The great comedian W.C. Fields once observed: “Horse sense is the thing a horse has which keeps it from betting on people.”
A great deal of horse sense appears to have gone into the agreements announced yesterday in which the Swiss-born Olympic showjumping champion Steve Guerdat and his younger compatriot Alessandra Bichsel were xonerated of doping charges.
The fact a formal agreement was reached between the world governing body and the riders without the need for a full FEI Tribunal hearing amounts to a major victory for pragmatism and common sense.
All in all, Guerdat and Bichsel deserve a great deal of sympathy in these cases. A good reputation is hard to earn and easy to lose.
The pair were both provisionally suspended after their mounts returned positive tests for codeine and morphine. Oripavine was also detected.
Guerdat had two horses, Nino des Buissonnets and Nasa, fail tests while competing in top-level events in France last May. Bichsel’s mount, Charivari KG, failed a test while competing at a French competition a little over a week before.
The pair were cleared of wrongdoing after satisfying the FEI that the cause of the failed tests was poppy-seed contamination of feed.
I am led to believe that the presence of oripavine with codeine and morphine was a strong indicator that poppy seeds were the likely source.
Guerdat and Bichsel had used the same feed supplier, and independent laboratory tests subsequently proved that the feed was contaminated with poppy seeds.
But the equine anti-doping rules are tough, with the principle of strict liability applying.
The horses served two-month provisional bans and Guerdat and Bichsel were also provisionally suspended, although this was subsequently lifted once they had built a strong case that indicated poppy-seed contamination.
Guerdat was naturally pleased to be cleared but his frustration with the system was evident in his comments: “I fully agree with the FEl’s position in the fight against doping and have always been in its favour as a sportsman and horse owner.
“However, it appears that all those responsible should consider ways of optimising procedures and currently valid guidelines so that in the future, a non-proven suspicion of error on behalf of the rider, such as in my case, would be thoroughly treated before unjustified accusations – with grave consequences for the reputation of the person – are made public.”
His position was echoed by Swiss Equestrian Federation president Charles Trolliet: “For the world of equestrian sports, the FEI and the national federations, as well as for the animal feed sector, we now have to draw the right lessons from this unpleasant story and take appropriate measures.”
I don’t doubt the enormous level of frustration Guerdat must have felt throughout this case. It is little consolation that the presumption of innocence applies. The internet age has given us something far worse than Trial by Media: Trial by Social Media.
Anyone accused of a doping violation, especially those at the pinnacle of their sport, runs the risk of distortions and untruths being reposted, retweeted and shared until they are treated as fact by the general public.
So, what of this “non-proven suspicion of error on behalf of the rider” raised by Guerdat? This is where it gets difficult.
The horses in question did test positive and, once the B-sample testing confirmed those results, disqualification was inevitable.
What is at issue – and it is what Guerdat and Trolliet alluded to in their remarks – is the incredibly high bar set to prove the “no fault and no negligence” defence under the FEI’s anti-doping regulations.
To successfully run this defence, a rider must not only prove how the substance came to be in the horse’s system, but that they took all reasonable and prudent steps to prevent it. This is not as easy as it sounds, and for a time it was far from certain that such a defence could ever be successfully argued.
The stakes are high. A minimum ban of two years normally applies for prohibited substances and a sliding ban of 0-2 years applies for substances classified as controlled medications, such as phenylbutazone.
Finally, in 2009, the first successful “no fault and no negligence” defence was run, in the case of Christine Yeoman.
Only a handful of riders have successfully run this defence since, among them New Zealand eventer Jock Paget, who engaged British lawyer Jeremy Dickerson. Dickerson is considered an expert in this area and had built Yeoman’s defence.
Paget’s 2013 Burghley-winning mount Clifton Promise tested positive for the long-acting sedative, reserpine. He was ultimately stripped of the title and prize money, as well as serving a provisional suspension.
The FEI Tribunal found that, on the evidence, the reserpine entered Clifton Promise’s blood through the use of a feed supplement, 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.
Dickerson expressed his opinion on the equine anti-doping rules following the Paget case, pointing out that they were based on the human anti-doping equivalent.
In his view, they set the bar too high in cases of inadvertent doping in horse sport.
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.
He characterised the current rules as 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.
Dickerson expressed the view that 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.
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.
Also, the length of the ban should be more subjective, he believed. Dickerson also opined that the FEI needed to take a more flexible approach in cases.
The decision by the FEI to reach an agreement with Guerdat and Bichsel appears to demonstrate precisely the kind of flexibility sought by Dickerson.
One only has to read a few FEI Tribunal decisions to see how steadfastly the FEI defends its corner in doping cases. To be frank, I can’t recall it conceding any ground in a case at all.
In the cases of Guerdat and Bichsel, its decision to reach a deal is a clear acknowledgement of the quality of the evidence offered in the defence of the pair.
I doubt the FEI will ever lower the bar much in these cases. And that does not surprise me.
Make no mistake, the tribunal gets to hear plenty of questionable evidence. Some is just plain dubious; some amateurish. Some riders have argued for a “no fault and no negligence” defence when the evidence falls woefully short of the required standard.
The cases of Guerdat and Bichsel take us to the other end of the spectrum. And that is a victory for the horse sense talked of by W.C. Fields.