By Dr Jason Haynes, Sports Lawyer, Barbados
In the lead up to the 2019 World Championships held in Doha, Qatar, on 27 September – 7 October 2019, Jamaica’s hopes of achieving international acclaim in the sprints were dealt a blow when 17-year-old Briana Williams tested positive for the banned substance HCTZ.
Williams, the world age-15 record holder, the world youth (under-18) and age-17 record holder, and the Jamaican junior (under-20) record holder in the women’s 100 meters, had been tested on 21 June 2019, following Jamaica’s National Championships held at the national stadium in June 2019.
It was later revealed, in August 2019, that both her A and B samples returned an adverse analytical finding for the banned specified substance, Hydrochlorothiazide (HCTZ), a diuretic. It was accepted that the level of the substance contained in tablets given to her by her mother, “Pharma Cold & Flu”, would not have had a sports-enhancing effect, but the matter was nonetheless heard by the Jamaica Anti-Doping Disciplinary Panel.
In its award, issued on 24 September 2019, just days before the commencement of the World Championship, the Panel imposed a reprimand and no period of ineligibility, having found that, pursuant to Article 10.5 of Jamaica’s Anti-Doping Rules, she bore no significant fault or negligence.
While the mother contended that, because her daughter was experiencing a bout of the flu, she had given her the “Pharma Cold & Flu” medication, the Jamaica Anti-Doping Commission (JADCO) argued that no evidence of contamination of the medication in question was presented in this case.
Regrettably, in the Panel’s sparse ruling, it simply found that the level of HCTZ would not have had a sports’ enhancing effect, a finding that was “instructive in [its] consideration of any sanctions to be imposed”. In concluding that the athlete had demonstrated no significant fault or negligence, the Panel accepted that she had simply taken “what was given to her by her guardian”. Ultimately, the Panel implored the athlete to engage in further anti-doping education.
It is submitted that this ruling, apart from being epigrammatic, was simply not rigorous, and did not usefully address, in a methodological fashion, the issues raised. Apart from its assessment of the level of the substance in her sample, the panel failed to properly consider Court of Arbitration for Sport (CAS) jurisprudence which holds that the age of an athlete does not give her an automatic basis for exoneration. Although the Court cited the case of Australian Olympic Committee v Sarah Rockell (14 December 1998) which involved a 14-year-old cyclist, who tested positive for a banned substance after she had taken sinus and asthma medication given to her by her father who was also her coach, on information provided by a doctor as to her medical condition, the Panel in the Briana Williams case failed to consider that Williams was three years older than Rockell, and was of greater international stature and experience, and should have, therefore, known better than to simply accept the medication given to her by her mother. There is no indication in the Williams’ award of any steps that she took to obtain verification from her mother, who was not in any event medically trained, whether the substance was prescribed. In fact, no physician was approached to prescribe suitable and safe medicine to combat the flu; and no research or even basic reading of the tablet’s packets was done to satisfy herself that it contained no prohibited substance.
Even accepting that Williams was not aware that the medication contained a banned substance, there was no evidence to substantiate the alleged contamination, such that reference in the case to JADCO v Kenneth Edwards Jamaica Anti-Doping Disciplinary Panel (Decision no. 6 of 2013) was misdirected. Even further, although the Panel pointed to the need for the athlete to be further exposed to anti-doping education, there is no suggestion that the athlete had never been or had been exposed to little anti-doping education; this was simply assumed.
The final point of some concern, in this connection, is that it is arguable that the Panel’s decision was seemingly heavily swayed by public opinion. Indeed, at the time of the hearing, counsel for the athlete, as well as her coach, Ato Boldon, had taken to the media to plea for leniency and to, in the process, obtain sympathy from a Jamaican public whose main concern was potentially winning a gold medal, even at the expense of ensuring the fairness of sport. Although Williams, because of logistical constraints, did not ultimately go on to represent Jamaica in Doha, she is nonetheless free to compete, barring WADA appealing the matter.
