18 March 2019

Phillips decision highlights lack of supporting case law in ADRV cases

A decision in which an athlete was able to prove that his adverse analytical finding (AAF) was caused by supplement contamination has not been publicised by UK Anti-Doping (UKAD)*, highlighting the problems faced by athletes in finding supporting case law when charged with an anti-doping rule violation (ADRV). Christopher Phillips, a player with Welsh rugby union club Pontypridd RFC, accepted an adverse analytical finding for a metabolite of stanozolol, but was able to prove that some tablets in a tube of O.R.S. Hydration tablets were contaminated with stanozolol.

At the World Anti-Doping Agency (WADA) Symposium in Lausanne last week, athletes highlighted that although the World Anti-Doping Code mandates that all anti-doping rule violations (ADRVs) are published, there is no similar requirement to publish decisions where an athlete is found not to have committed an ADRV. It was argued that this leaves athletes with a lack of case law to rely upon when seeking to support their case.

In this case, Phillips was found to have committed an ADRV, but was able to prove contamination and therefore was sanctioned with a four month ban on 30 November 2018. As he had been provisionally suspended since his AAF on 26 October 2017 and as his ban was backdated until then, he was free to resume playing.

The decision doesn’t feature on UKAD’s list of media releases, or on its database of historical decisions (i.e. sanctions served). The Sports Integrity Initiative asked UKAD why the decision had not been publicised, but has yet to receive a reply. The decision was publicised by Sport Resolutions, which operates the National Anti Doping Panel (NADP).

The NADP decision (PDF below) was keen to stress that UKAD dealt fairly with Phillips. Phillip Law, representing UKAD, argued that a scientific report casting doubt on whether the concentration of stanozolol in the sample was consistent with contamination in the tablets could not be relied upon, as it was based on a single ingestion rather than multiple ingestion over time, as occurred in Phillips. UKAD also suggested that given the circumstances of the case, a suspension between four and eight months is appropriate.

The decision reveals that Phillips bought the O.R.S. Hydration tablets from Boots, a UK high street over the counter chemist. The company that manufactures the tablets, Clinova Limited, disputes that contamination was possible. Phillips submitted eleven supplements for testing at the Drug Control Centre at King’s College London, which was satisfied that O.R.S. Hydration tablets were the source of the AAF. All other ten supplements reported no trace of stanozolol.

Phillips did not mention the use of O.R.S. Hydration tablets on his doping control form, which featured only five of the eleven supplements. He argued that this was due to the stress of the doping test. As such, one member of the NADP had reservations that a finding of no significant fault was recorded. However, as she didn’t wish to ‘undermine the common ground between the parties as to the level of fault’, Phillips was sanctioned with a four month ban from 26 October 2017, which has therefore already been served. 

* UKAD did not respond to enquiries about why it had not publicised the decision involving Phillips. However, it publicised the decision on 25 March 2019. “UKAD strives to ensure that all decisions following an ADRV which can be published, are published”, said UKAD CEO Nicole Sapstead in a statement. “We are a public body, utilising public funds and therefore must do this with responsibility and care. There were significant potential legal, and financial, implications around the publication of this case, and UKAD had to consider the risk of any legal liability before publishing.”

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