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The preliminary rounds of the Men’s 100 Metre sprint at London 2012 start tomorrow. For one man, Justin Gatlin, it will mark a return to the stage that he once lorded over when we he won the Athens Olympics Gold Medal. But what a return it will be, with questions being asked from various quarters as to whether he should be there at all?
In this column, I trace Gatlin’s tryst with the unsavoury side of sport, that of doping, his subsequent legal battles and his “road to redemption” upon return to competitive sprinting in 2010, culminating finally in his qualification for London 2012 by winning the US Olympics Trials with a personal best of 9.80 seconds. For the uninitiated, Gatlin tested positive for drugs on two previous occasions, the first time in 2001, as a junior athlete, and the second time in 2006, when he was the reigning World Champion.
2001: Gatlin begins sprinting…and doping?
In June 2001, while participating at the USATF Junior National Championships, which was his first ever USATF-sanctioned event, Gatlin tested positive for amphetamines, a prohibited substance under the 2001 International Association of Athletics Federations (“IAAF”) Rules. Gatlin had an interesting explanation for the presence of amphetamines. It turned out that he had been diagnosed with Attention Deficit Disorder since the age of nine, and had been taking prescribed medication to treat this condition.
He was prescribed Adderall, which is recognized in the US, as an appropriate treatment for this condition. Amphetamine is one of the substances in Adderall.
On August 24, 2001, the United States Anti-Doping Agency (“USADA”) notified Gatlin that it was recommending a two year sanction against him for contravention of the IAAF Rules. Gatlin contested the recommended sanction and the case (“2001 Case”) was heard by a panel of the American Arbitration Association (“2001 Panel”). The 2001 Panel concluded that
“while Mr. Gatlin may have violated the IAAF anti-doping rules in that the he did not first seek an exemption from the IAAF for his medication before he competed, he certainly is not a doper. This Panel would characterize Mr. Gatlin’s inadvertent violation of the IAAF Rules… as at most, a “technical” or a “paperwork” violation.”
Nevertheless, in its decision, this Panel also stated that it deferred
“to the IAAF Council’s authority to assess whether, in a particular case, the two year suspension should be reduced through reinstatement for exceptional circumstances”. Accordingly, the 2001 Panel stated that it “will respect the process set forth in the IAAF rules and allow the IAAF Council the opportunity to assess the exceptional circumstances of this case first before they are addressed by this Panel.”
The Panel “conditionally impose[d] the two year-minimum suspension set forth in the IAAF Rules” and retained full jurisdiction over the case so that it may reconsider the two-year suspension should the IAAF not take expeditious action in granting Gatlin early reinstatement to a term appropriate to his circumstances.
Subsequently, Gatlin, on applying to the IAAF, was granted an early reinstatement on the basis that the IAAF believed that Gatlin had a genuine medical explanation for his positive test. In doing so, both the IAAF Council and the USATF press releases emphasized that Gatlin had committed a doping offence and that it would constitute a first offence for the purposes of any subsequent positive result and warned that a lifetime ban could be applied if there was a subsequent doping offence committed by Gatlin.
All the World’s My Stage: Gatlin rules the roost at Athens and Helsinki
Gatlin put behind the 2001 case and proceeded to take the world by storm. He stormed past the finish line to win gold in the 100 metre race at the Athens Olympics. He also won the bronze in the 200 metres race and the silver in the 4×100 metre relay. The next year, at Helsinki, Gatlin won the 100 metre race at the World Championships in Helsinki to become the then undisputed sprint champion. Then came the fall from grace in 2006.
2006: Intentional Use of Testosterone or Sabotage by his Trainer?
In April 2006, at a relay race that he ran in Kansas City, Gatlin tested positive for “exogenous testosterone, or its precursors”, which was a prohibited substance under the 2006 IAAF Rules. The USADA had initially reached an agreement with Gatlin to limit his period of ineligibility to 8 years (as against a lifetime ineligibility for a second violation) in exchange for Gatlin cooperating with USADA in investigating doping in sport and because of the “exceptional circumstances” surrounding the 2001 case.
