Athlete Drug Testing: Coming to a Race Near You, 0117 COBJ, Vol. 46 No. 1 Pg. 19
| Author | Kenneth M Plotz, J. |
Alternative Dispute Resolution
Kenneth M Plotz, J.
Amateur as well as professional athletes are subject to drug testing. This article describes what happens to athletes who provide positive samples to the U.S. Anti-Doping Agency.
Every weekend in our outdoor-oriented state, hundreds of people compete in individual and team sporting events, including running, cycling, nordic skiing, alpine skiing, swimming, and triathlon. Many participate simply to get some exercise while socializing with friends. Others are more competitive, working their way up the ranks to elite amateur status, like the road cyclist upgrading from a Category 3 to a Category 1 or 2 racing license. Some just want to be the big dog in a regional race.
The reality is that some participants will do more than just train hard for the next competition they will try to boost performance by using banned substances. Such shortcuts can be tempting, especially when athletes suspect others are getting away with them. So it should come as no surprise to hear news that drug testing is taking place in local amateur competitions, in addition to elite competitions.
CEO Derek Bouchard-Hall of USA Cycling stated that he’s received “hundreds of emails saying ‘I don’t feel like I’m competing in a clean field. ’”1 In fact, as recently as December 2015, two U.S. Anti-Doping Agency (USADA) doping control agents showed up unannounced at the door of a Category 3 amateur cyclist and acquired a urine sample that tested positive for a banned substance. This resulted in the cyclist’s suspension from competition The cyclist was not on his way to the Olympics, but was merely competing in open regional and national competitions.[2]
Caley Fret, senior editor of the American cycling publication VeloNews, estimates that at least 10% of Category 1, 2, and 3 amateurs have used performance-enhancing drugs.3 But the use of performance-enhancing substances is not confined to amateur cyclists. Other athletes competing in regional events, such as the Boulder Peaks Triathlon, have also received sanctions for using prohibited substances.4 As the popularity of such events grows, it seems likely that the number of athletes seeking counsel to defend these types of charges will grow along with it.
This article describes the process that occurs when an athlete who has competed in a recent competition provides a USADA-required urine sample and tests positive for a prohibited substance. This article does not address other violations, such as administering a prohibited substance to another, being accused of using prohibited substances absent a positive urine sample, or refusing to disclose one’s whereabouts to USADA doping control agents.
Athletes Must Agree to Testing
Athletes who compete in events more serious than the local fun run or ride, such as qualifying events for regional or national events, are usually members of federations such as USA Cycling, USA Triathlon, or USA Track and Field, which are U.S. National Governing Bodies (NGBs). As members of NGB federations, athletes must sign agreements that subject them to the World Anti-Doping Agency (WADA) Code[5] and the USADA Protocol.6 The NGBs have committed themselves to be governed by the Protocol, and USADA has agreed to follow the WADA Code.
The USADA Protocol Preamble states,
The provisions of the [USADA] Protocol for Olympic and Paralympic Movement Testing . . . are intended to implement the requirements of the World Anti-Doping Code (the Code) on a national basis within the United States. As required by the Code and the United States Olympic Committee (“USOC”) National Anti-Doping Policies (“NADP”), all [NGBs] must comply, in all respects, with this Protocol and shall be deemed to have incorporated the provisions of this Protocol into their rulebooks as if they had set them out in full therein.7
Thus, by being licensed to compete under the jurisdiction of an NGB, which organizes, insures, and licenses most serious events, athletes agree to be randomly tested.
Following the Sample
USADA doping control agents make unannounced requests for urine samples when an athlete places very high in a significant recent event or when someone gives USADA a statement that an athlete is suspected of using a prohibited substance. Athletes who are members of an NGB may also be randomly tested, even in the absence of probable cause or a reasonable belief for such test. If a test is refused without an acceptable reason, a suspension from further competition for a period of time is a foregone conclusion.
When the athlete provides a sample, it is divided into “A” and “B” samples. If the A sample tests positive for a prohibited substance, USADA conducts an initial review to determine whether the athlete permissively used the substance under a therapeutic use exception (TUE). USADA will also review the matter to determine whether there may have been a departure from the required laboratory testing procedures. If there is no TUE or departure from applicable standards, the athlete and the appropriate NGB are then informed of the positive A sample. This is referred to as an “adverse analytical finding without a therapeutic use exception.”8 At this stage of the proceedings, the athlete is given notice as to when the B sample will be opened and is informed of the right to be present with a representative, such as an attorney or laboratory expert.9
In certain cases, such as a when an adverse analytical finding is received for a prohibited substance, the athlete will also be advised that a provisional suspension will be imposed unless the athlete challenges it in writing within three business days after notice of the suspension.[10] A mandatory provisional suspension may be challenged on grounds that the violation is likely to have involved a contaminated product.11 The athlete may also be offered the opportunity to accept a provisional suspension, which begins the term of suspension.12 If the athlete does not accept a voluntary provisional suspension and the case proceeds to conclusion, the suspension does not begin until the case is concluded. A provisional suspension may not be imposed unless the athlete is given either an opportunity for a provisional hearing or an opportunity for an expedited hearing.13 Expedited proceedings usually take place in situations where a competition will occur within 45 days and therefore before the matter can be resolved on the non-expedited track.14
The next stage of the proceeding is the B sample testing. As stated above, an athlete has the right to be present with a representative at the opening of the B sample. After the sample is tested, if the analysis confirms the positive A sample analysis, the results are provided to the athlete along with the B sample documentation package. The B sample results are then provided to an athlete’s NGB and the USOC, if applicable, and the athlete remains under a provisional suspension.15 Then the USADA results management process begins.
USADA Results Management Process
“The results management process is designed to protect the rights of clean athletes and preserve the integrity of competition [and] hold accountable those athletes looking to cheat through the use of dangerous, performance enhancing drugs[] while ensuring only those athletes guilty of anti-doping rule violations (ADRV) face sanctions.”16
USADA Has the Burden of Proof
When the case enters the results management phase, the proceedings move from an investigatory stage to a quasi-adjudicatory stage. Even after a positive B sample, USADA has the burden of proving a rule violation. The WADA Code states:
The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.17
The WADA Code also provides that the presence of a prohibited substance in an athlete’s body is a strict liability situation for the athlete.18
Anti-Doping Review Board Track
According to USADA Protocol, the next step in the results management process is the Anti-Doping Review Board Track.[19] The review board comprises three to five persons—with at least one medical, one technical, and one legal expert—appointed by the USADA. The board is provided with the laboratory documentation from the A and B samples and all other documentation deemed appropriate by USADA.20 According to USADA Protocol, the board will not be provided with the athlete’s name.21 However, USADA informs the athlete that he has 10 days to provide the appointed review board members with any other documentation deemed necessary for a review.22 The Protocol provides that USADA has the power to shorten the 10-day period in its sole discretion.23 The review board also has the discretion to request additional information from USADA, the athlete, or the athlete’s representative during this time period.24
The USADA Protocol states that the review board process is not a “hearing.”25 Rather, the purpose of the review board is only to “consider whether there is sufficient evidence of...
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