Inconsistencies Between Johaug vs. Sharapova at CAS

I've had a close read of the CAS decisions on the doping violations of Russian tennis superstar Maria Sharpova (here in PDF) and Norwegian nordic superstar Therese Johaug (here in PDF). The cases are remarkably similar in many respects. Both involve an athlete who was given bad advice by a trusted advisor -- an agent in Sharpova's case and a doctor in Johaug's case. Both were judged to have committed an anti-doping violation with "no significant fault" (NSF). Both admitted to taking substances on the WADA prohibited list by mistake.

However, the CAS decisions are remarkably different. Sharapova received a reduced sanction which allowed her to pick up her professional career with minimal impact. In contrast, Johaug saw her sanction extended, resulting in her missing the 2018 Olympics, arguably with near maximum impact on her career (were she to qualify in 2022, it would be past the peak of her career). Further, CAS went out of its way to characterize Sharapova as deserving of sympathy and Johaug as not deserving such sympathy.

One CAS arbitrator sat on both cases. Below I've excerpted some of the key passages from each judgment. Have a look, and see whether you think there is consistency here. If you are interested, I'd encourage you to read both judgments in full. In my opinion there is a troubling degree of arbitrariness in the CAS sanctions between these two athletes that should be viewed as problematic by anyone who cares about athlete due process under lex sportiva.

Is the athlete ultimately responsible?

CAS on Johaug:

"it is an athlete’s primary duty of care to read the packaging of products and to double-check with a medical person if the information refers to a prohibited substance"

CAS on Sharapova:

"an athlete can always read the label of the product used or make Internet searches to ascertain its ingredients, crosscheck the ingredients so identified against the Prohibited List or consult with the relevant sporting or anti-doping organizations, consult appropriate experts in antidoping matters and, eventually, not take the product. However, an athlete cannot reasonably be expected to follow all such steps in each and every circumstance."

Can an athlete delegate some responsibility to a professional on their team?

CAS on Johaug:

"the Panel finds it striking that Ms Johaug did not perform the most important of them. She was given the packaging of the Trofodermin but did not conduct even a cursory check of the label. . . It follows that a top athlete must always personally take very rigorous measures to discharge these obligations. The CAS has specifically noted that the prescription of medicine by a doctor does not relieve the Athlete from checking if the medicine contains forbidden substances or not" 

CAS on Sharapova:

"even though, under the TADP, it is the Player’s personal duty to ensure that no prohibited substance enters his/her body (Article 2.1.1) and it is the responsibility of each player to be familiar with the most current edition of the Prohibited List (Article 3.1.2 in fine), nothing prevented the Player, a high-level athlete focused on demanding sporting activities all over the world, from delegating activities aimed at ensuring regulatory compliance and more specifically that no anti-doping rule violation is committed" 

Should an athlete trust their doctor?

CAS on Johaug:

"It is not appropriate for an athlete, without any substantiation, to draw a conclusion that her doctor has carried out his responsibilities properly, and subsequently adjust her own level of diligence according to what she thought the doctor could have done."

CAS on Sharapova:

"The Panel wishes to emphasize that based on the evidence, the Player did not endeavour to mask or hide her use of Mildronate and was in fact open about it to many in her entourage and based on a doctor’s recommendation" 

What was the level of fault?

CAS on Johaug;

"the appropriate level of fault is No Significant Fault (“NSF”)"

CAS on Sharapova:

"the Panel concludes that the Player’s claim of NSF can be accepted"

What is the appropriate sanction?

CAS on on Johaug (increased sanction from 13 to 18 months):

"Ms Johaug’s overall circumstances place her level of fault in the middle of the 16 – 20 month range"

CAS on Sharapova (reduced sanction from 24 to 15 months):

"the Panel has determined, under the totality of the circumstances, that a sanction of fifteen (15) months is appropriate here given her degree of fault" 

How should we think of this athlete?

CAS on Johaug:

"Considering Ms Johaug’s extremely high level of experience and success as an international athlete, her failure to conduct a basic check is very surprising. Throughout her ten-year career as a professional cross-country skier she has been subject to approximately 140 doping control tests. As such, she should have been very familiar with the rigorous standards expected of an athlete such as herself." 

