Officialdom and the athletes (Part II)
From left, Anderson, Brooks and Fothergill.
A. W. Sangster, Gleaner Writer
In an article in The Sunday Gleaner of September 6, 2009, reference was made to the treatment of athletes by 'Officialdom', and one specific case dealt with the five athletes who were involved in official enquiries and drug bans for four of those athletes. The cases are still pending and this article seeks to summarise and clarify the issues associated with the athletes' cases, and outlines in detail the issues involved in these cases. Other issues which were raised in letters to the press will be dealt with subsequently.
THE FORMAL ESTABLISHMENT OF A DOPING CONTROL PROGRAMME IN JAMAICA
The World Anti-Doping Agency (WADA) was established in 1999 to promote, coordinate and monitor the fight against doping in sport in all forms.
The Jamaica Anti-Doping Commission was formally established in 2005 to formulate and carry out Jamaica's Anti-Doping Policy in line with the World Anti-Doping Programme.
Although formally established in 2005, the commission was essentially stillborn as there was no office, no testing programme and no legislation to legitimise its operations. The legislation was passed by the new Government in 2008 to formally establish the Jamaica Anti-Doping Commission (JADCO). Dr Patrece Charles Freeman was appointed to the post of executive director in January 2008, and set about the establishment of an office, secretariat, and drug-testing procedures. This was important for Jamaica's name in athletics, as the Beijing Olympics were due in that year and queries were being raised about Jamaica's drug-testing programme.
The legislation - The Anti-Doping in Sport Act, 2008 - established three legal entities whose members are appointed by the minister responsible for sports. The role of these entities will be discussed in the case of the five athletes mentioned above. Some generalities will first be presented and then the details of the athletes cases before the various agencies.
THE GENERALITIES IN THE ANTI-DOPING PROCESS
The principal agencies involved in the process as it advances are as follows:
FIRST, THE JAMAICA ANTI-DOPING COMMISSION (JADCO)
JADCO is the national organisation responsible for the national drug-testing programme, which involves an important controlled 'Chain of Custody' of the test samples. It is recognised as the legally established national Anti-Doping Organisation (ADO). The responsibilities are:
Testing of the athlete by a JADCO Doping Control Officer (DCO), with an allowed athlete's representative present. 'A' & 'B' samples are taken.
Sending the samples to be tested by an approved lab. Initially, the 'A' sample is tested.
Receiving the lab report of the 'A' sample test.
If a banned substance is identified by the lab, known as an Adverse Analytical Finding (AAF), JADCO then notifies all the relevant parties of the adverse finding. The parties are: The athlete, World Anti-Doping Agency (WADA), the IAAF, the JAAA and the JADCO board. The athlete could be provisionally suspended.
The Adverse Analytical Finding is then referred to the Anti-Doping Disciplinary Panel and the athlete informed. The 'B' sample analysis will be important as to whether it validates the 'A' sample result. The athlete has the right to request the test of the 'B' sample or not.
SECOND, THE ANTI-DOPING DISCIPLINARY PANEL
The panel has a group membership of three lawyers, three doctors and three from the athletic fraternity, and is established to deal with cases where an Adverse Analytical Finding is established by the lab. The panel will review the case with the athlete and his or her 'agent' and pronounce whether the athlete is guilty or not. Each individual panel consists of three members - one from each group above, with a senior practising attorney as the chairman.
THIRD, THE ANTI-DOPING APPEALS TRIBUNAL
The tribunal is mandated to hear appeals from either an athlete or JADCO, following a ruling by the Disciplinary Panel.
THE SPECIFICS OF THE ANTI-DOPING CASES OF THE FIVE ATHLETES
The role of the three agencies mentioned earlier will now be outlined in the specific cases of the five athletes. As the process went on, four of the athletes - Yohan Blake, Marvin Anderson, Allodin Fothergill and Lansford Spence - were treated separately from the fifth athlete - Sheri-Ann Brooks - for reasons that will become clear in the sequel. The overall process is summarised in Figure I.
