22nd July 2021

Quiñonez case underlines the need for ‘whereabouts’ reform

The ‘whereabouts’ system, which requires athletes to file their location for doping control purposes, needs reforming. This has been highlighted, yet again, by the case of Ecuadorian sprinter Alex Quiñonez, who faces losing his spot at the Tokyo 2020 Olympics due to an error made by his agent in updating his ‘whereabouts’.

There is a simpler way. Athletes already use applications such as Strava, which utilise exact GPS data to accurately record athletic performance. Many would welcome the option to use GPS data to locate them for testing. Perhaps it is time to give them that choice. An added benefit would be that athletes would  have no way of hiding from doping tests, since they would never know when a doping control office (DCO) is likely to appear.

Quiñonez to appeal

Quiñonez has been sanctioned with a one year ban expiring 24 June 2022, after a Sport Resolutions Decision upheld a charge issued by the Athletics Integrity Unit (AIU) of World Athletics. He has appealed to the Court of Arbitration for Sport’s (CAS) Ad Hoc Division in an attempt to safeguard his place at the Tokyo 2020 Olympics.

‘The Decision can be appealed to the CAS’, wrote Quiñonez in an Instagram statement (below). ‘I will immediately proceed to request before the said Court the provisional suspension of the sanction in order to be able to participate in the Tokyo Olympic Games, which begin in a few days. The Decision of the Disciplinary Court of World Athletics considers that special circumstances exist in this case, and therefore imposed a reduced sanction of one year of suspension – half the period generally foreseen.

‘Put simply, with the existence of a reduced sanction, as has happened, it is clear that in no case has there been an attempt to evade submission to doping controls on my part. The last failure was an error in updating whereabouts information committed completely unintentionally and accidentally by the person who manages my ADAMS profile.’

What happened?

Under the World Anti-Doping Code, athletes that are members of a Registered Testing Pool (RTP) must file information including their overnight location, competition and training schedules, as well as a location where they will be available for testing for one hour in every 24, three months in advance (although this can later be amended) through the World Anti-Doping Agency’s (WADA’s) Anti-Doping Administration and Management System (ADAMS). If they are not where they say they will be, that constitutes a ‘Missed Test’. If the filed information is judged to be inaccurate or incomplete, that constitutes a ‘Filing Failure’. Any combination of three Missed Tests and/or Filing Failures is equivalent to an anti-doping rule violation (ADRV) subject to a two year ban.

On 25 June, Quiñonez was charged with an ADRV based on three Missed Tests on 2 June 2020; 28 September 2020; and 19 May 2021. Quiñonez admitted the ADRV, but agued that he should be considered not at fault for the error. The Decision (PDF below) reveals that this is because Quiñonez delegated management of his whereabouts to Alberto Suárez, his Authorised Athlete Representative.

WhatsApp messages analysed by the sole Arbitrator illustrated that both Quiñonez and Suárez agreed that his whereabouts information for 19 May should be updated from the US to Portugal, where he was competing in the World Relays. A letter from Suárez accepted responsibly for the mistake and for entering his own phone number for DCOs to contact, rather than Quiñonez’s number. Suárez requested that he be sanctioned instead of Quiñonez in two letters addressed to the AIU on 20 May and 9 June.

Suárez thought he had updated the whereabouts information…

In the WhatsApp messages, Suárez agrees to update Quiñonez’s location to his hotel address in Portugal. As he outlines in the 9 June letter, he thought he had done this and had informed organisers of the Diamond League in Gateshead that Quiñonez would be travelling from Portugal. He couldn’t explain the mistake. Given that Suárez had updated the whereabouts information for all of Quiñonez’s competitions in May and June ahead of the Tokyo 2020 – apart from 7 May until the end of May – the Arbitrator accepted that this was an ‘inadvertent error’ (see right).

Under the strict liability principles of anti-doping, an athlete is considered guilty unless they can prove that they are innocent. The sole Arbitrator struggled with how to approach a sanction, despite this principle.