CAS on Sharapova:

"The Panel wishes to emphasize that based on the evidence, the Player did not endeavour to mask or hide her use of Mildronate and was in fact open about it to many in her entourage and based on a doctor’s recommendation, that she took the substance with the good faith belief that it was appropriate and compliant with the relevant rules and her anti-doping obligation"

Sugar, Spice and Everything Nice: How to End “Sex Testing” in International Athletics

I am happy to report that my academic paper on "sex testing" in elite sport has passed peer review and in now in press. The paper has been several years in the works and totals more than 10,500 words. Whew.

In the paper I critique:

• Fears of fraud in elite sport (men posing as women)
• Concerns about fairness (the need to protect women from other women)
• The idea that science can solve this issue (It can't)

I also offer a suggested way forward based on a procedural approach to classification rather than a substantive approach. Nationality classification shows that this can be done.

Here is the abstract:

Abstract

In many settings, decision makers look to science as the basis for making decisions that are made difficult by their social or political context. Sport is no different. For more than a half century sports officials have looked to science to provide a clear distinction between men and women for purposes of determining who is eligible to participate in women’s athletic competitions. However, the science of sex provides overwhelming evidence that there is no such clear biological demarcation that differentiates men and women. Despite this evidence, the International Olympic Committee and the International Association of Athletics Federations in 2011 implemented a form of “sex testing” based on androgens, and specifically, testosterone levels in females. This paper evaluates this policy, finding it contradictory to scientific understandings of sex and counter to widely-held social norms about gender. The paper recommends an alternative approach to determining eligibility for participation in women’s sports events, one more consistent with the stated values of sports organizations, and more generally, with principles of human dignity.

Here is the citation:

Pielke, Jr., R. 2017, in press. Sugar, Spice and Everything Nice: How to End “Sex Testing” in International Athletics, International Journal of Sport Policy and Politics.

If you would like a pre-publication copy as accepted, just send me an email. The page proof version should be online in the coming weeks.

Should IOC Members be on the WADA Athlete Committee?

Last week a dispute between WADA and the IOC became public. The Chair of the WADA Athlete Committee Beckie Scott told the BBC that she did not believe that a monetary fine would be a sufficient basis for allowing Russian athletes to rejoin international competitions. The interview came after the WADA Athlete Committee issued a statement following its meeting in London last week. That statement included 8 outcomes, one of which was: "The Committee requested that the Court of Arbitration for Sport (CAS) improve and strengthen its independence and continually strive to increase the quality of its arbitrators."

CAS is closely related to the IOC and its independence has been the subject of considerable debate over the years (here is a good overview in PDF). CAS is overseen by officials of the IOC and its related sports bodies.

Then just a few days later, two members of the WADA Athletes Committee who are also the chair and vice-chair of the IOC Athletes' Commisstion (Angela Ruggiero and Tony Estanguet) issued a hard-hitting rebuke of Beckie Scott . They wrote:

"We believe the comments made by the chair of WADAs Athlete Committee are inappropriate at this time. We do not wish to speculate, and we hope that other Athletes’ Commissions will refrain from comment until the full facts of the case emerge and the investigations are completed."

The full IOC Athletes' Commission issued a further statement that took issue with the statement of the WADA Athletes Committee:

“As the IOC Athletes’ Commission and also members of the WADA Athlete Committee, we believe the comments questioning the independence of CAS and the quality of the arbitrators is misguided. A number of highest courts of different countries have confirmed the independence of CAS and such comments only lead to mistrust and confusion. We support CAS in its ability to fight for clean sport and want to reassure the athletes of the world in this regard.”

The WADA Athlete Committee has 18 members (here in PDF), five of which are also members of the IOC Athletes' Commission. The members of the IOC Athlete Commission are also full members of the IOC.

Those five members have signed onto a statement that calls for improving and strengthening the independence of CAS and they have also signed on to a statement that contradicts the earlier statement that they signed onto, defending the independence of CAS.

Confusing?  Perhaps.  But there appears to be a simple explanation of why these 5 athletes would sign onto to different statements saying opposite things just a few days apart, the first from WADA and the second from IOC.

They have a conflict of interest.

