19th July 2021

Anti-doping’s biggest secret: not all athletes are guilty

“I think the system is perhaps more loaded against the athlete, but the entire system would fall apart if you had to put the burden on the doping authority rather than the athlete”.

Richard McLaren

The above quote is from Richard McLaren, the sports lawyer who authored two Reports into Russian State doping for the World Anti-Doping Agency (WADA). It features in a new documentary, ‘Doping: Top Secret – Guilty’, produced by journalists for German State broadcaster ARD. The quote illustrates that those who govern anti-doping are aware that despite anti-doping being billed as protecting athletes, it sometimes doesn’t fulfil this noble aim.

Due to the strict liability principles applicable in anti-doping, athletes charged with an anti-doping rule violation (ADRV) are considered guilty unless they can prove that they are innocent. In the documentary (video below), journalists show how abuse of this principle can lead to innocent athletes being sanctioned for doping. A scientific experiment, conducted as part of the documentary, shows how tiny amounts of substances dabbed onto the skin can lead to a positive doping test.

The potential for sabotage is huge. Contact is an essential part of most sports. In some cases, sabotage appears to have already occurred.

An agent used to enable absorption of prohibited substances through the skin was found to be undetectable after a few days. Yet the minute amounts of prohibited substances transferred into an athlete’s physiology via the agent can be detected for over two weeks afterwards. 

An athlete arguing that they have been the victim of such sabotage would have no means of proving innocence. Under the strict liability principles of anti-doping, they would therefore be guilty of an ADRV. Yet according to Angelika Nußberger, former Vice President of the European Court of Human Rights (ECHR), an ADRV brought forward against an athlete who offers such a defence would represent a violation of their human rights.

The experiment

Twelve males aged from 18-40 years old were given low doses of anabolic steroids that were dabbed onto their skin using a carrier agent. The amounts used were less than one might use to moisturise – or, perhaps poignantly, sanitise – one’s hands. 

Urine samples taken over time were analysed at the Institute of Forensic Medicine in Cologne. Some returned an adverse analytical finding (AAF – or ‘positive test’) after a few hours. All 12 returned an AAF in 14 days. 

The carrier agent used became undetectable in a few days, meaning that only anabolic steroids would be detected. It was found that a potential saboteur could use a protective cream to prevent them from also returning a positive test. Martin Juebner, a forensic toxicologist who conducted the experiment, hopes to publish a scientific paper on its results in the future. 

Sabotage

As highlighted by Shayna Jack in the documentary, an athlete who returns a ‘positive test’ can expect to be named and shamed in the media, even before they are convicted of an ADRV. The World Anti-Doping Code allows sport to publish an athlete’s name and the substance involved, before their case and any potential explanations have been heard.

Athletes have every right to expect application of the same strict liability principles to the sporting bodies that govern them. Shockingly, journalists found that the international hockey federation (FIH) and WADA failed to follow up on an apparent deliberate attempt by Azerbaijan to sabotage the Spanish hockey team ahead of the Beijing 2008 Olympics, in order that their national team qualified in its place.

Silvia Bonastre and María Romagosa, former members of the Spanish hockey team, explained how some players fell ill whilst others felt energised following a dinner at the team hotel during an Olympic qualifying tournament in Baku. “I needed to move and to exercise my body”, explained Bonastre. “Me and colleagues just had so much energy and we went through all of the floors of the hotel running up and down”. 

Spain beat Azerbaijan in the final match of the tournament to qualify for Beijing 2008 ahead of Azerbaijan, which finished in second place. However, two Spanish players later returned AAFs for MDMA (ecstasy). One was sanctioned despite the FIH agreeing that she was not at at fault. The other player was acquitted, and the FIH refused to comment further.

Journalists spoke to Martin Sotheridge, one of the judges involved with the confidential FIH hearing. It found that the concentration of MDMA in the second player’s sample was so high that it would have made playing in the final impossible. In other words, the player’s urine sample had been manipulated following collection after the game. 

Detail from a CAS Decision corroborates sabotage (click to open)…

Sabotage is corroborated by a December 2019 article detailing the case. The Azerbaijan Olympic Committee even supported an appeal against the FIH Decision, the detail of which further corroborates claims of sabotage (see right).

The Azerbaijan field hockey federation was suspended in 2016. However there is no evidence that this is related to events in 2008 and no evidence exists that the FIH or WADA took action based on the FIH’s findings regarding the apparent sabotage of Spain’s national team with MDMA. The aforementioned Richard McLaren was President of a Court of Arbitration for Sport (CAS) Panel involved in hearing an appeal by Azerbaijan against the FIH Decision regarding the Spanish athletes.