THE JAMAICA ANTI-DOPING COMMISSION (JADCO)
Following the sampling and testing of the samples of the five athletes:
All five athletes had an Adverse Analytical Finding lab report on their 'A' samples. This result was due to taking the stimulant 'Muscle Speed', which contained the chemical compound 4-methly-2- hexanamine, which is considered to have a similar chemical structure or biological effect to Tuaminoheptane, which is on the banned list.
The four athletes waived their right to the testing of the 'B' sample while Brooks requested that her 'B' sample be tested. This was the initial basis for the separate treatment.
There was an unfortunate miscommunication problem between JADCO, the athlete, her agents and the lab. The fact is that the testing of Brooks' 'B' sample was conducted without either the athlete or a representative being present. This is a fundamental requirement of the testing process. The test was therefore both technically and legally invalid. Brooks' 'B' sample allegedly also tested positive.
JADCO referred the Adverse Analytical Findings of the 'A' samples to the Disciplinary Panel.
THE ANTI-DOPING DISCIPLINARY PANEL (ADP)
The Disciplinary Panel, chaired by attorney Kent Gammon, met separately to discuss the two cases.
In the case of the four athletes, a not-guilty verdict was given. The decision was based, among other things, on the argument that the chemical found in the laboratory test was not on the banned list.
In the case of Brooks, the athlete was found not guilty on the basis of a procedural error in the testing of the 'B' sample.
JADCO appealed the decision of the Disciplinary Panel and the matter was then referred to the Anti-Doping Appeals Tribunal, headed by the late Justice R.G. Langrin (rtd.)
A detailed summary of the arguments at the panel hearings now follows:
The case of the four: The decision of the Disciplinary Panel and the Anti-Doping Tribunal, which later heard an appeal, turned on the chemical structure and the functional use of the banned substance.
The athlete's case, presented by two chemists who gave evidence, argued in summary as follows:
The substance found in the 'A' samples (4-methly-2- hexanamine) and a similar compound - (Tuaminoheptane) which is on the banned list, although having similar chemical molecular formulae (C7H17N) are not the same. (This was never claimed by the lab).
That although the two compounds have identical molecular structures, they are structurally different.
That there are many examples in which minor structural differences or spatial positions of atoms have had fundamentally different properties and effects.
That the substance was not on the banned list.
That Tuaminoheptane is classified by the WHO on the Anatomical Therapeutic Chemical (ATC) classification, while 4-methly-2- hexanamine is not.
That the athletes had sought technical advice before taking the stimulant, and that the manufacturer's label on Muscle Speed claimed it to be WADA-compliant.
The JADCO case rested on the following points which were made in a WADA paper on the topic.
That the two substances are chemically very similar and are functionally both in the class of compounds known as amines, which are well known to have stimulant properties.
That the two compounds differed marginally in the position of a methyl (CH3) group on a carbon chain.
That the position of the significant functional amine (NH2) group is in the exact same relative position in both compounds.
That the compound found in the AAF had previously been identified as having stimulant adrenergic properties, had been the subject of a patent, and had been used by body builders.
That the compound is similar to compounds having similar pharmacological properties, such as amphetamine and ephedrine.
That although the compound was not on the prohibited list, its structure and function are such as to classify it as a compound with Adverse Analytical Findings.
That it was planned to add the compound to the banned list in 2010.
The compound found in the 'A' samples and the compound which is being used for comparison on the WADA banned list have similar structures. They also have different chemical names as well as trade and trivial names. They can be considered - as illustrated in the WADA submission to the Anti-Doping Disciplinary Panel - as being a six carbon chain with a methyl (CH3) group at different points on the chain. Their structures are shown below, as well as the structure of Amphetamine, which has similarities to both and is a related stimulant. See Figure 2.
