John Gleaves, California State University, Fullerton & Ask Vest Christiansen, Aarhus University
As the northern hemisphere edges back into summer, though you wouldn’t have known by watching the Giro d’Italia, a recent decision by the Union Cycliste Internationale (UCI) and the World Anti-Doping Agency (WADA) has left more than a few INHDR members scratching their heads. This decision involved the ruling regarding Michael Roger’s positive test for clenbuterol at the 2013 Japan Cup cycling race. Clenbuterol is a ?2 Agonist used in asthma medicine as a bronchodilator. It also has reported performance enhancing properties including increased aerobic capacity, oxygen transport and fat metabolization, though empirical evidence validating these claims is sketchy (Mottram, 2011). Despite the low quality of evidence, WADA has prohibited the substance, which does not naturally occur in the body. If the substance appears in any amount in an athlete’s sample, WADA declares an adverse analytical finding and begins the sanction process.
In addition to humans, clenbuterol can also help animals to increase lean muscle production. This has led some nefarious livestock producers to introduce the substance into food sources without disclosing this practice. Such use of clenbuterol is known to be especially prevalent in countries like China and Mexico. This gets us back to the UCI’s decision to shorten Michael Rogers’ sanction for clenbuterol. Rogers argued that the clenbuterol must have come from tainted meat eaten while racing in China. This argument led the UCI to claim in April 2014 that Roger’s had “no significant fault” for his positive test because of inadvertent use and thus removed any doping suspension for the rider. According to Cycling Australia, Rogers’ national cycling federation, the ruling came from a “significant probability that the presence of clenbuterol may have resulted from the consumption of contaminated meat from China – where he had taken part in a race before travelling to Japan.” The UCI explained in its press release that “As a result, the UCI has proceeded with the automatic disqualification of Mr. Rogers’ results at the 2013 Japan Cup Cycle Road Race (the competition during which the positive sample was taken) but, after consulting WADA, decided that he should not be sanctioned any further” (UCI, 2014).Hence, the UCI and WADA concluded that Rogers was under influence of a doping product – a potential performance enhancer – and therefore had an unfair advantage, which is why his results were cancelled. But at the same time, the UCI assessed that he did not dope intentionally and therefore he should not be sanctioned with a ban and a recorded doping violation. Rogers returned to cycling with a clean record and has recently won both the 11th and the 20th stage of the 2014 Giro d’Italia.
On the surface, this appears to be a level-headed decision, but as mentioned also one that leaves a few people wondering about consistency in standards, potential problems in WADA’s application of the rules, and even philosophically nebulous notions of intentionality and moral culpability. Most notably, there seems to be a conflict between the principle of strict liability, which, as its name implies, places a rigid obligation on every athlete for any substance found in his or hers sample, and the ruling in this case that the athlete did not dope intentionally – it was a case of inadvertent use. Even more, while WADA’s strict liability principle holds that athletes are responsible for the substances found in their specimen, regardless of intentionality (WADA, 2009), the inadvertent use ruling acknowledges that intentionality does matter and can ameliorate the moral condemnation.
Adding to the confusion, a contrasting case of Rogers’ current teammate, Alberto Contador, comes to mind. Contador, while racing for the Astana cycling team, submitted a sample on the second rest day of the 2010 Tour de France which contained an infinitesimal amount of the same substance Rogers sample returned: clenbuterol. Though WADA conceded that the amount of clenbuterol found in Contador’s sample may not even be detectable in some WADA accredited labs (Pelkey, 2010), the UCI began the sanction process. Contador provided the same defense Rogers later successfully used: a case of tainted meat. Though Contador’s appeal convinced his Spanish cycling federation and let him return to racing, WADA refused to accept the ruling and appealed to the Court of Arbitration for Sport (CAS). While Contador’s appeal was pending, seven members of the Mexican U-17 football team tested positive for clenbuterol. This time WADA accepted the “tainted meat” defense and dropped their appeal in the football players. But not with Contador. Though Contador continued racing, winning the 2011 Giro d’Italia, WADA continued its prosecution of Contador for clenbuterol, ultimately winning its case. CAS found Contador guilty of doping and imposed a full two year ban back to the original doping positive in 2010. Like Rogers, Contador had an unfair advantage by having a prohibited substance in his body during competition, but unlike Rogers, Contador had not been able to demonstrate that the clenbuterol more likely came from meat than from a tainted supplement or a blood transfusion.
