Biggest steroid bust
In early 2016, Drug Free Sport NZ launched a landmark investigation into sportspeople buying steroids online. But instead of underlining New Zealand’s reputation for taking sports integrity seriously, it resulted in widespread criticism, judicial scorn an
He’s referred to in official documents as Athlete XYZ. Or XYZ for short. We don’t know much about him. We know he donates money to his local surf lifesaving club, where his children are members. He’s competed in the odd surf lifesaving event himself, but he says he’s more of a golfer – a pretty handy one, too, typically scoring rounds in the low 80s.
We also know XYZ has battled with his weight over the years, prompting him to make the illfated decision in November 2014 to order clenbuterol and Dianabol – both anabolic agents – from a dodgy website.
Nearly four years later, investigators from the national anti-doping agency came calling.
The man now finds himself at the centre of a battle over Drug Free Sport NZ’s (DFSNZ) jurisdiction.
He is one of 37 individuals who were sanctioned under sport’s anti-doping rules (SADR) as part of DFSNZ’s long-running clenbuterol investigation, which finally wrapped up late last year.
But XYZ’s case is unique. His has become a test case for how deep into sport’s lower echelons the rules permit DFSNZ’s tentacles to reach. A Sports Tribunal panel of three independent QCs was so concerned about the implications of his case that it took the extraordinary step of calling on sport’s lawmakers to carefully consider the remit of DFSNZ when it issued its ruling in March last year.
DFSNZ believes so firmly in its stance that it is preparing to head to international sport’s top court to re-argue a case it has already won, as it does not agree with the level of sanction handed down to XYZ by the tribunal.
The fallout over the case is one of several messy outcomes in what was supposed to be an image-enhancing exercise for DFSNZ. The investigation was to reinforce the country’s reputation and as having a strong integrity rating, and demonstrate New Zealand is leading the way in using intelligence gathering to catch drug cheats.
But as the cases dragged their way through the judicial machinations, DFSNZ has increasingly come under fire from legal experts for its overzealous approach to policing low-level athletes, many of whom had no idea the rules even applied to them.
Now, as officials stack away the paperwork from the single biggest investigation in the agency’s history, an awkward question lingers: was it all worth it?
The investigation
As far as domain names go, clenbuterol.co.nz was hardly an inconspicuous choice for a blackmarket steroid operation. It was only a matter of time before its operator, Joshua Townshend, would catch the attention of authorities.
In October 2015, Townshend was charged with a raft of breaches under the Medicines Act, including possession and advertising and sale of anabolic steroids. Investigators seized his computer, along with thousands of emails recording names, dates and doses of drug purchases. Townshend would be the first casualty of clenbuterol.co.nz, but he wouldn’t be the last.
While his case was playing out in court, Medsafe quietly told DFSNZ, with which it has an information-sharing agreement, of its find. In January 2016, a DFSNZ investigator visited Medsafe’s Auckland premises to review the Townshend emails.
Over the next year, investigators trod a well-worn path from their offices in an Ellerslie business park, across the car park to Medsafe, as they built cases against athletes.
They analysed more than 12,000 emails from thousands of individual accounts. Through this process, 107 individuals were identified as potentially being in breach of antidoping rules.
DFSNZ chief executive Nick Paterson, who took over the
top job in mid-2017 at the height of the mission, says the task facing his team was mammoth.
‘‘It was an unprecedented case both in size and scope of the investigation, and the type of evidence we were dealing with.
‘‘Most of our cases historically have come from lab tests and it goes from there. This was probably our first case where we had a big electronic database to sift through.’’
Late last year DFSNZ quietly marked the end of an almost four-year-long inquiry. Figures released under the Official Information Act show it launched proceedings against just 40 of the 107 individuals identified in its initial investigation.
It was well short of the 80 to 100 figure being bandied about when news of the bust first hit the media in late 2017. But, according to Paterson, it was still a major operation for the agency, which typically deals with about five to eight anti-doping cases a year.
‘‘The outcome in terms of the number of proceedings brought to the Sports Tribunal and NZR judiciary is hugely significant. Hugely significant.’’
Calls for discretion
Hawke’s Bay club rugby player Adam Jowsey was the first of Townshend’s customers to be sanctioned under the SADR, fronting the NZ Rugby judiciary nearly a year after DFSNZ was alerted to Medsafe’s discovery.
Jowsey, then a teenager, told the judiciary he ordered clenbuterol for weight loss, rather than performance. He did not check the list of drugs prohibited by the World AntiDoping Agency(Wada), or make any independent checks about the legality of buying the products.
It was a story that was to become familiar for judicial bodies over the next three years.
When his two-year ban was handed down in October 2016, there was no indication that Jowsey’s case was anything other than an isolated event. It wouldn’t be for another year that the public came to learn the scale of the investigation.
It was big news. Sport NZ boss Peter Miskimmin called it a ‘‘wake-up call for New Zealand sport’’ and hailed it as a massive win for New Zealand’s interagency approach to anti-doping investigations.
Others weren’t so sure. As sanction after sanction was announced, it became clear most of those caught up in the sting were low-level club athletes who had taken banned substances for body-image reasons. They weren’t looking for shortcuts to high performance, they were looking for shortcuts to get ‘‘cut’’.
One of DFSNZ’s most vocal critics came from an unlikely corner, with the former director general of Wada, David Howman, accusing the national agency of over-prosecuting club athletes.
