An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports / Richard H. McLaren.- (Marquette Sports Law Review 16 (2006) 2 (Spring)

As new technologies for detecting drug violations in sport struggle to keep up with the creation of new doping substances and methods, non-analytical positive cases have become a more prominent tool in the fight against doping. Although doping offenses are most commonly established by direct evidence, where a positive analytical result from an accredited laboratory directly shows that an athlete had a prohibited substance in his or her body, situations will arise where only circumstantial evidence points to the commission of a doping offense. The challenge in such cases will be to prove the use of prohibited substances or techniques without direct evidence.

A circumstantial evidence case can be troublesome because the benefit from the concept of strict liability is eliminated. Strict liability has evolved in the jurisprudence of the Court of Arbitration for Sport (CAS) and has been adopted in the World Anti-Doping Agency Code (WADA Code). Strict liability means that a doping violation occurs when a banned substance is found in an athlete's body. The conclusion that an infraction occurred is not based upon intent or lack thereof.

Contents:

I. Introduction
II. Types of Non-Analytical Positive Cases
III. Pre WADA Code
A.) Summary of Burden and Standard of Proof Before WADA
B .) Summary of Cases
i. Michelle Smith de Bruin
ii. Mark French
iii. Michelle Collins
C.) Conclusions Regarding Pre-WADA Code Cases
IV. Post-WADA Code Implementation
A.) Summary of Burden and Standard of Proof After WADA Code
Introduction
B.) Post-WADA Non-Analytical Cases
i. Galabin Boevski
ii. Tim Montgomery and Chryste Gaines
C.) Conclusions Regarding Post-WADA Cases
V .Conclusions

Related cases:

• CAS 2012_A_2804 Dimitar Kutrovsky vs ITF
  October 3, 2012
• ITF 2015 ITF vs Dimitar Kutrovsky
  October 1, 2017

Facts
Dimitar Kutrovsky (player) was charged for an anti-doping rule violation. On February 14, 2012, at the SAP Open tournament held in San José, California from February 13-19, 2012, het provided an urine sample. The A sample tested positive for the substance methylhexeanamine (MHA). An oral hearing in respect of the charge took place in London on April 19, 2012, with telephone links to the player and his legal representatives in the USA.

History
The player asserted that he had purchased a supplement called “Jack3d” in powder form over the counter in August 2011, the Jack3d contained methylhexaneamine (MHA) he wasn't aware of this.

Decision
The Tribunal:

1. confirms the commission of the doping offence specified in the notice of charge set out in the ITF’s letter to the player dated March 8, 2012, namely that a prohibited substance, , was present in the urine sample provided by the player at the SAP Open in San José, California, on February 14, 2012;

2. orders that the player’s individual results must be disqualified in respect of the SAP Open tournament in San José in February 2012, and in consequence rules that the prize money and ranking points obtained by the player through his participation in that event must be forfeited;

3. orders, further, that the player’s individual results (including ranking points and prize money) in the ITF Futures event in Brownsville, Texas, later in February 2012 shall be disqualified and all prize money and ranking points in respect of that competition shall be forfeited;

4. finds that the player has succeeded in establishing by a balance of probability how the prohibited substance entered his body;

5. finds that the player has not succeeded in establishing to the comfortable satisfaction of the Tribunal that his use of the prohibited substance leading to the positive test result in respect of the sample taken on February 14, 2012 was not intended to enhance his sport performance; and

6. declares the player ineligible for a period of two years commencing on February 14,2012 and expiring at midnight (London time) on February 13, 2014 from participating in any capacity in any event or activity (other than authorized anti-doping education or rehabilitation programs) or competition authorized, organized or sanctioned by the ITF or any of the other bodies referred to in Article 10.10.1(b) of the Program.

7. This decision may be appealed to the Court of Arbitration for Sport by any of the parties referred to in Article 12 of the Program, in accordance with the provisions of Article 12.

Related case:

CAS 2011_A_2518 Robert Kendrick vs ITF
November 10, 2011

In June 2011 the International Tennis Federation (ITF) has reported an anti doping rule violation against the American tennis player Robert Kendrick after his sample tested positive for the prohibited substance 4-Methylhexan-2-amine (methylhexaneamine, 1,3-dimethylamylamine, 1,3 DMAA).

Following notification the Athlete gave a prompt admission and accepted a provisional suspension. He filed a statement in his defence and was heard for the ITF Independent Anti-Doping Tribunal.

The Athlete explained that he had used Zija XM3 capsules, provided by a teaching tennis professional, to reduce the effect of jetlag. He had established that the product did not contain a prohibited substance following internet research about the product ingredients.

