Features 26th November 2020

Jack & Iannone: contamination cases turn on whether CAS believes you

Shayna Jack

Recent Decisions in the Shayna Jack1 and Andrea Iannone2 cases illustrate that when an athlete claims that an anti-doping rule violation (ADRV) is the result of contamination, their sanction largely depends on whether the Court of Arbitration for Sport (CAS) believes them. Both athletes were sanctioned with an ADRV, both claimed contamination, and both appealed to the CAS in an attempt to reduce their sanctions. Jack had her sanction halved to two years, whilst Iannone had his more than doubled from 18 months to four years.

Andrea Iannone

In anti-doping, an athlete is presumed guilty unless they can prove that they are innocent. Neither Jack nor Iannone could prove the source of their adverse analytical finding (AAF or ‘positive test’), so under a strict reading of the World Anti-Doping Code both should have been sanctioned with four year bans. The main difference between the two cases is that on a ‘balance of probabilities’, the CAS believed that Jack didn’t intend to cheat; whereas in Iannone’s case it didn’t believe that his ADRV was unintentional.

Whilst there are similarities between the cases, there are also differences. Jack’s ADRV involved Lingradol (LGD-4033), a Selective Androgen Receptor Modulator (SARM) which the sole CAS Arbitrator understood to have limited application in females. Iannone’s ADRV involved a metabolite of drostanolone, an anabolic steroid that can be used for performance or physique enhancing purposes. 

Both retuned AAFs for low concentrations of the substance involved. Jack was able to provide evidence that indicated no pattern of long term use. Iannone also attempted to do so using a hair test, however its usefulness was disputed by the CAS Panel.

Iannone argued that his AAF was due to eating contaminated meat in Malaysia and Singapore. Jack couldn’t explain her AAF, but speculated that it could have been the result of supplement contamination; use of a blender used by other family members to also blend supplements; or contamination due to use of public pool or gym facilities.

Perhaps crucially, Iannone’s appeal involved a counter-appeal from the World Anti-Doping Agency (WADA), seeking to extend his ban from 18 months to four years. WADA was not involved in Jack’s case, but does have the right to appeal the CAS decision.

Narrow corridors

Article 10.2.3 of the Code…

In both cases, it was agreed that under the World Anti-Doping Code, there is no strict need for an athlete to prove the origin of a prohibited substance in order to prove that an ADRV is not intentional. Article 10.2.3 outlines that the term ‘intentional’ is designed to identify athletes who cheat. Article 10.5.2 outlines that an athlete can still establish no significant fault or intent in cases where the ADRV doesn’t involve a specified substance or contamination isn’t established – but in these cases, the original sanction can only be halved.

Article 10.5.2 of the Code…

As neither athlete could establish the source of their AAF, both cases mention that the athlete will have to pass through the ‘narrowest of corridors’ in order to prove lack of intent and benefit from a reduction in their sanction. This description comes from the CAS Decision3 to dismiss Maurico Fiol Villanueva’s appeal against a four year ban issued by the international swimming federation (FINA), after analysis of 11 supplements failed to reveal the source of his stanozolol AAF. Villanueva was subsequently sanctioned with an eight year ban for a second ADRV involving stanozolol.

Jack attempted to argue that she had established no significant fault or negligence due to the low concentration of the prohibited substance in her sample…

Supported by a Report from Mario Thevis of the German Sport University Cologne, Jack attempted to argue that she had established no significant fault or negligence (see right) because the data suggested that the amount ingested was a ‘pharmacologically irrelevant dose’, as the steroid profile of Jack’s Athlete Biological Passport (ABP) did not suggest that long term use. The sole Arbitrator disagreed that this meant that Jack had met her burden of establishing no significant fault or negligence, but accepted that the low dose and additional evidence didn’t indicate long term use or any performance benefit.

The above is one reason why Jack was able to pass through the ‘narrow corridor’. Also, the sole Arbitrator was satisfied – on the balance of probabilities – that Jack had shown her ADRV not to be intentional. In short, he believed her.

In Jack’s case, the sole Arbitrator dismissed the ‘narrowest of corridors’ description as an ‘unhelpful, unnecessary and unwarranted gloss’ on the wording in the Code. ‘Given the severe default sanction [four years], even for a first offender, the actual language employed in Article 10.2.3 and the actual practical difficulties for an applicant in seeking to discharge his or her onus of proof in circumstances such as the present, the Sole Arbitrator considers that it is unwarranted to approach the consideration of which an Athlete has discharged the onus case upon him or her from a perspective that he or she must be able to fit within “the narrowest of corridors” or show that his or her case is an “extremely rare” one’, reads the Jack Decision. ‘Rather, the proper approach is to determine whether, on the totality of the evidence, the Applicant has proven on the balance of probabilities that she did not, or did not attempt to, cheat’.

