There is a simple, straightforward policy when it comes to doping in sport called “strict liability”. 

Unlike courts of law in almost every country on earth, where innocence is presumed and guilt has to be proven, strict liability comes from the opposite direction. 

After returning an adverse finding (a positive doping test), athletes are immediately assumed to be guilty, and have to prove their innocence if they want to avoid suspension. They can do this through various tribunals, right up to the Court of Arbitration for Sport (CAS) in Switzerland. 

The anti-doping code places a heavy burden on athletes to prove their innocence and there are very few cases where positive dope tests are overturned.

Even before a tribunal, athletes who have tested positive in any way are suspended, pending the hearing. They cannot compete until cleared or, as is most often the case, they are suspended and serve their time. 

A provisional suspension is applied only for non-specified substances such as anabolic steroids. 

Not-so-strict liability

You may have read about 23 Chinese swimmers who tested positive for a banned substance, trimetazidine (TMZ), months before the Covid-delayed Tokyo Olympics in 2021. 

Those 23 athletes all tested positive for a banned substance. None were suspended, even provisionally, and all continued with their careers.

The substance in question, TMZ, is non-specified under hormone and metabolic modulators. So, a provisional suspension should have been applied according to Wada’s own Code.

The New York Times originally broke the story on 21 April and since then, the World Anti-Doping Agency (Wada) has been on the back foot, threatening legal action for “defamatory” suggestions claiming a cover up. 

The United States Anti-Doping Agency (Usada), headed by Travis Tygart, the man who brought down cycling cheat Lance Armstrong, demanded an internal investigation into the handling of the case. The White House even weighed in, also calling for an inquiry.

According to an “investigation” by Chinese doping authority Chinada, the 23 escaped punishment after it was ruled that the adverse analytical findings (AAFs), were the result of being inadvertently exposed to the drug through contamination.

Gold medalist Junxuan Yang, Yufei Zhang, Bingjie Li and Muhan Tang of Team China pose with their gold medals for the Women’s 4 x 200m Freestyle Relay Final at the Tokyo 2020 Olympic Games on 29 July, 2021 in Japan. (Photo: Tom Pennington/Getty Images)

Positive swimmers, shared hotel 

A report determined that all the swimmers who tested positive were staying at the same hotel, where traces of heart medication TMZ were found in the kitchen, the extraction unit above the hall and drainage units.

Chinese officials have unsurprisingly dismissed suggestions of “systematic doping” and pointed to the fact that they cooperated with Wada and were cleared as proof that there is nothing to see here. 

“The relevant reports are fake news and not factual,” Chinese Ministry of Foreign Affairs spokesman Wang Wenbin said at a media conference on 22 April. 

“The Chinese swimmers involved were neither at fault nor guilty of negligence, and their behaviour did not constitute a doping violation.” 

That may be so, but none were provisionally suspended until proven innocent, as strict liability demands.

President of the World Anti-Doping Agency, Witold Banka, in March 2023. (Photo: EPA-EFE/LAURENT GILLIERON)

Potential cover-up

So why then, is this such a big story?

Firstly, it appears that strict liability has not been applied; therefore trust and transparency has been undermined. Under strict liability, those Chinese swimmers who tested positive, should have had to go through a tribunal process to prove their innocence. That never happened.

And had they gone through that process, they may have missed the Tokyo Olympics where the swimming team won several medals.

Secondly, China has a difficult history with systematic doping of athletes. Wada itself launched an historical investigation into accusations of China’s systematic doping in 2018.

And while there is no proof of systematic doping in the current scenario, the fact that 23 athletes returned a total of 28 adverse findings for a banned substance should at the very least, raise eyebrows.

Instead, after The New York Times exposé, Wada admitted it had accepted the report and findings from Chinada that the 23 athletes had been victims of “contamination.” 

Read more in Daily Maverick: World anti-doping body slaps six-month suspension on SA’s only testing lab

As Reuters subsequently reported: “Wada conceded it conducted no on-the-ground investigation of its own and instead relied on a Chinada report, then employed their own scientific experts and external legal counsel to test the contamination theory.” 