The Tribunal accepts that the violation was not intentional, yet it finds that he had acted negligently. The Tribunal deems that the Athlete failed to consult a medical practitioner because of his jetlag concerns, nor did he contact the USADA or the ITF hotline in order to obtain advice about the product.

Therefore the International Tennis Federation Independent Anti-Doping Tribunal’s decides on 29 July 2011:

(1) Confirms the commission of the doping offence specified in the Charge;

(2) Orders that Mr Kendrick’s individual result must be disqualified in respect of the French Open 2011, and in consequence rules that the 10 ranking points and € 15.000 in prize money obtained by him from his participation in that event must be forfeited;

(3) Orders further that Mr Kendrick be permitted to retain the prize money obtained by him from his participation in the subsequent UNICEF Open;

(4) Finds that Mr Kendrick has established that the circumstances of his doping offence bring him within the provisions of Article M.4 of the Programme;

(5) Declares Mr Kendrick ineligible for a period of 12 months, commencing on 22 May 2011, from participating in any capacity in any event or activity (other than authorised anti-doping education or rehabilitation programmes) authorised by the ITF or by any national or regional entity which is a member of the ITF or is recognised by the ITF as the entity governing the sport of tennis in that nation or region.

Facts
French Federation of Weightlifting, Fitness, Powerlifting and Bodybuilding (Fédération Française d'Halterophilie, Musculation, Force Athlétique et Culturisme, FFHMFAC) charges respondent M29 for a violation of the Anti-Doping rules. During a match on November 27, respondent didn't attend the doping control.

History
The respondent claims that because his daughter had an asthma attack he couldn't attend the doping control, he had to take her to a doctor; the doctor who had examined her confirms this crisis. However he didn't present a document for his state of denial needed for this matter.

Decision
1. The sanction is a period of two years in which respondent can't take part in competition or manifestations organized or authorized by the FFHMFAC.
2. The decision starts after June 20, 2005.
3. The decision will be published and sent to the parties involved.

Related case:

CAS 2010_A_2245 Andrey Plotniy vs ITF
April 11, 2011

In March 2010, the Russian tennis player Andrei Plotniy admitted that he had committed an anti-doping rule violation after his sample tested positive for the prohibited substance Carphedon.

Consequently he accepted a 15 month period of ineligibility, starting on 1 November 2009. However in 2010 he participated in five tennis competitions authorized by the German tennis federation.

The representative of the player explained that his client wasn't aware he was no allowed to play tennis for a national association, he will return any prize money he obtained and will apologize to the tournament organizers.

The ITF decides on 20 September 2010 that:

1.) The results that Mr Plotniy obtained in the events are disqualified, and the ranking points awarded therein are forfeited, along with the following prize money;

2.) The original 15-month period of Ineligibility imposed on Mr Plotniy now starts over again as from the date of his last participation in the events noted above, i.e., 22 August 2010, so that it will end at midnight on 21 November 2011. As a result, until that date Mr Plotniy may not ‘play, coach or otherwise participate in any capacity in (a) a Covered Event, any other Event or Competition, or any other kind of function, event or activity (other than authorized anti-doping education or rehabilitation programs) authorized, organized or sanctioned by the ITF, the ATP, the WTA, or any National Association or member of a National Association; or (b) any Event or Competition authorized or organized by any professional league, or any international or national-level Event or Competition organization.’ (See Article M.10.1 of the Program). If he has any doubt as to exactly what this prohibition covers, or whether it covers a particular event in which he would like to participate, he should check with the ITF before participating in that event.

3.) In accordance with the Program, the foregoing decision that Mr Plotniy has violated the prohibited against participation while ineligible, and that a reduction under Article M.5.2 is not appropriate, may be appealed to the Court of Arbitration for Sport in accordance with Article O of the Program. Under Article O.5.1 of the Program, the deadline for filing that appeal is 21 days from receipt of the decision being appealed.

4.) Mr Plotniy and those other bodies that have a right of appeal under Article O of the Program may appeal against this decision, such appeal to be filed within 21 days of receipt of this decision.

5.) This decision is being sent to WADA and to RUSADA, and will be published on the ITF’s website.

Related case:

CAS 2009_A_1926 ITF vs Richard Gasquet
December 17, 2009

In April 2009 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Athlete Richard Gasquet after his A and B samples tested positive for the prohibited substance Cocaine in a low concentration.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the ITF Independent Anti-Doping Tribunal.

The Athlete denied the intentional use of the substance and requested for a reduced sanction. He asserted that he had kissed a woman in a club who had ingested Cocaine prior to their rendezvous.

the Athlete argued that if there was a doping offence, the Athlete could establish “No Fault or Negligence” or alternatively “No Significant Fault or Negligence”. Further, he argued that there should be no period of ineligibility.

