The FEI’s tight rein in the fight against drug breaches

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injectionIt is impossible not to feel some sympathy for South African endurance rider Gillese De Villiers, who has been fined and suspended for six months over her mount’s positive test for phenylbutazone and a related substance at the World Equestrian Games (WEG) in Normandy last year.

De Villiers has been an endurance rider for 25 years and has completed 18,000km. She has regularly been a member of the South African team for the last eight years.

She told the FEI Tribunal that she had never before been charged with any breaches of any rules in endurance.

She said she competed with the aim of finishing competitions, and not to win. Indeed, the gruelling and sodden WEG course that confronted competitors on August 28 last year had been her first competition where she had not finished – quite a remarkable achievement given the number of endurance kilometres to her credit.

De Villiers was riding Tra Flama at WEG, a horse she had leased through Spanish connections. Tra Flama vetted out at the second vet gate and later was confirmed positive for the common anti-inflammatory painkiller, phenylbutazone, and its metabolite, oxyphenbutazone. Without proper veterinary clearance, this amounted to a controlled medication rule violation.

De Villiers stressed to the tribunal that she had not even seen Tra Flama until August 25 – three days before the world championship race.

The horse’s owners had signed an agreement with the South African federation in which they declared that the horse had not been administered any prohibited substances.

More details of the case can be read here, but suffice to say that, however the phenylbutazone got into the horse’s system, De Villiers was adamant she was not responsible.

She even underwent a lie detector test, the results of which indicated no deception when she was questioned over whether she had known that the horse had competed with prohibited substances in its system.

It transpires it was the owners and another individual who had taken care of the horse’s feeding and care, and who had also taken care of the grooming during the competition.

She argued that she had implemented all reasonable preventive measures, but had not been able to thwart what she described as the injustice done to her.

That perceived injustice arises from the strict liability principle that underpins the FEI’s rules as they relate to banned substances and controlled medications.

De Villiers said that principle was to her great disadvantage.

Does she have grounds to feel aggrieved?

The cornerstone of the FEI’s doping and medications rules are pretty simple. The rules state that if a horse returns a positive test, the rider is deemed to be the person responsible. This strict liability provision means that if the horse had a prohibited substance in its system, the athlete’s results with the horse are automatically disqualified and the athlete banned unless he or she can show that the substance got into the horse’s system through no fault and no negligence on their part.

This strict liability principle has been at the centre of the FEI’s regulatory framework since 1982.

In the 23 years since, one thing has become very clear. Establishing no fault and no negligence has proven to be a very high bar to clear – akin to trying to succeed at the pole vault without the pole.

Indeed, to my knowledge, only three riders have successfully managed to argue a no fault and no negligence defence in front of the FEI Tribunal – endurance rider Christine Yeoman, of Britain; and eventers Jock Paget, of New Zealand, and Kevin McNab, of Australia.

Until the Yeoman case in 2009, 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.

In the case of De Villiers, she was unable to prove to the satisfaction of the tribunal where the phenylbutazone had come from, with the owners citing a likely mistake from a person left in charge of the horse over medication prescribed for an animal housed in a nearby stable.

The tribunal noted the circumstances under which De Villiers had competed, with a leased horse, and acknowledged that she had taken steps aimed at avoiding a positive finding.

However, she had been unable to provide unquestionable proof as to how the substances had entered the horse’s system, but rather only the possibility of such administration by the individual caring for the horse.

Interestingly, De Villiers was not the only individual taking a crack at the strict liability principle.

Down the road from the FEI Tribunal in Lausanne, Switzerland, a panel from the Court of Arbitration for Sport – the highest sporting appeal authority in the world – was considering an appeal by Sheikh Hazza Bin Sultan Bin Zayed Al Nahyan, from the United Arab Emirates.

It related to a positive test for a banned substance by his mount, Glenmorgan, in a CEI3* race at Al Wathba, Abu Dhabi, on February 11, 2012, which the pair had won.

Afterwards, Glenmorgan tested positive for propoxyphene and its metabolite norpropoxyphene.

Sheikh Hazza’s legal team took issue with key elements of the FEI’s strict liability principle.

There are more details about the case here, but Glenmorgan had been housed in his father’s carefully run W’rsan Stables, which had strict controls around medication use with the aim of preventing drug infractions. The sheikh had had next to no contact with the horse before the event and he had no prior involvement with the training and nutrition of the horses.

