Legal puissance: Jock Paget clears the highest of hurdles

Jonathan Paget hoists the Badminton Trophy after his win on Clifton Promise.
New Zealand’s Jonathan Paget hoists the Badminton Trophy after his win on Clifton Promise in 2013. © Mike Bain

New Zealand rider Jock Paget is an equestrian all-rounder, his combined skills in dressage, showjumping and cross-country riding making him one of the world’s leading eventers.

However, he would never have imagined having to partake in a high-stakes round of legal puissance to clear his name.

The FEI Tribunal yesterday handed down its decision over the positive reserpine result from his mount, Clifton Promise, following their victory in the CCI4* Burghley Horse Trials last year.

The positive finding for the long-acting sedative, which can be derived from either Indian Snakeroot plant or Poison Devil’s Pepper, saw Paget stripped of the title and the prize money.

The tribunal delivered an extremely rare “no fault or negligence” finding, effectively clearing Paget of any wrongdoing in the doping case.

Australian eventer Kevin McNab received the same finding in the case against him in respect of his Burghley mount, Clifton Pinot.

The Paget and McNab rulings represent only the second and third occasions the tribunal has been persuaded to deliver such a ruling.

The 36-page decision outlines in detail all available evidence surrounding events that led to the positive test.

It highlights just how difficult it can be to prove how a banned substance came to be in a horse’s system and to satisfy the tribunal that its use was inadvertent.

It would be wrong to think that the tribunal gave Paget and McNab an entirely sympathetic joint hearing.

Far from it; the tribunal made it very clear where it set the bar and, had it not been for the thoroughness and caution used by Paget and McNab in running their feeding and supplements regime, they would never have succeeded in their “no fault or negligence” defence.

Indeed, counsel for the FEI – it had four legal representatives present – argued against such a finding.

It posited the view that the reserpine levels detected in tested bottles of the feed supplement believed responsible for the positive tests were similar to a therapeutic dose and argued that it did not tally with the trace levels found in raw ingredients.

There were, it argued, strong indications of intentional administration.

It was rather unlikely to find such high levels of reserpine caused by inadvertent contamination, the FEI argued.

The tribunal, comprising Erik Elstad, Jane Mulcahy and Armand Leone, did not accept the FEI’s view on the evidence, and every top-level equestrian would be wise to understand just what Paget and McNab had to prove to earn their “no fault or negligence” ruling.

First, some of the key evidence.

Scientific testing indicated that the reserpine that showed in the two horses’ blood came from a liquid product called LesstressE, produced by Trinity Consultants.

Jonathan Paget - media darling. © Horsesports Photographic
Jock Paget went through a long process to clear his name. © Horsesports Photographic

LesstressE is made by hand in small batches and contains six ingredients. The tribunal heard evidence of testing of the raw ingredients. The tribunal came to the conclusion, based on the evidence, that reserpine had entered some batches of LesstressE as a contaminant.

Evidence was given that Paget had moved to Britain in February 2011. His 15 or so competition horses, including Clifton Promise, were stabled at Red Leaf Farm in Surrey.

Paget described Clifton Promise as a highly strung horse and said it had been a lot of work to turn him into one of the highest-performing horses in eventing.

Around the time of Burghley, eight supplements were being used in general at the stables, including LesstressE.

All were submitted to the Independent Equine Nutrition laboratory for testing after the positive reserpine tests and LesstressE was found to contain the sedative.

Paget explained that he had started using LesstressE in 2010 on the recommendation of Joe Meyer, a fellow member of the New Zealand Eventing Team who had previously used it, and it had resulted in negative FEI drug tests.

He had tried it at a German event in 2010 and the horse subsequently passed a drugs test. This, he said, had reassured him that the product was safe to use and did not contain any prohibited substances.

Between July 2010 and September 2013 the horse passed several drugs tests, always after having been administered LesstressE.

In addition, he had also contacted Roger Hatch, the director of Trinity Consultants, who had unequivocally confirmed that it did not contain any prohibited substances.

He said he always checked with his veterinarian whether any new product he intended to use contained any prohibited substances, and had done so in the case of LesstressE.

Legal counsel for Paget, Jeremy Dickerson and James Pheasant, of law firm Burges Salmon, argued that their client bore no fault or negligence in relation to how the reserpine had entered the horse’s system, as its presence had arisen through exceptional circumstances entirely beyond his control.

LesstressE, they argued, did not contain any medications or ingredients that would be expected to give rise to a risk of contamination or banned substances being present in it.

Counsel argued he had acted with utmost caution when administering LesstressE and had carried out proper due diligence before using it. Paget, they argued, could not reasonably have known or suspected that batches of LesstressE had been contaminated.

The FEI took a somewhat less charitable view of the facts and circumstances.

In its submission last April, it argued that Paget had to establish to the satisfaction of the tribunal, on a balance of probabilities, not only how the reserpine had entered the horse’s system, but that he bore no fault or negligence for that occurrence.

Jonathan Paget and Clifton Promise.
Jonathan Paget and Clifton Promise at Burghley in 2013. © Nigel Goddard/KS Digital Photography

It argued Paget had to provide clear and convincing evidence establishing not only that the LesstressE given to Clifton Promise had been contaminated with reserpine, but also how and when the reserpine had entered the supplement.

This, it argued, was an important precondition as, otherwise, an athlete’s degree of diligence or absence of fault would be examined in relation to speculative circumstances, which could even be invented.

It argued there were strong indications of intentional administration, and that Paget had a clear motive to put therapeutic doses of Indian Snakeroot/Reserpine into the LesstressE, as the dressage test in eventing required a horse to be calm, composed and focused.

It said the reserpine contamination found in tested LesstressE bottles was similar to therapeutic levels, which did not really tally with the trace levels found in an ingredient.