The Disciplinary Panel was persuaded by the arguments of the local chemists and returned a not-guilty verdict. It is interesting to note that the panel in its report made the comment that the athletes ought to have mentioned the use of an enhancement product in their drug test report sheet.
JADCO appealed the decision, which was then referred to the Anti-Doping Tribunal.
The Case of Brooks
It was pointed out earlier that there was a procedural flaw - according to WADA rules - in the testing of the 'B' sample, which therefore invalidated the result. The Disciplinary Panel therefore returned a not-guilty verdict.
While JADCO formally appealed, it did not contest the case. The not-guilty verdict by the Disciplinary Panel, later confirmed by the tribunal, has led to further uncertainty, as the athlete has claimed to have been sidelined for competition during the year.
THE ANTI-DOPING APPEALS TRIBUNAL
In the case of the four.
The JADCO appeal was based on the specific guideline on drugs, which states that a chemical could be tested positive even if it was not specifically on the drug banned list. This was: If it is chemically similar in structure or similar in effect to a drug on the banned list.
The tribunal hearing the arguments from attorneys and the ADP reports ruled against the Anti-Doping Panel (ADP) verdict and supported the JADCO appeal. The athletes were reprimanded and given a three-month ban from September 14. The sanctions were based on the following mitigating circumstances:
That the chemical was not expressly stated on the WADA prohibited list.
That the athletes consulted their management team to avoid taking any banned substance. However, this advice was flawed. They also relied on the manufacturers warranty label that: 'Muscle Speed is WADA-Compliant'.
It was a first violation.
The overall process is summarised in Figure 1.
SUMMARY ON THE DRUG TEST RESULTS AND CONCLUSIONS
The Disciplinary Panel and the tribunal differed in their response to the arguments of the chemists and the JADCO/WADA submission.. My own view is that the tribunal acted correctly.
What remains outstanding is the status of all five athletes.
The suspension of the four ended on December 14, 2009, while Brooks had no suspension at all.
However, it still remains for the IAAF and WADA to rule on both cases.
Who should enquire - JADCO or the local JAAA?
In my view, the JAAA should enquire on the status of these athletes, as JADCO is a testing agency,
The analysis of the tests on the five athletes represents an important test case for our Jamaican athletes. It demonstrates a number of important principles.
First, athletes have to be very careful of what they eat and drink, and in particular what 'stimulants' they use. The athlete will be held personally responsible for any banned substance found in his or her body.
Second, the programme of drug testing will be a safeguard to Jamaican athletes. For many years, overseas athletes - first in Germany, with anabolic steroids, and later in the US, with many different types of drugs - succeeded at the international level in what was clearly not a level playing field.
Third, the credibility of our own testing programme can stand up to international review.
SOME OUTSTANDING ISSUES
1. The dates of various events
It is a fact that some JAAA executives had hopes that the athletes who were initially found not guilty could participate in Berlin. The JAAA was, however, warned that if the athletes were found guilty in the JADCO appeal they would prejudice all the Jamaican team. Wiser judgement prevailed in not entering the athletes. However, the hope led to inadequate men's relay preparation with backup team members for the men's sprint relay team.
The dates of the tests and the hearings and the Berlin IAAF Championships are as follows:
A. Testing dates:
Testing dates, June 26-28:
Samples to lab, July 2: Report from lab. On Adverse Analytical Finding July 20; athletes notified July 24 and advised of disciplinary hearing on August 7.
B. Disciplinary Panel:
Brooks - August 7 - Not-guilty verdict
Four athletes - August 9 - Not-guilty verdict
C. Berlin IAAF Championships:
August 15-23 - JAAA hopes to enter athletes
Four athletes - August 31, Sept 2, 14 - Guilty with sanctions.
1. Acknowledgement is made to helpful discussions with the executive director of JADCO and the chairman of the Disciplinary Panel.
2. Other background items on the issue are available on the following websites: TrackAlerts.com and All-Athletes-Com