Anti-Doping Contamination Cases – the “Narrow Corridor” and the Limits of Lawson

In March 2020, the Court of Arbitration for Sport (“CAS”) found that American athlete Jarrion Lawson had committed an Anti-Doping Rule Violation (“ADRV”), but accepted that he had not intentionally committed that violation on the basis that it was reasonably plausible that the Trenbolone found in his urine resulted from the consumption of contaminated beef. However, the recent case of UKAD v. Carl Hone demonstrates that this argument will only succeed in the rarest of cases and that the “corridor” for successfully establishing a lack of intent remains narrow.

In both cases, Article 10.2 of the WADA Code required the athlete to establish that the ADRV in question was not intentional. In such cases, if an athlete can prove how the prohibited substance came to be in their system (albeit unintentionally), that will be sufficient. In principle, it is also possible to establish a lack of intent by identifying a plausible source for the substance in question without proving on the balance of probabilities how the substance came to be in the athlete’s system. However, such situations are extremely rare and athletes are faced with “the narrowest of corridors” through which to pass if they are to establish a lack of intent without identifying the source of the contamination in question. The existence of this “corridor” is intended to prevent intentionally doped athletes with a means of evading sanctions, but it must still be wide enough to allow unintentionally doped athletes a means of establishing their lack of intent.

In Lawson, the athlete argued that a US strip steak he had eaten prior to his positive test must have been injected with Trenbolone, which is commonly used in the US cattle industry. Despite the CAS panel finding that the likelihood of the beef having been injected in this way was “small”, it went on to find that it was nevertheless “reasonably possible”. In combination with evidence the athlete’s good character, the results of a lie detector test, and “common sense”, this was sufficient for the panel to conclude that Lawson was “indeed one of those rare cases where the impossibility of proving scientifically that the steak consumed did or did not contain hormone residue does not debar the athlete from establishing his innocent lack of intent”. In other words, the athlete was able to pass through the “narrow corridor”.

In Hone, the athlete sought to establish a lack of intent on the basis that the small quantity of Boldenone (a substance used to treat horses) found in his urine must have entered his system from contact with horse waste during the course of his work in some stables. This theory was accepted to be plausible, and the athlete submitted good character evidence and further argued that “common sense” dictated that, as an amateur player who did not even take supplements, deliberate use of a rare and dangerous substance was highly unlikely.

However, the panel considered that, by contrast to the Lawson case, the athlete had not made “thorough, documented and diligent attempts” to locate the source of the prohibited substance in his system. He had not made contact with the owners of the horses in question or made any enquiries of veterinary services in the area to establish whether those horses had been treated with Boldenone. Accordingly, the evidence in support of the athlete’s theory was “extremely limited” and he could not establish a lack of intent. He was therefore given a four-year ban.

Although it is not referred to in the Award in the Hone case, the CAS case of Iannone v. FIM takes a similar approach: the athlete did not take all reasonable and diligent steps to locate the source of the prohibited substance and, as a result, he could not establish a lack of intent.

The Hone and Iannone decisions demonstrate that, when an athlete seeks to establish that his or her ADRV is not intentional but the result of contamination, it is critical for the athlete to make “thorough, documented and diligent” attempts to establish the source of that contamination. It is not enough simply to put forward a plausible theory – the athlete should go to the ends of the earth to convince the panel that their theory is not just plausible, but probable.