Strict Liability

With the winter Olympics upon us, and Jenny Jones having now won Britain’s “first” medal on the snow, I’m reminded of the Alain Baxter, the man who actually did win Britain’s first medal on the snow in Salt Lake City in 2002. Unfortunately for Baxter though, the urine sample he provided that day was found to contain traces of “methamphetamine”, a prohibited substance, and Baxter’s result was nullified by the International Olympic Committee (IOC) and his medal taken off him.

Baxter was immediately suspended from competition but, through a protracted series of appeals, it was finally accepted that the reason for the positive test was due to a Vick’s Inhaler that he’d bought in America and used for a long-term nasal congestion issue he suffered from. Unfortunately though, in the USA, the formulation of Vick’s Inhalers is different from in the UK and it contains “levmetamfetamin”, an isomer of methamphetamine. Although Baxter’s ban from competition was dropped to the absolute minimum, his result was never reinstated and the medal went to the skier who’d placed 4th.

At the Court of Arbitration in Sport (CAS) Baxter’s final appeal hinged on whether l-methamphetamine was actually on Olympic prohibited list as it the l- isomer was not explicitly mentioned. He claimed, as described in the report, that not only was l-methamphetamine not specifically prohibited, it had no stimulant effect. A 2008 study, where the performance of a number of young people on static bikes was measured, seems to back this up. Those who were given the inhalers containing l-methamphetamine actually performed slightly worse than those given the placebo!

CAS unfortunately upheld the IOC decision that the term “methamphetamine”, as included in the list of banned substances, included both the d- isomer, which is the version most people know as “speed”, and the l- isomer which, as mentioned earlier, has no noticeable stimulant effect and therefore, despite recognising that this was a simple, genuine mistake on Baxter’s part, the decision to disqualify Baxter remained in place.

Ultimately though, it was the “Strict Liability” doctrine, where it is irrelevant how a prohibited substance enters an athlete’s body (i.e. accidental or deliberate), that was the deciding factor in this case. I think this particular case highlights how this doctrine can be extremely unfair in practice, irrespective of how appealing it would initially appear to the anti-doping brigade.

As I mentioned earlier, studies have shown that there is no (or negligible) stimulant effect from the l- isomer of methamphetamine, in particular when obtained, as was proven from the levels in Baxter’s urine sample, from normal use of a Vick’s inhaler. On the other hand, the d- isomer has a very profound stimulating effect. Without recognising this distinction it seems to me that lumping the two together under the term “methamphetamine”, as the IOC did at the time, is unreasonable and lazy. The IOC now rely on the World Anti-Doping Agency’s (WADA) Prohibited List which, to this day, does not recognise that distinction. At least one substance that has been shown to have a significant stimulant effect is only prohibited above a certain threshold; caffeine! Why can this not also be the case for substances like l-methamphetamine?

It is also the “Strict Liability” doctrine that could both end the career of cyclist Michael Rogers, and almost contributed to ending the life of Belgian cyclist Jonathan Breyne. Both cyclists recently tested positive for traces of Clenbuterol, a drug that, while it can have significant performance enhancing effects and is often deliberately abused by athletes, is regularly used in agriculture in China and Mexico for helping to produce low-fat meat. As a result there is a significant risk that, in those countries in particular, you could inadvertently consume meat that contained traces of Clenbuterol resulting in a positive doping test. In fact both Rogers and Breyne had been competing in China during the days prior to their test. It was also recognised by CAS that Alberto Contador probably tested positive for Clenbuterol, resulting in a 2 year ban and the stripping of both the Tour De France and Giro d’Italia titles, as the result of a contaminated food supplement.

In all cases, irrespective of whether these cyclists can prove that their positive tests were as the result of inadvertent use, the issue of “Strict Liability” comes into force and any ban and/or disqualification will stand.

Intriguingly, in 1988, such “Strict Liability” appears to have been ignored by the US Olympic Committee following Carl Lewis’s positive test for a variety of stimulants contained in over the counter cold medicines. In this case USOC accepted that Lewis’s use of these prohibited substances was inadvertent and allowed him to go forward to compete in the Seoul Olympics where he ended up with the gold medal in the 100m following Ben Johnson’s disqualification for use of the anabolic steroid Stanozolol (but that’s another story entirely and, if you’re interested in it, I suggest you read “The Dirtiest Race In History” by Richard Moore).

So, is “Strict Liability” fair? To me it would seem the answer is no. When a positive test can have such a significant impact on an athlete’s life, results, and even image to the public they should, at the very least, be given the opportunity to prove that not only did they not intend to use a substance for competitive advantage, but that the substance in question would not have given them that competitive advantage anyway!

I think, in Baxter’s case, there is certainly enough evidence to suggest that both of these conditions have been proven, and I believe the IOC should revisit the case, accept it was wrong, and reinstate Baxter’s result and medal.

2 thoughts on “Strict Liability

  1. Aside from the black background (I have a headache now) and frequent use if band where you mean ban (see, I can play that game as well as you two!), an interesting piece. I agree completely regarding Alan Baxter, it was a travesty.
    I don’t have such a problem with strict liability – the onus is on the athlete to take precautions, and while it can be harsh, it is fair to all and avoids the inevitable appeals and court cases that would otherwise dog every case. The problem is the other one you talked about – the ignorant implementation that snags non-performance-enhancing substances in the imprecisely defined net.

  2. “band” – probably has some subconscious reason for being there, although I’m not sure “frequent” is the right way to describe 2 instances 🙂 That’s a fair point though; if the prohibited list were complete, infallible, and fair then I could live with the strict liability issue. And thank you for your positive comments. The white on black looked better to me than black on white (which just looked as though I couldn’t be bothered..). I’m not that keen on that theme anyway so might look at it to see if something can be done.

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