Regrettably, in other cases, tribunals have treated the issue of minor athletes having committed an anti-doping rule violation with much more seriousness than the Panel in the Williams case did. For example, in CAS 2014/A/3559 Alexandra Georgiana Radu v. RNADA, award of 3 December 2014, the CAS imposed a two-year period of ineligibility on a fifteen-year-old simmer in circumstances where, over the course of several months, she had taken a combination of pills from her mother to allegedly assist with menstrual pains. The CAS, in examining the facts of the case, felt that the athlete was sufficiently intelligent and mature enough to understand and to comply with anti-doping requirements. It felt that she took scant interest in any aspects of anti-doping, and that the fact that she allegedly did not receive any formal drug education from her club or federation prior to her first in-competition drug test was irrelevant. With regard to the athlete’s experience, the CAS considered that she had been swimming since the age of four, had taken part in several national as well as international competitions and was attending a sport academy, factors which made it unrealistic to conclude that she lacked general familiarity with issues of doping in sport. Moreover, she has seen other swimmers being selected for doping controls; and she had heard about the fact that some substances could be banned and she was aware of the National Anti-Doping Organisation’s existence. It further considered that there was no evidence that she was at the time being abused in any manner or under her mother’s extreme pressure. Since she was capable of understanding anti-doping requirements, the role played by her mother, according to the CAS, “[was] no more than background.” Interestingly, as soon as she tested positive, her first reaction was to ask her mother whether the pills contained any prohibited substance. She clearly had suspicions as regards the status of the pills handed to her by her mother but chose to assign responsibility for her own default to her mother.
Although the Athlete’s mother was deeply affected by her own deeds, the CAS felt that these factors could explain, though could not excuse, her actions, but were, in the final analysis, irrelevant to the Panel’s assessment, which focused on the Athlete’s own actions or inaction. The Athlete admittedly knew that her mother had no medical knowledge, but still accepted to take from her numerous pills of various shapes and colours on a daily basis over a long period of time. The Athlete was obviously aware that her mother could not be blindly trusted as she had suspicions.
In sum, the CAS concluded that the Athlete deliberately and consciously decided
- not to ask her mother about the origin or purpose of the pills, despite the ways in which and the times as which they were administered (which were designed by her mother to maximize their impact and minimize their detection);
- ii) not to inspect the labels on the container, freely accessible; iii) not to seek to obtain assurances from her physician, pharmacist or team/school doctor that her pills did not contain a prohibited substance.
Reiterating the position of minors in so far as their interaction with the strict liability regime introduced by anti-doping regulations, the CAS found that:
“there is no special anti-doping regime for minors (…) In particular, there is no automatic exception based on age. The simple fact that the Athlete was a minor at the time she was tested, does not constitute a circumstance either eliminating or reducing her fault or negligence (…).”
Other CAS awards exemplify a similar approach to such situations.
However, several CAS cases make it clear that the young age of an athlete and his/her lack of experience are potentially relevant factors to determine his/her degree of fault. In particular, these factors could exceptionally explain complete ignorance of the fact that doping is prohibited in sport, more usually why, even if equipped with that knowledge, the minor has failed to take the steps to avoid the commission of an offence which would reasonably be expected of an adult.
In conclusion, it is submitted that the Panel in the Briana Williams case missed a unique opportunity to properly address its mind to the extant anti-doping jurisprudence on this thorny issue, and, in the process, deprived itself of the opportunity to provide definitive guidance to future panels.
Moreover, the terse nature of the judgment is frightening, as it raises questions as to the strength, robustness and legitimacy of the Panel’s reasoning, which appears to be heavily influenced by public opinion.
Above all, the award appears to raise the important question as to whether the Panelists are versed in nuanced areas of anti-doping law and practice!
Dr Jason Haynes may be contacted by e-mail at ‘firstname.lastname@example.org’