The sole Arbitrator labelled Jack as one of the ‘most impressive’ witnesses he had seen in 40 years, stating that he could not detect any signs of disingenuousness. However, he quoted the Villanueva Decision’s reference to ‘the currency of such [denials] is devalued by the fact that is the common coin of the guilty as well as of the innocent’ as a warning as to the need to exercise caution in accepting athlete protestations of innocence. 

In contrast, a CAS Panel didn’t believe Iannone who – unlike Jack – also faced a formidable opponent in WADA. In its arguments, WADA argued that Iannone must produce ‘concrete and persuasive’ evidence establishing, on the basis of probabilities, a lack of intent. WADA argued that the Lawson4 and Jamnicky5 cases – in which appeals were upheld against sanctions despite both athletes not being able to conclusively prove that their AAF was due to contaminated meat – are ‘outliers inasmuch as they apparently propose an enlargement of that possibility [proving lack of intent]’.

WADA argued that the Lawson Decision ‘misapplied (or ignored) express provisions in the World Anti-Doping Code’, adding that it has been criticised by experts in anti-doping law, such as Jonathan Taylor and Ulrich Haas. Jonathan Taylor was Chair of WADA’s Compliance Review Committee (CRC) and has represented WADA in numerous cases. Ulrich Haas is Chair of WADA’s Working Group on the Review of WADA Governance Reforms.

Iannone advanced a very interesting argument that could play a part in his indication that he intends to appeal. WADA argued that if meat contamination claims were allowed in the absence of specific evidence, it would follow that athletes who return an AAF for low levels of steroids would have to be acquitted on any unsubstantiated claim of meat contamination. Iannone argued that this statement is unacceptable, as it shows WADA is concerned that cases such as his would require WADA to review the parameters of doping controls. He argues that rather than viewing this as a burden, his case should be seen as an opportunity to ‘identify new illegal tools used in animal doping, which can be extremely harmful to athletes’.

Iannone’s main argument was that his drostanolone AAF must have been caused due to eating meat contaminated with the substance whilst in Malaysia and Singapore. He was able to produce a bank statement proving that he had eaten at Marini’s on 57 on 1 November 2019, and also produced receipts proving he had eaten at the Sama Sama Hotel in Malaysia on numerous occasions – including on 2 November 2019. His AAF was on 3 November at the international motorcycling federation (FIM) World Championship MotoGP, in Sepang, Malaysia.

The Sama Sama receipts didn’t indicate what Iannone had eaten, and he apparently received no reply to an email asking about the origin of the meat he had consumed. A family friend called the owner of Marini’s on 57, and his affidavit said that the owner had refused to assist through fear of jeopardising the restaurant’s reputation.

The CAS Panel was critical of Iannone for not requesting duplicate receipts. ‘The Panel cannot comprehend why an athlete such as Mr. Iannone, assisted by a team composed of technical, legal and sport professionals, claiming that that his ADRV resulted from consumption of red meat and knowing that his professional career was at stake, did not engage in efforts to, at least try, secure a duplicate of potential evidence in support of his case’, reads the Decision. It is critical of Iannone for not pursuing obvious lines of inquiry, as done by Lawson and Jamnicky in the contaminated meat cases on which he relies.

However, even if he had done this, the Panel highlights that he had failed to establish that meat consumed in Malaysia or Singapore could have been contaminated with drostanolone. It highlighted that neither country is reported to suffer from meat contamination, and only a very small fraction of both country’s meat is imported from China, where contamination issues exist.

The CAS Panel was also suspicious of Iannone’s email to the Sama Sama Hotel, criticising its timing, its generality and Iannone’s claim that previous emails had been sent to the Hotel as not credible. It also found the family friend’s inquiries at Marini’s on 57 to be too vague.

It is not WADA’s place to suggest alternative scenarios for an ADRV, such as this one…

In short, it didn’t believe him. It would appear that the CAS Panel was, at least partly, swayed by WADA’s arguments. Interestingly, WADA said that it was not its place to put forward alternative explanations for the ADRV, but it did so anyway. It argued that a one-off dose of drostanolone could have been used to help treat a September 2019 shoulder injury (see right).

