SII Focus 29th January 2020

Strict liability in anti-doping is punishing the innocent*

Innocent until proven guilty. Except if you are an athlete involved in an anti-doping case, where you are guilty unless you can prove your innocence. Anti-Doping Organisations (ADOs) are there to convict athletes – not protect them. In anti-doping jurisprudence if you have no proof, the truth is irrelevant. If you can offer evidence to support a lie, you may escape with a reduced sanction. That is the real message that athletes need to be told to protect them from unfair doping sanctions.

Liam Cameron

At the age of 29, Commonwealth middleweight champion Liam Cameron has retired from boxing after a four year ban effectively ended his career. Cameron’s crime? Failing to conclusively prove that trace amounts of a metabolite of cocaine were caused by handling bank notes ahead of a 27 April 2018 bout against Nicky Jenman. 

The fight was supposed to be a defence of his Commonwealth title, however the Commonwealth Boxing Council (CBC) controversially withdrew its status as a title fight after Jenman failed to make weight. In any case, Cameron, then 27, won by way of a technical knockout. 

Cameron was on top of his game. He was being touted for a bout against British middleweight champion Tommy Langford. 

Cameron accepted the charge on 31 August 2018. A 13 October 2017 sample had also recorded trace amounts of the same cocaine metabolite benzoylecgonine, but at 40 nanograms per millilitre (ng/mL), the amount of the substance was below the 50 ng/mL required to assert an adverse analytical finding (AAF) against him.

A previous ‘positive test’ for a metabolite of cocaine was used against Cameron at the CAS, despite the fact that it didn’t meet the threshold to constitute a ‘positive test’…

At a 6 December 2018 hearing, UK Anti-Doping (UKAD) attempted to argue that the trace finding – which was not an AAF – should be admitted as evidence that Cameron had previously used cocaine. The National Anti-Doping Panel (NADP) disagreed. Yet despite this, the non-AAF was used as evidence against him at the Court of Arbitration for Sport (CAS). It is understood that this is because Cameron argued that he hadn’t tested positive for cocaine before, which UKAD saw as disingenuous, because he had been notified about the previous trace finding.

Contaminated banknotes

Cameron argued that his April 2018 AAF was non-intentional, caused by handling large quantities of banknotes taken from pubs and touching surfaces in the Darnall area of Sheffield. Under Article 10.2 of the World Anti-Doping Code, in order to benefit from a reduction in his ban from four to two years, Cameron had to prove that his AAF was non intentional. In other words, he had to show how a metabolite of cocaine had appeared in his sample.

Cameron was paid for his fight in relation to gate receipts, and visited numerous pubs in the Darnall area of Sheffield to sell tickets. He was counting cash up until the day before the fight. He knew he would be tested after the fight.

Cameron’s evidence regarding his handling of banknotes…

“The promoter told me that £1,000 was coming out of the purse, because that was what the drug testing was going to cost”, he said. “I had been tested after fights before, so I knew that it was going to be a conclusive test. I’m a clean athlete. I’ve never failed a drug test before, whether amateur or professional. I’m just so shocked that was in my system. 

“Looking online, loads of people have tested positive for it. Even the police say that 95% of banknotes are contaminated with cocaine. Even the UKAD expert agreed. They say I didn’t give them evidence. What more evidence can I give them?

“It’s just absolutely crazy. They say it went into my system four days before the fight. That was the exact time when I was brining the ticket money in. I’m an excessive nail biter. One hundred percent, it got into my system that way. I’m a grown man. I don’t have to lie.”

Damned if you do…

The Court of Arbitration for Sport’s (CAS) decision (PDF below) outlines the impossible choice that Cameron was given. He says he discovered the possibility of contamination from banknotes after his AAF, yet the CAS is critical of him for not collecting evidence to corroborate his account. 

It also asked him to produce statements from the landlords of the pubs where he had sold tickets confirming drug use in their establishments, or to take photos proving drug use. By so doing, the CAS is asking Cameron to implicate pub landlords and drug dealers in a rough part of Sheffield in criminal activity. It would be easy to work out who had provided information to the police, should they decide to follow Cameron’s case up.

Yet it appears that the CAS Arbitrator considered Cameron’s financial circumstances the only barrier to him obtaining evidence to support his case. ‘The Sole Arbitrator is acutely aware of the difficult financial circumstances of the Appellant and has carefully considered the potential adverse impact this could have had on his ability to obtain and adduce corroborative evidence to discharge his burden of proof as required by Article 10.2.1(a) of the UKADR’, reads the Decision. ‘On careful reflection, the Sole Arbitrator is not convinced that the Appellant’s impecuniosity has precluded him from obtaining further evidence. For instance, there was nothing to prevent Mr Cameron, or his counsel, from seeking publicly available material to support the Appellant’s argument as to the socio-demographic nature of the area where he sold tickets, and in particular, on the prevalence of drug use in that area. The Appellant stated that he frequently saw evidence of drug use at the public houses he frequented, and that despite returning to those venues since the bout, he has seemingly not sought to obtain any photographs, statements or evidence of any other sort in support of his arguments.’

