By Laura Donnellan, School of Law, University of Limerick, Ireland
On 19 March 2018, the Court of Arbitration for Sport (CAS) delivered an arbitral award in a dispute involving two US Dressage athletes: Adrienne Lyle, an Olympic rider, and Kaitlin Blythe, an under-25 competitor (https://inside.fei.org/system/files/CAS%20Decision%20-2017A5114.pdf) and the Fédération Equestre Internationale (FEI). The CAS upheld the FEI policy of provisionally suspending horses for two-months on grounds of animal welfare and ensuring a level playing field.
The background to the CAS arbitral awards is as follows:
Lyle and Blythe were provisionally suspended on 5 April 2017 after their horses (Don Principe and Horizon) tested positive for the banned substance Ractopamine. The horses had been subject to routine drug testing with the samples taken during Week 5 of the Adequan Global Dressage Festival, which took place between December 2016 and February 2017 in Wellington, Florida. The horses had been administered a number of dietary supplements, including Soothing Pink, which was marketed as providing relief for horses with gastric upsets. It was produced by Cargill, a leading manufacturer of horse feed and supplements. On the list of ingredients there was no mention of Ractopamine, a beta adrenoceptor agonist. The two competitors contended that the adverse analytical finding was due to contaminated food or supplements and thus fell within the definition of specified substance, as discussed below.
The FEI’s Equine Anti-Doping and Controlled Medication Regulations (EADCMRs) are divided into two:
– the Equine Anti-Doping (EAD) Rules; and
– the Equine Controlled Medication (ECM) Rules.
The banned substances and controlled medication are collectively referred to as the Prohibited Substances.
The most recent EADCMRs took effect on 1 January 2018 (https://inside.fei.org/content/anti-doping-rules). For human competitors, the World Anti-Doping Agency (WADA) rules apply (https://inside.fei.org/fei/cleansport/humans). A violation of the EADCMRs is a strict liability offence (Article 2.1.1 of the EAD Rules). It applies to the “Person Responsible” (PR), which includes the rider and also support personnel in certain circumstances (Article 2.2-2.8). It is not necessary to demonstrate intent, fault, negligence or knowing use of a prohibited substance.
When an adverse analytical finding relating to a banned substance is discovered, the PR is automatically provisionally suspended from the date of notification from the FEI. The horse is suspended for two-months. Provisional suspensions are found under Article 7.4 and are placed on the PR pending a full hearing. Where the PR requests the lifting of the provisional suspension, the FEI Tribunal will maintain the provisional suspension unless the PR establishes, to the comfortable satisfaction of the FEI Tribunal, that:
- The allegation of an EAD violation has no reasonable prospect of being upheld due to a material defect in the evidence on which the allegation is based; or
- The PR can demonstrate that the evidence will show that s/he bears No Fault or Negligence for the violation of the rule that is alleged to have been committed, so that any period of ineligibility that might otherwise be imposed for such a violation is likely to be completely eliminated by application of Article 10.4 (Elimination of the Period of Ineligibility Where there is No Fault or Negligence) or Article 10.5 applies (Elimination of the Period of Ineligibility Where there is No Fault or Negligence) and the PR has already been provisionally suspended for a period of time that warrants the lifting of the provisional suspension pending a final decision of the FEI Tribunal; or
- Exceptional circumstances exist that make it clearly unfair, taking into account all of the circumstances of the case, to impose a Provisional Suspension prior to the final hearing of the FEI Tribunal. This ground is to be construed narrowly and applied only in truly exceptional circumstances. For example, the fact that the Provisional Suspension would prevent the Person or Horse competing in a particular Competition or Event shall not qualify as exceptional circumstances for these purposes (Article 7.4.4).
The EAD rules provide for a reduction of sanctions for specified substances and contaminated products (Article 10.5.1).
The FEI insists that specified substances are not to be viewed as less important or less dangerous than other prohibited substances. It recognises that a horse could ingest a substance through contaminated food. If a horse tests positive for a specified substance, the application of a provisional suspension is not automatic (Article 10.5.1.1). At a minimum, the PR faces a reprimand but no period of ineligibility and a maximum two-year period of ineligibility, depending on the degree of fault (Article 10.5.1.1).
In the aftermath of the adverse analytical finding, the United States Equestrian Federation (US Equestrian) on its website commended Cargill, for its admission that the positive test resulted from a contaminated nutritional supplement (US Equestrian Communications Department, “Cargill Acknowledges Contamination of Feed Supplement Caused Positive Test Results”, US Equestrian, 9 May 2017, https://www.usef.org/media/press-releases/cargill-acknowledges-contamination-of-feed-supplement-caused-positive-test-results). US Equestrian acknowledged that the substance, which is legal in the US, is banned in over 160 countries, including the 28 Members of the European Union, China and Russia “due to its controversial and adverse effects in cattle and swine” (ibid). Cargill subsequently withdrew Soothing Pink from the market.
On 27 April 2017, additional urine and blood samples from the horses were tested to see if any trace of Ractopamine remained in their systems. The Maddy Equine Analytical Chemistry Laboratory at the University of California, Davis, found no presence of the substance in either horses’ samples. Lyle and Blythe had their provisional suspensions lifted on 28 April 2017; however, the FEI Tribunal upheld the two-month suspension of their horses, Horizon and Don Principe, on the grounds of animal welfare and in order to ensure a level playing field. Both athletes sought an interim decision from the CAS to allow their horses to compete at the US Dressage Festival of Champions from 18-21 May 2017. The CAS granted an interim decision setting aside the temporary suspension on 8 May as the two-month suspension would have been in place until 4 June, thus the decision was a matter of urgency. A spokesperson for the CAS was quoted by Horse and Hound as stating:
“This is a temporary decision, which is made pending the resolution of the CAS arbitration…These interim decisions are not published by our tribunal but the final decision will be…Given the urgency, no hearing took place but the parties concerned were able to express their position in writing” (Lucy Elder, “Dressage riders’ suspensions lifted: contamination blamed for positive drug tests”, Horse and Hound, 11 May 2017, http://www.horseandhound.co.uk/news/kaitlin-blythe-adrienne-lyle-ractopamine-contamination-620471#SPTUf1gp8P8iki9I.99).