Though neither WADA or the UCI have spoken to this issue, a likely reason for the difference in decisions was that it was deemed highly unlikely that the Spanish steak Contador claimed to have caused the findings of clenbuterol in his sample could have been contaminated, since clenbuterol is not known to be used for meat production in Europe and that the food control has only found one clenbuterol positive in 2000+ tests of EU-beef and that was in Italy. Interestingly, WADA argued that Contador’s clenbuterol positive more likely came from a tainted supplement provided by the Astana team (CAS, 2012, p. 487). But with Rogers, eating meat in China may be a different story. A few years back, a German anti-doping laboratory tested 28 non-athletes who travelled to China and found 22 positive for clenbuterol when they came back (Shipley, 2011). Thus, food contamination may be a rising problem for drug-tested athletes who compete around the globe.
So in the end, Rogers lost his results, received a short suspension while he appealed his case, and returned to the sport to win races. Contador lost his results, continued racing while he appealed his case, and then had a retroactive two year ban. More importantly, Rogers’ clenbuterol positive is ruled not to be a doping offense while Contador’s was.
What is puzzling about these two cases is the difference in the application of the “strict liability principle” on the one hand and the “inadvertent use” excuse on the other. This of course raises the question of the evidence an athlete have to provide in order to convince a ruling body that the substance found in his or hers system got there “inadvertently”. Consider an imaginary athlete accused of too high levels of testosterone who defends herself by saying that she must have gotten the substance in her system from a (testosterone) cream used accidentally by a masseuse without her knowledge. From the inadvertent use perspective, the athlete would (if the story was correct) not be to blame for having the performance enhancer in her system. But from the “strict liability” perspective, the imaginary athlete is responsible for knowing the content of the cream used by her masseuse. One might think that a more plausible example would be an athlete using a contaminated nutritional supplement sold by an established vendor that secretly contains small amounts of substances prohibited by WADA but not listed on the product’s label. A meta-analysis by Geyer et al. (2008) showed that off-label contamination continues to be a problem, with stimulants, prohormones, and anabolic steroids appearing in chemical analyses of nutritional supplements.
In both of these cases, anti-doping authorities could argue that athletes were responsible for knowing what was in their masseuses cream or their nutritional supplement – just like Rogers should have known that there is a risk of being polluted with clenbuterol when eating meat in China, c.f. the study of the German anti-doping laboratory referenced in 2011. As WADA Director General David Howman has said; anti-doping programs must be forgiving only in the most extreme circumstances to ensure their effectiveness (Shipley, 2011). Nevertheless, WADA seems to hold a double standard when it comes to tainted food and tainted supplements. On its website, WADA explains to athletes:
“Extreme caution is recommended regarding supplement use.
The use of dietary supplements by athletes is a concern because in many countries the manufacturing and labeling of supplements may not follow strict rules, which may lead to a supplement containing an undeclared substance that is prohibited under anti-doping regulations. A significant number of positive tests have been attributed to the misuse of supplements and taking a poorly labeled dietary supplement is not an adequate defense in a doping hearing.” (WADA, 2011b)
Thus WADA expressly states that tainted supplements are not an adequate defense while it endorses the tainted meat defense. Indeed, this distinction was at the heart of Contador’s conviction, with CAS ruling that “the Athlete’s positive test for clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat” (CAS 2012, p. 487). So despite the ruling that asserted that Contador’s positive test resulted from tainted supplements and not tainted meat, WADA refused to consider inadvertent use to reduce Contador’s sanction and sanctioned the athlete with the full two year suspension. If Howman’s claim is correct, one must thus assume that there is something about eating meat while competing in China that is extreme while using a supplement is morally equivalent to intentionally doping.
It is also possible that WADA might be changing its policy by admitting that the inadvertent use defense has more merit than it had been given credit. Yet this reversal, if it is a reversal, calls into question the strict liability doctrine that supports punishing the athletes in the first place. If this apparent reversal is true, and WADA is prepared to accept more inadvertent use arguments, then it has some explaining to do as to how it can continue to hold athletes accountable under its strict liability principle. Though WADA admits enough flexibility in this rule to satisfy its lawyers, it is easy to see that inadvertent use and strict liability are clearly at odds. Though ethicists may worry about moral culpability, it seems that WADA can, and perhaps should, accept a more liberal use of the inadvertent use arguments. On the other hand, granting too much leniency to unintentional cases would provide easy excuses for actual cheaters.