This isn’t the only time that sabotage has occurred in anti-doping. In November 2018, the Russian Anti-Doping Agency (RUSADA) dropped a case against seven junior ice hockey players, after it was found that a third party had put meldonium into the dietary supplements of the players. Earlier this year, sabotage was alleged during an Olympic shooting case.

Allegations of sabotage also played a huge part in the long and complicated case of Italy’s champion race walker, Alex Schwazer. If anything, it’s amazing it doesn’t happen more often.

Concern

‘WADA acknowledges that some athletes may be concerned when viewing this documentary’, reads a statement. ‘However, this possibility is well known within the anti-doping community. It is considered to be a very rare occurrence based on the small number of such cases that have arisen historically, and its potential is scientifically limited to a very small number of prohibited substances that could be absorbed through the skin into someone’s system (for example, the anabolic steroid, clostebol).’

However, athletes should be concerned, as contamination isn’t a ‘rare occurrence’. Nor is it confined to a ‘very small number of prohibited substances’. As such, can athletes be confident in the anti-doping system, as WADA reassuringly asserts in its statement?

Click to open…

A simple search for ‘contamination’ on The Sports Integrity Initiative’s internet site reveals 19 cases other than the six outlined in the documentary (see table on right). In total, 13 substances are involved. And those numbers exclude cases involving supplement or meat contamination. If they were included, the number of cases and substances involved would rise significantly.

Five of the 19 cases involve a positive test resulting from contact with a partner – two of which appear to be one off encounters. Another five involve contaminated medication; two involve contaminated water; another resulted from eating sandwiches in an area where contaminated horse manure was present; another involves cream to treat sunburn; and another contaminated banknotes.

Most of the substances featured on WADA’s Prohibited List are non threshold substances. This means that any amount detected in a sample is considered an ADRV. A few years ago, an analogy boasted by anti-doping authorities was that tests could detect a lump of sugar dissolved in an Olympic size swimming pool. 

Detection methods have advanced further since then. In sport as in life, skin contact with other humans is almost impossible to avoid. As the documentary and our table illustrates, contamination via skin contact is possible, has occurred, and is very difficult to prove.

“When it’s that extreme, that it’s barely noticeable and possible as an act of sabotage, then that would mean that a sanction would involve a human rights violation”, Nußberger, former Vice President of the ECHR, told journalists. “One doesn’t have the slightest chance of proving otherwise, because nobody can remember who may have briefly brushed against you as they passed by. 

“Sport will have to look for a new system. The consequence would be that the corresponding regulations would have to be changed, and the strict liability situation would have to be adapted for the athlete, so that one has the opportunity of escaping an accusation.”

Low hanging fruit

McLaren’s quote, WADA’s statement, and the lack of action taken against Azerbaijan for what appears to be a clear attempt at sabotage again illustrate the double standards that apply in sport. Athletes are guilty until they can prove innocence, yet sporting organisations are not held to the same high standards.

WADA was told about Russian State doping in 2010, but claimed that it didn’t know about it until late 2014. The Diacks and other IAAF senior management knew that athletes were being extorted for covering up positive tests, but apparently kept this information to themselves and didn’t pass that information on to other staff members. Weightlifting officials aren’t provisionally suspended, but are able to ‘step aside’ whilst serious corruption is investigated, despite their actions presenting a threat to athlete participation in the Olympics.

Yes, of course the testing system is needed to protect clean athletes from doping cheats. But some accountability is needed to protect athletes from a system that is heavily weighted against them. Anti-doping organisations (ADO) receive funding based on the perception that they are policing against doping, and busy politicians are likely only to look at ADRV numbers, not case details.

In such an environment, it is far too easy for an ADO to pick off the low hanging fruit. Only very elite athletes at the top of their game have the financial resources to prove contamination. Unless there is a change to the system, innocent athletes will continue to be punished harshly, whilst elite dopers are able to escape justice due to having the funds to bankrupt an ADO in arguing their case.

In addition, the strict liability principle imposed on athletes makes it far too easy for States involved in systemic doping to sacrifice athletes whilst escaping justice. Under strict liability, an athlete who is doped by the State is considered guilty unless they can explain a ‘positive test’. But if State doping is involved, an explanation could endanger the athlete and their family. The experiences of Vitaly Stepanov and Yulia Stepanova, Dr. Grigory Rodchenkov, and Andrey Dmitriev, as well as the deaths of Nikita Kamaev and Vyacheslav Sinev illustrate just how difficult a dilemma this can be.

It is far too easy for sport to claim that it is taking proactive action against dopers, whilst punishing potentially innocent athletes for breaking trivial anti-doping rules it has created. This is perhaps why it fights to the death any athlete who takes a claim outside of its closed arbitration system – athletes such as Kristen Worley, Claudia Pechstein, or Alex Schwazer. Anti-doping is unfair and incompatible with normal legal principles – and sport knows it.

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