The evidence pointed to a veterinarian administering a commercial substance that he believed was free of prohibited substances, based on the assurances of another vet.

The sheikh argued that the strict liability principle that made the rider the Person Responsible for the horse was an unnecessary and/or disproportionate interference with fundamental rights. That, his legal team argued, made it unlawful and therefore outside the powers of the FEI.

The sheikh’s team further argued that there was no safe legal basis for automatically attributing the actions of third parties, whom riders do not and cannot fully control, to the riders themselves.

It was argued that the relationship between the third party in question and the rider must be examined. It would only be in relatively unusual circumstances that it would be appropriate or fair to attribute a third party’s acts to the rider.

The sheikh asserted that if the rider could not reasonably be expected to have prevented the third party’s actions, he could not fairly be held responsible for them.

It was the sheikh’s position that he could not, based on the facts and circumstances, have been reasonably expected to do any more to ensure the integrity of the horse.

But the FEI backed its rules, which followed the internationally accepted presumption that an athlete was at fault for any banned substance detected in his system.

This applied equally to the athlete when it came to his horse, the FEI had argued, citing the partnership created between the horse and the rider. The horse, it said, cannot speak and must depend upon the rider to put his welfare first, even though it is the rider who stands to benefit from any plaudits, points and/or prizemoney obtained by breaching the rules.

The FEI pointed out that changing the rules to make those who prepared the horse for competition responsible for keeping the animal drug-free would not only make the rules much harder to enforce, it would encourage riders not to take responsibility for the condition of the horses they rode, but leave that vital task to others.

A rider wealthy enough to pay others to care for his horses would be able to avoid liability by delegating all responsibility to his staff, the FEI said.

It would effectively encourage all riders to avoid responsibility for the condition of their horses, which was contrary to the fundamental tenets of equestrian sport, would put the welfare of the horse at risk, and would greatly undermine the fight against doping in the sport.

The panel, in its findings, noted that both the Court of Arbitration for Sport and the Swiss Federal Tribunal had upheld the lawfulness of the presumption under the World Anti-Doping Code that an athlete was at fault for the presence of a prohibited substance in his system.

The panel concluded that the FEI rules did not breach the fundamental rights of Sheikh Hazza. The FEI rules, it said, were modelled on an accepted regime to combat doping in sport.

The designation of the rider as the person responsible for a breach of the drug rules was a soundly based policy, it said, because the rider was generally in a position to take care and adopt appropriate precautions to avoid a positive test.

“The fact that riders will be in different situations and have varying degrees of involvement with the horse and its preparation is inevitable and the rules can no doubt produce harsh outcomes in certain circumstances,” it said.

However, the imposition of strict liability of the rider as the Person Responsible was a measure that fell well within the margin of appreciation permitted to the FEI in making rules for the sport.

“Further, if there is any infringement of personal rights under the rules, then the panel considers that it is justified by the public interest in the fight against doping in the sport, by the need to have rules which encourage careful conduct by riders and by the private interest of the FEI in having clear, readily applicable, rules.”

The possible availability of the “no fault” or “no significant fault” defences further supported the legitimacy of the strict liability that surrounded a positive test.

De Villiers and Sheikh Hazza may well consider themselves casualities of what the court described as “harsh outcomes”.

However, there is no doubt that the strict liability principle provides the maximum incentive to riders to ensure their mounts are drug-free, even if their best endeavours ultimately fall short.

To date, it seems that no better model has emerged.

British lawyer Jeremy Dickerson, who successfully defended Kiwi eventer Jock Paget against a doping charge, believes the FEI needs to take a more flexible approach in such cases.
Jeremy Dickerson

Perhaps the last word should go to Jeremy Dickerson, who provides another perspective on the issue.  Dickerson was the British lawyer who successfully mounted the no fault and no negligence defence for Christine Yeoman and Jock Paget.

Dickerson, discussing the issues with Horsetalk last September, said the equine anti-doping rules were based on the human anti-doping equivalent and in his view, in horse sport, it set the bar too high in cases of inadvertent doping.

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 could not prove that the exposure was inadvertent faced a minimum two-year ban under FEI rules, he noted.

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 felt the bar was too high, what would seem a reasonable compromise in terms of the burden of proof? Dickerson said he felt there needed to be a more subjective test.

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 was that provisional suspensions automatically came 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 believed.

He expressed the view that the FEI needed to take a more flexible approach.

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