Dr. Jason Haynes
Lecturer in Sports Law, University of the West Indies, Cave Hill Campus, Barbados
Jamaican athletes are well-known internationally for their athletic prowess in various sporting disciplines, especially track and field. Indeed, the undeniable success of Asafa Powell, Shelly-Ann Fraser-Pryce and, of course, Usain Bolt speak not only of the nation’s pride and overall commitment to sport, but the sheer talent of its athletes.
Notwithstanding Jamaican athletes’ undeniable success, however, there have been occasions, in the recent past, when the integrity of sport in Jamaica has been overshadowed by allegations of doping. Although, admittedly, the commission of anti-doping rule violations (ADRVs) is not an everyday reality, a few top Jamaican athletes have been impugned and sanctioned for committing ADRVs, including Asafa Powell, Sherone Simpson and, more recently, Nesta Carter.
The regulatory framework regarding doping in Jamaica is relatively straightforward. Jamaica ratified the International Convention against Doping in Sport on 2 August 2006 and has sought to comply with the provisions of this Convention through its adoption of Anti-Doping Rules, in keeping with the World Anti-Doping Code (WADC) and associated International Standards. Jamaica has also enacted the Anti-Doping in Sport Act 2014, which establishes the Jamaica Anti-Doping Commission (JADCO). This is an independent agency that prosecutes alleged ADVRs before the Jamaica Independent Anti-Doping Disciplinary Panel, and, if the matter is appealed, before the Jamaica Anti-Doping Appeal Tribunal and the Court of Arbitration for Sport (CAS), in the last instance.
Jamaican athletes, like other athletes globally, may be bound by anti-doping rules by virtue of an express or implied contract which incorporates these rules. More specifically, they may be bound by not only participating in competitions, which impliedly incorporate the WADC, but also by submitting to doping control procedures and through their relations with clubs; such clubs and, therefore, their athletes, are, in principle, legally bound by the anti-doping rules of National Governing Bodies and International Federations.
Jamaican National and International level athletes are bound by anti-doping rules, which include a provision for a ‘prohibited list’ that outlines a number of substances which are prohibited in or outside competition or both if they have the potential to enhance sporting performance. Athletes are strictly bound by anti-doping rules, including the ‘prohibited list’, such that once an ADRV has been established by the Anti-Doping Organisation (ADO), the ADO does not have to go on to establish fault or intent or negligence on the part of the athlete (the strict liability principle). Interestingly, under the WADC, allowance is made for the retesting of athletes’ samples and the assertion of an ADRV within ten years from the date the violation is alleged to have occurred.
The subject of this post – CAS 2017/A/49984 Nesta Carter v International Olympic Committee – not only relates to a challenge to the ‘prohibited list’, but the fairness of the limitation period. Here, the athlete, Nesta Carter, had competed in the August 2008 edition of the Olympics for Jamaica. His team, comprised of himself, Usain Bolt, Michael Frater and Asafa Powell, won a gold medal. He was subject to doping control immediately after, and the results were negative. In March 2016, a reanalysis of the Beijing samples was completed. There was an adverse analytical finding for the presence of methylhexaneamine (MHA).
The IOC Dispute Committee confirmed that Carter had committed an ADRV. He was, accordingly, disqualified from the Men’s 4*100 relay event in which he participated. He had his medalist pin and diploma obtained in respect of the win withdrawn and they had to be returned; and, sadly, the Jamaican team was disqualified from the Men’s 4*100 relay event, and they too had to return their pins and diplomas. Carter appealed to the Court of Arbitration for Sport (CAS) against the IOC Dispute Committee’s decision.
The IOC argued that, although MHA was not expressly listed by name on the prohibited list applicable during the Beijing Games, it was nevertheless already covered by the list under S6 Stimulants, as a substance with a chemical structure or similar biological effects, and that it has been expressly listed from 2010 onwards. The athlete, by contrast, argued that the establishment of an ADRV based on MHA was a violation of the requirement of legal certainty, since MHA was not a listed substance in 2008.
The CAS agreed with the IOC, finding that, although MHA was not expressly listed on the WADA 2008 Prohibited List, all stimulants were prohibited, including MHA, a stimulant having a similar structure and effects as one listed – tuaminoheptane. In the tribunal’s view, the list of prohibited stimulants provides a list of named stimulants, which are typically the ones often detected, as well as a “hold all basket”, and that Athletes are required to ensure that no stimulants were present in their bodily systems, named or unnamed. On the facts of the case, although the CAS did not make a finding that the Athlete took the substance intentionally or was negligent to any degree, the fact that a prohibited substance, though unnamed at the time, was found in his system, justified the withdrawal of Carter’s gold medal obtained at the 2008 Beijing Olympics.
A second, and indeed fundamental, question which arose in the Carter case was whether the eight- year delay in the IOC’s re-analysis of the athlete’s sample necessitated a dismissal of the proceedings as being unfair to the Athlete in view of the specific circumstances of the case. The then applicable rules, namely Article 6.5 of the IOC Anti-Doping Rules (ADR), allowed for the establishment of an ADRV, following re-testing, within 8 years from the date the violation was asserted to have occurred.
In the view of CAS, although the statute of limitation appeared to be unfair in individual cases, the reanalysis process was not directed against the Athlete, Carter, in particular. Rather, the Athlete’s sample was only one amongst the 433 samples collected at the Beijing Game and selected for a new analysis. The fact that the Beijing Laboratory did not then detect the presence of MHA in the Athlete’s sample, because MHA was not part of the analytical menu of the Beijing Laboratory, was inconsequential, since Article 6.5 of the IOC ADR provided a broad and discretionary power to the IOC to test for any and all prohibited substances at any time within the statute of limitation period, which, in relation to the samples from the Beijing Games, stood at 8 years. Although the Lausanne Laboratory could not itself have decided unilaterally to undertake the re-analysis of the stored Beijing samples, the IOC had given the Laboratory a broad remit to retest for all banned substances, and this power was not shown to be exercised in an arbitrary or capricious manner. In short, the Laboratory acted within the confines of the instructions given to it by the IOC and had applied a “fit for purpose” method capable of detecting the prohibited substances, namely the “Dilute and Shoot”, which was efficient, used little urine and was economical. This was not a case where there was a departure from testing standards, as the applicable rule was followed and the re-analysis was in conformity with Article 6.5 of the IOC ADR.
Although this decision has provoked a number of criticisms from Jamaicans who argued that, from a libertarian perspective, the applicable rules on re-testing were unfair and arbitrary, in that they applied up to eight years after the sample was collected; from a paternalistic perspective, it is submitted that the re-analysis programme was (and is) meant to protect the integrity of the competition results and the interests of athletes who participated without any prohibited substance, and not the interests of athletes who were initially not detected for any reason and are later and within the statute of limitation period found to have competed with a prohibited substance in their bodily systems. On a practical level, there is also logic in conducting a large-scale re-analysis of a large number of samples towards the expiry of the statute of limitation period; this may maximize the possibility to obtain materially significant results, proportionate to the huge logistical operation and substantial costs, which the re-analysis of several hundreds of samples represents. This makes best use of the limited amount of urine available and maximises the effects of the advances in research and technology over time.
In short, then, although it is regrettable that the rules deprived Carter and, more significantly, Usain Bolt, of a gold medal, it is undeniable that they operate to secure the overall fairness and integrity of sport, which is a fundamental objective of the World Anti-Doping Programme.
Dr Jason Haynes may be contacted by e-mail at ‘email@example.com’