As IOC members they are representatives of the IOC's interests, which do not always coincide with the objectives and policies of WADA. The five athletes who signed on to the WADA statement last week were obviously shown the error of their ways in the days that followed, upon which they issued their corrective statement.

This is a problem.

Earlier this year, in testimony before the US Congress, Travis Tygart, the head of USADA, characterized the role of IOC officials in WADA governance as "the fox guarding the hen house" (here in PDF).  He explained of IOC officials ("sport members"):

"These sport members are not mere figureheads but are lifetime sport executives with strong incentive to influence WADA decisions to advance their own sport interests. . . Unfortunately, WADA’s governance structure, lacking any meaningful conflict of interest policy to separate sport interests from WADA governance"

Tygart suggested that there is a quick fix:

The good news is that WADA’s conflicted governance model could be easily solved by removing sport leaders from the WADA governance and implementing a proper conflict-of interest policy which prohibits governing members from simultaneously holding a governing role within a sports organization under WADA’s jurisdiction. 

WADA does have a conflict of interest policy (here in PDF) which states:

"Every person who is subject to the Policy shall, in the exercise of his or her functions on behalf of WADA, be free of undue influence or other factors which may give rise to a conflict between his or her own interest or the interest of any other person and that of WADA."

We have clear evidence that five members of the WADA Athlete Committee have a clear conflict with respect to their IOC roles. What is the WADA procedure for dealing with such a situation?

The WADA President with the Director General or if the President is not available the Vice President with the Director General, and any other person that the President may from time to time designate for this purpose, shall take all appropriate measures to ensure compliance with this Policy, including the determination of appropriate preventive measures, the determination of whether there has been a breach of the Policy and the determination of sanctions where there has been a breach of this Policy.

Easy then, right?

The WADA President simply needs to say that this situation is ridiculous and remove (or ask to resign) the athletes with a clear conflict of interest. The IOC athletes could then speak for the IOC from their commission and the WADA athletes could speak from their committee. Conflict removed. Mixed messages cleaned up.

Who is the WADA President? Craig Reedie, member of the IOC since 1994.

Uh-oh.

Let me answer the question I posed in the title: Should IOC Members be on the WADA Athlete Committee?  

No, of course not. But when you dig into this a bit you see clearly how WADA is compromised by IOC members participating in its governance. This should be fixed.

The Vojtěch Sommer Doping Case: More Bad Science?

Vojtěch Sommer is a Czech triathlete who has been sanctioned for using synthetic EPO. The short film above provides a brief introduction to his case and the science issues at play.  You can find extensive documentation about this case here, Sommer's blog, where he has been documenting his case.

The Sommer case is being explored by a group of top Norwegian scientists who are unaffiliated with WADA but are recognized as exceptional scientists. This is the third case involving synthetic EPO that these scientists have raised questions about, the other two being the cases of Erik Tysse and Steven Colvert.

Here in PDF is their evaluation of the Sommer positive doping test. They do not mince words:

We have carefully evaluated the documents that report the tests performed on Vojtěch Sommer's A‐  and  B‐samples  and  also  additional  explanation  from  the  Dreden  laboratory.  We find no scientific evidence in these documents which proves the presence of rEPO in Sommer's urine.. .

The laboratory‘s treatment of the analysis results is superficial, and illustrates again that all too many  WADA  accredited  laboratories  produce  sub‐optimal  work  that  fall short  of  quality  standards  expected of analytical laboratories (see references 1‐8). Such behaviour clearly jeopardizes the rights of athletes and can in some cases best be characterized as abusive . . 

These cases each raise important questions about justice for these athletes, but more generally, they illustrate the pressing need for independent scientific expertise in anti-doping.

Quis custodiet ipsos custodes?

Makwala's Involuntary Medical Disqualification

UPDATE: As I completed this post I see that Makwala has been given an extraordinary opportunity by IAAF to compete in the 200m via a time trial (solo) sprint. This story continues to develop. Official IAAF statement here.

The video above shows sprinter Issac Makwala, a sprinter from Botswana and one of the world's fastest runners, being turned away involuntarily from the athlete's yesterday at the 2017 IAAF World Championships in London.