‘Not only did Mr Suárez know the factual position and intention but common sense says that the Athlete knew that Mr Suárez knew’, reads the Decision. ‘However, that is not the end of the issue. As the AIU submission emphasises, despite the fact that the Athlete has not caused or contributed to Mr Suarez’s error, the Athlete remains personally responsible for the Missed Test resulting from the Filing Failure. As it is rather pejoratively put, an Athlete cannot hide behind the failure of his Representative.

The Arbitrator accepted that Suárez’s error was inadvertent…

‘There is no such attempt here. The Athlete accepts the violation, albeit he did not cause the error which resulted in the violation. Given no causative contribution by the Athlete the question of the Athlete’s degree of Fault is what, given Mr Suarez’s independent mistake, could or should the Athlete have done to avoid human error by Mr Suarez resulting in a failure under the Rules.’

‘All three [Gateshead Diamond League organisers] knew and knew each other knew that the Athlete would not be in Florida in May 2021’, the Decision continues. ‘With the shared understanding that Florida was out of the picture and the confirmation that his Whereabouts had been or was in the process of registration at the hotel in Portugal, which was the only location in the immediately on-going picture, I cannot see the Athlete’s failure to independently check the entry as justifying the imposition of a sanction beyond the minimum provided in Rule 10.3.2.’

We’ve been here before…

Quiñónez isn’t the first athlete to have delegated management of his ‘whereabouts’ filings to a third party. South African Luvo Manyonga blamed his agent for failing to update his ‘whereabouts’; Wilson Kipsang argued that his Manager was responsible for updating his ‘whereabouts’; Salwa Eid Naser struggled with updating her ‘whereabouts’ and was assigned a Technical Manager to complete them for her, eventually resulting in a two year ban.

As the Christian Coleman case outlined, there is another way. Many athletes would support the use of GPS tracking technology to locate them for testing. As mentioned, athletes already utilise applications such as Strava to record training. 

Perhaps it is time to give them the choice. One system need not replace the other – both could exist in tandem. 

WADA had the opportunity to use such technology, but used misplaced privacy concerns following media hysteria as an excuse to reject it. Perhaps it is time to revisit that decision.

The ‘whereabouts’ system requires athletes to submit three months advance location data to WADA, which is centrally held and can be accessed by a number of testing authorities seeking to deploy testing missions. The privacy risk that this presents was recognised by the Article 29 Working Party, which was made up by European data protection commissioners, back in 2013. 

Details of the GRU agents indicted in 2018 by the DoJ for their involvement in ‘Fancy Bears’…

The privacy threat is real. At its Foundation Board meeting in November 2016, WADA admitted that it had spent US$200,000 on updating the ADAMS system following continued hacks by Russian State agents operating under the ‘Fancy Bears’ monicker. 

Use of GPS Technology can reduce the amount of sensitive athlete data that needs to be centrally held, reducing risks that data breaches could compromise the personal data of athletes. Almost five years ago, former athlete Jonas Plass developed a wearable GPS positioning device to initially give an athlete’s rough location to a DCO, who receives the exact location only once they are within four kilometres of the athlete. 

Use of GPS would therefore remove the need for detailed, centrally held, whereabouts filings. As only rough location data would be stored on the system, this could represent enhanced privacy compared to the current system, which stores an athlete’s exact location multiple times a day, three months in advance.

Using GPS might reduce the minute scrutiny of who is telling the truth and who isn’t, which seems to characterise ‘whereabouts’ cases. Its use might also catch more actual doping cheats, rather than athletes who are responsible for filing forms incorrectly.

Under the ‘whereabouts’ system, an athlete who is doping knows when the testers are likely to turn up. Using GPS, DCOs could surprise them at any time. Under Article 12.2.1 of WADA’s International Standard for Testing and Investigations (ISTI), anti-doping organisations are required to ‘ensure that they are able to investigate confidentially and effectively any analytical or non-analytical information or intelligence that indicates there is reasonable cause to suspect that an anti-doping rule violation may have been committed’. By not utilising GPS, is WADA in compliance with this Article?

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