This leaves us with what might be the real worrisome issue about the case. To critics, the stance by WADA indicates that more may be at work behind the scenes than they let on. Such critics may thus say that what more likely explains the aggressive tact with Contador but not with Rogers has to do with assumptions about guilt. Rumors of Contador doping had spread within cycling just as they had with Michael Rasmussen and Floyd Landis. In each of these latter two cases, the causes of their doping sanctions (missed tests with Rasmussen and high testosterone for Landis) were admittedly not a result of the doping practices they were undertaking; they were simply convenient reasons to punish the athletes for doping they were suspected of doing. Is it that Contador’s clenbuterol case falls into the same category?
It is noteworthy that WADA and the UCI built their clenbuterol case against Contador on his use of supplements but refused to consider the admittedly tainted supplement as a reason to find the athlete had no significant fault, which would have brought a reduced suspension. Instead, WADA sanctioned Contador to the fullest extent permitted even though WADA’s Director General, David Howman, wrote in 2003 “a positive test resulting from a mislabeled of contaminated vitamin or nutritional supplement” because “athletes have been warned against the possibility of supplement contamination” (Howman, 2003). At the same time, the widespread reports warning athletes of clenbuterol in Chinese meat, including the warning made by WADA in 2011 (WADA, 2011a) did not count against the finding that Rogers bore no fault in inadvertently ingesting clenbuterol, especially considering that no other athlete that competed with Rogers in China similarly tested positive for clenbuterol.
Such inconsistency to WADA’s own standards should be alarming. The clenbuterol cases indicate that anti-doping efforts are much less consistent and potentially more targeted then the objective standards they publicly share. If these cases are simply an act of revising policies as they develop, then WADA should better explain what kind of evidence is needed to lift a case of “inadvertent use” for the athletes. In Rogers’ case, simply eating meat in a country like China seems to be enough because of statistical evidence of clenbuterol in food sources despite the well-established warnings and the athletes’ inability to document the contamination. Why didn’t WADA simply say athletes should not eat meat when travelling in unsafe places like China and Mexico much like they say that athletes should not use supplements? Such advice of course raises a problem with the hundreds of thousands of Chinese athletes who then cannot eat meat in their own country. On the other hand, if Rogers tested positive after a week in China, why don’t we see thousands of clenbuterol cases each month from Chinese and Mexican athletes? WADA’s inconsistent rulings appear to be a troublesome way of trying to make an imperfect world fit their ideals. But if the organization is not willing to tackle these questions, the legitimacy of the anti-doping enterprise could be at stake. Therefore, it is not enough to just shrug and conclude that these are curious cases.
We wish to thank Verner Møller for fruitful and constructive comments to an earlier draft of this editorial.
References
CAS. (2012). CAS 2011/A/2384 UCI v. Alberto Contador Velasco & R
FEC; CAS 2011/A/2386 WADA v. Alberto Contador Velasco &
RFEC: Arbitral Award delivered by the Court of Arbitration for Sport.
Geyer, H., Parr, M. K., Koehler, K., Mareck, U., Schranzer, W., & Thevis, M. (2008). Nutrional Supplements Cross-Contaminated and Faked with Doping Substances. Journal of Mass Spectrometry, 43(7), 892-902.
Howman, D. (2003). 'Sanctions under the Code': Appendix 2: Code Excerpts.
Mottram, D. R. (2011). Drugs in sport (5. edition ed.). London: Routhledge.
Pelkey, C. (2010, 30 September). Contador Tests Positive for Low Levels of Clenbuterol, Velonews. Retrieved from http://velonews.competitor.com/2010/09/news/contador-tests-positive-for-clenbuterol_143791
Shipley, A. (2011, 27 February). Diana Taurasi, Alberto Contador cases highlight questions facing anti-doping movement, The Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2011/02/26/AR2011022603925.html
UCI. (2014). Press Release: Michael Rogers -- Clenbuterol Adverse Analytical Finding. http://www.uci.ch/Modules/ENews/ENewsDetails.asp?id=OTkyNQ&MenuId=MTI2Mjc.
WADA. (2009, 2009). The 2009 Prohibited List. International Standard. World Anti-Doping Code, from http://www.wada-ama.org/rtecontent/document/2009_Prohibited_List_ENG_Final_20_Sept_08.pdf
WADA. (2011a). Athletes Must Show Caution Due to Contaminated Meat Retrieved June 8, 2014, from http://www.wada-ama.org/en/Media-Center/Archives/Articles/Athletes-must-show-caution-due-to-contaminated-meat/
WADA. (2011b). Questions & Answers on Dietary and Nutritional Supplements Retrieved 6 June, 2014, from http://www.wada-ama.org/en/Resources/Q-and-A/Dietary-and-Nutritional-Supplements/