24 July 2019

Mamadou Sakho sues WADA for £13 million in damages

Footballer Mamadou Sakho has launched a £13 million lawsuit against the World Anti-Doping Agency (WADA), reports the Evening Standard, alleging that a provisional suspension for higenamine damaged his career. Sakho was provisionally suspended in 2016 after testing positive for the substance, however UEFA was forced to drop the case against him after his legal team were able to cast doubt on whether higenamine had been correctly categorised as a prohibited Beta-2 Agonist.

The source of the higenamine was a nutritional supplement prescribed by Sakho’s personal trainer. Last year, a Study published in Clinical Toxicology (PDF below) found that none of 24 supplements containing higenamine featured the correct concentration on the label.

Sakho’s personal trainer said that he had checked the 2016 version of the Prohibited List, which didn’t specifically mention higenamine. However, WADA argues that it was covered by a ‘catch-all’ provision that read ‘All beta-2 agonists, including all optical isomers, e.g. d- and l- where relevant, are prohibited’.  The 2017 version of the List was modified to state that ‘All selective and non-selective beta-2 agonists, including all optical isomers, are prohibited. Including, but not limited to […] higenamine.’

The 2019 version of the Prohibited List contains the same classification for higenamine. This is despite Sakho’s defence claiming that of the seven papers WADA cited as evidence that Higenamine is a Beta-2 Agonist, two (which were both authored by one of the experts commissioned by Sakho) did not even examine Higenamine’s potential as a Beta-2 Agonist. One of these papers indicates that Higenamine is a Beta-1 Agonist, which is a category of substance not prohibited by WADA.

In its Decision (PDF below), the UEFA Control, Ethics and Disciplinary Body (CEDB) was critical of WADA’s ‘catch-all’ approach to Beta-2 Agonists on the 2016 Prohibited List. ‘It is clearly not possible for anyone – laboratory, disciplinary body, football player or otherwise – to know whether or not Higenamine is a prohibited substance just by reading WADA’s prohibited list’, reads the Decision. ‘The CEDB considers that it is not enough for WADA to simply state in its prohibited list that all substances that might possibly fit a very general description (e.g. all Beta-2 Agonists) are prohibited. This is not specific enough.’

UEFA’s CEDB also concluded that in 2016, it had not been proven that higenamine was a Beta-2 Agonist. ‘The CEDB notes that the studies that have been generally carried out in the scientific community cast significant doubt on the classification of Higenamine as a Beta-2 Agonist’, reads its Decision. ‘In addition, the expert reports commissioned by the Player – which the CEDB notes come from very reputable sources in Professor Brian Kobilka and Professor Richard Bloomer – cast serious doubts on this categorisation. Under this weight of evidence, and without receiving anything to the contrary from WADA, it is not possible for the CEDB to conclude that Higenamine is scientifically proven to be a Beta 2-Agonist […] Further, it appears from documents in the case file that WADA has not completed its own internal scientific/procedural analysis of Higenamine and is not certain of its status as a Beta-2 Agonist.’

In its Decision, the UEFA CEDB pointed out that Laboratory uncertainty about whether higenamine was prohibited could have led to a different outcome for Sakho. ‘In the present case, the CEDB was presented with a situation where the Player tested positive for Higenamine because the Sample was sent to Cologne, but would not have tested positive if the Sample had been sent to Lausanne’, reads the Decision. ‘Fundamentally, it is unreasonable to expect an athlete to have a greater understanding of a substance than a WADA accredited laboratory and its scientists’.

Sakho’s 30-day suspension meant that he missed out on the 2016 Europa League final. It is understood that he alleges that the suspension damaged his relationship with Liverpool, which transferred him to Crystal Palace in 2017. WADA argues that his transfer followed disciplinary issues with Liverpool Manager Jurgen Klopp, who sent him home from a US tour in 2016.

An early morning social media rant followed. Klopp later said he was ‘desperate’ to sell Sakho, despite describing him as ‘spectacular’ before the provisional suspension was imposed. It is understood that Sakho also claims that the ban cost him a place in France’s Euro 2016 squad. It is understood that Judge Victoria McCloud has ordered a trial on liability to determine if WADA was negligent in its treatment of Sakho, before any compensation is determined.

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