Posted by Editoress on 02/7/14
The Sport Dispute Resolution Centre of Canada (SDRCC) has published the results of an arbitration hearing into an anti-doping rule violation by national team Junior road rider Jack Burke of Toronto. The arbitrator, Richard H. McLaren, made the following finding:
1. A first doping offence has occurred under Article 21 of the ADR (Anti-Doping Regulations). The doping offence involved the ingestion of HCTZ, a prohibited substance.
2. Under Article 295 and upon finding a Specified Substance being found in Specific Circumstances no period of Ineligibility is imposed. The appropriate sanction is a public reprimand.
Jack Burke subsequently attended the Road Worlds, finishing 19th in the Junior Time Trial.
The case is unusual, in that Canada rarely issues a reprimand, normally taking a tough stance on anti-doping infractions and sanctioning the athlete - in this case, as a first offence, it would have resulted in a two year sanction.
The details of the case and reason for the ruling are thus:
Burke was competing as a member of Team Canada at the Tour de l'Abitibi (July 15-23, 2013). He was tested in Malartic, Quebec, on July 18th. When the sample was analyzed at the WADA lab in Montreal, the A sample revealed the presence of hydrochlorothiazide (HCTZ), which is a therapeutic diuretic that stimulates the kidneys and increases urine production. It is a prohibited substance because it can be used for weight management or as a masking agent.
Burke was informed of the adverse finding and the B sample was tested, confirming the presence of HCTZ in a concentration of between 0.8 and 1.0 ng/ml. The head of the WADA lab, Dr Christiane Ayotte, stated that the amount was close the minimal detection limit of the lab.
Cycling Canada issued a provisional suspension, which Burke did not accept, and the case was taken to expedited arbitration, since Burke was scheduled to represent Canada at the Road World Championships, in Florence, Italy. The hearing was held on September 17th by video and teleconference, with Burke represented by counsel, Cycling Canada by Brett Stewart and the UCI by an observer (Dominique Leroux).
Burke and his counsel did not argue the process or results of testing, however, requested a reduction of the two year Ineligibility penalty under articles 295-304 of the UCI Anti-doping regulations, which provide for elimination or reduction of the penalty under specific circumstances. The articles require that the athlete be able to show how the banned substance entered his body, and that there was no intention to enhance performance or mask performance-enhancing substances.
Burke argued that the HCTZ entered his body through contaminated water from a well in Malartic, that he used to fill the water bottles he used during the stage on July 18th. Burke said that he had not been able to fill his bottles in Rouyn-Noranda before leaving for Malartic due to long lines, and race organizers had no water sources at the start, so he had to use local well water from a tap.
An expert witness testified that HCTZ can be present in such circumstances, and that the balance of probabilities showed that this was the probable cause of the adverse finding. The argument was also made that the concentration was so low that it was not consistent with an effort to use as a masking agent. Three cases with similar arguments were submitted to bolster the request for a reprimand.
Cycling Canada argued that he had not met the requirements for a reduction in Ineligibility since the testimony of the expert witness and Dr Ayotte was insufficient to establish contaminated water as the source. Cycling Canada pointed to contaminated supplements as a more likely cause. The UCI backed this argument, and pointed to years of warnings to athletes about contamination (specifically referencing Alberto Contador's clenbuterol case) as showing that the athlete should have been aware of possible contamination.
In his ruling, the arbitrator stated that he found Burke to be a very credible witness, and that both Cycling Canada and the UCI accepted that he did not purposely ingest HCTZ. He also accepted the expert testimony that the HCTZ was ingested via drinking water from Malartic. The arbitrator also noted that none of the supplements (from the ones listed by Burke) listed HCTZ as an ingredient, and neither the UCI nor Cycling Canada could point to a specific supplement that might have contained it.
Once the source of the HCTZ was accepted by the arbitrator, the issue turned to intent, and the arbitrator determined that there was no intent to mask other banned substances, using the expert testimony, which pointed out that the level of HCTZ was too low to mask other substances, and the specific gravity of the sample (1.021) showed that there was no intent to dilute the sample.
"Given the concentration detected and the specific gravity of the Athlete's urine, the Arbitrator concludes that not only did the Athlete lack the intention to use HCTZ as a masking agent; there could not be any actual masking effect because the sample was not diluted."
The arbitrator determined that Burke had committed "what can be described as essentially at technical violation".
The arbitrator also said that Burke had made reasonable efforts to comply with anti-doping regulations by researching supplements to make sure they did not contain ingredients on the WADA Prohibited List. The arbitrator also commented that "his sport has done absolutely nothing to educate him about any aspect of anti-doping".
Based on these findings, the arbitrator found that there was no fault and that the appropriate sanction was a reprimand.
The full ruling can be downloaded Here.
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