‘‘The issue for me is, do thirdgrade cricketers need to be sanctioned the same way as elite cricketers?’’ he said in September 2018.
‘‘I helped write the code in the first place, and it was never intended to level four-year sanctions on recreational or club players. Not in New Zealand, not in any other part of the world.’’
Players’ association representatives, meanwhile, tried to highlight the troubling human rights issues that arose from DFSNZ’s approach.
Henry Moore, legal counsel for the New Zealand Cricket Players’ Association, says his main frustration with the investigation was that very few of the athletes sanctioned had received anti-doping education, or were even aware the code applied to them.
‘‘If Drug Free Sport are going to apply the full force of the code on people competing at all levels, then they had a responsibility to firstly inform New Zealanders that this was their policy.’’
Moore says those caught in the sting have paid a heavy price, not just through bans, but through the stigma of being labelled ‘‘drug cheats’’.
Stuff has spoken to several individuals sanctioned as part of the clenbuterol investigation. None wanted to discuss their experiences on the record for fear the renewed publicity would affect their work and social lives.
All spoke of their shock at learning they were the subject of an anti-doping investigation.
‘‘It’s like I broke the rules to a club I didn’t even know I was a part of,’’ said one.
Paterson says his agency’s job is to ensure all levels of New Zealand sport are ‘‘clean’’, and where it finds evidence of an anti-doping rule violation, it has an obligation to refer it to the appropriate judicial arm. He also contends that the Wada code makes no distinction between elite and recreational athletes, and therefore DFSNZ has no discretion when applying the rules.
The NZR judiciary and Sports Tribunal accepted DFSNZ’s argument.
In its December 2017 decision in the case of Christopher Ware, a Dunedin club cricketer, the tribunal appeared to give little consideration to the issue of proportionality.
‘‘Given the importance of the anti-drug regime, we think it would be undesirable if amateur or club athletes receive more favourable decisions from adjudicating bodies than elite or professional athletes because of the fact the latter are exposed to a higher degree of drug education and awareness than the former. There is a responsibility on all athletes to observe the rules,’’ the decision read.
The tribunal’s other published decisions reiterated that view. Until Athlete XYZ came along.
It was a case that raised red flags from the outset.
XYZ found himself before the tribunal on the grounds that he was a registered member of Surf Lifesaving New Zealand when he bought prohibited substances online. Except he wasn’t a competitor, he was a volunteer at his surf club.
DFSNZ said that didn’t matter. The very act of signing the club registration bound him to the rules of the national sporting organisation, which include SADR.
Question of natural justice
It later emerged XYZ had, in fact, competed in one masters event in the year after his online transactions, and was also a handy golfer. But DFSNZ’s stated position that club membership alone was sufficient to warrant prosecution concerned the experienced tribunal panel of QCs, Sir Bruce Robertson (chair), Alan Galbraith and James Farmer, who directed a full legal exploration of whether the agency’s approach was permitted under the rules.
The panel eventually accepted, by majority decision, DFSNZ’s argument that the Wada code did not differentiate between elite and recreational athletes, therefore the agency had no prosecutorial discretion. But the tribunal called upon sports lawmakers to take a close look at whether natural justice and human rights obligations were being met.
The tribunal’s published decision on the level of sanction for XYZ, issued a month later, asserted that DFSNZ had made an ‘‘unannounced executive decision’’ to apply the code to low-level sports participants.
DFSNZ responded by appealing against the sanction – a two-year ban, backdated by a year – to the Court of Arbitration for Sport (CAS).
The curious case of XYZ has caught the attention of sports integrity experts around the world.
Catherine Ordway, an Australian sports lawyer and assistant professor at the University of Canberra, says the issue of how the system deals with recreational athletes is one all national anti-doping organisations (NADOs) are grappling with.
She believes cases like XYZ’s undermine the fight against doping. ‘‘I think actually it adversely impacts the social licence, or the trust that people put in NADOs, because these organisations only have a finite amount of time and resources and we have the expectation that we will put these resources into the areas that we care about.’’
In the aftermath of the clenbuterol case, DFSNZ is making moves to address the issues that arose during the course of the investigation.
It has built up its education programmes, with the aim of capturing more athletes across all levels.
It’s understood it has also issued a directive to national federations to ensure its members are informed, when they sign up to a club or team, that they are agreeing to adhere to anti-doping rules.
The most significant move came late last year when DFSNZ announced it was seeking feedback on a proposed new policy, which would give the agency some discretionary measures when looking at potential anti-doping rule violations involving low-level athletes.
Paterson says the feedback was, bar one response, overwhelmingly in favour of introducing a ‘‘public interest test’’ to the process.
But as it mulls over policy reform that would give relief to low-level athletes, DFSNZ continues to push ahead with its appeal in the case of XYZ.
Confidentiality rules prevent it from discussing the case while proceedings are ongoing. However, Paterson says that, in general terms, an anti-doping agency might appeal against a decision to CAS to ensure consistency in rulings across jurisdictions.
There is no projected timeframe for when the case will be heard. In fairness to CAS, it has a hefty workload.
The major international sporting issues currently occupying it include Manchester City’s appeal against a two-year ban from European football competitions due to ‘‘serious breaches’’ of financial fair play regulations, and the Russian anti-doping agency’s challenge to a four-year international ban handed down by Wada late last year.
Yet as well as determining whether an entire nation can compete at the Olympic Games, CAS will rule on whether a bloke from New Zealand can join his mates on the golf course.
‘‘Doesn’t that say it all?’’ says Ordway.