This was picked up by the Panel. ‘Mr. Iannone asserts that there was not any logic or incentive for him to administer a limited dose’, reads the Decision. ‘Even this is controversial given WADA’s suggestion that he could have used a single dose to ease recuperation from an injury alleged to have occurred in September 2019 at the San Marino Grand Prix or even, a point canvassed before the CDI [the FIM hearing] if not before the Panel, to enhance the definition of his physique on Instagram.’

The Panel did concede that meat contamination was a possible explanation, as concluded by Professors Alberto Salomone and Pascal Kintz in expert reports for Iannone at the FIM hearing. ‘But possible is not the same as probable’, reads the Decision. ‘All things which do not defy the law of science are in one sense possible. However, it was for Mr. Iannone to prove that his meat contamination scenario is more likely than not. And in the Panel’s view, he has failed to do so at every critical stage of his submission.’

The Panel held that Iannone’s case differed from the Lawson and Jamnicky cases. All three cases involved contaminated meat and in all three cases, the athletes were unable to conclusively establish the source of the AAF. However, unlike Iannone, Lawson identified that he had eaten beef and how it was sourced at the restaurant where he ate it. In addition, his case concerned trenbolone, which is a steroid permitted for use in livestock farming in the US. In the Jamnicky case, the Panel agreed that the athlete had done all possible to identify the source of the contaminated meat, and the CAS Panel said this was not the case with regards to Iannone.

Evidence is key – except when it isn’t

The two cases perhaps illustrate that Jack has been very lucky indeed. The only reason that her sanction was halved is because a sole Arbitrator was inclined to believe that she didn’t intend to cheat, despite her not being able to produce any evidence. 

Unlike Iannone, Jack didn’t have to face a CAS Panel; she didn’t face WADA as an opponent; and her first language is English. Iannone’s request to conduct proceedings in Italian was denied. 

Contamination presents an increasing problem in anti-doping cases. As Laboratory detection methods improve, detection of ever-smaller concentrations of prohibited substances in athlete samples becomes possible. As such, this increases the possibility of contamination as the reason for an AAF.

In recent years, cases have involved contaminated water; contamination due to kissing; contamination via cocoa tea; food contaminated by a family member’s breast cancer medication; and many other scenarios. This is why WADA is keen to emphasise, as it did in the Iannone case, that evidence is key. If an athlete can prove the source of contamination, that makes their appeal significantly easier. 

USADA assisted Jimmy Wallhead in discovering the source of his AAF…

However, in the absence of evidence, such cases often come down to whether the adjudicating authority believes that the athlete is telling the truth of not. The US Anti-Doping Agency (USADA) believed Jimmy Wallhead, and assisted him in discovering the source of his ostarine AAF. WADA didn’t believe that Demarte Pena and Gordon Gilbert’s AAFs for exogenous testosterone were caused by a supplement given to them by company that sponsored them. 

Often, external factors can further complicate matters. In the Liam Cameron case, it was argued that the boxer should have proved that his ADRV for a metabolite of cocaine was caused by counting contaminated bank notes by providing evidence confirming drug use in the pubs in which he sold tickets to his fights. In effect, the CAS was asking Cameron to implicate pub landlords and drug dealers in the area in which he lived – perhaps not a wise move in the Darnall area of Sheffield.

Like Iannone, Cameron insists that he is telling the truth, and has been punished with a four year ban that ended his career because a CAS Panel didn’t believe him. Jack wasn’t able to explain the source of her AAF. Neither was Iannone, but he came to a conclusion that contaminated meat was the source. 

If, like Jack, Iannone had simply said that he couldn’t explain the source of his AAF, would he have been eligible for a reduction in his sanction? Because of WADA’s involvement in the case, this appears unlikely. However, to follow the CAS Panel’s reasoning in the Iannone case, unlikely doesn’t mean impossible. WADA has yet to get involved in the Jack case and has yet to comment on it. However, given that it sets a precedent whereby an athlete can gain a reduction in sanction based on a single Arbitrator’s assessment of their good reputation alone, an appeal seems probable.


Footnotes

1. The full CAS Decision in the Shayna Jack case is available by clicking here.
2. The full CAS Decision in the Andrea Iannone case is available by clicking here.
3. The full CAS Decision in the Maurico Fiol Villanueva case is available by clicking here
4.The full CAS Decision in the Jarrion Lawson case is available by clicking here.
5. The full CAS Decision in the Dominika Jamnicky case is available by clicking here.

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