Strict liability and the Chinese swimming doping controversy
The World Anti-doping Agency has launched an ‘independent investigation’ into its own initial investigation, which raises many questions that still need answers
There is a simple policy when it comes to doping in sport called “strict liability”. Unlike courts of law in almost every country on Earth, in which innocence is presumed and guilt has to be proven, strict liability comes from the opposite direction.
After receiving 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 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. 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, 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.
Trimetazidine is non-specified under hormone and metabolic modulators. So, a provisional suspension should have been applied according to the World Anti-doping Agency’s (Wada’s) own code.
The New York Times originally broke the story on 21 April and since then Wada has been on the back foot, threatening legal action for “defamatory” suggestions claiming a cover-up.
The US 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.
Even the White House 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 were the result of being inadvertently exposed to the drug through contamination.
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 trimetazidine 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.
Potential cover-up
So why, then, is this such a big story? First, it appears that strict liability has not been applied; therefore, trust and transparency have 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 Olympic where the swimming team won several medals.
Second, China has a difficult history with systematic doping of athletes. Wada itself launched a historical investigation into accusations of China’s systematic doping in 2018.
And although there is no proof of systematic doping in the current scenario, 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 that it had accepted the report and findings from Chinada that the 23 athletes had been victims of “contamination”.
Wada has subsequently said it would hold an internal investigation into the events, but it denied that 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 would 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 of the China case, which is plausible.
Although the detail contained in the fact sheet is instructive, it doesn’t fully settle the matter.
Unconvinced
Usada remained unconvinced, and it 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 who claimed “contamination” as a defence against adverse analytical findings recently. All were suspended pending a tribunal.
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 to why strict liability was not strictly applied.