Anti-Doping Case Commentary: Chinese swimmers cleared to compete at the Tokyo Games, despite testing positive for a banned substance

There’s been a bit of a furor about this story and WADA’s decision not to appeal. Here’s an effort to explain why that has raised eyebrows (perhaps putting it lightly…):

The Chinese Anti-Doping Agency decided not to charge any of the 23 swimmers who tested positive for Trimetazidine (TMZ) with an Anti-Doping Rule Violation (ADRV). Even bearing in mind the explanation that the positive tests were due to food / environmental contamination (as a result of TMZ found in the kitchen of a hotel), that is unusual. Ordinarily, one would expect an ADRV to be charged – it is a strict liability offence – with athletes then arguing that sanctions should be reduced on the basis of them bearing no fault or negligence (NFN) for the presence of the substance in their system.

A couple of other aspects of the CHINADA decision struck me as interesting:

👉 First, TMZ is a non-specified substance. That means, that where an athlete tests positive for TMZ, a provisional suspension is mandatory under Article 7.4.1 of the Code. Yet none of the 23 Chinese athletes were provisionally suspended.

👉 Secondly, given that the samples, in this case, were collected in January 2021 and CHINADA’s investigation was undertaken in April 2021, it could be asked how traces of TMZ remained in the hotel kitchen (which one might have expected to have been cleaned a few times) many months later.

Perhaps the reason for the consternation is this: establishing a plea of NFN and reducing sanction to zero, is notoriously difficult. Except in the rarest of circumstances, an athlete will need to prove how the substance entered their body. Athletes are put to the expense of testing their supplements, hair, nails, and even take polygraph tests to try to prove source. Many, perhaps most, fail and face a long ban.

Here, WADA’s justification for deciding not to appeal was that it had “no basis to challenge” the contamination theory. But WADA doesn’t have to challenge and disprove the case – when a case goes to CAS it goes back to square one and the burden of proving a contamination case falls on the athlete.

So, to some, it may look like WADA will hold athletes to the enormously difficult task of proving NFN, but just not in this case.

The review of all this, its independence (or otherwise), and any conclusions will have to wait…

https://lnkd.in/gXHcywmM

#antidoping #sportslaw #contamination