This post seeks to document what appears to be a gross violation of a athlete's due process rights with profound and irreversible consequences for his career as a professional athlete. I'll update as new information is available and am happy to take comments or critique.

This episode involves an outbreak of norovirus, a high contagious gastrointestinal bug that broke out among athletes and their entourages who were reportedly staying at The Tower Hotel in London (the hotel denies any responsibility). Some 30 people were reportedly affected. Norovirus causes vomiting and diarrhea but is not generally viewed to be serious, with symptoms going away after a few days with no treatment.

On 6 August the IAAF shared advice with athletes and their entourages staying at the hotel (emphases added):

To contain the situation and protect your athletes, we strongly request you
comply with the following directions:

1. Report to the Guoman Tower Hotel Medical Room (430) as soon as possible any episode of diarrhoea and vomiting. This report should include the name, category of the person and the room number 2. The person must be isolated and hotel staff will assist in allocating another room. 3. Recommendations from Public Health England say the affected person must remain isolated for 48 hours after the last episode of vomiting or diarrhoea and therefore, the person will need to take their meals in their room.

The Hotel have applied Public Health England’s recommendations on enhanced cleaning procedures and will support all measures in relation to these matters.

Individuals must be vigilant on personal hygiene and apply the following:

1. Wash your hands thoroughly after going to the toilet, using soap, hot water and clean towels. 2. Wash your hands before having a meal or a drink. 

There was nothing in the advice about disqualification. In fact, over the weekend athletes diagnosed with Norovirus continued to participate in the events, such as Germany's Neele Eckhardt, shown below.

The advice from Public Health England being referred to by the IAAF can be found here (and highlighted below).

According to reports, over the weekend, Makwala was observed to have thrown up, barfed, puked (though details here are contested as well). On 7 August Makwala was disqualified ("withdrawn" in the IAAF parlance) from the 200m by the IAAF, which stated, "Isaac Makwala (BOT) was withdrawn from the men’s 200m (1st Round) due to a medical condition on the instruction of the IAAF Medical Delegate (Rule 113)."

Rule 133 refers to the IAAF Competition Rules, and it states:

The Medical Delegate shall have ultimate authority on all medical matters.

As Michael Johnson noted, soon thereafter things started getting weird.

Just got more weird. Makwala says he's been ruled out by IAAF medical officer. Makwala says he's ready to run. Need answers from @iaaforg https://t.co/mSfJs0AacC

— Michael Johnson (@MJGold) August 8, 2017

Makwala claimed he was perfectly healthy and ready to run. But the IAAF was prohibiting him from participating. That led to the situation shown in the video above where Makwala was forcibly prevented from entering the venue.

According to the official Twitter account of the government of Botswana (yes, this is serious), Makwala represented to officials that his forced withdrawal was a legal matter under UK law.

He said according to England Public Health laws, those affected by the virus are to be isolated for 48rs & Makwala was among those isolated.

— Botswana Government (@BWGovernment) August 8, 2017

In its 8 August statement on the situation, the IAAF used language indicating that they were following "UK health regulations":

As per UK health regulations, it was requested that he be quarantined in his room for 48 hours, a period which ends at 14:00hrs tomorrow (9 Aug). 

This statement is -- in measured language -- disingenuous. There are no such UK "heath regulations" related to a "quarantine." In fact, the Public Health England statement released by the IAAF makes absolutely no mention of regulations or quarantine:

In fact, the statement notes that the virus is "rarely serious."

So here is how the situation looks:

• The IAAF made a decision with profound, career-altering impact on an elite athlete;
• This decision was made with no apparent due process, very little reliance on evidence and ambiguous criteria for the forced disqualification;
• The athlete and his medical team reject the diagnosis made by the IAAF;
•  Even if he was infected, was the DQ necessary? Some experts think not (e.g., here and here);
• At least one other athlete with the same alleged symptoms was allowed to participate;
• The IAAF falsely suggested that UK law or regulation triggered the decision. 

At a minimum the IAAF (or some other body) should empanel an independent investigation into this situation, including the decision and the communication associated with it. Clearly things can be much improved.