In November 2017, a full hearing took place before the CAS Panel.
The appellants proffered that Article 7.4.4 (iii) (as outlined above) applied as their situation was an “exceptional circumstance” for the following reasons (at para. 43 of decision): the low level of Ractopamine detected by the time the decision was appealed; there was no trace of Ractopamine in the horses’ systems; the appellants had cooperated in finding the source of the Ractopamine and responded to issues raised by the FEI; there was no scientific evidence to support that a horse competing during the two-month suspension would compromise animal welfare, nor could it be shown that competing at the time (during the two-month suspension) would have yielded a competitive advantage by the earlier ingestion of Ractopamine; veterinary experts found no adverse effects on the horses in the first five months of 2017; and the level of support provided by the US Dressage Committee to the appellants. The appellants further contended that the two-month suspension imposed by the FEI, was not properly authorised and was inconsistent with EADs.
The FEI responded by holding that the two-month provisional suspension was within the EADS; the appellants had not shown that the “exceptional circumstances” of Article 7.4.4 (iii) applied; and that the imposition of provisional suspensions was legal, justified, proportionate and fundamental in protecting the welfare of the horse and ensuring a level playing field (at para. 45). In addition, the FEI argued that the appellants could not rely on Article 7.4.4 (i).
The CAS Panel conducted the hearing de novo and thus it would decide the appeal on the evidence before it (at para. 58). It examined the reasons behind the FEI’s two-month suspension: animal welfare; ensuring a level playing field; deterrence and damage to the image of the sport if previously doped horses could compete (at para. 64). The Panel contended that first ground was sufficient in itself, as was the objective of ensuring a level playing field. However, it was not convinced regarding the perceived deterrent nature of provisional suspensions and the last ground, damage to the image of the sport, was considered the weakest as the horses would compete again sometime in the future (at para. 65). The Panel distinguished the position of the horse with that of a human competitor and stated:
“Horses, unlike humans, cannot themselves take care to avoid the ingestion of prohibited substances. The welfare and health argument has a proper and particular resonance in their case” (at para. 68).
The Panel accepted that a one-size fits all approach, as opposed to a bespoke solution was required, given the range of equine sports and the different prohibited substances (at para. 69). The FEI, in its endeavours to protect horses, was of the view that the “blanket” two-month suspension was both legitimate and proportionate (at para. 69). However, the Panel accepted that there could be more transparency with the rule, in that it could be in published form (at para. 71). It rejected the argument that the publicity of the rules was insufficient.
Had there been a published rule, then its application would still not have adjusted the behaviour of the appellants in the lead up to the adverse analytical finding, as they were, at all material times, aware of their duty to ensure that the horses did not ingest a prohibited substance. The appellants were informed of the two-month suspension, once the adverse analytical finding was communicated to them, thus it “provided a target against which they could direct their forensic fire” (at para. 71). In any case, the FEI had passed a resolution in 2012 providing for the two-month suspension of the horse, which was evidenced by the minutes of a FEI Executive Board meeting, dated 5-6 May 2012.
The Panel also referred to the fact that the two-month suspension is not absolute, as Article 7.4.4 (i), (ii) and (iii) provide for the lifting of the suspension to the comfortable satisfaction of the FEI Tribunal (at paras. 80-83). In relation to (i), the Panel noted that this did not apply, as the appellants had not challenged the adverse analytical finding. In relation to (ii), the Panel noted that the lifting of suspensions refers to the PR, and not the horse. The Panel recommended that this section be revised to prevent further disagreement, especially considering that athletes have their own doping rules, the WADA rules and thus the reference to the PR in this section was ambiguous. In relation to (iii), there were no exceptional circumstances, a provision that must be construed narrowly.
The Panel was not satisfied that a prohibited substance did not have residual effect even though Ractopamine was no longer present in the horses’ systems (at para. 91). The Panel could not fault the testing methods used in the laboratory (at para. 93). While the CAS dismissed the dressage riders’ appeal, it provided that the results achieved would stand.
The decision has been welcomed by the FEI, as its Secretary General, Sabrina Ibáñez, stated:
“We are delighted to have received such a clear endorsement of the FEI’s policy on equine provisional suspensions from the Court of Arbitration for Sport…Horse welfare is always top of the agenda for the FEI and the mandatory two-month provisional suspension of horses in Banned Substance cases is an important measure to ensure that the welfare of our equine athletes is not compromised” (Press Release, CAS upholds FEI Policy on Equine Provisional Suspensions, 23 March 2018, https://inside.fei.org/news/cas-upholds-fei-policy-equine-provisional-suspensions).
The CAS decision has clarified the FEI policy of imposing a two-month provisional suspension on horses. It is a well-thought out decision that has as its core the welfare and health of horses. While the interim decision to provisionally lift the suspensions seemed to undermine the objectives of the FEI, the Panel took a very serious view of the impact of banned and other substances on the wellbeing of the horse.
It is a much welcome decision as it solidifies the FEI policy and hopefully ensures that it is immune from further challenge.
Laura Donnellan may be contacted by e-mail at ‘Laura.Donnellan@ul.ie’