Headlines on Google News for Darnall, Sheffield…

Perhaps wisely, Cameron decided that this was not an option. Whilst writing this article, the top Google News item for Darnall involved attempted murder. Cameron lives close to the area.

The National Anti-Doping Panel (NADP) Decision (PDF below) labelled his account ‘fanciful and implausible’. The CAS said that there is no evidence that banknotes in Sheffield contain a higher proportion of cocaine than banknotes from other parts of the UK. Professor David Cowan, former Director of the Drug Control Centre at Kings College London, said that Cameron would need to consume all the cocaine on up to 600 contaminated banknotes, in a short period of time, to report that level of cocaine in his sample.

Cowan argued that only paper notes carry enough traces of cocaine, and the new £5 and £10 polymer notes do not. His analysis included a range of contamination which – at the most contaminated – would mean that Cameron would need to consume all the cocaine from 500 notes at the same time. He also said that any greater level of contamination would produce an anaesthetic reaction – numbness. Cameron didn’t report any such reaction.

These statements appear to miss the point that cocaine use can be highly localised, based on where drug dealers are located. As such, so could the amount of contamination detected in banknotes. Cameron also argued that he had handled the money multiple times before his fight, putting his fingers in his mouth to wet them before counting the money. He also is a habitual nail biter. Could this have affected any cocaine metabolite levels ingested through contamination?

“Around the Manor area in Darnall, it’s rough”, explains Cameron. “Everybody is at it. They won’t accept that this happens in pubs. I don’t know what pubs they go into, but in our pubs it defiantly goes on. What people do with bank notes is roll them up and snort it [cocaine] through their nose. And I was handling this money. What more evidence do they need? I offered to undertake a lie detector test.”

Harsh

Cameron insists that he is telling the truth. He was represented at CAS by Simon Perhar, who is a Barrister with an experienced sports law team at Ely Place Chambers. Perhar did not respond to emails asking for comment. However, he is likely to have advised Cameron that under Article 10.2 of the World Anti-Doping Code, he would be likely to receive a two year ban if he could prove that he took cocaine outside of competition. 

The CAS agreed that the trace amount of benzoylecgonine was not enough to enhance his performance. As such, a defence arguing use outside of competition prior to his bout was possible. However, Cameron argues that this isn’t the truth. As such, the prospect of a reduced sanction gave him reason to lie, but he chose not due to to faith that the anti-doping system would determine his innocence. He was wrong.

The CAS Arbitrator said that Cameron’s sanction appears harsh, but the rules must be applied ‘without fear or favour’…

“The Professor [Cowan] said that if I was taking it to compete, I would have had to have a much bigger dose”, Cameron explains. “Also, if I was taking it for recreational purposes. I am not trying to cheat. I am just trying to make a living.

“I even have an official statement from the judge [the CAS sole Arbitrator] saying it’s very harsh what UKAD have done to me. They’ve given me no option.”

Cameron pointed to the case of Hull Kingston Rovers player Thomas Minns, who received a 16 month sanction after returning an AAF for the same metabolite of cocaine to illustrate the inequity of the sanctioning system. The full UKAD Decision reveals that Minns admitted use of cocaine out of competition in a context unrelated to sporting performance, so benefitted from a reduced ban.

However, Minns had proof that he was suffering from depression, supporting his contention that he took cocaine ‘on his own, whilst at home, in an attempt to alleviate a state of distress’. A medical diagnosis explaining his behaviour was enough for UKAD to reduce his sanction to 16 months.

Cameron had no such proof. Firstly, if he wished to lie and claim recreational use to receive a reduced ban, he would need some proof that his use was recreational, as provided my Minns. Secondly, if he is telling the truth, providing proof would be potentially dangerous, as explained above. As he says, he was given no option.

Unintended consequences

On the face of it, UKAD has reduced the sanction of somebody who has admitted taking a substance prohibited in competition; yet it is not prepared to reduce the sanction of somebody who argues they never took such a substance. It appears that UKAD believes that Cameron is lying about how cocaine entered his system, and the CAS agrees. UKAD argues that it has repeatedly made submissions to the World Anti-Doping Agency (WADA) about the way in which cocaine and other ‘recreational’ substances are dealt with under the Code, and it welcomes provisions in the 2021 Code designed to address this.