Wada has subsequently said it would hold an internal investigation into the events but denied there was a cover-up. 

“Wada’s integrity and reputation is under attack,” the organisation’s president Witold Banka said in a statement. 

“Wada has been unfairly accused of bias in favour of China by not appealing the Chinada case to the Court of Arbitration for Sport.

“We continue to reject the false accusations and we are pleased to be able to put these questions into the hands of an experienced, respected and independent prosecutor.” 

Wada said it would also send a compliance audit team to China to assess the nation’s anti-doping programme, and invite independent anti-doping auditors to join the mission. 

More transparency

Now that the story is in the open and inviting condemnation and suspicion from athletes and officials from across the world, Wada also decided to provide more context.

In a six-page “fact sheet” released on 29 April, Wada provided a detailed chain of events into the China case, which is plausible.

Read the full document here: 

While the detail contained in the fact sheet is instructive, it doesn’t fully settle the matter.

“From the outset, the analytical results indicated a possible contamination scenario,” Wada stated in its fact sheet.

“Even for mandatory provisional suspensions there are exceptions. One of which is specific to cases of likely contamination. In terms of timing, the Code allows for athletes to provide explanations for the positive finding before a provisional suspension is imposed. 

“In this case, from the get-go, there were strong indications that this could be a contamination case and that the source could be the same for all athletes. 

“In theory, each of the athletes could have been asked to provide an explanation as to how the substance got in their body.

“However, when confronted by the unusual situation where 23 athletes tested positive for the same substance, at the same time, and at similar very low levels, the Chinese authorities decided to investigate the matter to try to determine what had happened.

“Given that China was in the middle of Covid-19 lockdown and there were strict travel restrictions in place, it would have been impossible for each athlete to travel back to the hotel or venue to try to determine how they ingested the substance. The approach seemed fair and reasonable to the athletes under the circumstances.”

Women’s first place Astrid Stienen from Germany, women’s second place Elisabeth Gruber (left) from Austria and women’s third place Annah Watkinson from South Africa (right) on the podium during the award ceremony of the Ironman Barcelona in October 2016 in Spain. (Photo: Gonzalo Arroyo Moreno/Getty Images)

Unconvinced

Usada remained unconvinced, and was the most vocal among the sceptics.

“They (Wada) have effectively flipped strict liability on its head. They’ve had an authoritarian government with its secret security system provide a defence that they really don’t question or challenge,” was Tygart’s withering assessment.

To further underline the point, the South African Institute for Drug Free Sport listed seven athletes (see the list below) who claimed “contamination” as a defence against AAFs recently. All were suspended pending a tribunal.

The fact that Wada has now launched an “independent investigation” into its own initial investigation does imply the possibility of errors.

And maybe there will be a better answer as to why strict liability was not strictly applied. DM

Thapelo Phora of South Africa runs the anchor leg in the heats of the mens 4x400m relay during the Athletics event on Day 14 of the Tokyo 2020 Olympic Games on 6 August 2021 in Tokyo. (Photo: Roger Sedres/Gallo Images)

South African athletes using ‘contamination’ as a defence. Their sanction during the past three years:

• Thapelo Phora (athletics). Proved that his biogen product was contaminated with stanozolol. There was a provisional hearing before, and his provisional suspension was lifted. Received an eight-and-a-half month sanction. Not appealed by Wada.
• Annah Watkinson (triathlon) – Mestanolone (methyltestosterone) – DNA testing – four years.
• Minor (rugby) – 19-norandersterone (minor) – father injected son with nandrolone and told his son it was Voltaren – two years and nine months.
• Bafana Dube (athletics) – methylhexanomine – two years.
• Andre Gerber (rugby)– Oxandrolone – three years.
• Douglas Lang (cycling) – Nandrolone – alleged it was from supplements but could not prove it – accepted consequences – three years.
• Albertus Nel (cycling) – Stanozolol and GW1516 – claimed he’d purchased some supplements and some were given to him that “must have been” contaminated – accepted consequences – three years.

Source: Saids.