Subsequently, however, USADA and Gatlin referred this matter to an AAA Panel (“2006 Panel”). While not disputing the positive drug test, Gatlin claimed that he was innocent and that he had never knowingly used any banned substance or authorised anyone to administer such substance to him. The World Anti-Doping Agency’s Anti-Doping Code that was then in existence stipulated that “It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance.. found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping violation…”
At the same time, Article 10.5.1 of the WADA Code also stipulated that
“If the Athlete establishes in an individual case involving an anti-doping rule violation under Article 2.1 (Presence of Prohibited Substance..) or Use of a Prohibited Substance…, that he or she bears No Fault or Negligence for the violation, the otherwise applicable period of Ineligibility shall be eliminated. When a Prohibited Substance…is detected in an Athlete’s Specimen in violation of Article 2.1 (Presence of Prohibited Substance). The Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility eliminated.”
Gatlin alleged that his positive test was the result of sabotage. He speculated that his physical therapist might have rubbed cream spiked with testosterone on his legs without his knowledge the night before and on the day of drug testing. Gatlin built his sabotage theory on the ground that the therapist had previously requested him for a bonus of USD 5000, which he had refused. Gatlin argued that he had been tested 35 times, before and after the 2006 positive test at the Kansas relays, and therefore the 2006 test was an aberration, and must have occurred due to a sabotage. Therefore, pursuant to Article 10.5.1 of the WADA Code, he sought an elimination of his period of ineligibility. However, Gatlin was unable to prove the sabotage theory to the satisfaction of the 2006 AAA Panel.
The 2006 AAA Panel observed that
“the evidence submitted by Mr. Gatlin did not eliminate the possibility of intentional use or the possibility that he was the unwitting victim of doping by members of his coaching staff.” Accordingly the Panel held that “Mr. Gatlin has failed to sustain his burden of proof to show that he had either No Fault or Negligence or No Significant Fault or Negligence.”
Gatlin also tried to shift the focus back to the 2001 Case, by making two arguments: Firstly, that the USADA ought to have made a “reasonable accommodation” for individuals with disabilities, by not applying the enhancement provisions of the WADA Code for a second doping violation (i.e. of a lifetime ineligibility) to his case. However, the 2006 Panel found that Gatlin had made no attempt to explain how the Americans with Disabilities Act (“ADA”) would apply to the circumstances of his case, and also that the time to have made a claim that the WADA Code violated the provisions of the aforementioned US legislation ought to have been in 2001.
Secondly, Gatlin argued that the 2001 Case could be used to enhance any sanction imposed for the 2006 violation, because he bore “no fault” for his positive dope test in 2001. However, the 2006 Panel held that,
“there was no finding of the nature, level or existence of “fault” as to the first doping violation, either by the 2001 AAA Panel in 2001, which referred the matter for a final determination to the IAAF, nor by IAAF in 2002 when it decided that such “exceptional circumstances” existed so as to justify the immediate reinstatement of Mr. Gatlin.”
However, the 2006 Panel was not furnished with evidence that it requested as regards the circumstances of the 2001 case. Particularly, the 2006 Panel wanted to know whether the USATF Manual (i) directed athletes generally to seek a therapeutic use exemption (“TUE”), and if so, (ii) described the process through which a TUE could be obtained, if the Athletes were taking any product (in Gatlin’s case Adderall) which might result in a finding of a doping violation, the 2006 Panel held that there was no evidence from which it could determine a finding of “no fault” under the WADA Code. Accordingly, the 2006 Panel imposed a 4-year period of ineligibility commencing on May 25, 2006 and running through May 24, 2010.
Gatlin appeals to the Court of Arbitration for Sport (“CAS”)
In January 2008, Gatlin appealed against the 2006 Panel Award to the CAS. The main issue raised before the CAS was what the appropriate sanction ought to have been for the 2006 violation? Gatlin made the following arguments:
(1) With regard to the 2001 case, upon reinstatement of Gatlin by the IAAF Council, the 2001 Panel’s decision no longer had any effect. However, the CAS Panel rejected this argument by referring to a statement of a member of the IAAF Council, Professor Anne Ljungqvist: “My proposal to the Council was to reinstate Gatlin with immediate effect whilst making it clear that, as this was considered as a first offence, if he tested positive again, he would be banned for life in accordance with IAAF Rules. Although I recall that some Council Members may have disagreed with me and felt that he should not be reinstated, my advice was followed by the vast majority and the decision was duly taken to reinstate him.”