Whether or not you believe that Cameron intentionally took cocaine, his case highlights another potential problem upon implementation of Article 10.2.4 of the 2021 World Anti-Doping Code, commonly known as the ‘substances of abuse’ clause. This mandates that when an ADRV involves a Substance of Abuse such as cocaine, and the athlete can establish that the use occurred out of competition and was unrelated to sporting performance, then an athlete can reduce a sanction down to one month, if they agree to completion of a substance abuse programme. What perhaps hasn’t been considered is the interplay between the required proof and the criminal underworld.

Cameron didn’t think it fair to ask pub landlords to provide evidence of drug use in their own premises…

If an athlete takes cocaine in a nightclub and tests positive, what standard of proof is required? In Cameron’s case, it appears that photographic evidence and/or signed statements from premises owners were required. Is anti-doping asking athletes to endanger their personal safety in order to escape a doping ban? Surely that cannot be the intention of the reforms to the Code.

Cameron’s insistence on telling what he considers to be the truth has resulted in a lengthly sanction. But he is not the only athlete who has suffered in this way.

Truth and lies 

Hiromasa Fujimori was told to state that he had used a cold medication after reporting an AAF for methylephedrine, as previous AAFs indicated that cold medications in Japan contain the substance. Fujimori refused, because it wasn’t the truth. As a result, he was sanctioned with a two year ban rather than a three to six month ban, and could miss the Tokyo 2020 Olympics.

In November last year, World Athletics was forced to drop a test evasion charge against Kenyan distance runner Jacob Kibet Chulyo Kendagor, as it couldn’t prove that the person approached by Doping Control Officers (DCOs) was the athlete. Despite indications that Kendagor may have given his neighbour’s name in order to avoid a test, and collaboration may have taken place between five witnesses called by the athlete, World Athletics was forced to drop the case.

Fujimori was praised for his truthfulness, yet the international swimming federation (FINA) said its ‘hands were tied’ into sanctioning him with a two year ban because he couldn’t prove how methylephedrine entered his body. Kendagor escaped being charged, despite a Sports Resolutions panel Decision having doubts about the credibility of his argument. 

On the face of it, an athlete has been punished for telling the truth, and another athlete has been rewarded for lying. There are parallels with Cameron’s case.

Money talks

UKAD recognised the ‘risks inherent’ in pursuing Tyson Fury’s case. Cameron’s case presented no such risk…

The CAS Decision notes that Cameron was granted legal aid for his appeal. ‘Status is no barrier to thorough testing or potential investigations’, reads a March 2017 UKAD statement in response to reports suggesting that it had not cooperated with requests to retest samples from athletes trained by Alberto Salazar, who was sanctioned for ADRVs last year. ‘UKAD treats all athletes in the same way’.

Yet in December 2017, UKAD came to a ‘settlement agreement’ with Tyson Fury, after the boxer was charged with an AAF and refusing a test. A statement mentions the ‘risks inherent’ in the dispute resolution process. It would appear that Fury was not treated the same way as Cameron, due to the financial risk that potential litigation presented to UKAD.

Low hanging fruit

“I am going to have to go to work, save up for gym equipment and set up a gym”, says Cameron. “I haven’t got any help and I don’t know what to do”.

It is hard not to feel a certain amount of sympathy with him. Like many athletes, he trusted that the anti-doping jurisprudence system, which he has been told was set up to protect clean athletes, would absolve him.

The reality is that strict liability means that athletes are guilty unless they can prove that they are innocent. Truth doesn’t matter. Proof does.

WADA’s 2017 Testing Figures Report revealed that 4,596 AAF were recorded, 1.43% of 322,050 samples analysed. However, less than a third (1,459) of these AAFs resulted in an ADRV being recorded against an athlete, WADA’s 2017 ADRV Report reveals. Taking the two Reports together, just 0.45% of doping tests resulted in an ADRV during 2017.

Most ADOs, such as UKAD, are State funded. Their job is to sanction athletes for doping. In order to continue to receive taxpayer money, they must produce results. As such, ADOs cannot be blamed for going for the low hanging fruit.

This unequal situation is replicated in real life. Drug barons are harder to prosecute than street corner dealers. But the difference is that under criminal law, you are innocent until proven guilty. Athletes are guilty unless they can prove their innocence, as Cameron’s case highlights.

Sport needs to stop telling athletes that the anti-doping system is there to protect them. It isn’t. It is there to convict them, and they need to be properly equipped to defend themselves.

* UK Anti-Doping (UKAD) responded to this article in a 28 January statement, which was also sent to The Sports Integrity Initiative via email.

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