Trinity Consultants’ motivation to undertake such contamination appeared to be negligible as its reputation would suffer if a positive test was traced back to an undeclared ingredient in one of its products, the FEI said.

The reserpine could have been introduced into the LesstressE after it had been shipped from Trinity Consultants, the FEI suggested, noting the simple “flip-top” lid used on the containers.

No secure chain of custody had been guaranteed, and as a result it would have been a simple task for anyone to add reserpine to the LesstressE , through the commercial product Rakelin or powdered Indian Snakeroot, after receiving the product  from Trinity Consultants.

The FEI further argued that even if Paget had established that it was more likely than not that the reserpine (or Indian Snakeroot) had been added to the LesstressE during the manufacturing process, Paget had nonetheless accepted the risk of contamination by using it and could therefore not plead “no fault or negligence”.

The FEI argued that, under the World Anti-Doping Code, athletes had been warned of the risk that supplements may be contaminated with prohibited substances and if they took them they were deemed to have assumed that risk.

Athletes exposed themselves to even higher risks when using not only one, but several supplements. The FEI underlined that in the case at hand, with Paget, as the person responsible, administering no fewer than seven different supplements to Clifton Promise.

It argued that, even if the tribunal accepted Paget’s account of the precautions taken by him before using LesstressE, members were open to agree to a “no significant fault or negligence” finding.

In rebuttal submissions late in May, Paget’s legal team presented witness statements from five riders who had returned partly used or full bottles of LesstressE following Trinity Consultants’ recall.

All confirmed they had not added any reserpine or Indian Snakeroot to their LesstressE bottles.

An expert witness tested seven samples in all from seven different riders that came in as a result of the recall. Screening analysis indicated reserpine in all five samples manufactured between June and October 2013. Samples from two bottles from batches labelled as made in February and March 2013 had not shown any reserpine.

The evidence pointed to “two significant periods of contamination” that had occurred around May and August/September 2013, Paget’s legal team said.

Paget’s counsel argued that the cumulative effect of all the evidence in the case was sufficient to establish, on the balance of probabilities, how the reserpine had entered the system of Clifton Promise.

Dickerson argued that the FEI had not submitted any evidence for its allegation that the levels of reserpine found in LesstressE were inconsistent with inadvertent contamination.

During the final hearing, Paget stressed that he had not changed any supplements, including LesstressE, in the last three to four years and that, previously, Clifton Promise had not tested positive for any prohibited substances, including reserpine.

Jonathan Paget is heading to Australia for his birthday - and the Australian Three Day-Event.
Jonathan Paget. © Mike Bain

So, what did the tribunal make of it all?

It concluded that the levels of reserpine detected in Clifton Promise were consistent with the horse having been given doses of LesstressE at Burghley.

It felt it would have been an unreasonable burden on Paget for him to be obliged to demonstrate the particular circumstances in which the LesstressE had become contaminated, and the reasons for it.

It was, in its view, more likely than not that the LesstressE contamination had occurred at the manufacturing stage at Trinity Consultants.

Indeed, multiple riders based at various locations, and not necessarily connected to each other, had received bottles of LesstressE from Trinity Consultants that were contaminated with reserpine at various levels, the tribunal noted.

The tribunal was therefore of the opinion that contamination of LesstressE after it had left Trinity Consultants was unlikely.

It said the requirements to meet the prerequisite of “no fault or negligence” had to be achievable, and that a “reasonableness test” had to be applied.

“In the tribunal’s opinion the Persons Responsible should not be the proper party to bear the risk of supplements contaminated at the manufacturer’s level.”

Paget, it said, did not know that the LesstressE contained reserpine. “The question is whether he could or should have known so.”

It noted the series of steps taken by Paget – running the supplement past his veterinarian, confirming with the manufacturer that the product was free of prohibited substances, and checking the product’s representation on the manufacturer’s website.

Additionally, Paget had, since 2012, used LesstressE around competitions before the positive Burghley dope test and Clifton Promise had tested negative for prohibited substances four times before.

However, Paget had not acquired any third party (independent) certification to confirm LesstressE was free of prohibited substances.

The tribunal suggested that if Paget had used the supplement for the first time at Burghley, or the horse had undergone its first testing at the event since being put on the supplement, Paget might have had to assume the risk of contamination. In such circusmtances, the tribunal might have found him at fault.

However, in Paget’s case, he had used it many times in the past, and had passed multiple tests for prohibited substances, which the tribunal said it considered to be comparable to an independent third-party testing authority.

“The tribunal therefore believes that [Paget] had the right to rely on the product, and in particular to expect that the product did not contain any prohibited substances,” it ruled.

The tribunal therefore concluded, given the specific circumstances in the case, that Paget could not have reasonably known or suspected that certain subsequent batches of LesstressE would be contaminated.

On that basis, he had succeeded in establishing that he bore no fault or negligence for the rule violation.

It was, for Paget and his legal team, a hard-won victory. He has been cleared of wrongdoing, but the heavy cost includes the loss of his Burghley title and the associated prizemoney, not to mention the ban on competing while awaiting the outcome of the case.

The decision makes it clear that, had it not been for his use of LesstressE over several years and several negative drug tests, he would most likely have required independent third-party laboratory test results on the supplement before using it to have achieved a finding of “no fault or negligence”.

Alternatively, independent lab results commissioned by the manufacturer might have delivered a similar result – provided the rider had sought out such test results before giving the supplement to his or her horse.

The good news appears to be that, providing a rider exercises such due diligence, they will most likely succeed in such a defence should a contaminated batch return a positive test.

That said, any rider will still face a months-long ban pending the hearing, significant legal expenses and, in the case of Paget, the loss of a title that most riders can only dream of winning.

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