(2) The 2001 Case could not be used to enhance any sanction imposed for the 2006 violation, because he was never sanctioned for the 2001 Case. The CAS Panel rejected this argument and stated the mere absence of a sanction did not mean that no anti-doping rule violation had occurred.
(3) By failing to address the issue of “fault”, the 2001 Case could not be used to enhance the sanction for the 2006 violation. This argument was also rejected by the CAS Panel as it ruled that the 2001 IAAF Rules did not require an investigation or finding of fault on the part of the athlete. Rather a doping offence under the 2001 IAAF Rules was a strict liability offence.
(4) Violation of the ADA: Gatlin again argued that to use the 2001 Case to enhance the sanction for the 2006 Violation, would have the effect of forcing the USATF to violate the provisions of the ADA. Additionally, Gatlin argued that CAS could not impose a sanction that would have the effect of forcing an American entity to violate American law. The CAS Panel made an interesting observation on Gatlin’s ADD. The CAS Panel referred to Gatlin’s own submissions that “his ADD affected his ability to concentrate in the classroom and frustrated his attempts to study and complete other assignments out of the classroom.” The CAS Panel observed that nowhere did Gatlin’s disability impair him on the track, as was borne out by the fact that he was at the time, a reigning Olympic and World Champion! Therefore, the CAS Panel held that there was no duty for the IAAF, or the USATF to accommodate a learning disability that had no effect whatsoever on an athlete’s ability to compete.
The CAS Panel accordingly concluded that the 2001 Case was the first violation and the 2006 Case was the second violation in Gatlin’s case. After hearing arguments from both Gatlin (for reduction of the ineligibility period to 2 years) and IAAF (for increasing the ineligibility period to 8 years), the CAS Panel determined that Gatlin would be ineligible for a period of 4 years.
Whose side are you on?
Gatlin returned to competitive sprinting after serving his ban in 2010 and will line up for the 100 metres sprint tomorrow. Predictably, large sections of the US media has gone gaga over Gatlin’s return to the Olympic Stage by terming it as his “road to redemption”. Then there are those who believe that Gatlin’s presence will polarize opinion, apart from reviving the larger discussion on whether doping offenders should even have a place in the Olympics spectacle, which cherishes ideals such as fairness, pride and inspiration, and as to what ineligibility period constitutes an effective deterrent against doping.
The Gatlin case also highlights the various challenges that are confronted by governing bodies and doping organizations in their fight against doping in sport, while also demonstrating the gullibility (and perhaps deception) of athletes in their bid to win at all costs. Personally, on reviewing the 3 decisions in Gatlin’s case, I am inclined to believe that he was gullible in 2001 and culpable in 2006.
On another note, what this case also tells me is that sporting administrators and audiences need to tread carefully when they voice doping concerns openly, without having a positive dope test to back up their claims. The last week saw Ye Shiwen, the Chinese swimmer win the gold medal in the women’s 400m medley event at London 2012, with a world record time of 4:28.43 seconds, where her last lap was timed faster than the corresponding last lap swum by the men’s champion, Ryan Lochte. No sooner had she jumped out of the pool did commentators and rival coaches begin a whisper campaign against Ye Shiwen. Unless a positive dope test has been confirmed, it is unfair on the athlete. As observed in Gatlin’s case(s), even the findings of positive dope tests do not render decision-making to be any simpler. The WADA Code is a complex document, which lends itself to different interpretations in different circumstances.
This Olympics has already had its fair share of controversies, with Ye Shiwen’s case being debated strongly on social media, and the badminton match-fixing scandal. If Gatlin wins the 100 metre showdown on Sunday, will the “D” word rear its head yet again? Let’s hope that it’s not the case and we just get to enjoy a dope-free 100 metre sprint.