016, it contributed US$7.6 million to the funding of the ICAS.

Further information on how ICAS is funded is scarce. It is understood to be funded by Olympic organisations (IOC, ASOIF, AWOIF, NOCs) and by private parties, based on usage. Brothers’s case is not the only example where the CAS has not published a decision. It could be argued that it is in sport’s interest to only publish decisions that go its way. If a sport – and its lawyers – have exclusive access to decisions that have gone against it, then it faces a distinct advantage when bringing cases against athletes and officials in the future.

Of course, none of this helps Brothers. His concern was being tarred with the same brush as an intentional cheat and now that FINA has recognised and published his decision, his records in the pool stand unblemished by the indelible stain of corruption. However, his story does serve as a warning to other athletes that sporting bodies do not have to take into account personal circumstances when sanctioning an athlete, and it can be down to the athlete to force their sport to recognise a rescinded sanction.

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