He argued that because of  the circumstances of the offence – accidental contamination in a social setting after the player had decided to withdraw from the competition through injury - were such that any ban would be grossly disproportionate to the offence and therefore unlawful.

Also in June 2009 the Athlete filed a complaint with the French prosecuting authority, alleging against the woman that a harmful substance had been administered to him, contrary to the French penal code. A criminal complaint was, at some point in time, also filed by the woman against the athlete for defamation.

The French newspaper, Aujourd’hui, published an interview with the woman that reportedly took place the afternoon before, and in which she denied having either taken or been offered any cocaine during the evening of the rendezvous. However, she admitted having taken cocaine on previous occasions in her life.

Furthermore, she asserted that she had kissed the Athlete only briefly and not mouth to mouth, and that she was willing to give evidence and undergo a hair test herself.

On September 2009, the public prosecutor’s department of Paris issued a communiqué stating that the proceedings initiated by the Athlete on 4 June 2009 against the woman for administration of a harmful substance to him had been closed, as no criminal offence had been revealed.

The communiqué furthermore noted that the toxicological examination carried out on “a young lady heard during this procedure” revealed that she regularly consumed cocaine, and that she would be subject to a therapeutic order from the public prosecutor’s department.

The ITF Tribunal Panel accepts that the player has discharged the onus on him of establishing, on the balance of probability, how cocaine entered his system. The Panel notes that the most likely explanation is that advanced by the player, namely that cocaine was transferred to the player from mouth to mouth kissing with the woman.

The Panel rules that this explanation is more likely than not to be the correct one. The Panel holds that in this case, the Athlete’s inadvertent ingestion of cocaine occurred in circumstances in which the degree of his fault was very small, as small as the miniscule quantity consumed.

On 15 July 2009 the ITF Tribunal decides to impose a 2 months and 15 days period of ineligibility on the Athlete for the time already served, starting on the date of the provisional suspension until the date of the decision.

Also Athlete’s results obtained in competitions in Barcelona and Rome during April 2009, shall remain undisturbed and the prize money and ranking points obtained by the player in those competitions shall not be forfeited.

Facts
Filippo Volandri was reported for a Ani-Doping Rules Violation (ADRV). His urine sample, taken on March 13, 2008, at the Indian Wells tournament in California, United States, tested positive on the prohibited substance salbutamol. The player doesn't dispute this fact. An oral hearing was held on 15-01-2009.

History
The player had a therapeutic use exemption (“TUE”) in respect of salbutamol when he gave his sample. The abnormal result was the consequence of the therapeutic use of inhaled salbutamol for his asthma.

Considerations tribunal
Salbutamol was not a specified substance under the 2008 Program, but is under the 2009 Program. The parties agree that Salbutamol in this case will be regarded as a specified substance. An application therefore will be regarded as a lex mitior by the Anti-Doping Tribunal hearing the case. Several times a TUE was granted. Unfortunately applying lately the player forgot to mention the explanation that the treatment was ongoing. On 27 December 2004 the player, applied for an Abbreviated Therapeutic Use Exemption (“ATUE”) in respect of use of salbutamol. However, the player’s use of salbutamol on March 12-13, 2008, can't properly be characterised as therapeutic.

decision
The Tribunal:
1. confirms the commission of the doping offence specified in the notice of charge set out in the ITF’s letter to the player dated 13 November 2008; namely that a prohibited substance, salbutamol, has been found to be present in the urine sample that the player provided at Indian Wells on 13 March 2008;
2. finds that the player has failed to establish on the balance of probabilities that the abnormal test result was the consequence of the player’s therapeutic use of inhaled salbutamol;
3. orders that the player’s individual result must be disqualified in respect of the Indian Wells tournament, and in consequence rules that the prize money and ranking points obtained by the player through his participation in that event must be forfeited;
4. orders, further, that the player’s individual results (including ranking points and prize money) in competitions including and subsequent to the Manerbio competition on 18 August 2008 shall be disqualified and all prize money and ranking points in respect of those competitions shall be forfeited;
5. orders, however, that the player’s results (including ranking points and prize money) in all competitions subsequent to the Indian Wells tournament up to and including the Cordenons competition on July 28, 2008 shall remain undisturbed;
6. finds that the player has succeeded in establishing to the comfortable satisfaction of the Tribunal that his use of the prohibited substance leading to the positive test result in respect of the sample taken on March 13, 2008, was not intended to enhance his sport performance;
7. declares that the player shall be ineligible for a period of three months (i.e. calendar months) starting on January 15, 2009 and expiring at midnight London time on April 14, 2009 from participating in any capacity in any event or activity (other than authorized anti-doping education or rehabilitation program) authorized by the ITF or any national or regional entity which is a member of or is recognized by the ITF as the entity governing the sport of tennis in that nation or region.

