The British lawyer who successfully defended New Zealand eventer Jock Paget against an equine anti-doping charge believes the FEI sets the bar too high in such cases.
Jeremy Dickerson, of law firm Burges Salmon, was lead counsel for Paget after his 2013 Burghley-winning mount, Clifton Promise, tested positive for the long-acting sedative, reserpine.
Paget was ultimately stripped of the title and prizemoney, as well as serving a provisional suspension pending the outcome of the case before the FEI Tribunal. This week, Paget returned to Burghley on Clifton Promise, finishing second behind fellow Kiwi Andrew Nicholson.
Dickerson successfully argued before the tribunal that Paget bore no fault and demonstrated no negligence over the doping infraction.
The tribunal believed that, on the evidence, the reserpine entered Clifton Promise’s blood through the use of a feed supplement called LesstressE, which it considered had been contaminated during the manufacturing process.
Before using the product, Paget had sought advice, including from a veterinarian and the manufacturer. He had confirmed another competitor had used it without his horse testing positive.
Paget had been using the product for four years, during which time his mount had passed several FEI tests, which check for banned substances such as reserpine, for which a minimum ban of two years normally applies, and those classified as controlled medications, such as phenylbutazone, for which a sliding ban of 0-2 years applies.
Dickerson is no stranger to the standards set by the FEI in proving “no fault and no negligence” in a doping case. He engineered the first successful defence of a doping charge before the tribunal, in the case of Christine Yeoman in 2009.
Until the Yeoman case, it had been thought that it may not practically be possible for an athlete to achieve a finding of “no fault and no negligence” in a case involving contaminated supplements.
The joint hearing of the case of Paget, and that of Australian eventer Kevin McNab, whose mount also tested positive for reserpine at Burghley, are only the second and third cases to succeed with such a defence before the tribunal.
Dickerson says the equine anti-doping rules are based on the human anti-doping equivalent and in his view, in horse sport, it sets the bar too high in cases of inadvertent doping.
It is, he says, extremely different to get a “no fault and no negligience” finding in a horse-sport doping case.
Humans, he said, generally had 100 percent control over what substances they ingested or came into contact with.
That was not the case for horses, which may be out grazing in a pasture that contained something that may produce a positive test. Equally, a horse might nibble or lick a stable wall, which may be contaminated.
Riders who who could not prove that the exposure was inadvertent currently faced a minimum two-year ban under FEI rules.
The current rules, he said, were black and white, which made it easy for the FEI Tribunal, but at times they delivered results which were, in his view, unfair.
He said it was obvious where the blame lay if an athlete or horse ingested a substance clearly labelled as containing an anabolic steroid. But what if the substance was labelled as being free of prohibited substances and came from a reputable source?
In such cases a lesser ban or no ban may be more appropriate, he believed.
So, if Dickerson feels the bar is too high, what would seem a reasonable compromise in terms of the burden of proof? Dickerson says he feels there needed to be a more subjective test.
He believes there should be, at the very least, a lower fixed penalty where inadvertent contamination is proved or, better still, a sliding scale of 0-6 months.
However, riders would still have to prove the banned substance arose from contamination. It would not be good enough for a rider to say they had no idea where it came from, or this would become the standard line for any rider facing a tribunal hearing. “You have still got to have the two years for that.”
However, the problem with shorter bans is that the provisional suspensions automatically come into play. In Paget’s case, he had already served an eight-month ban when the tribunal agreed to lift the suspension.
Other possibilities would be leaving riders free to compete pending the outcome of the tribunal hearing, after which they must serve any ban imposed. Another option would be the imposition of a much higher fine, providing riders with the option of paying the fine or serving the ban.
The length of the ban should be more subjective, he believes.
The FEI, he believes, needs to take a more flexible approach.
For banned substances, should a rider be able to prove no significant fault, the tribunal has an option of imposing a one-year ban.
Except in the three cases to date of no fault and no negligence, the only other option under FEI guidelines is a two-year minimum ban.
It was, he said, a significant jump, not only in proving how the substance came to be in the horse, but that the rider carried out all appropriate due diligence to ensure the product was OK.
He felt that the FEI ceded no ground whatsoever in the Paget case, and that was part of the reason it took so long.
“They do this in every case,” he said. The FEI had pushed for a ban and took the view “we have the rules and we apply those rules”, he said.
Dickerson said he felt the FEI could have given in on some of the points in the case, but it did not do so.
That resulted in an eight-month investigation that had to delve deeply – scientifically and legally – into the circumstances around the doping infraction.
The FEI had continued to question whether the LesstressE was the source of the amount of reserpine found in Clifton Promise, and this led to the defence team chasing up other riders known to have purchased the product.
Subsequent testing of LesstressE samples returned in a company recall pointed to two periods of contamination that occurred around May and August/September 2013.
Dickerson said the tribunal was careful in its decision not to lower the standard of proof required to get a “no fault and no negligence” ruling.
The defence was helped strongly by the fact that Clifton Promise had tested negative in earlier FEI anti-doping tests when on LesstressE.
He agreed that, had it not been for the previous negative testing, independent third-party testing before the use of a supplement might otherwise have been necessary to win such a case.
He said he would expect first-line manufacturers to do their own testing and to retain samples of different batches.
Should riders seek the results of such third-party testing before using a supplement, that may be enough to succeed in a “no fault and no negligence” defence, he believes. At the very least it would provide some insurance.
He said the defence team felt good at the end of the final tribunal hearing and had been reasonably confident, hence their successful application for the lifting of Paget’s provisional suspension.
He said the facts were good, the science was good. “It just took a jolly long time to get there.”
There remains, to this day, only a handful of “no fault and no negligence” rulings under the World Anti-Doping Code for athletes.