Finally, below is a lengthy BBC interview with Dr. Pam Venning, head of the IAAF medical services for the World Championships and the authority with the power to disqualify an athlete involuntarily under IAAF Rule 113. (Note: Some people can't see the video, which may be due to your point of access or a geoblock, try this link also.)

The Errani Doping Case: An Embarassment

Today it was announced that Sara Errani, a top women's tennis player (currently 98th, but has been as high as 5th), has been suspended for 2 months for doping. The case illustrates much about what is wrong with anti-doping and the profound consequences that the failures of anti-doping have on elite athletes.

The ITF announced today:

An Independent Tribunal appointed under Article 8.1 of the 2017 Tennis Anti-Doping Programme (the "Programme") has found that Sara Errani committed an Anti-Doping Rule Violation under Article 2.1 of the Programme and, as a consequence, has disqualified the affected results and imposed a period of ineligibility of two months, commencing on 3 August 2017.

Ms. Errani, a 29-year-old player from Italy, provided a urine sample on 16 February 2017 as part of an Out-of-Competition test under the Programme. That sample was sent to the WADA-accredited laboratory in Montreal, Canada for analysis, and was found to contain letrozole, which is an aromatase inhibitor that is included under section S4 (Hormone and Metabolic Modulators) of the 2017 WADA Prohibited List, and therefore is also prohibited under the Programme.

Wow, that sure sounds serious! Another cheating athlete, it seems.

But lets take a closer look. All is not that it seems.

The drug that Errani is suspended for is call letrozole, which is an aromatase inhibitor meaning that it suppresses aspects of the human hormonal system.  In this case the thinking is that the drug increases the presence of testosterone in the human body, which may aid performance. Here is what the ITF says about the drug in its judgment on Errani (here in PDF):

There has been concern on the part of WADA that some bodybuilders were abusing letrozole and there was some anecdotal evidence online that female bodybuilders used it for that purpose. The substance has been banned for men since 2001 and for everyone since 2005, both in competition and out of competition without a valid TUE. 

Contrary to the thin "anecdotal evidence" cited here, the scientific literature on letrozole and aromatase inhibitors more generally published since 2005 indicates that these drugs do not offer a performance enhancing benefit to women.

For instance, Handlesman (2008) concludes, emphases added:

In summary, there is no convincing evidence that oestrogen blockers cause any consistent, biologically significant increase in blood testosterone concentrations in women. In the absence of direct testing of ergogenic or myotrophic properties, using blood testosterone as a surrogate marker suggests that drug-induced performance enhancement is most unlikely from oestrogen blockade. Nor is there any reason to believe that oestrogens have any other ergogenic effect whether directly on muscle, haemoglobin or indirectly via motivational effects in healthy pre-menopausal women. Finally, as oestrogen blockade for various indications is in wide, regular clinical use and poses no unusual medical risks to female athletes, there is no basis to ban oestrogen blockade in female athletes.

Handlesman (2006) concluded similarly:

In conclusion, there is no convincing evidence that either hCG or estrogen blockers (antiestrogens, SERMs, aromatase inhibitors) cause any consistent or biologically significant increase blood testosterone concentrations in women. In the absence of direct testing of ergogenic or myotrophic properties, blood testosterone is a reasonable surrogate maker, suggesting that drug-induced performance enhancement is most unlikely.

Both classes of agent are in regular clinical use and neither poses sufficient safety risks sufficient to warrant banning in sports on the basis of protecting female athletes safety.

Finally, the adverse privacy implications of hCG testing and the unjustified workload of extra TUEs for estrogen blockers in women suggest that the prohibition of these classes of agents should be restricted to men in whom they are well justified.

The peer-reviewed science is clear enough, but here is where things are a bit strange. The ITF agrees with these conclusions, writing in its Errani judgment (here in PDF), emphasis added:

However there is no evidence that letrozole would enhance the performance of an elite level tennis player. There is no evidence of any significant usage of letrozole amongst athletes in general and none was identified in respect of tennis players.

So we have a drug that no one is taking, that everyone agrees does not have performance-enhancing effects -- a conclusion which is well-supported by scientific research -- and yet 12-year old regulations based on out-dated assumptions are the basis for sanctioning an elite athlete.

Seriously, what are we doing here?