facts
Courtny Nagel (player) was reported for a an Anti-Doing Rules violation (ADRV). A sample provided by her on 28 July 2008 at the Nordic Light event in Stockholm, Sweden, revealed the prohibited substance canrenone.

history
Ms Nagle has explained the presence of Canrenone in her system was due to her therapeutic use of spironolactone to treat a medical condition. She has produced medical records confirming the diagnosis and the prescription of spironolactone to treat that condition in 2004, with further prescriptions in 2005 and 2006. She explains that she had a ‘flare up’ of her condition in the summer of 2008, started taking the spironolactone again on 2 July 2008, and stopped on September 2, 2008, after the condition improved. Ms Nagle explained that she was not aware the medication prescribed to her contained any prohibited substance. She says she took the medication only for therapeutic purposes and not to enhance her performance or to mask the use of any other substance, and notes that she declared the medication on her doping control form when she provided her sample on 29 July 2008.

considerations tribunal
The medical condition is proven, she even filled in the name of the medicine on the doping form. She established to explain how the prohibited substance entered her body. Canrenone is not classified as a “specified substance” in the 2008 list of prohibited substances and Prohibited Methods, but it is so classified in the 2009 List (Lex Mitior).

decision
Ms Nagle acknowledges that she has committed a Doping Offence under Article C.1 of the Program and accepts the following consequences:
1. A sixteen-month period of Ineligibility, backdated to commence on 29 July 2008 and therefore ending at midnight on November 28, 2009.
2. Disqualification of her results achieved in the following events, including the forfeiture of the ranking points and prize money awarded therein.
3. Ms Nagle has waived her right, under Article O of the Program, to appeal against the Decision, both as to the finding that she has committed a Doping Offence and as to the imposition of the Consequences

facts
Maximilian Abel (player) was reported for a Anti-Doping Rules Violation (ADRV). During the Tournament Open Moselle in Metz, France on September 30, 2007, an urine sample was taken. Both samples (A and B) tested positive on cocaine and metabolites, which are prohibited substances.

history
The player doesn't dispute the analytical findings but has no idea how he ingested the prohibited substance. His suggestion is that outside influences are responsible. He doesn't apply for an oral hearing or legal representation.

Decision
The tribunal:
1. confirms the commission of the Doping Offence specified in the charge;
2. orders that the player' s individual results in the Tournament must be disqualified, and in consequence rules that the prize money and ranking points obtained by the player through his participation in the Tournament must be forfeited;
3. orders, further, that the player' s results in all singles and doubles competitions subsequent to the Tournament shall be disqualified and all prize money (half the prize money awarded to the pair in the case of doubles competitions) and ranking points in those competitions forfeited;
4. declares that the player shall be Ineligible for a period of two years commencing on 22 January 2008 from participating in any
capacity in any event or activity ( other than anti-doping education or rehabilitation program) authorized by the ITF or any national or regional entity which is a member of or is recognized the ITF as the entity governing the sport of tennis in
that nation or region.

Facts
Martina Hinges (player) was reported for an Anti-Doping Rule Violation (ADRV). An urine sample taken during the Wimbledon Championship 2007 tested positive for the metabolite of cocaine (benzoylecgonine). Cocaine is a prohibited substance in competition. An oral hearing in respect of the charge took place in London on December 11 and 12, 2007.

History
The player was never been reported for a doping offence. She has no idea how the substance entered her body, also the measured substance was very low. She challenged the procedure of sample taking. She did not admit that the sample tested was provided by her, nor that the laboratory results were reliable. She also contended that if the ITF could prove that she had committed a doping offence, she bore “no fault or negligence” or “no significant fault or negligence” for the offence.

The Tribunal’s Ruling:
1. confirms the commission of the doping offence specified in the notice of charge set out in the ITF’s letter to the player dated October 1, 2007, namely that a prohibited substance, benzoylecgonine, a metabolite of cocaine, has been found to be present in the urine sample that the player provided at the Wimbledon Championships on 29 June 2007;
2. orders that the player’s individual results in the ladies’ singles competition must be disqualified in respect of the 2007 Wimbledon
Championships, and in consequence rules that the prize money and ranking points obtained by the player through her participation in that
competition must be forfeited;
3. orders, further, that the player’s individual results in all singles and doubles competitions subsequent to the 2007 Wimbledon Championships shall be disqualified and all prize money (half the prize money awarded to the pair in the case of doubles competitions) and ranking points in respect of those competitions forfeited;
4. declares that the player shall be ineligible for a period of two years commencing on 1 October 2007 from participating in any capacity in any event or activity (other than authorized anti-doping education or rehabilitation program) authorized by the ITF or any national or regional entity which is a member of or is recognized by the ITF as the entity governing the sport of tennis in that nation or region.