SII Focus 6th July 2020

‘Whereabouts’ & ‘Tampering’ charges snare another athlete

Most elite athletes know that if you commit three ‘whereabouts failures’ (any combination of three ‘missed tests’ or ‘filing failures’ within a year), you will be sanctioned with a two year ban. However, recent jurisprudence has demonstrated that if sport doesn’t believe your explanation for ‘missed tests’ or ‘filing failures’, you are likely to be charged with ‘tampering’ with the doping control process, and sanctioned with a four year ban. 

‘Whereabouts’ requirements under the World Anti-Doping Code are more complex than many people realise. Athletes who are part of a Registered Testing Pool (RTP) have to provide location data showing where they will be available for testing for one hour in every 24, three months in advance. This is in addition to information about their overnight accommodation for those three months, and their regular activities (such as training schedules). This complexity is perhaps underlined by the 79 page length of the Sports Resolutions ruling.

As well as being confident that information is correct, Anti-Doping Organisations (ADOs) need to know that if an athlete isn’t where they say they are, then false explanations will lead to consequences. Otherwise, there would be no disincentive stopping athletes from lying about why they are not at their recorded location.

The Mark Dry case was used as precedent to secure a conviction against Kipsang…

In February Mark Dry, a member of the UK’s Domestic Testing Pool (DTP), was sanctioned with a four year ban for ‘tampering’, after he panicked and told UK Anti-Doping (UKAD) he had gone fishing following a failed test attempt at his home address – a lie he later admitted. Dry’s case has now been used as precedent to secure a four year ban (PDF below) against Wilson Kipsang, a two time London Marathon winner, after the Athletics Integrity Unit (AIU) of World Athletics didn’t believe his explanation for ‘whereabouts failures’. Both cases were heard by Sport Resolutions.

Kipsang insists that he told the truth about the reasons for four ‘whereabouts failures’ comprising a Missed Test on 27 April 2018; a Filing Failure for 18 January 2019; a Missed Test on 12 April 2019; and a Missed Test on 17 May 2019. Kipsang had explanations for three of the four ‘whereabouts failures’. He argued that the April 2019 Missed Test was due to the Doping Control Officer (DCO) being unable to wait any longer; the January 2019 Filing Failure was due to his manger having issues with the Anti-Doping Administration and Management System (ADAMS); and the 17 May 2019 Missed Test was due to a traffic accident delaying his arrival home from Nairobi in time for the test.

The AIU and the Sports Resolutions Arbitrator didn’t believe his explanations for the 12 April and 17 May 2019 Missed Tests. Kipsang argued that he had arrived home at 22:50 on 12 April, but the doping control official argued that he didn’t arrive until 23:30 and as she had been instructed by the AIU to record a Missed Test if the athlete wasn’t present at 23:20, that is what she did.

‘The Sole Arbitrator started from the clear assumption that a DCO has no personal interest to fabricate or consort any facts, or to bring false accusations against an Athlete’, reads the Decision. ‘In CAS 2016/A/4700 [click here for the Decision] the Sole Arbitrator found that very substantial counter-evidence must be presented to rebut the DCO’s version of the facts. In this case the Athlete has the support of the testimonies of his wife and of his security guard. In CAS 2015/A/4163 [click here for analysis of this case] the Panel held that the family motive to cover up test evasion by the Athlete was far more obvious – the Athlete’s reputation, his career, his ability to support his wife and children were all in jeopardy if his appeal failed. The DCO has clearly testified that the Athlete did not arrive until after 23:20. She is supported by Mr Lagat, who was present as a driver and intended chaperone […] The fact that the DCO made five phone calls to reach the Athlete between 22:55 and 22:59 contradicts that the Athlete had arrived home at 22:50.’

Kipsang also argues that he was honest about the road traffic accident that delayed his return home on 17 May 2019. “I submitted my statement that I have no information, and I have no photo”, he said in an interview with KTN News (below). “They requested, can you send me a photo showing there was a road accident?”  “I told them I was not the driver. The driver sent it to them. That photo was showed to be fake. I had no intention to lie. That’s it!”

Langat confirms an accident involving a minibus on the date concerned…

The Decision goes into detail regarding the alleged accident on 17 May, which Kipsang said preventing him getting home in time for the one hour slot specified in his ‘whereabouts’ filings. Phillip Langat, a Chief Inspector in the Kenyan Police, appeared to give conflicting evidence. He said that there was an accident on 17 May involving a 14-seater Matatu – a Kenyan term for a privately owned minibus. He said that the accident was recorded in an Occurrence Book.

…But apparently there was no evidence of such an accident.

Later on in the judgment, a joint statement from Langat and Dennis Keitany, an investigator who works for the Anti-Doping Agency of Kenya (ADAK), stated that a review of the Occurrence Book did not reveal any records of a road traffic accident involving a trailer, bus or other heavy goods vehicle on 17 May 2019. As such, although the athlete and a Chief Inspector of the police said that there was an accident on 17 May, there was no evidence that one had occurred.

The Decision above also reveals that Kipsang’s description of the photo as “fake” is perhaps down to poor choice of words. The photo wasn’t fake, but was of an accident that took place on 29 August rather than 17 May 2019. It was sent by Victor Kigen, a former runner and friend who became Kipsang’s driver. It was of an overturned lorry, again in conflict with Langat’s statement that there had been an accident on 17 May involving a minibus.

Burdens and comfortable satisfaction

The Arbitrator concluded that Kipsang lied about events…

The Decision emphasises that World Athletics must establish to the ‘comfortable satisfaction’ of the Arbitrator that the alleged anti-doping rule violations (ADRVs) have occurred. The Kipsang Decision is interesting because it argues that a doping control official would have no motive to lie about a test attempt. It doesn’t appear to consider that a doping control official might lie about substandard conduct in order to keep their job.

In addition, it doesn’t appear to consider the risk an athlete takes in disputing a ‘whereabouts’ charge. As the Dry Decision also illustrates, an athlete who lies about ‘whereabouts failures’ risks doubling his ban. This is a massive gamble for any athlete – especially one approaching the end of their elite career.

Kipsang is 37 and so would be 39 if a two year ban were imposed for ‘whereabouts failures’. This would still give him an outside chance of returning to elite competition. However he will be 41 when his four year ban expires, making such a return extremely unlikely. 

Mark Dry argues that he was punished for telling the truth as if he had maintained his lie, there would be no way for anyone to prove he was lying. In Kipsang’s case, he insists that he is telling the truth and argues that he has been tested almost 120 times, never reporting an adverse analytical finding (AAF). Only he knows if he is telling the truth about what happened.

As the Christian Coleman case outlined, there is another way. Athletes would support the use of GPS tracking technology, which is already utilised by training applications such as Strava. This would reduce the minute scrutiny of who is telling the truth and who isn’t that seems to characterise ‘whereabouts’ cases. The World Anti-Doping Agency (WADA) had the opportunity to use such technology, but used misplaced privacy concerns as an excuse to reject it. 

The message this appears to send to athletes is that if you are charged with ‘whereabouts failures’, if you accept the charges and say nothing, you will get a two year ban. If you dispute the charges, sport will try and double your ban to the same length applicable to an athlete who has attempted to substitute their urine for somebody else’s. Is this really the message anti-doping wants to send to athletes?

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