SII Focus 6th November 2020

How the Sakho case highlights inconvenient truths

This week, footballer Mamadou Sakho won a four year battle against the World Anti-Doping Agency (WADA), which alleged that he had taken a prohibited substance. Under a strict reading of the 2016 Code in place at the time, Sakho didn’t return an AAF for a prohibited substance. He didn’t ‘test positive’ and isn’t guilty of a doping offence. But WADA erroneously reported that he had returned an adverse analytical finding (AAF) for higenamine in 20161.

In a statement read out at the Royal Courts of Justice in London, WADA apologised for making defamatory statements about Sakho to the media alleging that he had taken a prohibited substance. In 2016, UEFA notified Sakho of an AAF for higenamine, which didn’t feature on the 2016 Prohibited List. WADA had asserted that higenamine was prohibited under a ‘catch-all’ provision within section S3 of the 2016 List, which states ‘All beta-2 agonists, including all optical isomers, e.g. d- and l- where relevant, are prohibited’.

As Sakho was able to demonstrate, higenamine wasn’t prohibited, as there were questions about whether it should be considered a beta-2 agonist. It therefore couldn’t possibly be covered by the above ‘catch-all’ statement.

As usual, there will be people who argue that Sakho has been cleared on a technicality. However, the reality is that Sakho didn’t ever ‘test positive’ for any prohibited substance. WADA told the media that he had done, which is why he launched his libel case seeking £13 million in damages.

‘I am pleased with WADA’s acceptance that I did not breach the UEFA Anti-Doping Regulations, did not cheat, had no intention of gaining any advantage and acted in good faith’, read a statement from Sakho (see below). ‘I am also pleased that WADA has apologised to me and agreed to pay a substantial sum in damages.

‘I consider myself vindicated and now look forward to continuing my career. There is nothing worse for an athlete than the suspicion of doping. I have lived through it with all the consequences it has had for my career, my image and even my personal life. Fortunately, many people believed in me. My family, friends and supporters have always been there. I thank them very much.

‘Receiving the official apology from WADA was for me something essential to be able to turn this page, to continue to move forward and above all to pass on my experience. Always fight to the end to defend your convictions!’

 

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🇫🇷 Une déclaration en audience publique conjointe a été rendue et mon litige avec l’AMA est désormais clos ! Je suis heureux que l’AMA ait accepté que je n’aie pas violé le Règlement Antidopage de l’UEFA, n’aie pas triché, n’avait pas l’intention d’obtenir aucun avantage et aie agi de bonne foi. Je suis également heureux que l’AMA m’ait présenté ses excuses et ait accepté de payer une somme substantielle de dommages. Je me considère innocenté et je me réjouis maintenant de poursuivre ma carrière. Il n’y a rien de pire pour un sportif de haut niveau que le soupçon de dopage. Je l’ai vécu avec toutes les conséquences que cela a eu pour ma carrière, mon image et même ma vie personnelle. Heureusement de nombreuses personnes ont cru en moi. Ma famille, mes amis et les supporters ont toujours été là. Je les en remercie infiniment. Recevoir officiellement les excuses de l’AMA était pour moi quelque chose d’indispensable afin de pouvoir définitivement tourner cette page, continuer d’aller de l’avant et surtout transmettre mon expérience. Battez vous toujours jusqu’au bout pour défendre vos convictions ! ____ 🇬🇧 An agreed Statement in Open Court has been read out and my dispute with WADA is closed! I am pleased with WADA’s acceptance that I did not breach the UEFA Anti-Doping Regulations, did not cheat, had no intention of gaining any advantage and acted in good faith. I am also pleased that WADA has apologised to me and agreed to pay a substantial sum in damages. I consider myself vindicated and now look forward to continuing my career. There is nothing worse for an athlete than the suspicion of doping. I have lived through it with all the consequences it has had for my career, my image and even my personal life. Fortunately, many people believed in me. My family, friends and supporters have always been there. I thank them very much. Receiving the official apology from WADA was for me something essential to be able to turn this page, to continue to move forward and above all to pass on my experience. Always fight to the end to defend your convictions!

A post shared by Mamadou Sakho (@mamadousakho) on

Sakho was able to prove that the attempt to sanction him was scientifically flawed, because there were questions about whether higenamine met its ‘catch-all’ beta-2 agonist prohibition. WADA’s solution? Just add higenamine to the List.

We want it banned

Higenamine was added to the 2017 Prohibited List and features on the 2020 List. ‘Higenamine is prohibited as a non-selective beta-2-agonist’, reads a question and answer section on WADA’s internet site. ‘Higenamine is documented to be a constituent of the plant Tionsopra crispa, which can be found in dietary supplements’.

This suggests that WADA doesn’t accept Sakho’s evidence, supported by a Nobel Prize winner, that higenamine may not be a beta-2-agonist. But under WADA’s self-written rules and regulations, the Prohibited List doesn’t have to be accurate in correctly categorising substances. All WADA has to do is add a substance to the List and it becomes prohibited.

