The National Anti-Doping Panel (NADP) have recently published the outcome of an appeal from Joanna Blair (“the athlete”) against a first-instance decision of the NADP (first instance tribunal) to ban her from competition for a period of four years.
The athlete was a javelin thrower and had represented team GB at the European Athletics Championships held in France in June 2017. She had provided a sample for an out-of-competition test. Analysis of the sample returned an adverse analytical finding (AAF) for the presence of a metabolite of metandienone, a prohibited substance on the WADA 2017 prohibited list. It is a non-specified substance and is prohibited at all times.
Article 2.1.2 of the International Association of Athletics Federations Anti-Doping Rules (IAAF ADR) provides that it is sufficient proof of a violation under Article 2.1 that, inter alia, analysis shows the:
“…presence of a prohibited substance or its metabolites or markers in the athlete’s A sample where the athlete waives analysis of the B sample.”
The athlete admitted the violation, but cited that the metandienone had been introduced into her system through a creatine supplement which had been contaminated.
Article 10.2 of the IAAF ADR provides that the period of ineligibility for a violation under Article 2.1, subject to any potential reduction, shall be for a period of four years where:
- the anti-doping rule violation does not involve a specified substance, unless the athlete or other person establishes that the anti-doping rule violation was not intentional.
- The anti-doping rule violation involves a specified substance and the integrity unit establishes that the anti-doping rule violation was intentional
Article 10.5 allows a panel to reduce the period of ineligibility based on no significant fault or negligence.
If an athlete can establish no significant fault or negligence and that the prohibited substance came from a contaminated product, then the period of ineligibility shall be, at a minimum, a reprimand and no period of ineligibility, and at a maximum, two years ineligibility, depending on the degree of fault of the athlete.
The athlete’s position was that her conduct was not intentional and that the prohibited substance had come from a contaminated product, namely the creatine supplement.
The first instance tribunal stated that there were four possible explanations for how the metandienone came to be introduced into the creatine supplement, as follows:
- Contamination during manufacture;
- Introduction after the AAF;
- Introduction before the AAF by a third party; and
- Introduction before the AAF by the athlete.
It was held that the second possibility did not assist the athlete and it was held that the third possibility was ‘wholly improbable’.
The first instance tribunal held that the athlete bore the burden of proof to show that the violation was not intentional or was the result of consuming, with no significant fault or negligence, a contaminated product.
On the evidence available, the first instance tribunal was not satisfied that the creatine was contaminated during the manufacturing process and imposed a period of ineligibility for a period of four years, as per Article 10.2.
Grounds of appeal
- The first instance tribunal erred in treating the evidence of Kelly Eagle, Vicky Waller, and Dr Hannah Pritchard as ‘militat[ing] against’ the conclusion that the creatine supplement had been contaminated during manufacture; and
- The first instance tribunal erred in holding that the athlete was required to provide how the supplement came to be contaminated.
This blog focuses entirely on the second limb of the appeal and the burden of proof under Articles 10.2 and 10.5.
Burden of proof
On appeal, the athlete relied on the decision in UCI & WADA v Alberto Contador Velasco & RFEC, citing that UKAD were obliged to make some positive case that the athlete had adulterated the creatine supplement. If not, this demonstrated procedural unfairness against the athlete who would be required to prove that she had not introduced the metandienone into the creatine supplement herself which it was argued would constitute a ‘negative fact’.
It was argued that in cases where an athlete has ingested a contaminated product, the athlete did not need to show how the product became contaminated in order to discharge their burden of showing that the violation was not intentional. The athlete’s legal representative urged caution as if the position of the first instance tribunal was maintained, the rule would be unfair to athletes. Proof of the source of contamination may require expense beyond the means of many athletes, as well as the co-operation of third parties such as the manufacturers, which may not be forthcoming.
The appeal tribunal cited that the question on the burden of proof was settled in the decision of UKAD v Buttifant. In that case, the tribunal stated:
“Article 10.2.3 requires an assessment of evidence about the conduct which resulted or might have resulted in the violation. A bare denial of knowing ingestion will not be sufficient to establish a lack of intention.”
At paragraph 28, the tribunal asserted:
“…in a case to which article 10.2.1.1 applies the burden is on the athlete to prove that the conduct which resulted in a violation was not intentional. Without evidence about the means of ingestion the tribunal has no evidence on which to judge whether the conduct of the athlete which resulted in the violation was intentional or not intentional. There is no express requirement for an athlete to provide the means of ingestion but there is an evidential burden to explain how the violation occurred.”
The approach in Buttifant did highlight that there may be wholly exceptional cases in which the precise cause of the violation is not established but there is objective evidence which allows a tribunal to determine that a violation was neither committed knowingly nor in manifest disregard of the risk of violation. But, this type of case would be extremely rare.
Whilst the above analysis focussed on Article 10.2, the appeal tribunal considered that the equivalent analysis would also apply to Article 10.5.
In concluding the appeal, the appeal tribunal stated that they could not accept the proposition that Contador creates any general proposition that the proof of ‘negative facts’ operates to reverse, to any extent, the burden of proof under Articles 10.2 and 10.5. Such a proposal would be contrary to the express wording of both articles.
The appeal tribunal determined that in their view, this case was not one of those rare cases cited in Buttfant and dismissed the appeal.
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