WADA may include any substance or method that satisfies two of the following three criteria on the List:

• It has the potential to enhance or enhances sport performance;
• It represents and actual or potential health risk to the athlete;
• It violates the ‘spirit of sport’ – for a definition from the World Anti-Doping Code, see right.

This allows WADA to put virtually any substance it pleases onto the List. Alcohol? fatty food? Both represent a health risk to athletes and could be argued to violate the ‘spirit of sport’. Aspirin? Thins the blood and has anti-inflammatory properties, so has the potential to enhance performance. Using it in this way would be contrary to the ‘spirit of sport’.

Wikipedia states that in rats, higenamine produced cardiovascular effects and increased airflow to the lungs. In humans, it increased heart rate and caused shortness of breath, dizziness and more. These effects don’t appear beneficial in athletic performance, but that doesn’t matter. The experience of the rats shows that higenamine has the potential to enhance human performance.

Athletes want certainty

An argument often heard in anti-doping cases is: ‘it isn’t complicated. Just check the List and if it’s on there, don’t take it’. If only it were so easy. Higenamine is known by a number of names and is plant based. Wikipedia lists six different plants and seeds in which higenamine can be found. Any of these could be included on a supplement label without it actually listing ‘higenamine’ as an ingredient.

In 2018, a Study2 published in Clinical Toxicology found huge disparities in doses even among supplements that actually list higenamine as an ingredient. Also in 2018, higenamine resulted in 42 AAFs reported3 to WADA, 26% of its beta-2 agonist class (despite Sakho’s evidence that it shouldn’t be considered a beta-2 agonist at at all). 

For public relations reasons, WADA would like to be able to claim that the Prohibited List is easy to understand. Listing every possible name for every substance on the List would render that claim obsolete. The List would be huge and incomprehensible.

Listing every substance may be possible via an online ‘click through’ version of the List. But this may open WADA to further challenges from athletes who didn’t ‘click through’. WADA appears to like a single List. It may be easier to defend in arbitration hearings.

An exhaustive List may also lead to supplement companies adapting their approach. As the emergence of the ‘legal high’ industry demonstrated, it is easy to slightly amend prohibited compounds, and to find new names for plants and roots. Substances that are plant based present a particular conundrum for both athletes and WADA, as they can be listed under a variety of names.

Lauryn Williams

There is, therefore, no easy solution. “Being able to decipher the source of a food is how you tell the difference between a food and a supplement”, Lauryn Williams told The Sports Integrity Initiative in 2015. “If it comes from a laboratory; if it has ingredients that I can’t pronounce; if I can’t figure out where tracko-thacko-macko-lycin(!) came from, then that’s a supplement, and I’ll stay away from it!” 

Black and white 

Williams offers good advice. But many athletes do take supplements. Anti-doping is not black and white, no matter how much some people would like it to be. The strict liability, no excuses approach to anti-doping hides an inconvenient truth. Many doping cases involve athletes who have accidentally ingested a prohibited substance. 

This week, Bibugul Menlibayeva was sanctioned for an AAF at a Tokyo 2020 qualifying event because the young Uzbek swimmer couldn’t prove that a supplement she took was responsible for an AAF for a prohibited substance. Menlibayeva returned an AAF for 5-methylhexan-2-amine and blamed a supplement C4. This supplement doesn’t list methylhexanamine or any of its variety of other names on its label. 

Like higenamine, methylhexanamine is often claimed to be plant based (although there is no evidence for this). Because of this, it is often listed as geranium oil, Geranamine, 1,3 Dimethylamylamine, DMAA, dimethylpentylamine (DMP), 4-methylhexan-2-amine, or under a variety of other names. 

In 2011, the US Anti-Doping Agency (USADA) warned about the danger this presented for athletes. Only some of these variations are listed on the World Anti-Doping Agency’s Prohibited List (see right), making it difficult for athletes to check if a product contains the stimulant.

Methylhexanamine is also understood to help increase airflow to the lungs. In August 2012, the UK’s Medicines and Healthcare products Regulatory Authority (MHRA) ordered that all supplements containing DMAA (another one of many names for methylhexanamine) be removed from the market, after the death of a marathon runner sparked concerns. In July 2012, an investigation by World Sports Law Report and BBC Radio 5 Live found that presenter Nicky Campbell’s sporting performance improved after taking a supplement containing DMAA. 

Yes, it should be on the List. But no, this doesn’t mean that every athlete who returns an AAF for methylhexanamine is guilty of intentional doping. Proving intent is difficult, even for criminal courts.

Yes, Menlibayeva should be sanctioned. Her performances may have improved due to the action of the stimulant on her physiology. But a two year ban appears harsh. The international swimming federation (FINA) agreed that there was no intention to enhance performance. 

Her case isn’t the same as Sakho’s. She admits taking a prohibited substance and Sakho never took a prohibited substance. But again, if her account of events is accurate, there would have been no way for her to know that the supplement she alleges she consumed was prohibited. 

Under the WADA rules and regulations, she is guilty unless she can prove she is innocent. Unlike Paolo Guerrero, she doesn’t have the money to provide elaborate defences that can effectively illustrate a lack of fault. 

When athletes don’t have the money to fight the charges against them, speculation about whether they are telling the truth or not comes into play. It is forgotten that under WADA’s regulatory system, they are guilty unless they can conclusively prove that they are innocent, and condemnation from the public and other athletes can follow. There is an army of athletes who argue that they were not at fault for consuming supplements containing prohibited substances. This includes Jimmy Wallhead; Gordon Gilbert and Demarte Pena; Hiromasa Fujimori; and Shayna Jack – to name but a few. 

Irrespective of whether you believe that they are telling the truth or not, such athletes should be given some form of sanction, even if it is proven that they are not at fault. Many, but importantly not all, of the substances on the Prohibited List have been proven to enhance athletic performance. An athlete who has accidentally ingested a sufficient quantity of a performance enhancing substance is likely to hold a performance advantage. To not issue a sanction in such cases would do a disservice to athletes they competed against.

But should they serve a ban? Athletes must be held responsible for what they put into their body, but there should also be a sense of balance. In cases where it is proven that the athlete could not have possibly known that what they were ingesting was prohibited, then a ban can appear unjustified. As does calling them a ‘doping cheat’, or one of any number of variations on that phrase.

Anti-doping is one of the only areas of jurisprudence when the accused can be found guilty unless they can prove they are innocent. An athlete who returns an AAF or ‘tests positive’ for a prohibited substance faces a closed regulatory system headed by WADA, which is 50% financed by sport. An athlete must agree to arbitrate all disputes at the Court of Arbitration for Sport (CAS), which is financed by sport. 

WADA is understandably keen to defend the regulatory system it has created. Athletes who appeal for reductions in anti-doping sanctions to the CAS are often met with counter appeals from WADA, seeking to extend the sanction. Just ask Gordon Gilbert or Demarte Pena, Andrea Iannone, or Paolo Guerrero. WADA has the financial resources to do this, whereas many athletes do not.

The Butson decision highlights uncertainty about higenamine’s status…

Sakho wasn’t the only athlete to return an AAF for higenamine before it was added to the 2017 Prohibited List. Michael Butson returned an AAF for the substance on 22 September 2016. He was sanctioned with a nine month ban after Drug Free Sport New Zealand (DFSNZ) accepted that a supplement was responsible. Like Sakho, there is no way he could have known that WADA considered higenamine to be a prohibited beta-2 agonist. Sakho had the money to fight the charge but Butson, a 22 year junior rugby league development squad player, did not4.

This leads us to another inconvenient truth highlighted by the Sakho case. The anti-doping system may be incapable of taking on top athletes. Sakho sought £13 million in damages. This is around 43% of WADA’s budget of $39.5 million for 2020. Neither party has disclosed what damages were eventually paid, but both sides agreed that they were ‘substantial’.

WADA has the cash reserves to afford such damages, but they would cripple a national anti-doping organisation (NADO) or many international federations. In 2017, concerns about the impact that any legal action boxer Tyson Fury may take against UK Anti-Doping was reflected in a statement.

Tyson Fury

‘‎In recognition of the respective counter-arguments and the risks inherent [emphasis added] in the dispute resolution process, each side has accepted a compromise of its position’, it read‘The proceedings have therefore been resolved on the following basis: the anti-doping rule violations based on the reported presence of elevated levels of nandrolone metabolites are upheld, the refusal charge is withdrawn, Hughie and Tyson Fury each receive a two-year period of ineligibility, and their results from their respective fights in February 2015 are disqualified.’

Meanwhile, speculation over what may or may not have happened continues. Athletes are told that the anti-doping system is there to ‘protect clean sport’. This is accurate, but it is important to remember that it is also there to prosecute them. 

Christian Coleman

This is highlighted by attempts to ‘catch out’ Christian Coleman so he can be sanctioned for ‘whereabouts’ failures rather than actually tested. This is easier for ADOs and it would appear that it presents less litigious risk than locating and testing him.

Athletes must arbitrate at the CAS, unless they can afford not to. You are guilty of an ADRV unless you have the financial resources to prove that you are innocent. Catching world class athletes for breaking anti-doping rules is easier and less litigious than accusing them of doping. Sakho’s successful four year battle has unfortunately exposed all of these inequities in the system.

1. See ‘Mamadou Sak-who? Collateral damage in an era of name and shame’; and also Click Here for the UEFA Decision
2. Click Here to view a PDF of the Study.
3. Page 29 of the Report, available by Clicking Here.
4. The full Decision in the Butson case is available by Clicking Here.

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